transcriber's notes: [=o] represents the vowel "o" with a macron in this text. the original editor's comments are enclosed in square brackets []. notes unique to this edition are also enclosed in square brackets, but are preceded by the words "transcriber's note". a complete list of all changes made to the text is included at the end of the file. variations in spelling were left as in the original. d congress } senate { document _ d session_ } { no. the constitution of the united states of america analysis and interpretation annotations of cases decided by the supreme court of the united states to june , prepared by the legislative reference service, library of congress edward s. corwin, editor [illustration] united states government printing office washington: for sale by the superintendent of documents, u.s. government printing office washington d.c.--price $ . senate joint resolution joint resolution to prepare a revised edition of the annotated constitution of the united states of america as published in as senate document of the seventy-fourth congress. whereas the annotated constitution of the united states of america published in as senate document , seventy-fourth congress, has served a very useful purpose by supplying essential information in one volume and at a very reasonable price; and whereas senate document is no longer available at the government printing office; and whereas the reprinting of this document without annotations for the last ten years is now considered appropriate: now, therefore, be it _resolved by the senate and house of representatives of the united states of america in congress assembled_, that the librarian of congress is hereby authorized and directed to have the annotated constitution of the united states of america, published in , revised and extended to include annotations of decisions of the supreme court prior to january , , construing the several provisions of the constitution correlated under each separate provision, and to have the said revised document printed at the government printing office. three thousand copies shall be printed, of which two thousand two hundred copies shall be for the use of the house of representatives and eight hundred copies for the use of the senate. sec. . there is hereby authorized to be appropriated for carrying out the provisions of this act, with respect to the preparation but not including printing, the sum of $ , to remain available until expended. approved june , . preface by honorable alexander wiley _chairman, senate foreign relations committee_ to the members and committees of the congress, the constitution is more than a revered abstraction; it is an everyday companion and counsellor. into it, the founding fathers breathed the spirit of life; through every subsequent generation, that spirit has remained vital. in more than a century and a half of cataclysmic events, the constitution has successfully withstood test after test. no crisis--foreign or domestic--has impaired its vitality. the system of checks and balances which it sets up has enabled the growing nation to adapt itself to every need and at the same time to checkrein every bid for arbitrary power. and meantime america itself has evolved dynamically and dramatically. the humble colonies, carved out of the wilderness in the th century, emerged in the th century as leader of earth--industrial--military--political--economic--psychological. yet the broad outline of the supreme law remains today fundamentally intact. it is small wonder that w.e. gladstone described the constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man." he knew, as should we, that the constitution's words, its phrases, clauses, sentences, paragraphs, and sections still possess a miraculous quality--a mingled flexibility and strength which permits its adaptation to the needs of the hour without sacrifice of its essential character as the basic framework of freedom. congress has long recognized how necessary it is to have a handy working guide to this superb charter. it has sought a map, so to speak, of the great historical landmarks of constitutional jurisprudence--landmarks which mark the oft-times epic battles of clashing legal interpretations. a first step was taken toward meeting this need by publication of senate document , d congress in . ten years later, in another volume was issued, senate document , th congress, and it was followed in turn by senate document of the th congress. in , congress authorized a further revision, this time by the legislative reference service. mr. wilfred c. gilbert, now the assistant director of the service, was the editor of this volume which became senate document , th congress, and he has given counsel throughout the development of the present edition of this volume. after another decade of significant and far-reaching judicial interpretation, the senate judiciary committee reported out senate joint resolution of the th congress calling upon the librarian of congress for the preparation of the new work. however, because of the increase in responsibilities of the legislative reference service, it was no longer feasible for it to undertake this additional burden with its regular staff. the director of the service, dr. ernest s. griffith, suggested therefore that dr. edward s. corwin be engaged to head the project with a collaborating staff to be furnished by the legislative reference service. in my capacity at the time, as chairman of the senate judiciary committee, i was delighted to give my approval to this arrangement, for i recognized our particular good fortune in obtaining the services of an acknowledged authority for this highly significant and delicate enterprise. i should like now to express our thanks and appreciation to dr. corwin and to his collaborators from the service, dr. norman j. small, assistant editor, miss mary louise ramsey, and dr. robert j. harris, for all their prodigious and skilled labors. moreover, for their considerable efforts in connection with the detailed legislative and printing arrangements for the publication of this volume, i should like to express appreciation to mr. darrell st. claire, staff member for the senate rules committee, as well as chief clerk for the joint committee on the library of congress; and mr. julius n. cahn, previously executive assistant to me when i was chairman of the judiciary committee and now counsel to the senate foreign relations committee. initiated in the republican th congress, the project was undertaken with funds supplied by the succeeding democratic st congress, while the democratic d congress extended its coverage to include supreme court decisions through june , . the document thus represents congressional nonpartisan activity at its best, as should ever be the case in our fidelity to this great charter. in the present volume, in addition to the annotations indicating the current state of interpretation, dr. corwin has undertaken to supply an historical background to the several lines of reasoning. it is our hope and expectation that this introduction will prove of immense benefit to users in understanding the trends of judicial constitutional interpretation. it is our further hope that this edition as a whole may serve a still larger purpose--strengthening our understanding of and loyalty to the principles of this republic. in that way, the constitution will remain the blueprint for freedom. it will continue as an inspiration for us of this blessed land, and for men and women everywhere; for they look to these shores as the lighthouse of freedom, in a world where the darkness of despotism hangs so heavily. _may , ._ [illustration: alexander wiley signature] preface for many years the congress has felt the need for a handy, concise guide to the interpretation of the constitution. an edition of the constitution issued in as senate document , d congress, took a step in this direction by supplying under each clause, a citation of supreme court decisions thereunder. this was obviously of limited usefulness, leaving the reader, as it did, to an examination of cases for any specific information. in the matter received further consideration. senate resolution authorized preparation of a volume to contain the constitution and its amendments, to january , "with citations to the cases of the supreme court of the united states construing its several provisions." this was issued as senate document of the th congress, and was followed the next year by a similar volume annotating the cases through the october term of the supreme court. (senate document , th congress.) both of these volumes went somewhat beyond the mere enumeration of cases, carrying under the particular provisions of the constitution a brief statement of the point involved in the principal cases cited. thirteen years of constitutional developments led congress in to authorize a revision of the volume, and under authority of senate concurrent resolution introduced by senator ashurst, chairman of the judiciary committee, such a revision was prepared in the legislative reference service and issued as senate document , th congress. this volume was, like its predecessors, dedicated to the need felt by members for a convenient ready-reference manual. however, so extensive and important had been the judicial interpretation of the constitution in the interim that a very much larger volume was the result. after another decade, in the course of which many of the earlier interpretations were reviewed and modified, the senate again moved for a revision of the annotations. senate joint resolution introduced by the then chairman of the judiciary committee, senator alexander wiley, again called upon the library of congress to undertake the work. the confidence thus implied was most thoroughly appreciated. to meet his responsibilities, the librarian called upon dr. edward s. corwin to head the project. the collaborating staff, supplied by the legislative reference service, included dr. norman j. small as assistant editor, miss mary louise ramsey, and robert j. harris. this time, more than ever, the compilers faced a difficult task in balancing the prime requirement of a thorough and adequate annotation against the very practical desire to keep the results within convenient compass. work on the project was delayed until funds were made available. in consequence the annotations have been extended to a somewhat later date, covering decisions of the supreme court through june , . ernest s. griffith, _director, legislative reference service._ editor's foreword the purpose of this volume is twofold; first, to set forth so far as feasible the currently operative meaning of all provisions of the constitution of the united states; second, to trace in the case of the most important provisions the course of decision and practice whereby their meaning was arrived at by the constitution's official interpreters. naturally, the most important source of material relied upon comprises relevant decisions of the supreme court; but acts of congress and executive orders and regulations have also been frequently put under requisition. likewise, proceedings of the convention which framed the constitution have been drawn upon at times, as have the views of dissenting justices and occasionally of writers, when it was thought that they would aid understanding. that the constitution has possessed capacity for growth in notable measure is evidenced by the simple fact of its survival and daily functioning in an environment so vastly different from that in which it was ordained and established by the american people. nor has this capacity resided to any great extent in the provision which the constitution makes for its own amendment. far more has it resided in the power of judicial review exercised by the supreme court, the product of which, and hence the record of the court's achievement in adapting the constitution to changing conditions, is our national constitutional law. thus is explained the attention that has been given in some of these pages to the development of certain of the broader doctrines which have influenced the court in its determination of constitutional issues, especially its conception of the nature of the federal system and of the proper role of governmental power in relation to private rights. on both these great subjects the court's thinking has altered at times--on a few occasions to such an extent as to transcend tennyson's idea of the law "broadening from precedent to precedent" and to amount to something strongly resembling a juridical revolution, bloodless but not wordless. the first volume of reports which issued from the court following marshall's death-- peters ( )--signalizes such a revolution, that is to say, a recasting of fundamental concepts; so does years later, volume of the united states reports, in which the national labor relations act [the "wagner act"] and the social security act of were sustained. another considerable revolution was marked by the court's acceptance in of the theory that the word "liberty" in the fourteenth amendment rendered the restrictions of the first amendment upon congress available also against the states. in the preparation of this volume constant use has been made of "the constitution of the united states of america annotated," which was brought out under the editorship of mr. w.c. gilbert in . its copious listing of cases has been especially valuable. its admirable tables of contents and index have furnished a model for those of the present volume. if this model has been approximated the contents of this volume ought to be readily accessible despite its size. the coverage of the volume ends with the cases decided june, . a personal word or two must be added. the editor was invited to undertake this project by dr. ernest s. griffith, director of the legislative reference service of the library of congress, and his constant interest in the progress of our labors has been a tremendous source of encouragement. to his able collaborators the editor will not attempt to express his appreciation--they share with him the credit for such merits as the work possesses and responsibility for its short comings. and i am sure that they join me in thanking miss evelyn k. mayhugh for her skill and devotion in aiding us at every step in our common task. edward s. corwin. introduction it is my purpose in this introduction to the _constitution of the united states, annotated_ to sketch rapidly certain outstanding phases of the supreme court's interpretation of the constitution for the illustration they may afford of the interests, ideas, and contingencies which have from time to time influenced the court in this still supremely important area of its powers and of the comparable factors which give direction to its work in the same field at the present time. as employed in this country, constitutional law signifies a body of rules resulting from the interpretation by a high court of a written constitutional instrument in the course of disposing of cases in which the validity, in relation to the constitutional instrument, of some act of governmental power, state or national, has been challenged. this function, conveniently labelled "judicial review," involves the power and duty on the part of the court of pronouncing void any such act which does not square with its own reading of the constitutional instrument. theoretically, therefore, it is a purely juristic product, and as such does not alter the meaning. to those who hold this theory, the court does not elaborate the instrument, as legislative power might; it elucidates it, bringing forth into the light of day, as it were, what was in the instrument from the first. in the case of judicial review as exercised by the supreme court of the united states in relation to the national constitution, its preservative character has been at times a theme of enthusiastic encomium, as in the following passage from a speech by the late chief justice white, made shortly before he ascended the bench: ... the glory and ornament of our system which distinguishes it from every other government on the face of the earth is that there is a great and mighty power hovering over the constitution of the land to which has been delegated the awful responsibility of restraining all the coordinate departments of government within the walls of the governmental fabric which our fathers built for our protection and immunity.[ ] at other times the subject has been dealt with less enthusiastically, even skeptically. one obstacle that the theory encountered very early was the refusal of certain presidents to regard the constitution as primarily a source of rules for judicial decision. it was rather, they urged, a broadly discretionary mandate to themselves and to congress. and pursuing the logic of this position, they contended that while the court was undoubtedly entitled to read the constitution independently for the purpose of deciding cases, this very purpose automatically limited the authoritativeness of its readings; and that within their respective jurisdictions president and congress enjoyed the same correlative independence as the court did within its jurisdiction. this was, in effect, the position earlier of jefferson and jackson, later of lincoln, and in recent times that of the two roosevelts. another obstacle has been of the court's own making. whether because of the difficulty of amending the constitution or for cautionary reasons, the court took the position, as early as , that it would reverse previous decisions on constitutional issues when convinced they were erroneous.[ ] an outstanding instance of this nature was the decision in the legal tender cases, in , reversing the decision which had been rendered in hepburn _v._ griswold fifteen months earlier;[ ] and no less shattering to the prestige of _stare decisis_ in the constitutional field was the income tax decision of ,[ ] in which the court accepted mr. joseph choate's invitation to "correct a century of error". the "constitutional revolution" of produced numerous reversals of earlier precedents on the ground of "error", some of them, the late mr. james m. beck complained, without "the obsequious respect of a funeral oration".[ ] in justice reed cited fourteen cases decided between march , and june , in which one or more prior constitutional decisions were overturned.[ ] on the same occasion justice roberts expressed the opinion that adjudications of the court were rapidly gravitating "into the same class as a restricted railroad ticket, good for this day and train only".[ ] years ago the eminent historian of the supreme court, mr. charles warren, had written: however the court may interpret the provisions of the constitution, it is still the constitution which is the law and not the decision of the court.[ ] in short, it is "not necessarily so" that the constitution is preserved in the court's reading of it. a third difficulty in the way of the theory that judicial review is preservative of the constitution is confronted when we turn to consider the statistical aspects of the matter. the suggestion that the constitution of the united states contained in embryo from the beginning the entirety of our national constitutional law confronts the will to believe with an altogether impossible test. compared with the constitutional document, with its , words more or less, the bulk of material requiring to be noticed in the preparation of an annotation of this kind is simply immense. first and last, the court has probably decided well over , cases involving questions of constitutional interpretation. in many instances, to be sure, the constitutional issue was disposed of quite briefly. in some instances, on the other hand, the published report of the case runs to more than pages.[ ] in the total, it is probable that at least , pages of the united states supreme court reports are devoted to constitutional law topics. nor is this the whole story, or indeed the most important part of it. even more striking is the fact that the vast proportion of cases forming the corpus of national constitutional law has stemmed, or has purported to stem, from four or five brief phrases of the constitutional document, the power "to regulate ... commerce among the states," impairment of "the obligation of contracts" (now practically dried up as a formal source of constitutional law), deprivation of "liberty or property without due process of law" (which phrase occurs both as a limitation on the national government and, since , on the states), and out of four or five doctrines which the constitution is assumed to embody. the latter are, in truth, the essence of the matter, for it is through these doctrines, and under the cover which they afford, that outside interests, ideas, preconceptions, have found their way into constitutional law, have indeed become for better, for worse, its leavening element. that is to say, the effectiveness of constitutional law as a system of restraints on governmental action in the united states, which is its primary _raison d'etre_, depends for the most part on the effectiveness of these doctrines as they are applied by the court to that purpose. the doctrines to which i refer are ( ) the doctrine or concept of federalism; ( ) the doctrine of the separation of powers; ( ) the concept of a government of laws and not of men, as opposed especially to indefinite conceptions of presidential power; ( ) and the substantive doctrine of due process of law and attendant conceptions of liberty. what i proposed to do is to take up each of these doctrines or concepts in turn, tell something of their earlier history, and then project against this background a summary account of what has happened to them in recent years in consequence of the impact of war, of economic crisis, and of the political and ideological reaction to the latter during the administrations of franklin d. roosevelt. i federalism federalism in the united states embraces the following elements: ( ) as in all federations, the union of several autonomous political entities, or "states," for common purposes; ( ) the division of legislative powers between a "national government," on the one hand, and constituent "states," on the other, which division is governed by the rule that the former is "a government of enumerated powers" while the latter are governments of "residual powers"; ( ) the direct operation, for the most part, of each of these centers of government, within its assigned sphere, upon all persons and property within its territorial limits; ( ) the provision of each center with the complete apparatus of law enforcement, both executive and judicial; ( ) the supremacy of the "national government" within its assigned sphere over any conflicting assertion of "state" power; ( ) dual citizenship. the third and fourth of the above-listed salient features of the american federal system are the ones which at the outset marked it off most sharply from all preceding systems, in which the member states generally agreed to obey the mandates of a common government for certain stipulated purposes, but retained to themselves the right of ordaining and enforcing the laws of the union. this, indeed, was the system provided in the articles of confederation. the convention of was well aware, of course, that if the inanities and futilities of the confederation were to be avoided in the new system, the latter must incorporate "a coercive principle"; and as ellsworth of connecticut expressed it, the only question was whether it should be "a coercion of law, or a coercion of arms," that "coercion which acts only upon delinquent individuals" or that which is applicable to "sovereign bodies, states, in their political capacity."[ ] in judicial review the former principle was established, albeit without entirely discarding the latter, as the war between the states was to demonstrate. the sheer fact of federalism enters the purview of constitutional law, that is, becomes a judicial concept, in consequence of the conflicts which have at times arisen between the idea of state autonomy ("state sovereignty") and the principle of national supremacy. exaltation of the latter principle, as it is recognized in the supremacy clause (article vi, paragraph ) of the constitution, was the very keystone of chief justice marshall's constitutional jurisprudence. it was marshall's position that the supremacy clause was intended to be applied literally, so that if an unforced reading of the terms in which legislative power was granted to congress confirmed its right to enact a particular statute, the circumstance that the statute projected national power into a hitherto accustomed field of state power with unavoidable curtailment of the latter was a matter of indifference. state power, as madison in his early nationalistic days phrased it, was "no criterion of national power," and hence no independent limitation thereof. quite different was the outlook of the court over which marshall's successor, taney, presided. that court took as its point of departure the tenth amendment, which reads, "the powers not delegated to the united states by this constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." in construing this provision the court under taney sometimes talked as if it regarded all the reserved powers of the states as limiting national power; at other times it talked as if it regarded certain subjects as reserved exclusively to the states, slavery being, of course, the outstanding instance.[ ] but whether following the one line of reasoning or the other, the taney court subtly transformed its function, and so that of judicial review, in relation to the federal system. marshall viewed the court as primarily an organ of the national government and of its supremacy. the court under taney regarded itself as standing outside of and above both the national government and the states, and as vested with a quasi-arbitral function between two centers of diverse, but essentially equal, because "sovereign", powers. thus in ableman _v._ booth, which was decided on the eve of the war between the states, we find taney himself using this arresting language: this judicial power was justly regarded as indispensable, not merely to maintain the supremacy of the laws of the united states, but also to guard the states from any encroachment upon their reserved rights by the general government.... so long ... as this constitution shall endure, this tribunal must exist with it, deciding in the peaceful forms of judicial proceeding, the angry and irritating controversies between sovereignties, which in other countries have been determined by the arbitrament of force.[ ] it is, therefore, the taney court, rather than the marshall court, which elaborated the concept of dual federalism. marshall's federalism is more aptly termed national federalism; and turning to modern issues, we may say without exaggeration that the broad general constitutional issue between the court and the franklin d. roosevelt program in such cases as schechter corp. _v._ united states and carter _v._ carter coal co.[ ] was, whether marshall's or taney's brand of federalism should prevail. more precisely, the issue in these cases was whether congress' power to regulate commerce must stop short of regulating the employer-employee relationship in industrial production, that having been hitherto regulated by the states. in justice sutherland's words in the carter case: much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby.... the conclusive answer is that the evils are all local evils over which the federal government has no legislative control. the relation of employer and employee is a local relation. at common law, it is one of the domestic relations. the wages are paid for the doing of local work. working conditions are obviously local conditions. the employees are not engaged in or about commerce, but exclusively in producing a commodity. and the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local work undertaken to accomplish that local result. such effect as they may have upon commerce, however extensive it may be, is secondary and indirect. an increase in the greatness of the effect adds to its importance. it does not alter its character.[ ] we all know how this issue was finally resolved. in the fair labor standards act of congress not only prohibits interstate commerce in goods produced by substandard labor, but it directly forbids, with penalties, the employment of labor in industrial production for interstate commerce on other than certain prescribed terms. and in united states _v._ darby[ ] this act was sustained by the court, in all its sweeping provisions, on the basis of an opinion by chief justice stone which in turn is based on chief justice marshall's famous opinions in mcculloch _v._ maryland and gibbons _v._ ogden rendered more than a century and a quarter ago. in short, as a principle capable of delimiting the national legislative power, the concept of dual federalism as regards the present court seems today to be at an end, with consequent aggrandizement of national power. there is, however, another side to the story. for in one respect even the great marshall has been in effect overruled in support of enlarged views of national authority. without essaying a vain task of "tithing mint, anise and cummin," it is fairly accurate to say that throughout the years which lie between marshall's death and the cases of the 's, the conception of the federal relationship which on the whole prevailed with the court was a competitive conception, one which envisaged the national government and the states as jealous rivals. to be sure, we occasionally get some striking statements of contrary tendency, as in justice bradley's opinion in for a divided court in the siebold case,[ ] where is reflected recognition of certain results of the war between the states; or later in a frequently quoted dictum by justice mckenna, in hoke _v._ united states, in which the mann white slave act was sustained in : our dual form of government has its perplexities, state and nation having different spheres of jurisdiction ... but it must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.[ ] the competitive concept is, nevertheless, the one much more generally evident in the outstanding results for american constitutional law throughout three-quarters of its history. of direct pertinence in this connection is the doctrine of tax exemption which converted federalism into a principle of private immunity from taxation, so that, for example, neither government could tax as income the official salaries paid by the other government.[ ] this doctrine traces immediately to marshall's famous judgment in mcculloch _v._ maryland,[ ] and bespeaks a conception of the federal relationship which regards the national government and the states as bent on mutual frustration. today the principle of tax exemption, except so far as congress may choose to apply it to federal instrumentalities by virtue of its protective powers under the necessary and proper clause, is at an end. by the cooperative conception of the federal relationship the states and the national government are regarded as mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government according to their applicability to the problem in hand. this is the conception on which the recent social and economic legislation professes to rest. it is the conception which the court invokes throughout its decisions in sustaining the social security act of and supplementary state legislation. it is the conception which underlies congressional legislation of recent years making certain crimes against the states, like theft, racketeering, kidnapping, crimes also against the national government whenever the offender extends his activities beyond state boundary lines. the usually cited constitutional justification for such legislation is that which was advanced forty years ago in the above quoted hoke case.[ ] it has been argued that the cooperative conception of the federal relationship, especially as it is realized in the policy of federal subventions to the states, tends to break down state initiative and to devitalize state policies. actually, its effect has often been just the contrary, and for the reason pointed out by justice cardozo in helvering _v._ davis,[ ] decided in , namely, that the states, competing as they do with one another to attract investors, have not been able to embark separately upon expensive programs of relief and social insurance. another great objection to cooperative federalism is more difficult to meet. this is, that cooperative federalism invites further aggrandizement of national power. unquestionably it does, for when two cooperate, it is the stronger member of the combination who usually calls the tunes. resting as it does primarily on the superior fiscal resources of the national government, cooperative federalism has been, at least to date, a short expression for a constantly increasing concentration of power at washington in the stimulation and supervision of local policies.[ ] the last element of the concept of federalism to demand attention is the doctrine that the national government is a government of enumerated powers only, and consequently under the necessity at all times of justifying its measures juridically by pointing to some particular clause or clauses of the constitution which, when read separately or in combination, may be thought to grant power adequate to such measures. in spite of such recent decisions as that in united states _v._ darby, this time-honored doctrine still guides the authoritative interpreters of the constitution in determining the validity of acts which are passed by congress in presumed exercise of its powers of domestic legislation--the course of reasoning pursued by the chief justice in the darby case itself is proof that such is the fact. in the field of foreign relations, on the contrary, the doctrine of enumerated powers has always had a difficult row to hoe, and today may be unqualifiedly asserted to be defunct. as early as the old case of penhallow _v._ doane, which was decided by the supreme court in , certain counsel thought it pertinent to urge the following conception of the war power: a formal compact is not essential to the institution of a government. every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state. in every society there must be a sovereignty. dall. rep. , . vatt. b. . ch. . sec. . the powers of war form an inherent characteristic of national sovereignty; and, it is not denied, that congress possessed those powers....[ ] to be sure, only two of the justices felt it necessary to comment on this argument, which one of them endorsed, while the other rejected it. yet seventy-five years later justice bradley incorporated closely kindred doctrine into his concurring opinion in the legal tender cases;[ ] and in the years following the court itself frequently brought the same general outlook to questions affecting the national government's powers in the field of foreign relations. thus in the chinese exclusion case, decided in , justice field, in asserting the unlimited power of the national government, and hence of congress, to exclude aliens from american shores, remarked: while under our constitution and form of government the great mass of local matters is controlled by local authorities, the united states, in their relation to foreign countries and their subjects or citizens, are one nation, invested with the powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.[ ] and four years later the power of the national government to deport alien residents at the option of congress was based by justice gray on the same general reasoning.[ ] finally, in , justice sutherland, speaking for the court in united states _v._ curtiss-wright corporation, with world war i a still recent memory, took over bodily counsel's argument of years earlier, and elevated it to the head of the column of authoritative constitutional doctrine. he said: a political society cannot endure without a supreme will somewhere. sovereignty is never held in suspense. when, therefore, the external sovereignty of great britain in respect of the colonies ceased, it immediately passed to the union.... it results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the constitution. the powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the constitution, would have vested in the federal government as a necessary concomitant of nationality.[ ] in short, the power of the national government in the field of international relationship is not simply a complexus of particular enumerated powers; it is an inherent power, one which is attributable to the national government on the ground solely of its belonging to the american people as a sovereign political entity at international law. in that field the principle of federalism no longer holds, if it ever did.[ ] ii the separation of powers the second great structural principle of american constitutional law is supplied by the doctrine of the separation of powers. the notion of three distinct functions of government approximating what we today term the legislative, the executive, and the judicial, is set forth in aristotle's politics,[ ] but it was the celebrated montesquieu who, by joining the idea to the notion of a "mixed constitution" of "checks and balances", in book xi of his spirit of the laws, brought aristotle's discovery to the service of the rising libertarianism of the eighteenth century. it was montesquieu's fundamental contention that "men entrusted with power tend to abuse it". hence it was desirable to divide the powers of government, first, in order to keep to a minimum the powers lodged in any single organ of government; secondly, in order to be able to oppose organ to organ. in the united states libertarian application of the principle was originally not too much embarrassed by inherited institutions. in its most dogmatic form the american conception of the separation of powers may be summed up in the following propositions: ( ) there are three intrinsically distinct functions of government, the legislative, the executive, and the judicial; ( ) these distinct functions ought to be exercised respectively by three separately manned departments of government; which, ( ) should be constitutionally equal and mutually independent; and finally, ( ) a corollary doctrine stated by locke--the legislature may not delegate its powers.[ ] prior even to franklin d. roosevelt this entire colligation of ideas had been impaired by three developments in national governmental practice: first, the growth of presidential initiative in legislation; secondly, the delegation by congress of legislative powers to the president; thirdly, the delegation in many instances of like powers to so-called independent agencies or commissions, in which are merged in greater or less measure the three powers of government of montesquieu's postulate. under roosevelt the first two of these developments were brought to a pitch not formerly approximated, except temporarily during world war i. the truth is that the practice of delegated legislation is inevitably and inextricably involved with the whole idea of governmental intervention in the economic field, where the conditions to be regulated are of infinite complexity and are constantly undergoing change. granted such intervention, it is simply out of the question to demand that congress should attempt to impose upon the shifting and complex scene the relatively permanent molds of statutory provision, unqualified by a large degree of administrative discretion. one of the major reasons urged for governmental intervention is furnished by the need for gearing the different parts of the industrial process with one another for a planned result. in wartime this need is freely conceded by all; but its need in economic crisis is conceivably even greater, the results sought being more complex. so in the interest both of unity of design and of flexibility of detail, presidential power today takes increasing toll from both ends of the legislative process--both from the formulation of legislation and from its administration. in other words, as a barrier capable of preventing such fusion of presidential and congressional power, the principle of the separation of powers does not appear to have retained much of its original effectiveness; for on only one occasion[ ] prior to the disallowance, in youngstown _v._ sawyer,[ ] president truman's seizure in april of the steel industry has the court been constrained to condemn, as in conflict with that principle, a congressional delegation of legislative power. indeed, its application in the field of foreign relations has been virtually terminated by justice sutherland's opinion in the curtiss-wright case.[ ] the youngstown opinion appears to rest on the proposition that since congress could have ordered the seizure, e.g., under the necessary and proper clause, the president, in making it on his own, usurped "legislative power" and thereby violated the principle of the separation of powers. in referring to this proposition, the chief justice (in his dissenting opinion, for himself and justices reed and minton) quoted as follows from a brief of the then solicitor general of the united states on this same question: the function of making laws is peculiar to congress, and the executive can not exercise that function to any degree. but this is not to say that all of the _subjects_ concerning which laws might be made are perforce removed from the possibility of executive influence. the executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by congress. in other words, just as there are fields which are peculiar to congress and fields which are peculiar to the executive, so there are fields which are common to both, in the sense that the executive may move within them until they shall have been occupied by legislative action. these are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. this situation results from the fact that the president is the active agent, not of congress, but of the nation.[ ] or, in more general terms, the fact that one of the three departments may apply its distinctive techniques to a certain subject matter sheds little or no light on the question whether one of the other departments may deal with the same subject matter according to its distinctive techniques. indeed, were it otherwise, the action of the court in disallowing president truman's seizure order would have been of very questionable validity, inasmuch as the president himself conceded that congress could do so. the conception of the separation of powers doctrine advanced in youngstown appears to have been an ad hoc discovery for the purpose of disposing of that particular case. to sum up the argument to this point: war, the roosevelt-truman programs, and the doctrines of constitutional law on which they rest, and the conception of governmental function which they incorporate, have all tremendously strengthened forces which even earlier were making, slowly, to be sure, but with "the inevitability of gradualness," for the concentration of governmental power in the united states, first in the hands of the national government; and, secondly, in the hands of the national executive. in the constitutional law which the validation of the roosevelt program has brought into full being, the two main structural elements of government in the united states in the past, the principle of dual federalism and the doctrine of the separation of powers, have undergone a radical and enfeebling transformation which war has, naturally, carried still further. iii a government of laws and not of men the earliest repositories of executive power in this country were the provincial governors. being the point of tangency and hence of irritation between imperial policy and colonial particularism, these officers incurred a widespread unpopularity that was easily generalized into distrust of their office. so when jefferson asserted in his _summary view_, in , that the king "is no more than the chief officer of the people, appointed by the laws and circumscribed with definite powers, to assist in working the great machine of government,"[ ] he voiced a theory of executive power which, impudently as it flouted historical fact, had the support of the draftsmen of the first american constitutions. in most of these instruments the governors were elected annually by the legislative assemblies, were stripped of every prerogative of their predecessors in relation to legislation, and were forced to exercise the powers left them subject to the advice of a council chosen also by the assembly, and from its own members if it so desired. finally, out of abundant caution the constitution of virginia decreed that executive powers were to be exercised "according to the laws of" the commonwealth, and that no power or prerogative was ever to be claimed "by virtue of any law, statute or custom of england." "executive power", in short, was left entirely to legislative definition and was cut off from all resources of the common law and the precedents of english monarchy. fortunately or unfortunately, the earlier tradition of executive power was not to be exorcised so readily. historically, this tradition traces to the fact that the royal prerogative was residual power, that the monarch was first on the ground, that the other powers of government were off-shoots from monarchical power. moreover, when our forefathers turned to roman history, as they intermittently did, it was borne in upon them that dictatorship had at one time been a normal feature of republican institutions. and what history consecrated, doctrine illumined. in chapter xi of john locke's second treatise on civil government, from the pages of which much of the opening paragraphs of the declaration of independence comes, we read: "absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government".[ ] in chapter xiv of the same work we are told, nevertheless, that "prerogative" is the power "to act according to discretion without the prescription of the law and sometimes against it"; and that this power belongs to the executive, it being "impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm if they are executed with inflexible rigor." nor, continues locke, is this "undoubted prerogative" ever questioned, "for the people are very seldom or never scrupulous or nice in the point" whilst the prerogative "is in any tolerable degree employed for the use it was meant, that is, for the good of the people."[ ] a parallel ambivalence pervades both practice and adjudication under the constitution from the beginning. the opening clause of article ii of the constitution reads: "the executive power shall be vested in a president of the united states of america". the primary purpose of this clause, which made its appearance late in the convention and was never separately passed upon by it, was to settle the question whether the executive branch should be plural or single; a secondary purpose was to give the president a title. there is no hint in the published records that the clause was supposed to add cubits to the succeeding clauses which recite the president's powers and duties in detail. for all that, the "executive power" clause was invoked as a grant of power in the first congress to assemble under the constitution, and outside congress in . on the former occasion madison and others advanced the contention that the clause empowered the president to remove without the senate's consent all executive officers, even those appointed with that consent, and in effect this view prevailed, to be ratified by the supreme court years later in the famous oregon postmaster case.[ ] in the protagonist of "executive power" was alexander hamilton, who appealed to the clause in defense of washington's proclamation of neutrality, issued on the outbreak of war between france and great britain. prompted by jefferson to take up his pen and "cut him to pieces in face of public," madison shifted position, and charged hamilton with endeavoring to smuggle the prerogative of the king of great britain into the constitution via the "executive power" clause.[ ] three years earlier jefferson had himself written in an official opinion as secretary of state: [the executive branch of the government], "possessing the rights of self-government from nature, cannot be controlled in the exercise of them but by a law, passed in the forms of the constitution".[ ] this time judicial endorsement of the broad conception of the executive power came early. in laying the foundation in marbury _v._ madison for the court's claim of power to pass on the constitutionality of acts of congress, marshall said: "the government of the united states has been emphatically termed a government of laws and not of men".[ ] two pages along he added these words: by the constitution of the united states, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. to aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. in such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. the subjects are political. they respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.[ ] from these words arises the doctrine of political questions, an escape clause from the trammels of judicial review for high executive officers in the performance of their discretionary duties. the doctrine was continued, even expanded, by marshall's successor. in luther _v._ borden,[ ] decided in , the court was invited to review the determination by the president that the existing government of rhode island was "republican" in form. it declined the invitation, holding that the decision of congress and of the president as congress's delegate was final in the matter, and bound the courts. otherwise said chief justice taney, the guarantee clause of the constitution (article iv, section ) "is a guarantee of anarchy and not of order". but a year later the same chief justice, speaking again for the unanimous court, did not hesitate to rule that the president's powers as commander-in-chief were purely military in character, those of any top general or top admiral.[ ] hamilton had said the same thing in federalist no. . alongside the opinions of the court of this period, however, stand certain opinions of attorneys general that yield a less balanced bill of fare. for it is the case that, from the first down to the present year of grace, these family lawyers of the administration in power have tended to favor expansive conceptions of presidential prerogative. as early as we find an attorney-general arguing before the supreme court that, in performance of the trust enjoined upon him by the "faithful execution" clause, the president "not only may, but ... is bound to avail himself of every appropriate means not forbidden by law."[ ] especially noteworthy is a series of opinions handed down by attorney-general cushing in the course of the years to . in one of these the attorney-general laid down the doctrine that a marshal of the united states, when opposed in the execution of his duty by unlawful combinations too powerful to be dealt with by the ordinary processes of a federal court, had authority to summon the entire able-bodied force of his precinct as a _posse comitatus_, comprising not only bystanders and citizens generally but any and all armed forces,[ ] which is precisely the theory upon which lincoln based his call for volunteers in april, . also manifest is the debt of lincoln's message of july , , to these opinions. here in so many words the president lays claim to "the war power", partly on the ground of his duty to "take care that the laws be faithfully executed", partly in reliance on his powers as commander-in-chief, incidentally furnishing thereby a formula which has frequently reappeared in opinions of attorneys-general in recent years. nor did lincoln ever relinquish the belief that on the one ground or the other he possessed extraordinary resources of power which congress lacked and the exercise of which it could not control--an idea in the conscientious pursuit of which his successor came to the verge of utter disaster. when first confronted with lincoln's theory in the prize cases,[ ] in the midst of war, a closely divided court treated it with abundant indulgence; but in _ex parte_ milligan[ ] another closely divided court swung violently to the other direction, adopting the comfortable position that the normal powers of the government were perfectly adequate to any emergency that could possibly arise, and citing the war just "happily terminated" in proof. but once again the principle of equilibrium asserted itself. five months after milligan, the same bench held unanimously in mississippi _v._ johnson[ ] that the president is not accountable to any court save that of impeachment either for the nonperformance of his constitutional duties or for the exceeding of his constitutional powers. this was in the - term of court. sixteen years later, in , justice samuel miller gave classic expression to the principle of "a government of laws and not of men" in these words: "no man is so high that he is above the law.... all officers are creatures of the law and are bound to obey it."[ ] eight years later this same great judge queried whether the president's duty to take care that the laws be faithfully executed is "limited to the enforcement of acts of congress or of treaties according to their express terms," whether it did not also embrace "the rights, duties, and obligations growing out of the constitution itself ... and all the protection implied by the nature of the government under the constitution."[ ] then in , in the debs case,[ ] the court sustained unanimously the right of the national executive to go into the federal courts and secure an injunction against striking railway employees who were interfering with interstate commerce, although it was conceded that there was no statutory basis for such action. the opinion of the court extends the logic of the holding to any widespread public interest. the great accession to presidential power in recent decades has been accompanied by the breakdown dealt with earlier of the two great structural principles of the american constitutional system, the doctrine of dual federalism and the doctrine of the separation of powers. the first exponent of "the new presidency", as some termed it, was theodore roosevelt, who tells us in his _autobiography_ that the principle which governed him in his exercise of the presidential office was that he had not only a right but a duty "to do anything that the needs of the nation demanded unless such action was forbidden by the constitution or by the laws."[ ] in his book, _our chief magistrate and his powers_, ex-president taft warmly protested against the notion that the president has any constitutional warrant to attempt the role of a "universal providence."[ ] a decade earlier his destined successor, woodrow wilson, had avowed the opinion that "the president is at liberty, both in law and conscience, to be as big a man as he can".[ ] but it is the second roosevelt who beyond all twentieth-century presidents succeeded in affixing the stamp both of personality and of crisis upon the presidency as it exists at this moment. in the solution of the problems of an economic crisis, "a crisis greater than war", he claimed for the national government in general, and for the president in particular, powers which they had hitherto exercised only on the justification of war. then when the greatest crisis in the history of our international relations arose, he imparted to the president's diplomatic powers new extension, now without consulting congress, now with congress's approval; and when at last we entered world war ii, he endowed the precedents of both the war between the states and of world war i with unprecedented scope.[ ] it is timely therefore to inquire whether american constitutional law today affords the court a dependable weapon with which to combat effectively contemporary enlarged conceptions of presidential power. pertinent in this connection is the aforementioned recent action of the court in youngstown _v._ sawyer disallowing presidential seizure of the steel industry. the net result of that case is distinctly favorable to presidential pretensions, in two respects: first, because of the failure of the court to traverse the president's finding of facts allegedly justifying his action, an omission in accord with the doctrine of political questions; secondly, the evident endorsement by a majority of the court of the doctrine that, as stated in justice clark's opinion: "the constitution does grant to the president extensive authority in times of grave and imperative national emergency".[ ] that the court would have sustained, as against the president's action, a clear-cut manifestation of congressional action to the contrary is, on the other hand, unquestionable. in short, if we are today looking for a check upon the development of executive emergency government, our best reliance is upon the powers of congress, which can always supply needed gaps in its legislation. the court can only say "no", and there is no guarantee that in the public interest it would wish to assume this responsibility. iv the concept of substantive due process of law a cursory examination of the pages of this volume reveals that fully a quarter of them deal with cases in which the court has been asked to protect private interests of one kind or another against legislation, most generally state legislation, which is alleged to invade "liberty" or "property" contrary to "due process of law". how is this vast proliferation of cases, and attendant expansion of the court's constitutional jurisdiction, to be explained? the explanation, in brief, is to be found in the replacement of the original meaning of the due process clause with a meaning of vastly greater scope. judicial review is always a function, so to speak, of the viable constitutional law of a particular period. from what has been previously said in this introduction, it clearly appears that the court's interpretation of the constitution has involved throughout considerable lawmaking, but in no other instance has its lawmaking been more evident than in its interpretation of the due process clauses, and in no other instance have the state judiciaries contributed so much to the final result. the modern concept of substantive due process is not the achievement of any one american high court; it is the joint achievement of several--in the end, of all.[ ] the thing which renders the due process clause an important datum of american constitutional law is the role it has played first and last in articulating certain theories of private immunity with the constitutional document. the first such theory was locke's conception of the property right as anterior to government and hence as setting a moral limit to its powers.[ ] but while locke's influence is seen to pervade the declarations and bills of rights which often accompanied the revolutionary state constitutions, yet their promise was early defeated by the overwhelming power of the first state legislatures, especially _vis-a-vis_ the property right. one highly impressive exhibit of early state legislative power is afforded by the ferocious catalogue of legislation directed against the tories, embracing acts of confiscation, bills of pains and penalties, even acts of attainder. a second exhibit of the same kind is furnished by the flood of paper money laws and other measures of like intent which the widespread debtor class forced through the great majority of the state assemblies in the years following the general collapse of values in . the most important reaction of the creditor interest to this course of legislation was its energetic part in bringing about the philadelphia convention. closer, however, to our purpose is the leadership taken by the new federal judiciary in asserting the availability against predatory state legislation of extra-constitutional principles sounding in natural law. in justice paterson of the new supreme court admonished a pennsylvania jury that to construe a certain state statute in a way to bring it into conflict with plaintiff's property rights would render it void. "men," said he, "have a sense of property.... the preservation of property ... is a primary object of the social compact".[ ] three years later, justice chase proclaimed from the supreme bench itself, with characteristic emphasis, his rejection of the idea that state legislative power was absolute unless its authority was "expressly restrained" by the constitution of the state.[ ] he too was thinking primarily of the rights of property. to dicta such as these constantly accrued others of like tenor from various high state courts, the total of which had come to comprise prior to the war between the states an impressive body of coherent doctrine protective of vested rights but claiming little direct support from written constitutional texts. this indeed was its weakness. for the question early obtruded itself, whether judicial review could pretend to operate on a merely moral basis. both the notion that the constitution was an emanation from the sovereignty of the people, and the idea that judicial review was but a special aspect of normal judicial function, forbade the suggestion. it necessarily followed that unless judicial protection of the property right against legislative power was to be waived, it must be rested on some clause of the constitutional document; and, inasmuch as the due process clause and the equivalent law of the land clause of certain of the early state constitutions were the only constitutional provisions which specifically mentioned property, they were the ones selected for the purpose. the absorptive powers of the law of the land clause, the precursor in the original state constitutions of the historically synonymous due process clause, was foreshadowed as early as in a dictum by justice william johnson of the united states supreme court: as to the words from magna charta ... after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.[ ] thirty-eight years later, in , the prophecy of these words was realized in the famous dred scott case,[ ] in which section of the missouri compromise, whereby slavery was excluded from the territories, was held void under the fifth amendment, not on the ground that the procedure for enforcing it was not due process of law, but because the court regarded it as unjust to forbid people to take their slaves, or other property, into the territories, the common property of all the states. meanwhile, in the previous year ( ) the recently established court of appeals of new york had, in the landmark case of wynehamer _v._ people,[ ] set aside a state-wide prohibition law as comprising, with regard to liquors in existence at the time of its going into effect, an act of destruction of property not within the power of government to perform "even by the forms of due process of law". the term due process of law, in short, simply drops out of the clause, which comes to read "no person shall be deprived of property", period. at the same time judge comstock's opinion in the case sharply repudiates all arguments against the statute sounding in natural law concepts, fundamental principles of liberty, common reason and natural rights, and so forth. such theories were subversive of the necessary powers of government. furthermore, there was "no process of reasoning by which it can be demonstrated that the 'act for the prevention of intemperance, pauperism and crime' is void, upon principles and theories outside of the constitution, which will not also, and by an easier induction, bring it in direct conflict with the constitution itself."[ ] thus it was foreshadowed that the law of the land and the due process of law clauses, which were originally inserted in our constitutions to consecrate a specific mode of trial in criminal cases, to wit, the grand jury, petit jury process of the common law, would be transformed into a general restraint upon substantive legislation capable of affecting property rights detrimentally. it is against this background that the adoption of the fourteenth amendment in must be projected. applied, as in the dred scott and wynehamer cases, the clause which forbids any state "to deprive any person of life, liberty or property without due process of law" proffered the court, in implication, a vast new jurisdiction, but this the court at first manifested the greatest reluctance to enter upon. it did not wish, it protested, to become "a perpetual censor upon all state legislation"; nor did it wish, by enlarged conceptions of the rights protected by the amendment, to encourage congress to take over, under the fifth section of the amendment, the regulation of all civil rights. "the federal equilibrium" had already been sufficiently disturbed by the results of the war between the states and reconstruction.[ ] but this self-denying ordinance, which never had the support of more than a very narrow majority of the court, soon began to crumble at the edges. it was a period of immense industrial expansion, and the men who directed this wanted a free hand. in the american bar association was formed from the elite of the american bar. organized as it was in the wake of the "barbarous" decision--as one member termed it--in munn _v._ illinois,[ ] in which the supreme court had held that states were entitled by virtue of their police power to prescribe the charges of "businesses affected with a public interest," the association, through its more eminent members, became the mouthpiece of a new constitutional philosophy which was compounded in about equal parts from the teachings of the british manchester school of political economy and herbert spencer's highly sentimentalized version of the doctrine of evolution, just then becoming the intellectual vogue; plus a "booster"--in the chemical sense--from sir henry maine's _ancient law_, first published in . i refer to maine's famous dictum that "the movement of the progressive societies has hitherto been a movement from _status to contract_". if hitherto, why not henceforth?[ ] in short, the american people were presented, overnight as it were, with a new doctrine of natural law. encouraged by certain dicta of dissenting justices of the supreme court, a growing procession of high state courts--those of new york, pennsylvania, illinois, and massachusetts, leading the way--now began infiltrating the due process clauses and especially the word "liberty" thereof, of their several state constitutions with the new revelation. the product of these activities was the doctrine of freedom of contract, the substantial purport of which was that any legislation which restricted the liberty of male persons twenty-one years of age, whether they were employers or employees, in the making of business contracts, far from being presumptively constitutional, must be justified by well known facts of which the court was entitled to take judicial notice; otherwise it fell under the ban of the due process clause.[ ] at last, in , the supreme court at washington, following some tentative gestures in that direction, accepted the new dispensation outright. in smyth _v._ ames decided that year, partially overturning munn _v._ illinois, it gave notice of its intention to review in detail the "reasonableness" of railway rates set by state authority and in holden _v._ hardy it ratified, at the same term, the doctrine of freedom of contract.[ ] the result of the two holdings for the court's constitutional jurisdiction is roughly indicated by the fact that whereas it had decided cases under the amendment during the thirty preceding years, in the ensuing thirteen years it decided such cases.[ ] for more than a generation now the court became the ultimate guardian, in the name of the constitutional document, of the _laissez-faire_ conception of the proper relation of government to private enterprise, a rather inconstant guardian, however, for its fluctuating membership tipped the scales now in favor of business, now in favor of government. and today the latter tendency appears to have prevailed. in its decisions early in sustaining outstanding roosevelt administration measures, the court not only subordinated the freedom of employers to contract to the freedom of employees to organize, but intimated broadly that liberty in some of its phases is much more dependent upon legislative implementation that upon judicial protection.[ ] in contrast to this withdrawal, however, has been the court's projection of another segment of "liberty" into new territory. in gitlow _v._ new york,[ ] decided in , even in sustaining an antisyndicalist statute, the court adopted _arguendo_ the proposition which it had previously rejected, that "liberty" in amendment xiv renders available against the states the restraints which amendment i imposes on congress. for fifteen years little happened. then in , the court supplemented its ruling in the gitlow case with the so-called "clear and present danger" rule, an expedient which was designed to divest state enactments restrictive of freedom of speech, of press, of religion, and so forth, of their presumed validity, just as, earlier, statutes restrictive of freedom of contract had been similarly disabled. by certain of the justices, this result was held to be required by "the preferred position" of some of these freedoms in the hierarchy of constitutional values; an idea to which certain other justices demurred. the result to date has been a series of holdings the net product of which for our constitutional law is at this juncture difficult to estimate; and the recent decision in dennis _v._ united states under amendment i augments the difficulty.[ ] a passing glance will suffice for the operation of the due process clause of amendment v in the domain of foreign relations and the war power. the reader has only to consult in these pages such holdings as those in belmont _v._ united states, yakus _v._ united states, korematsu _v._ united states, to be persuaded that even the constitution is no exception to the maxim, _inter arma silent leges_.[ ] in short, the substantive doctrine of due process of law does not today support judicial intervention in the field of social and economic legislation in anything like the same measure that it did, first in the states, then through the supreme court on the basis of amendment xiv, in the half century between and . but this fact does not signify that the clause is not, in both its procedural sense and its broader sense, especially when supplemented by the equal protection clause of amendment xiv, a still valuable and viable source of judicial protection against parochial despotisms and petty tyrannies. yet even in this respect, as certain recent decisions have shown, the court can often act more effectively on the basis of congressional legislation implementing the amendment than when operating directly on the basis of the amendment itself.[ ] résumé considered for the two fundamental subjects of the powers of government and the liberties of individuals, interpretation of the constitution by the supreme court falls into four tolerably distinguishable periods. the first, which reaches to the death of marshall, is the period of the dominance of the constitutional document. the tradition concerning the original establishment of the constitution was still fresh, and in the person and office of the great chief justice the intentions of the framers enjoyed a renewed vitality. this is not to say that marshall did not have views of his own to advance; nor is it to say that the historicity of a particular theory concerning the constitution is necessarily a matter of critical concern save to students of history. it is only to say that the theories which marshall urged in support of his preferences were, in fact, frequently verifiable as theories of the framers of the constitution. the second period is a lengthy one, stretching from the accession of chief justice taney in to, say, . it is the period _par excellence_ of constitutional theory. more and more the constitutional text fades into the background, and the testimony of the _federalist_, marshall's sole book of precedents, ceases to be cited. among the theories which in one way or other received the court's approval during this period were the notion of dual federalism, the doctrine of the police power, the taboo on delegation of legislative power, the derived doctrine of due process of law, the conception of liberty as freedom of contract, and still others. the sources of some of these doctrines and the nature of the interests benefited by them have been indicated earlier in these pages. their net result was to put the national law-making power into a strait-jacket so far as the regulation of business was concerned. the third period was that of judicial review pure and simple. the court, as heir to the accumulated doctrines of its predecessors, found itself for the time being in possession of such a variety of instruments of constitutional exegesis that it was often able to achieve almost any result in the field of constitutional interpretation which it considered desirable, and that without flagrant departure from judicial good form. indeed, it is altogether apparent that the court was in actual possession and in active exercise of what justice holmes once termed "the sovereign prerogative of choice." it was early in this period that governor hughes, soon to ascend the bench, said, without perhaps intending all that his words literally conveyed, "we are under a constitution, but the constitution is what the judges say it is." a decade later it was suggested by an eminent law teacher that attorneys arguing "due process cases" before the court ought to address the justices not as "your honors" but as "your lordships"; and senator borah, in the senate debate on mr. hughes' nomination for chief justice, in , declared that the supreme court had become "economic dictator in the united states". some of the justices concurred in these observations, especially justices holmes and brandeis. asserted the latter, the court has made itself "a super-legislature" and justice holmes could discover "hardly any limit but the sky" to the power claimed by the court to disallow state acts "which may happen to strike a majority [of its members] as for any reason undesirable".[ ] the fourth period is still with us. it was ushered in by world war i, but its results were consolidated and extended during the 's, and have been subsequently still further enlarged and confirmed by world war ii and the "cold war". many of these results have been treated above. others can be searched out in the pages of this volume. what they sum up to is this: that what was once vaunted as a constitution of rights, both state rights and private rights, has been replaced to a great extent by a constitution of powers. the federal system has shifted base in the direction of a consolidated national power; within the national government itself there has been an increased flow of power in the direction of the president; even judicial enforcement of the bill of rights has faltered at times, in the presence of national emergency. in this situation judicial review as exercised by the supreme court does not cease being an important technique of government under the constitution, but its field of operation has contracted. the purpose which it serves more and more exclusively is the purpose for which it was originally created to serve, the maintenance of the principle of national supremacy. but in fact, this is the purpose which it has always served predominantly, even in the era when it was cutting its widest swathe in the field of national legislative policy, the period from to . even then there was a multiplicity of state legislatures and only one congress, so that the legislative grist that found its way to the court's mill was overwhelmingly of local provenience. and since then several things have happened to confirm this predominance: first, the annexation to amendment xiv of much of the content of the federal bill of rights; secondly, the extension of national legislative power, especially along the route of the commerce clause, into the field of industrial regulation, with the result of touching state legislative power on many more fronts than ever before; thirdly, the integration of the nation's industrial life, which has brought to the national government a major responsibility for the maintenance of a functioning social order. forty years ago the late justice holmes said: "i do not think the united states would come to an end if we [the court] lost our power to declare an act of congress void. i do think the union would be imperiled if we could not make that declaration as to the laws of the several states".[ ] by and large, this still sizes up the situation. edward s. corwin. _january, ._ notes [ ] _cong. record_, vol. , p. . [ ] _the genessee chief_, how. ( ), overturning _the thomas jefferson_, wheat. ( ). [ ] knox _v._ lee, wall. ( ); hepburn _v._ griswold, wall. ( ). [ ] pollock _v._ farmers' loan & trust co., u.s. ; same, u.s. . [ ] _cong. record_, vol. , p. . [ ] smith _v._ allwright, u.s. , . [ ] ibid. . [ ] _the supreme court in united states history_, iii, - ( ). [ ] the dartmouth college case ( ) occupies pages of wheaton; gibbons _v._ ogden ( ), pages of wheaton; the charles river bridge case ( ), pages of peters; the passenger cases ( ), pages of howard; the dred scott case ( ), pages of howard; _ex parte_ milligan ( ), pages of wallace; the first pollock case ( ), pages of u.s.; myers _v._ united states ( ), pages of u.s. [ ] max farrand, _the records of the federal convention of _, iii, - ( ). [ ] see taney's words in how. , - ( ), and how. , - ( ). [ ] how. , - ( ). [ ] u.s. ( ); u.s. ( ). [ ] u.s. , - . [ ] u.s. ( ). [ ] u.s. . [ ] u.s. , . [ ] dobbins _v._ commsrs., pet. ( ); collector _v._ day, wall. . ( ). [ ] wheat. , ( ). [ ] for references and further details, see e.s. corwin, _court over constitution_, - ( ). [ ] [transcriber's note: footnote is missing from original text.] [ ] in this connection, _see_ oklahoma _v._ civil service comm'n., u.s. , - ( ). [ ] dall. , . [ ] wall. , ( ). [ ] u.s. , . [ ] fong yue ting, u.s. ( ). [ ] u.s. , - . [ ] _see also_ university of illinois _v._ united states, u.s. , ( ). in lichter _v._ united states, u.s. , ( ), justice burton, speaking for the court, says: "the war powers of congress and the president are only those which are derived from the constitution", but he adds: "the primary implication of a war power is that it shall be an effective power to wage war successfully", which looks very like an attempt to duck the doctrine of an inherent war power while appropriating its results. [ ] welldon (tr.), book vi, chap. xiv ( ). jowett and some others propose a different arrangement. [ ] john locke. the second treatise on civil government, § . for the historical background of this principle, see p.w. duff and h.e. whiteside, "_delegata potestas non p[=o]test delegari_", _selected essays on constitutional law_, iv, - ( ). [ ] panama refining co. _v._ ryan, u.s. ( ); schechter corp. _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] u.s. , - . [ ] u.s. , . [ ] andrew c. mclaughlin, _a constitutional history of the united states_, ( ). [ ] locke, op. cit., § . [ ] ibid., § - . [ ] meyers _v._ united states, u.s. ( ). [ ] for the famous debate between "pacificus" (hamilton) and "helvidius" (madison), see e.s. corwin, _the president's control of foreign relations_, chap. i ( ). [ ] writings of thomas jefferson, v, (p.l. ford, ed.; ). [ ] cr. , ( ). [ ] ibid., - . [ ] how. . [ ] fleming _v._ page, how. ( ). [ ] united states _v._ tingy, pet. , . [ ] _op. atty. gen._ ( ). [ ] black ( ). [ ] wall. ( ). [ ] wall. ( ). [ ] united states _v._ lee, u.s. , . [ ] in re neagle, u.s. , . [ ] u.s. . [ ] _autobiography_, - ( ). [ ] _op. cit._, ( ). [ ] _constitutional government in the united states_, ( ). [ ] _see_ e.s. corwin. _total war and the constitution_, - ( ). [ ] u.s. , . [ ] _see_ e.s. corwin. _liberty against government_, chaps. iii, iv ( ). [ ] "... the supreme power cannot take from any man any part of his property without his consent". _second treatise_, § . [ ] van home's lessee _v._ dorrance, dall. , ( ). [ ] calder _v._ bull, dall. , - ( ). _see also_ loan association _v._ topeka, wall. ( ). [ ] bank of columbia _v._ okely, wheat. , . [ ] scott _v._ sandford, how. , ( ). [ ] n.y. ( ). [ ] ibid. - . the absolute veto of the court of appeals in the wynehamer case was replaced by the supreme court, under the due process clause of the fourteenth amendment, by a more flexible doctrine, which left it open to the state to show reasonable justification for that type of legislation in terms of acknowledged ends of the police power, namely, the promotion of the public health, safety and morals. _see_ mugler _v._ kansas, u.s. ( ); and for a transitional case, bartemeyer _v._ iowa, wall. ( ). [ ] the slaughter house cases, wall. , - ( ). the opinion of the court was focused principally on the privileges and immunities clause, and the narrow construction given it at this time is still the law of the court. but justices bradley and swayne pointed out the potentialities of the due process of law clause, and the former's interpretation of it may be fairly regarded as the first step toward the translation by the court of "liberty" as freedom on contract. [ ] u.s. ( ). [ ] benjamin r. twiss, _lawyers and the constitution, how laissez faire came to the supreme court_, - ( ). [ ] _see_ especially lochner _v._ new york, u.s. ( ); and adkins _v._ children's hospital, u.s. ( ). [ ] u.s. ; ibid. . [ ] _see_ charles w. collins, _the fourteenth amendment and the states_, - ( ). [ ] labor board _v._ jones & laughlin, u.s. , - ; west coast hotel co. _v._ parrish, u.s. , - . [ ] u.s. , ; _cf._ prudential ins. co. _v._ cheek, u.s. , ( ). [ ] the subject can be pursued in detail in connection with amendment i, pp. - . [ ] these cases are treated in the text, _see_ table of cases. [ ] _see_ williams _v._ united states, u.s. ( ). [ ] _see:_ oliver wendell holmes, _collected legal papers_, , - ( ); merlo j. pusey, _charles evans hughes_, i, - ( ). burns baking co. _v._ bryan, u.s. , ( ); baldwin _v._ missouri, u.s. , ( ); _american political science review_, xii, ( ); _new york times_, february , . it was also during the same period that judge andrew a. bruce of north dakota wrote: "we are governed by our judges and not by our legislatures.... it is our judges who formulate our public policies and our basic law". _the american judge_, , ( ). substantially contemporaneously a well read french critic described our system as _le gouvernment des juges_ ( ); while toward the end of the period louis b. boudin published his well known _government by judiciary_ ( vols., ). [ ] _collected legal papers_, - . contents [for contents in detail, see tables at beginning of each article and amendment] page prefaces iii, v editor's forward vii editor's introduction ix historical note on formation of the constitution text of the constitution (literal print) text of the amendments (literal print) the constitution, with annotations the preamble article i. legislative department: section . the congress . house of representatives . senate . elections and meetings . legislative proceedings . rights of members . bills and resolutions . powers of congress . powers denied to congress . powers denied to the states article ii. executive department: section . the president . powers and duties of the president . miscellaneous powers and duties of the president . impeachment article iii. judicial department: section . the judges, their terms, and compensation . jurisdiction . treason article iv. federal relations: section . full faith and credit given in each state . citizens . new states and government of territory, etc. . form of state government article v. mode of amendment article vi. miscellaneous provisions article vii. ratification amendments to the constitution: amendment . religion, free speech, etc. . bearing arms . quartering soldiers . searches and seizures . rights of persons . rights of accused in criminal prosecutions . civil trials . punishment for crime . rights retained by the people . reserved state powers . suits against states . election of president, etc. . slavery and involuntary servitude section . prohibition of slavery and involuntary servitude . power of congress . rights of citizens section . citizenship; due process; equal protection . apportionment of representation . disqualification of officers . public debt; claims for loss of slaves . enforcement . right of citizens to vote section . suffrage not to be abridged for race, color, etc. . power of congress . income tax . popular election of senators . prohibition of intoxicating liquors section . prohibition of intoxicating liquors . concurrent power to enforce . time limit on ratification . equal suffrage . commencement of the terms of the president, vice president, and members of congress, etc. section . commencement of terms of president, vice president, senators, and representatives . meeting of congress . death or disqualification of president elect . congress to provide for case wherein death occurs among those from whom house chooses a president . date of effect . time limit on ratificn . repeal of eighteenth amendment section . repeal of prohibition . transportation into states prohibited . time limit on ratification . presidential tenure section . restriction on number of terms . time limit on ratification acts of congress held unconstitutional in whole or in part by the supreme court of the united states table of cases index the constitution of the united states of america historical note on formation of the constitution in june , the virginia and massachusetts assemblies independently proposed an intercolonial meeting of delegates from the several colonies to restore union and harmony between great britain and her american colonies. pursuant to these calls there met in philadelphia in september of that year the first continental congress, composed of delegates from colonies. on october , , the assembly adopted what has come to be known as the declaration and resolves of the first continental congress. in that instrument, addressed to his majesty and to the people of great britain, there was embodied a statement of rights and principles, many of which were later to be incorporated in the declaration of independence and the federal constitution.[a] this congress adjourned in october with a recommendation that another congress be held in philadelphia the following may. before its successor met, the battle of lexington had been fought. in massachusetts the colonists had organized their own government in defiance of the royal governor and the crown. hence, by general necessity and by common consent, the second continental congress assumed control of the "twelve united colonies", soon to become the "thirteen united colonies" by the cooperation of georgia. it became a _de facto_ government: it called upon the other colonies to assist in the defense of massachusetts; it issued bills of credit; it took steps to organize a military force, and appointed george washington commander in chief of the army. while the declaration of the causes and necessities of taking up arms of july , ,[b] expressed a "wish" to see the union between great britain and the colonies "restored", sentiment for independence was growing. finally, on may , , virginia instructed her delegates to the continental congress to have that body "declare the united colonies free and independent states."[c] accordingly on june a resolution was introduced in congress declaring the union with great britain dissolved, proposing the formation of foreign alliances, and suggesting the drafting of a plan of confederation to be submitted to the respective colonies.[d] some delegates argued for confederation first and declaration afterwards. this counsel did not prevail. independence was declared on july , ; the preparation of a plan of confederation was postponed. it was not until november , , that the congress was able to agree on a form of government which stood some chance of being approved by the separate states. the articles of confederation were then submitted to the several states, and on july , , were finally approved by a sufficient number to become operative. weaknesses inherent in the articles of confederation became apparent before the revolution out of which that instrument was born had been concluded. even before the thirteenth state (maryland) conditionally joined the "firm league of friendship" on march , , the need for a revenue amendment was widely conceded. congress under the articles lacked authority to levy taxes. she could only request the states to contribute their fair share to the common treasury, but the requested amounts were not forthcoming. to remedy this defect, congress applied to the states for power to lay duties and secure the public debts. twelve states agreed to such an amendment, but rhode island refused her consent, thereby defeating the proposal. thus was emphasized a second weakness in the articles of confederation, namely, the _liberum veto_ which each state possessed whenever amendments to that instrument were proposed. not only did all amendments have to be ratified by each of the states, but all important legislation needed the approval of states. with several delegations often absent, one or two states were able to defeat legislative proposals of major importance. other imperfections in the articles of confederation also proved embarrassing. congress could, for example, negotiate treaties with foreign powers, but all treaties had to be ratified by the several states. even when a treaty was approved, congress lacked authority to secure obedience to its stipulations. congress could not act directly upon the states or upon individuals. under such circumstances foreign nations doubted the value of a treaty with the new republic. furthermore, congress had no authority to regulate foreign or interstate commerce. legislation in this field, subject to unimportant exceptions, was left to the individual states. disputes between states with common interests in the navigation of certain rivers and bays were inevitable. discriminatory regulations were followed by reprisals. virginia, recognizing the need for an agreement with maryland respecting the navigation and jurisdiction of the potomac river, appointed in june , four commissioners to "frame such liberal and equitable regulations concerning the said river as may be mutually advantageous to the two states." maryland in january responded to the virginia resolution by appointing a like number of commissioners[e] "for the purpose of settling the navigation and jurisdiction over that part of the bay of chesapeake which lies within the limits of virginia, and over the rivers potomac and pocomoke" with full power on behalf of maryland "to adjudge and settle the jurisdiction to be exercised by the said states, respectively, over the waters and navigations of the same."[f] at the invitation of washington the commissioners met at mount vernon, in march , and drafted a compact which, in many of its details relative to the navigation and jurisdiction of the potomac, is still in force.[g] what is more important, the commissioners submitted to their respective states a report in favor of a convention of all the states "to take into consideration the trade and commerce" of the confederation. virginia, in january , advocated such a convention, authorizing its commissioners to meet with those of other states, at a time and place to be agreed on, "to take into consideration the trade of the united states; to examine the relative situations and trade of the said states; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several states, such an act relative to this great object, as when unanimously ratified by them, will enable the united states in congress, effectually to provide for the same."[h] this proposal for a general trade convention seemingly met with general approval; nine states appointed commissioners. under the leadership of the virginia delegation, which included randolph and madison, annapolis was accepted as the place and the first monday in september as the time for the convention. the attendance at annapolis proved disappointing. only five states--virginia, pennsylvania, delaware, new jersey, and new york--were represented; delegates from massachusetts, new hampshire, north carolina, and rhode island failed to attend. because of the small representation, the annapolis convention did not deem "it advisable to proceed on the business of their mission." after an exchange of views, the annapolis delegates unanimously submitted to their respective states a report in which they suggested that a convention of representatives from all the states meet at philadelphia on the second monday in may to examine the defects in the existing system of government and formulate "a plan for supplying such defects as may be discovered."[i] the virginia legislature acted promptly upon this recommendation and appointed a delegation to go to philadelphia. within a few weeks new jersey, pennsylvania, north carolina, delaware, and georgia also made appointments. new york and several other states hesitated on the ground that, without the consent of the continental congress, the work of the convention would be extra-legal; that congress alone could propose amendments to the articles of confederation. washington was quite unwilling to attend an irregular convention. congressional approval of the proposed convention became, therefore, highly important. after some hesitancy congress approved the suggestion for a convention at philadelphia "for the sole and express purpose of revising the articles of confederation and reporting to congress and the several legislatures such alterations and provisions therein as shall when agreed to in congress and confirmed by the states render the federal constitution adequate to the exigencies of government and the preservation of the union." thereupon, the remaining states, rhode island alone excepted, appointed in due course delegates to the convention, and washington accepted membership on the virginia delegation. although scheduled to convene on may , , it was not until may that enough delegates were present to proceed with the organization of the convention. washington was elected as presiding officer. it was agreed that the sessions were to be strictly secret. on may randolph, on behalf of the virginia delegation, submitted to the convention propositions as a plan of government. despite the fact that the delegates were limited by their instructions to a revision of the articles, virginia had really recommended a new instrument of government. for example, provision was made in the virginia plan for the separation of the three branches of government; under the articles executive, legislative, and judicial powers were vested in the congress. furthermore the legislature was to consist of two houses rather than one. on may the convention went into a committee of the whole to consider the propositions of the virginia plan _seriatim_. these discussions continued until june , when the virginia resolutions in amended form were reported out of committee. they provided for proportional representation in both houses. the small states were dissatisfied. therefore, on june when the convention was ready to consider the report on the virginia plan, paterson of new jersey requested an adjournment to allow certain delegations more time to prepare a substitute plan. the request was granted, and on the next day paterson submitted nine resolutions embodying important changes in the articles of confederation, but strictly amendatory in nature. vigorous debate followed. on june the states rejected the new jersey plan and voted to proceed with a discussion of the virginia plan. the small states became more and more discontented; there were threats of withdrawal. on july the convention was deadlocked over giving each state an equal vote in the upper house--five states in the affirmative, five in the negative, one divided.[j] the problem was referred to a committee of , there being delegate from each state, to effect a compromise. on july the committee submitted its report, which became the basis for the "great compromise" of the convention. it was recommended that in the upper house each state should have an equal vote, that in the lower branch each state should have one representative for every , inhabitants, counting three-fifths of the slaves, that money bills should originate in the lower house (not subject to amendment by the upper chamber). when on july the motion of gouverneur morris of pennsylvania that direct taxation should also be in proportion to representation, was adopted, a crisis had been successfully surmounted. a compromise spirit began to prevail. the small states were now willing to support a strong national government. debates on the virginia resolutions continued. the original resolutions had been expanded into . since these resolutions were largely declarations of principles, on july a committee of five[k] was selected to draft a detailed constitution embodying the fundamental principles which had thus far been approved. the convention adjourned from july to august to await the report of its committee of detail. this committee, in preparing its draft of a constitution, turned for assistance to the state constitutions, to the articles of confederation, to the various plans which had been submitted to the convention and other available material. on the whole the report of the committee conformed to the resolutions adopted by the convention, though on many clauses the members of the committee left the imprint of their individual and collective judgments. in a few instances the committee avowedly exercised considerable discretion. from august to september the report of the committee of detail was discussed, section by section, clause by clause. details were attended to, further compromises were effected. toward the close of these discussions, on september , another committee of five[l] was appointed "to revise the style of and arrange the articles which had been agreed to by the house." on wednesday, september the report of the committee of style was ordered printed for the convenience of the delegates. the convention for days compared this report with the proceedings of the convention. the constitution was ordered engrossed on saturday, september . the convention met on monday, september , for its final session. several of the delegates were disappointed in the result. a few deemed the new constitution a mere makeshift, a series of unfortunate compromises. the advocates of the constitution, realizing the impending difficulty of obtaining the consent of the states to the new instrument of government, were anxious to obtain the unanimous support of the delegations from each state. it was feared that many of the delegates would refuse to give their individual assent to the constitution. therefore, in order that the action of the convention would appear to be unanimous, gouverneur morris devised the formula "done in convention, by the unanimous consent of the states present the th of september * * * in witness whereof we have hereunto subscribed our names." thirty-nine of the forty-two delegates present thereupon "subscribed" to the document.[m] the convention had been called to revise the articles of confederation. instead, it reported to the continental congress a new constitution. furthermore, while the articles specified that no amendments should be effective until approved by the legislatures of all the states, the philadelphia convention suggested that the new constitution should supplant the articles of confederation when ratified by conventions in nine states. for these reasons, it was feared that the new constitution might arouse opposition in congress. three members of the convention--madison, gorham, and king--were also members of congress. they proceeded at once to new york, where congress was in session, to placate the expected opposition. aware of their vanishing authority, congress on september , after some debate, decided to submit the constitution to the states for action. it made no recommendation for or against adoption. two parties soon developed, one in opposition and one in support of the constitution, and the constitution was debated, criticized, and expounded clause by clause. hamilton, madison, and jay wrote a series of commentaries, now known as the federalist papers, in support of the new instrument of government.[n] the closeness and bitterness of the struggle over ratification and the conferring of additional powers on the central government can scarcely be exaggerated. in some states ratification was effected only after a bitter struggle in the state convention itself. delaware, on december , , became the first state to ratify the new constitution, the vote being unanimous. pennsylvania ratified on december , , by a vote of to , a vote scarcely indicative of the struggle which had taken place in that state. new jersey ratified on december , , and georgia on january , , the vote in both states being unanimous. connecticut ratified on january , ; yeas , nays . on february , , massachusetts, by a narrow margin of votes in a convention with a membership of , endorsed the new constitution, but recommended that a bill of rights be added to protect the states from federal encroachment on individual liberties. maryland ratified on april , ; yeas , nays . south carolina ratified on may , ; yeas , nays . on june , , by a vote of to , new hampshire became the ninth state to ratify, but like massachusetts she suggested a bill of rights. by the terms of the constitution nine states were sufficient for its establishment among the states so ratifying. the advocates of the new constitution realized, however, that the new government could not succeed without the addition of new york and virginia, neither of which had ratified. madison, marshall, and randolph led the struggle for ratification in virginia. on june , , by a narrow margin of votes in a convention of members, that state ratified over the objection of such delegates as george mason and patrick henry. in new york an attempt to attach conditions to ratification almost succeeded. but on july , , new york ratified, with a recommendation that a bill of rights be appended. the vote was close--yeas , nays . eleven states having thus ratified the constitution,[o] the continental congress--which still functioned at irregular intervals--passed a resolution on september , , to put the new constitution into operation. the first wednesday of january was fixed as the day for choosing presidential electors, the first wednesday of february for the meeting of electors, and the first wednesday of march (i.e. march , ) for the opening session of the new congress. owing to various delays, congress was late in assembling, and it was not until april , , that george washington was inaugurated as the first president of the united states. notes [a] the colonists, for example, claimed the right "to life, liberty, and property", "the rights, liberties, and immunities of free and natural-born subjects within the realm of england"; the right to participate in legislative councils; "the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of [the common law of england]"; "the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws"; "a right peaceably to assemble, consider of their grievances, and petition the king." they further declared that the keeping of a standing army in the colonies in time of peace without the consent of the colony in which the army was kept was "against law"; that it was "indispensably necessary to good government, and rendered essential by the english constitution, that the constituent branches of the legislature be independent of each other"; that certain acts of parliament in contravention of the foregoing principles were "infringements and violations of the rights of the colonists." (text in documents illustrative of the formation of the union, pp. - .) [b] text in documents illustrative of the formation of the union, pp. - . [c] ibid., pp. - . [d] ibid., p. . [e] george mason, edmund randolph, james madison, and alexander henderson were appointed commissioners for virginia; thomas johnson, thomas stone, samuel chase, and daniel of st. thomas jenifer for maryland. [f] the text of the resolutions is to be found in u.s. - . [g] see wharton _v._ wise, u.s. [ ]. [h] text in documents illustrative of the formation of the union, p. . [i] ibid., pp. - . [j] the new hampshire delegation did not arrive until july , . [k] rutledge of south carolina, randolph of virginia, gorham of massachusetts, ellsworth of connecticut, and wilson of pennsylvania. [l] william samuel johnson of connecticut, alexander hamilton of new york, gouverneur morris of pennsylvania, james madison of virginia, and rufus king, of massachusetts. [m] at least persons had received appointments as delegates to the convention; actually attended at different times during the course of the proceedings; signed the document. it has been estimated that generally fewer than delegates attended the daily sessions. for further details respecting the convention of _see_: elliott, debates; farrand, records of the constitutional conventions; farrand, the framing of the constitution; meigs, growth of the constitution. [n] these commentaries on the constitution, written during the struggle for ratification, have been frequently cited by the supreme court as an authoritative contemporary interpretation of the meaning of its provisions. [o] north carolina added her ratification on november , ; yeas , nays . rhode island did not ratify until may , ; yeas , nays . the constitution of the united states of america literal print constitution of the united states we the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america. article. i. section. . all legislative powers herein granted shall be vested in a congress of the united states, which shall consist of a senate and house of representatives. section. . the house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. no person shall be a representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding indians not taxed, three fifths of all other persons. the actual enumeration shall be made within three years after the first meeting of the congress of the united states, and within every subsequent term of ten years, in such manner as they shall by law direct. the number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumeration shall be made, the state of new hampshire shall be entitled to chuse three, massachusetts eight, rhode-island and providence plantations one, connecticut five, new-york six, new jersey four, pennsylvania eight, delaware one, maryland six, virginia ten, north carolina five, south carolina five, and georgia three. when vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. the house of representatives shall chuse their speaker and other officers; and shall have the sole power of impeachment. section. . the senate of the united states shall be composed of two senators from each state, chosen by the legislature thereof, for six years; and each senator shall have one vote. immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. the seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. no person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. the vice president of the united states shall be president of the senate, but shall have no vote, unless they be equally divided. the senate shall chuse their other officers, and also a president pro tempore, in the absence of the vice president, or when he shall exercise the office of president of the united states. the senate shall have the sole power to try all impeachments. when sitting for that purpose, they shall be on oath or affirmation. when the president of the united states is tried the chief justice shall preside: and no person shall be convicted without the concurrence of two thirds of the members present. judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the united states: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. section. . the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the congress may at any time by law make or alter such regulations, except as to the places of chusing senators. the congress shall assemble at least once in every year, and such meeting shall be on the first monday in december, unless they shall by law appoint a different day. section. . each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide. each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member. each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal. neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. section. . the senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the united states. they shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the united states, which shall have been created, or the emoluments whereof shall have been encreased during such time; and no person holding any office under the united states, shall be a member of either house during his continuance in office. section. . all bills for raising revenue shall originate in the house of representatives; but the senate may propose or concur with amendments as on other bills. every bill which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the united states; if he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. if after such reconsideration two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house, it shall become a law. but in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the congress by their adjournment prevent its return, in which case it shall not be a law. every order, resolution, or vote to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to the president of the united states; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill. section. . the congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the united states; but all duties, imposts and excises shall be uniform throughout the united states; to borrow money on the credit of the united states; to regulate commerce with foreign nations, and among the several states, and with the indian tribes; to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the united states; to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; to provide for the punishment of counterfeiting the securities and current coin of the united states; to establish post offices and post roads; to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; to constitute tribunals inferior to the supreme court; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress; to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the united states, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings;--and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof. section. . the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. no bill of attainder or ex post facto law shall be passed. no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken. no tax or duty shall be laid on articles exported from any state. no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another. no money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. no title of nobility shall be granted by the united states: and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. section. . no state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. no state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the united states; and all such laws shall be subject to the revision and controul of the congress. no state shall, without the consent of congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. article. ii. section. . the executive power shall be vested in a president of the united states of america. he shall hold his office during the term of four years, and, together with the vice president, chosen for the same term, be elected, as follows each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the congress: but no senator or representative, or person holding an office of trust or profit under the united states, shall be appointed an elector. the electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. and they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the united states, directed to the president of the senate. the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. the person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately chuse by ballot one of them for president; and if no person have a majority, then from the five highest on the list the said house shall in like manner chuse the president. but in chusing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. in every case, after the choice of the president, the person having the greatest number of votes of the electors shall be the vice president. but if there should remain two or more who have equal votes, the senate shall chuse from them by ballot the vice president. the congress may determine the time of chusing the electors, and the day on which they shall give their votes; which day shall be the same throughout the united states. no person except a natural born citizen, or a citizen of the united states, at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen years a resident within the united states. in case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected. the president shall, at stated times, receive for his services, a compensation, which shall neither be encreased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the united states, or any of them. before he enter on the execution of his office, he shall take the following oath or affirmation:--"i do solemnly swear (or affirm) that i will faithfully execute the office of president of the united states, and will to the best of my ability, preserve, protect and defend the constitution of the united states." section. . the president shall be commander in chief of the army and navy of the united states, and of the militia of the several states, when called into the actual service of the united states; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the united states, except in cases of impeachment. he shall have power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states, whose appointments are not herein otherwise provided for, and which shall be established by law: but the congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments. the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. section. . he shall from time to time give to the congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the united states. section. . the president, vice president and all civil officers of the united states, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. article. iii. section. . the judicial power of the united states, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. section. . the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the united states shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. in all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make. the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed. section. . treason against the united states, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. the congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. article. iv. section . full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. and the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. section . the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. no person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due. section. . new states may be admitted by the congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the congress. the congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states; and nothing in this constitution shall be so construed as to prejudice any claims of the united states, or of any particular state. section. . the united states shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. article. v. the congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of it's equal suffrage in the senate. article. vi. all debts contracted and engagements entered into, before the adoption of this constitution, shall be as valid against the united states under this constitution, as under the confederation. this constitution, and the laws of the united states which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. the senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the united states. article. vii. the ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same. [sidenote: the word, "the," being interlined between the seventh and eighth lines of the first page, the word "thirty" being partly written on an erazure in the fifteenth line of the first page, the words "is tried" being interlined between the thirty second and thirty third lines of the first page and the word "the" being interlined between the forty third and forty fourth lines of the second page. attest william jackson secretary] done in convention by the unanimous consent of the states present the seventeenth day of september in the year of our lord one thousand seven hundred and eighty seven and of the independence of the united states of america the twelfth in witness whereof we have hereunto subscribed our names, go washington--presidt and deputy from virginia new hampshire { john langdon { nicholas gilman massachusetts { nathaniel gorham { rufus king connecticut { wm: saml. johnson { roger sherman new york : : : alexander hamilton { wil: livingston new jersey { david brearley. { wm. paterson. { jona: dayton { b franklin { thomas mifflin { robt morris pennsylvania { geo. clymer { thos. fitzsimons { jared ingersoll { james wilson { gouv morris { geo: read { gunning bedford jun delaware { john dickinson { richard bassett { jaco: broom { james mchenry maryland { dan of st thos. jenifer { danl carroll virginia { john blair-- { james madison jr. { wm. blount north carolina { richd. dobbs spaight. { hu williamson { j. rutledge south carolina { charles cotesworth pinckney { charles pinckney { pierce butler georgia { william few { abr baldwin * * * * * in convention monday, september th . present the states of new hampshire, massachusetts, connecticut, mr. hamilton from new york, new jersey, pennsylvania, delaware, maryland, virginia, north carolina, south carolina and georgia. resolved, that the preceeding constitution be laid before the united states in congress assembled, and that it is the opinion of this convention, that it should afterwards be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and that each convention assenting to, and ratifying the same, should give notice thereof to the united states in congress assembled. resolved, that it is the opinion of this convention, that as soon as the conventions of nine states shall have ratified this constitution, the united states in congress assembled should fix a day on which electors should be appointed by the states which shall have ratified the same, and a day on which the electors should assemble to vote for the president, and the time and place for commencing proceedings under this constitution. that after such publication the electors should be appointed, and the senators and representatives elected: that the electors should meet on the day fixed for the election of the president, and should transmit their votes certified, signed, sealed and directed, as the constitution requires, to the secretary of the united states in congress assembled, that the senators and representatives should convene at the time and place assigned; that the senators should appoint a president of the senate, for the sole purpose of receiving, opening and counting the votes for president; and, that after he shall be chosen, the congress, together with the president, should, without delay, proceed to execute this constitution. by the unanimous order of the convention go. washington presidt w. jackson secretary. amendments to the constitution of the united states of america articles in addition to, and amendment of, the constitution of the united states of america, proposed by congress, and ratified by the several states, pursuant to the fifth article of the original constitution.[a] amendment [i.][b] congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. amendment [ii.] a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. amendment [iii.] no soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. amendment [iv.] the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. amendment [v.] no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. amendment [vi.] in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. amendment [vii.] in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the united states, than according to the rules of the common law. amendment [viii.] excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. amendment [ix.] the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. amendment [x.] the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. amendment [xi.][c] the judicial power of the united states shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the united states by citizens of another state, or by citizens or subjects of any foreign state. amendment [xii.][d] the electors shall meet in their respective states and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president, and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the united states, directed to the president of the senate;--the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for president, shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the president. but in choosing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. and if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of march next following, then the vice-president shall act as president, as in the case of the death or other constitutional disability of the president--the person having the greatest number of votes as vice-president, shall be the vice-president, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the vice-president; a quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. but no person constitutionally ineligible to the office of president shall be eligible to that of vice-president of the united states. amendment xiii.[e] section . neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the united states, or any place subject to their jurisdiction. section . congress shall have power to enforce this article by appropriate legislation. amendment xiv.[f] section . all persons born or naturalized in the united states and subject to the jurisdiction thereof, are citizens of the united states and of the state wherein they reside. no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. section . representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding indians not taxed. but when the right to vote at any election for the choice of electors for president and vice president of the united states, representatives in congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the united states, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. section . no person shall be a senator or representative in congress, or elector of president and vice president, or hold any office, civil or military, under the united states, or under any state, who, having previously taken an oath, as a member of congress, or as an officer of the united states, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the united states, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. but congress may by a vote of two-thirds of each house, remove such disability. section . the validity of the public debt of the united states, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. but neither the united states nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the united states, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. section . the congress shall have power to enforce, by appropriate legislation, the provisions of this article. amendment xv.[g] section . the right of citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of race, color, or previous condition of servitude. section . the congress shall have power to enforce this article by appropriate legislation. amendment xvi.[h] the congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration. amendment [xvii.][i] the senate of the united states shall be composed of two senators from each state, elected by the people thereof, for six years; and each senator shall have one vote. the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures. when vacancies happen in the representation of any state in the senate, the executive authority of such state shall issue writs of election to fill such vacancies: _provided_, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. this amendment shall not be so construed as to affect the election or term of any senator chosen before it becomes valid as part of the constitution. amendment [xviii.][j] section . after one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the united states and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. sec. . the congress and the several states shall have concurrent power to enforce this article by appropriate legislation. sec. . this article shall be inoperative unless it shall have been ratified as an amendment to the constitution by the legislatures of the several states, as provided in the constitution, within seven years from the date of the submission hereof to the states by the congress. amendment [xix.][k] the right of citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of sex. congress shall have power to enforce this article by appropriate legislation. amendment [xx.][l] section . the terms of the president and vice president shall end at noon on the th day of january, and the terms of senators and representatives at noon on the d day of january, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. sec. . the congress shall assemble at least once in every year, and such meeting shall begin at noon on the d day of january, unless they shall by law appoint a different day. sec. . if, at the time fixed for the beginning of the term of the president, the president elect shall have died, the vice president elect shall become president. if a president shall not have been chosen before the time fixed for the beginning of his term, or if the president elect shall have failed to qualify, then the vice president elect shall act as president until a president shall have qualified; and the congress may by law provide for the case wherein neither a president elect nor a vice president elect shall have qualified, declaring who shall then act as president, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a president or vice president shall have qualified. sec. . the congress may by law provide for the case of the death of any of the persons from whom the house of representatives may choose a president whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the senate may choose a vice president whenever the right of choice shall have devolved upon them. sec. . sections and shall take effect on the th day of october following the ratification of this article. sec. . this article shall be inoperative unless it shall have been ratified as an amendment to the constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission. amendment [xxi.][m] section . the eighteenth article of amendment to the constitution of the united states is hereby repealed. sec. . the transportation or importation into any state, territory, or possession of the united states for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. sec. . this article shall be inoperative unless it shall have been ratified as an amendment to the constitution by conventions in the several states, as provided in the constitution, within seven years from the date of the submission hereof to the states by the congress. amendment [xxii.][n] section . no person shall be elected to the office of the president more than twice, and no person who has held the office of president, or acted as president, for more than two years of a term to which some other person was elected president shall be elected to the office of the president more than once. but this article shall not apply to any person holding the office of president when this article was proposed by the congress, and shall not prevent any person who may be holding the office of president, or acting as president, during the term within which this article becomes operative from holding the office of president or acting as president during the remainder of such term. section . this article shall be inoperative unless it shall have been ratified as an amendment to the constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the congress. notes [a] in dillon _v._ gloss, u.s. [ ], the supreme court stated that it would take judicial notice of the date on which a state ratified a proposed constitutional amendment. accordingly the court consulted the state journals to determine the dates on which each house of the legislature of certain states ratified the th amendment. it, therefore, follows that the date on which the governor approved the ratification, or the date on which the secretary of state of a given state certified the ratification, or the date on which the secretary of state of the united states received a copy of said certificate, or the date on which he proclaimed that the amendment had been ratified are not controlling. hence, the ratification date given in the following notes is the date on which the legislature of a given state approved the particular amendment (signature by the speaker or presiding officers of both houses being considered a part of the ratification of the "legislature"). when that date is not available, the date given is that on which it was approved by the governor or certified by the secretary of state of the particular state. in each case such fact has been noted. except as otherwise indicated information as to ratification is based on data supplied by the department of state. [b] brackets enclosing an amendment number indicate that the number was not specifically assigned in the resolution proposing the amendment. it will be seen, accordingly, that only amendments xiii, xiv, xv and xvi were thus technically ratified by number. the first amendments along with others which failed of ratification were proposed by congress on september , , when they passed the senate [ ann. cong. ( st cong., st sess.) ], having previously passed the house on september [_id._, ]. they appear officially in stat. . ratification was completed on december , , when the eleventh state (virginia) approved these amendments, there being then states in the union. the several state legislatures ratified the first amendments to the constitution (i.e. nos. to of those proposed) on the following dates: new jersey, november , ; maryland, december , ; north carolina, december , ; south carolina, january , ; new hampshire, january , ; delaware, january , ; new york, february , ; pennsylvania, march , ; rhode island, june , ; vermont, november , ; virginia, december , . the two amendments which failed of ratification (i.e. nos. and of those proposed) prescribed the ratio of representation to population in the house, and specified that no law varying the compensation of members of congress should be effective until after an intervening election of representatives. the first was ratified by states ( short of the requisite number) and the second by states [ doc. hist. const., - ]. [c] the th amendment was proposed by congress on march , , when it passed the house [ ann. cong. ( d cong., st sess.) , ], having previously passed the senate on january [_id._, , ]. it appears officially in stat. . ratification was completed on february , , when the twelfth state (north carolina) approved the amendment, there being then states in the union. official announcement of ratification was not made until january , , when president john adams in a message to congress stated that the th amendment had been adopted by three-fourths of the states and that it "may now be deemed to be a part of the constitution" [ mess. and papers of pres. ]. in the interim south carolina had ratified, and tennessee had been admitted into the union as the sixteenth state. the several state legislatures ratified the th amendment on the following dates: new york, march , ; rhode island, march , ; connecticut, may , ; new hampshire, june , ; massachusetts, june , ; vermont, between october and november , ; virginia, november , ; georgia, november , ; kentucky, december , ; maryland, december , ; delaware, january , ; north carolina, february , ; south carolina, december , [state department, press releases, vol. xii, p. ( )]. [d] the th amendment was proposed by congress on december , , when it passed the house [ ann. cong. ( th cong., st sess.) , ], having previously passed the senate on december [_id._, ]. it was not signed by the presiding officers of the house and senate until december . it appears officially in stat. . ratification was probably completed on june , , when the legislature of the thirteenth state (new hampshire) approved the amendment, there being then states in the union. the governor of new hampshire, however, vetoed this act of the legislature on june , and the act failed to pass again by two-thirds vote then required by the state constitution. inasmuch as art. v of the federal constitution specifies that amendments shall become effective "when ratified by the legislatures of three-fourths of the several states or by conventions in three-fourths thereof," it has been generally believed that an approval or veto by a governor is without significance. if the ratification by new hampshire be deemed ineffective, then the amendment became operative by tennessee's ratification on july , . on september , , in a circular letter to the governors of the several states, secretary of state madison declared the amendment ratified by three-fourths of the states. the several state legislatures ratified the th amendment on the following dates: north carolina, december , ; maryland, december , ; kentucky, december , ; ohio, between december and december , ; virginia, between december , and february , ; pennsylvania, january , ; vermont, january , ; new york, february , ; new jersey, february , ; rhode island, between february and march , ; south carolina, may , ; georgia, may , ; new hampshire, june , ; and tennessee, july , . the amendment was rejected by delaware on january , , and by connecticut at its session begun may , . [e] the th amendment was proposed by congress on january , , when it passed the house [cong. globe ( th cong., d sess.) ], having previously passed the senate on april , [_id._ ( th cong., st sess.) ]. it appears officially in stat. under the date of february , . ratification was completed on december , , when the legislature of the twenty-seventh state (georgia) approved the amendment, there being then states in the union. on december , , secretary of state seward certified that the th amendment had become a part of the constitution [ stat. ]. the several state legislatures ratified the th amendment on the following dates: illinois, february , ; rhode island, february, , ; michigan, february , ; maryland, february , ; new york, february , ; west virginia, february , ; missouri, february , ; maine, february , ; kansas, february , ; massachusetts, february , ; pennsylvania, february , ; virginia, february , ; ohio, february , ; louisiana, february or , ; indiana, february , ; nevada, february , ; minnesota, february , ; wisconsin, february , ; vermont, march , (date on which it was "approved" by governor); tennessee, april , ; arkansas, april , ; connecticut, may , ; new hampshire, june , ; south carolina, november , ; alabama, december , (date on which it was "approved" by provisional governor); north carolina, december , ; georgia, december , ; oregon, december , ; california, december , ; florida, december , (florida again ratified this amendment on june , , upon its adoption of a new constitution); iowa, january , ; new jersey, january , (after having rejected the amendment on march , ); texas, february , ; delaware, february , (after having rejected the amendment on february , ). the amendment was rejected by kentucky on february , , and by mississippi on december , . "a thirteenth amendment depriving of united states citizenship any citizen who should accept any title, office, or emolument from a foreign power, was proposed by congress on may , , when it passed the house [ ann. cong. ( th cong., d sess.) ], having previously passed the senate on april [ ann. cong. ( th cong., d sess.) ]. it appears officially in stat. . it failed of adoption, being ratified by but states up to december , [ miscell. amer. state papers, - ; doc. hist. const. - ], there then being in all. "another thirteenth amendment, forbidding any future amendment that should empower congress to interfere with the domestic institutions of any state, was proposed by congress on march , , when it passed the senate [cong. globe ( th cong., d sess.) ], having previously passed the house on february [_id._, ]. it appears officially in stat. . it failed of adoption, being ratified by but three states: ohio, may , [ laws ohio, ]; maryland, january , [laws maryland ( - ) ]; illinois, february , [ doc. hist. const., ] irregular, because by convention instead of by legislation as authorized by congress." [burdick, the law of the american constitution, .] [f] the th amendment was proposed by congress on june , , when it passed the house [cong. globe ( th cong., st sess.) , ], having previously passed the senate on june [_id._, ]. it appears officially in stat. under date of june , . ratification was probably completed on july , , when the legislature of the twenty-eighth state (south carolina or louisiana) approved the amendment, there being then states in the union. however, ohio and new jersey had prior to that date "withdrawn" their earlier assent to this amendment. accordingly, secretary of state seward on july , , certified that the amendment had become a part of the constitution if the said withdrawals were ineffective [ stat. - ]. congress at once (july , ) passed a joint resolution declaring the amendment a part of the constitution and directing the secretary to promulgate it as such. on july , , secretary seward certified without reservation that the amendment was a part of the constitution. in the interim, two other states, alabama on july and georgia on july , , had added their ratifications. the several state legislatures ratified the th amendment on the following dates: connecticut, june , ; new hampshire, july , ; tennessee, july , ; new jersey, september , (the new jersey legislature on february , "withdrew" its consent to the ratification; the governor vetoed that bill on march , ; and it was repassed over his veto on march , ); oregon, september , (oregon "withdrew" its consent on october , ); vermont, october , ; new york, january , ; ohio, january , (ohio "withdrew" its consent on january , ); illinois, january , ; west virginia, january , ; michigan, january , ; kansas, january , ; minnesota, january , ; maine, january , ; nevada, january , ; indiana, january , ; missouri, january , (date on which it was certified by the missouri secretary of state); rhode island, february , ; pennsylvania, february , ; wisconsin, february , (actually passed february , but not signed by legislative officers until february ); massachusetts, march , ; nebraska, june , ; iowa, march , ; arkansas, april , ; florida, june , ; north carolina, july , (after having rejected the amendment on december , ); louisiana, july , (after having rejected the amendment on february , ); south carolina, july , ; (after having rejected the amendment on december , ); alabama, july , (date on which it was "approved" by the governor); georgia, july , (after having rejected the amendment on november , --georgia ratified again on february , ); virginia, october , (after having rejected the amendment on january , ); mississippi, january , ; texas, february , (after having rejected the amendment on october , ); delaware, february , (after having rejected the amendment on february , ). the amendment was rejected (and not subsequently ratified) by kentucky on january , , and by maryland on march , . [g] the th amendment was proposed by congress on february , , when it passed the senate [cong. globe ( th cong., rd sess.) ], having previously passed the house on february [_id._ , ]. it appears officially in stat. under date of february , . ratification was probably completed on february , , when the legislature of the twenty-eighth state (iowa) approved the amendment, there being then states in the union. however, new york had prior to that date "withdrawn" its earlier assent to this amendment. even if this withdrawal were effective, nebraska's ratification on february , , authorized secretary of state fish's certification of march , , that the th amendment had become a part of the constitution [ stat ]. the several state legislatures ratified the th amendment on the following dates: nevada, march , ; west virginia, march , ; north carolina, march , ; louisiana, march , (date on which it was "approved" by the governor); illinois march , ; michigan, march , ; wisconsin, march , ; maine, march , ; massachusetts, march , ; south carolina, march , ; arkansas, march , ; pennsylvania, march , ; new york, april , (new york "withdrew" its consent to the ratification on january , ); indiana, may , ; connecticut, may , ; florida, june , ; new hampshire, july , ; virginia, october , ; vermont, october , ; alabama, november , ; missouri, january , (missouri had ratified the first section of the th amendment on march , ; it failed to include in its ratification the second section of the amendment); minnesota, january , ; mississippi, january , ; rhode island, january , ; kansas, january , (kansas had by a defectively worded resolution previously ratified this amendment on february , ); ohio, january , (after having rejected the amendment on may , ); georgia, february , ; iowa, february , ; nebraska, february , ; texas, february , ; new jersey, february , (after having rejected the amendment on february , ); delaware, february , (date on which approved by governor; delaware had previously rejected the amendment on march , ). the amendment was rejected (and not subsequently ratified) by california, kentucky, maryland, oregon, and tennessee. [h] the th amendment was proposed by congress on july , , when it passed the house [ cong. rec. ( st cong., st sess.) , , ], having previously passed the senate on july [_id._, ]. it appears officially in stat . ratification was completed on february , , when the legislature of the thirty-sixth state (delaware, wyoming, or new mexico) approved the amendment, there being then states in the union. on february , , secretary of state knox certified that this amendment had become a part of the constitution [ stat. ]. the several state legislatures ratified the th amendment on the following dates: alabama, august , ; kentucky, february , ; south carolina, february , ; illinois, march , ; mississippi, march , ; oklahoma, march , ; maryland, april , ; georgia, august , ; texas, august , ; ohio, january , ; idaho, january , ; oregon, january , ; washington, january , ; montana, january , ; indiana, january , ; california, january , ; nevada, january , ; south dakota, february , ; nebraska, february , ; north carolina, february , ; colorado, february , ; north dakota, february , ; michigan, february , ; iowa, february , ; kansas, march , ; missouri, march , ; maine, march , ; tennessee, april , ; arkansas, april , (after having rejected the amendment at the session begun january , ); wisconsin, may , ; new york, july , ; arizona, april , ; minnesota, june , ; louisiana, june , ; west virginia, january , ; delaware, february , ; wyoming, february , ; new mexico, february , ; new jersey, february , ; vermont, february , ; massachusetts, march , ; new hampshire, march , (after having rejected the amendment on march , ). the amendment was rejected (and not subsequently ratified) by connecticut, rhode island, and utah. [i] the th amendment was proposed by congress on may , , when it passed the house [ cong. rec. ( d cong., d sess.) ], having previously passed the senate on june , [ cong. rec. ( d cong. st sess.) ]. it appears officially in stat. . ratification was completed on april , , when the thirty-sixth state (connecticut) approved the amendment, there being then states in the union. on may , , secretary of state bryan certified that it had become a part of the constitution [ stat. ]. the several state legislatures ratified the th amendment on the following dates: massachusetts, may , ; arizona, june , ; minnesota, june , ; new york, january , ; kansas, january , ; oregon, january , ; north carolina, january , ; california, january , ; michigan, january , ; iowa, january , ; montana, january , ; idaho, january , ; west virginia, february , ; colorado, february , ; nevada, february , ; texas, february , ; washington, february , ; wyoming, february , ; arkansas, february , ; illinois, february , ; north dakota, february , ; wisconsin, february , ; indiana, february , ; new hampshire, february , ; vermont, february , ; south dakota, february , ; maine, february , ; oklahoma, february , ; ohio, february , ; missouri, march , ; new mexico, march , ; nebraska, march , ; new jersey, march , ; tennessee, april , ; pennsylvania, april , ; connecticut, april , ; louisiana, june , . the amendment was rejected by utah on february , . [j] the th amendment was proposed by congress on december , , when it passed the senate [cong. rec. ( th cong., d sess.) ], having previously passed the house on december [_id._, ]. it appears officially in stat . ratification was completed on january , , when the thirty-sixth state approved the amendment, there being then states in the union. on january , , acting secretary of state polk certified that this amendment had been adopted by the requisite number of states [ stat. ]. by its terms this amendment did not became effective until year after ratification. the several state legislatures ratified the th amendment on the following dates: mississippi, january , ; virginia, january , ; kentucky, january , ; north dakota, january , (date on which approved by governor); south carolina, january , ; maryland, february , ; montana, february , ; texas, march , ; delaware, march , ; south dakota, march , ; massachusetts, april , ; arizona, may , ; georgia, june , ; louisiana, august , (date on which approved by governor); florida, november , ; michigan, january , ; ohio, january , ; oklahoma, january , ; idaho, january , ; maine, january , ; west virginia, january , ; california, january , ; tennessee, january , ; washington, january , ; arkansas, january , ; kansas, january , ; illinois, january , ; indiana, january , ; alabama, january , ; colorado, january , ; iowa, january , ; new hampshire, january , ; oregon, january , ; nebraska, january , ; north carolina, january , ; utah, january , ; missouri, january , ; wyoming, january , ; minnesota, january , ; wisconsin, january , ; new mexico, january , ; nevada, january , ; pennsylvania, february , ; connecticut, may , ; new jersey, march , ; new york, january , ; vermont, january , . [k] the th amendment was proposed by congress on june , , when it passed the senate [cong. rec. ( th cong., st sess.) ], having previously passed the house on may , [_id._, ]. it appears officially in stat. . ratification was completed on august , , when the thirty-sixth state (tennessee) approved the amendment, there being then states in the union. on august , , secretary of state colby certified that it had become a part of the constitution [ stat. ]. the several state legislatures ratified the th amendment on the following dates: illinois, june , (readopted june , ); michigan, june , ; wisconsin, june , ; kansas, june , ; new york, june , ; ohio, june , ; pennsylvania, june , ; massachusetts, june , ; texas, june , ; iowa, july , (date on which approved by governor); missouri, july , ; arkansas, july , ; montana, august , (date on which approved by governor); nebraska, august , ; minnesota, september , ; new hampshire, september , (date on which approved by governor); utah, october , ; california, november , ; maine, november , ; north dakota, december , ; south dakota, december , (date on which certified); colorado, december , (date on which approved by governor); kentucky, january , ; rhode island, january , ; oregon, january , ; indiana, january , ; wyoming, january , ; nevada, february , ; new jersey, february , ; idaho, february , ; arizona, february , ; new mexico, february , (date on which approved by governor); oklahoma, february , ; west virginia, march , ; washington, march , ; tennessee, august , ; connecticut, september , (confirmed september , ); vermont, february , . the amendment was rejected by georgia on july , ; by alabama on september , ; by south carolina on january , ; by virginia on february , ; by maryland on february , ; by mississippi on march , ; by louisiana on july , . [l] the th amendment was proposed by congress on march , , when it passed the senate [cong. rec. ( d cong., st sess.) ], having previously passed the house on march [_id._, ]. it appears officially in stat. . ratification was completed on january , , when the thirty-sixth state approved the amendment, there being then states in the union. on february , , secretary of state stimson certified that it had become a part of the constitution [ stat. ]. the several state legislatures ratified the th amendment on the following dates: virginia, march , ; new york, march , ; mississippi, march , ; arkansas, march , ; kentucky, march , ; new jersey, march , ; south carolina, march , ; michigan, march , ; maine, april , ; rhode island, april , ; illinois, april , ; louisiana, june , ; west virginia, july , ; pennsylvania, august , ; indiana, august , ; texas, september , ; alabama, september , ; california, january , ; north carolina, january , ; north dakota, january , ; minnesota, january , ; arizona, january , ; montana, january , ; nebraska, january , ; oklahoma, january , ; kansas, january , ; oregon, january , ; delaware, january , ; washington, january , ; wyoming, january , ; iowa, january , ; south dakota, january , ; tennessee, january , ; idaho, january , ; new mexico, january , ; georgia, january , ; missouri, january , ; ohio, january , ; utah, january , ; colorado, january , ; massachusetts, january , ; wisconsin, january , ; nevada, january , ; connecticut, january , ; new hampshire, january , ; vermont, february , ; maryland, march , ; florida, april , . a proposed amendment which would authorize congress to limit, regulate, and prohibit the labor of persons under years of age was passed by congress on june , . this proposal at the time it was submitted to the states was referred to as "the proposed th amendment." it appears officially in stat. . the status of this proposed amendment is a matter of conflicting opinion. the kentucky court of appeals in wise _v._ chandler ( ky. [ ]) has held that it is no longer open to ratification because: ( ) rejected by more than one-fourth of the states; ( ) a state may not reject and then subsequently ratify, at least when more than one-fourth of the states are on record as rejecting; and ( ) more than a reasonable time has elapsed since it was submitted to the states in . the kansas supreme court in coleman _v._ miller ( kan. [ ]) came to the opposite conclusion. on october , , states had ratified the proposed amendment. of these states had previously rejected the amendment on one or more occasions. at least different states have at one time rejected the amendment. [m] the st amendment was proposed by congress on february , , when it passed the house [cong. rec. ( d cong., d sess.) ], having previously passed the senate on february [_id._, ]. it appears officially in stat. . ratification was completed on december , , when the thirty-sixth state (utah) approved the amendment, there being then states in the union. on december , , acting secretary of state phillips certified that it had been adopted by the requisite number of states [ stat. ]. the several state conventions ratified the st amendment on the following dates: michigan, april , ; wisconsin, april , ; rhode island, may , ; wyoming, may , ; new jersey, june , ; delaware, june , ; indiana, june , ; massachusetts, june , ; new york, june , ; illinois, july , ; iowa, july , ; connecticut, july , ; new hampshire, july , ; california, july , ; west virginia, july , ; arkansas, august , ; oregon, august , ; alabama, august , ; tennessee, august , ; missouri, august , ; arizona, september , ; nevada, september , ; vermont, september , ; colorado, september , ; washington, october , ; minnesota, october , ; idaho, october , ; maryland, october , ; virginia, october , ; new mexico, november , ; florida, november , ; texas, november , ; kentucky, november , ; ohio, december , ; pennsylvania, december , ; utah, december , ; maine, december , ; montana, august , . the amendment was rejected by a convention in the state of south carolina, on december , . the electorate of the state of north carolina voted against holding a convention at a general election held on november , . [n] the twenty-second amendment was proposed by congress on march , , having passed the house on march , [cong. rec. ( th cong., st sess.) ] and having previously passed the senate on march , [id. ]. it appears officially in stat. . ratification was completed on february , , when the thirty-sixth state (minnesota) approved the amendment; there being then states in the union. on march , , jess larson, administrator of general services, certified that it had been adopted by the requisite number of states [ f.r. ]. a total of state legislatures ratified the twenty-second amendment on the following dates: maine, march , ; michigan, march , ; iowa, april , ; kansas, april , ; new hampshire, april , ; delaware, april , ; illinois, april , ; oregon, april , ; colorado, april , ; california, april , ; new jersey, april , ; vermont, april , ; ohio, april , ; wisconsin; april , ; pennsylvania, april , ; connecticut, may , ; missouri, may , ; nebraska, may , ; virginia, january , ; mississippi, february , ; new york, march , ; south dakota, january , ; north dakota, february , ; louisiana, may , ; montana, january , ; indiana, january , ; idaho, january , ; new mexico, february , ; wyoming, february , ; arkansas, february , ; georgia, february , ; tennessee, february , ; texas, february , ; utah, february , ; nevada, february , ; minnesota, february , ; north carolina, february , ; south carolina, march , ; maryland, march , ; florida, april , ; and alabama, may , . the constitution of the united states of america with annotations preamble the preamble: page purpose and effect "the people of the united states" the constitution of the united states of america with annotations the preamble we the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america. purpose and effect of the preamble although the preamble is not a source of power for any department of the federal government,[ ] the supreme court has often referred to it as evidence of the origin, scope, and purpose of the constitution. "its true office" wrote joseph story in his commentaries, "is to expound the nature and extent and application of the powers actually conferred by the constitution, and not substantively to create them. for example, the preamble declares one object to be, 'to provide for the common defense.' no one can doubt that this does not enlarge the powers of congress to pass any measures which they deem useful for the common defence. but suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?"[ ] moreover, the preamble bears witness to the fact that the constitution emanated from the people, and was not the act of sovereign and independent states,[ ] and that it was made for, and is binding only in, the united states of america.[ ] in the dred scott case,[ ] chief justice taney declared that: "the words 'people of the united states' and 'citizens' are synonymous terms, and mean the same thing. they both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. they are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty."[ ] notes [ ] jacobson _v._ massachusetts, u.s. , ( ). [ ] story, commentaries on the constitution, § . [ ] mcculloch _v._ maryland, wheat. , ( ); chisholm _v._ georgia, dall. , ( ); martin _v._ hunter, wheat. , ( ). [ ] downes _v._ bidwell, u.s. , ( ); in re ross, u.s. , ( ). [ ] how. ( ). [ ] ibid. . article i legislative department section . nature of legislative power: page doctrine of enumerated powers nondelegability of legislative power origin of doctrine functions which may be delegated power to supplement statutory provisions standards for administrative action rule-making power orders directed to particular persons delegation to private persons power to give effect to contingent legislation modification of tariff laws arms embargo internal affairs emergency statutes punishment of violations congressional investigations investigations in aid of legislation conduct of executive department private affairs purpose of inquiry judicial functions sanctions of the investigatory power contempt criminal prosecutions sections and . house of representatives and senate: qualifications of members of congress right to vote for representatives and congressional protection thereof when the qualifications must be possessed enlargement of qualifications inability of states to enlarge census requirement section . elections and meetings: federal legislation under this clause legislature defined inequality of election districts congressional protection of the electoral process section . powers and duties of the houses: power to judge elections quorum to do business rules of procedure powers of the houses over members duty to keep a journal section . compensation, immunities, and disabilities of members: when the pay starts privilege from arrest privilege of speech or debate incompatible offices section . legislative process: revenue bills approval by the president veto power presentation of resolutions section . powers of congress: clause . taxing-spending power kinds of taxes permitted decline of forbidden subject matter test rise and fall of collector _v._ day federal taxation of state interests immunity left to the states conflicting views on the court rule of uniformity purposes of taxation regulation by taxation extermination by taxation protective tariff spending for the general welfare hamilton _v._ madison triumph of hamiltonian theory security act cases, the earmarked funds conditional grants-in-aid "debts of the united states" clause . borrowing power clause . power to regulate interstate and foreign commerce purpose of the clause definition of terms: gibbons _v._ ogden "commerce" "commerce" today "necessary and proper" clause "among the several states" "regulate" interstate versus foreign commerce instruments of commerce congressional regulation of waterways navigation hydroelectric power congress' jurisdiction over navigable streams today purposes for which power may be generated congressional regulation of land transportation early acts: federal provision for highways beginnings of federal railway regulation regulation of rates: interstate commerce commission interstate commerce commission today shreveport case act of and state railway rate regulation regulation of other agents of carriage and communication acts of congress protective of labor engaged in interstate transportation adair case railroad retirement act bills of lading: ferger case congressional regulation of commerce as traffic sherman act: sugar trust case sherman act revised "current of commerce" concept: swift case danbury hatters case stockyards and grain futures acts securities and exchange commission congressional regulation of production and industrial relations antidepression legislation national industrial recovery act schechter case agricultural adjustment act bituminous coal conservation act national labor relations act fair labor standards act: darby case agricultural marketing agreement act acts of congress prohibiting commerce foreign commerce; jefferson's embargo foreign commerce; protective tariffs foreign commerce; banned articles interstate commerce; conflict of doctrine and opinion acts of congress prohibitive of commerce lottery case national prohibitions and state police power hammer _v._ dagenhart interstate commerce in stolen goods banned darby case congress and the federal system commerce clause as a restraint on state power doctrinal background doctrinal background: webster's contribution cooley _v._ board of port wardens judicial formulas taxing power of the state and foreign commerce browne _v._ maryland: original package doctrine state taxation of the subject matter of interstate commerce general considerations state freight tax case goods in transit state taxation of manufacturing and mining production for an established market rejection of original package concept in interstate commerce inspection charges local sales: peddlers stoppage in transit drummer cases; robbins _v._ shelby county taxing district limitation of the robbins case robbins case today depression cases: use taxes depression cases: sales taxes end of the depression cases taxation of carriage of persons state taxation of the interstate commerce privilege: foreign corporations doctrinal history license taxes doctrine of western union telegraph _v._ kansas spread of the doctrine status of the doctrine today state taxation of property engaged in, and of the proceeds from, interstate commerce general issue development of the apportionment rule unit rule apportioned property taxes apportioned gross receipts taxes franchise taxes gross receipts taxes, classes of multiple taxation test recent cases taxes on net income miscellaneous taxes affecting interstate commerce vessels airplanes motor vehicles public utilities: regulatory charges dominance of congress mccarran act: regulation of insurance police power and foreign commerce origin of police power state curbs on entry of foreigners state quarantine laws state game protection and foreign commerce police power and interstate commerce general principles state regulation of agencies of interstate commerce railway rate regulation adequate service regulations safety and other regulations invalid state regulations state regulation of length of trains lesson of southern pacific co. _v._ arizona state regulation of motor vehicles: valid regulations invalid state acts affecting motor carriers transportation agencies navigation; general doctrine bridges, dams, ferries, wharves ferries telegraphs and telephones gas and electricity foreign corporations miscellaneous banks and banking brokers commission men attachment and garnishment statutory liens police power and the subject matter of commerce scope of the police power quarantine laws state inspection laws state prohibition laws: the original package doctrine oleomargarine and cigarettes demise of the original package doctrine curbs on the interstate movement of persons state conservation and embargo measures state conservation and embargo measures: the milk cases state conservation and embargo measures: the shrimp cases concurrent federal and state legislation general issue hepburn act quarantine cases recent cases sustaining state legislation recent cases nullifying state action federal versus state labor laws commerce with indian tribes united states _v._ kagama clause . naturalization and bankruptcies naturalization and citizenship categories of naturalized persons who are eligible for naturalization procedure of naturalization rights of naturalized persons congress' power exclusive right of expatriation: loss of citizenship exclusion of aliens bankruptcy persons who may be released from debt liberalization of relief granted constitutional limitations on the bankruptcy power power not exclusive constitutional status of state insolvency laws clauses and . fiscal and monetary powers of congress coinage, weights, and measures punishment of counterfeiting borrowing power versus the fiscal power clause . postal power "establish" powers to protect the mails antislavery and the mails power to prevent harmful use of the postal facilities exclusion power as an adjunct to other powers state regulations affecting the mails clause . copyrights and patents scope of the power patentable discoveries procedure in issuing patents nature and scope of the right secured power of congress over patent rights state power affecting patents and copyrights trade-marks and advertisements clause . _see_ article iii clause . piracies and felonies origin of the clause definition of offenses extraterritorial reach of the power clauses , , , and . war: military establishments war power source and scope an inherent power a complexus of granted powers declaration of war: when required prize cases, the, ( ) power to raise and maintain armed forces purpose of specific grants time limit on appropriations for the army establishment of the air force conscription care of the armed forces trial and punishment of offenses war legislation revolutionary war legislation civil war legislation world war i legislation world war ii legislation mobilization of industrial resources delegation of legislative power in wartime mergence of legislative and executive in wartime doctrine of lichter _v._ united states war powers in time of peace atomic energy act postwar legislation private rights in wartime enemy country theatre of military operations enemy property prizes of war police regulations: rent control personal liberty in wartime alien enemies eminent domain clauses and . militia militia clauses calling out the militia regulation of the militia clause . seat of government, etc. seat of government nature and extent of rights ceded to united states retrocession of alexandria county continuance of state laws status of the district today legislative power over the district taxation in the district delegation of legislative power to municipal officers courts of the district authority over places purchased "places" duration of federal jurisdiction reservation of jurisdiction by states clause . "necessary and proper" clause coefficient or elastic clause scope of incidental powers operation of coefficient clause definition and punishment of crimes chartering of banks currency regulations power to charter corporations courts and judicial proceedings special acts concerning claims maritime law section . powers denied to congress general purpose of the section clause . importation of slaves clause . suspension of the privilege of the writ of habeas corpus habeas corpus purpose of the writ errors which may be corrected on habeas corpus habeas corpus not a substitute for appeal issuance of the writ suspension of the privilege clause . attainder and ex post facto laws bills of attainder ex post facto laws definition what constitutes punishment changes in place or mode of trial clause . capitation and direct taxes direct taxes the hylton case from the hylton to the pollock case restriction of the pollock decision miscellaneous clause . export duties taxes on exports stamp taxes clause . "no preference" clause clause . appropriations and accounting of public mon appropriations payment of claims clause . titles of nobility and gifts from foreign states section . powers denied to the states clause . not to make treaties, coin money, pass ex post facto laws, impair contracts, etc. treaties, alliances, or confederations bills of credit legal tender bills of attainder ex post facto laws scope of provision denial of future privileges to past offenders changes in punishment changes in procedure obligation of contracts definition of terms "law" status of judicial decisions "obligation" "impair" "contracts," extended to cover public contracts fletcher _v._ peck new jersey _v._ wilson corporate charters; different ways of regarding dartmouth college case classes of cases under the clause public grants municipal corporations public offices revocable privileges versus "contracts": tax exemptions vested rights reservation of the right to alter and repeal right to reserve: when limited corporations as persons subject to the law corporations and the police power strict construction of public grants charles river bridge case application of the strict construction rule strict construction of tax exemptions strict construction and the police power doctrine of inalienable state powers eminent domain power inalienable taxing power not inalienable police power: when inalienable private contracts scope of the term source of the obligation ogden _v._ saunders remedy a part of the obligation establishment of the rule qualifications of the rule municipal bond cases private contracts and the police power emergency legislation individual rights versus public welfare evaluation of the clause today statistical data pertinent to the clause clause . not to levy duties on exports and imports duties on exports and imports scope privilege taxes property taxes inspection laws clause . not to lay tonnage duties, keep troops, make compacts, or engage in war tonnage duties keeping troops interstate compacts background of clause subject matter of interstate compacts consent of congress grants of franchise to corporation by two states legal effect of interstate compacts legislative department article i section . all legislative powers herein granted shall be vested in a congress of the united states, which shall consist of a senate and house of representatives. doctrine of enumerated powers two important doctrines of constitutional law--that the federal government is one of enumerated powers and that legislative power may not be delegated--are derived in part from this section. the classical statement of the former is that by chief justice marshall in mcculloch _v._ maryland: "this government is acknowledged by all, to be one of enumerated powers. the principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted."[ ] that, however, "the executive power" is not confined to the items of it which are enumerated in article ii was asserted early in the history of the constitution by madison and hamilton alike and is today the doctrine of the court;[ ] and a similar latitudinarian conception of "the judicial power of the united states" was voiced in justice brewer's opinion for the court in kansas _v._ colorado.[ ] but even when confined to "the legislative powers herein granted," the doctrine is severely strained by marshall's conception of some of these as set forth in his mcculloch _v._ maryland opinion: this asserts that "the sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government";[ ] he characterizes "the power of making war," of "levying taxes," and of "regulating commerce" as "great, substantive and independent powers";[ ] and the power conferred by the "necessary and proper" clause embraces, he declares, "all [legislative] means which are appropriate" to carry out "the legitimate ends" of the constitution, unless forbidden by "the letter and spirit of the constitution."[ ] nine years later, marshall introduced what story in his commentaries labels the concept of "resulting powers," those which "rather be a result from the whole mass of the powers of the national government, and from the nature of political society, than a consequence or incident of the powers specially enumerated."[ ] story's reference is to marshall's opinion in american insurance company _v._ canter,[ ] where the latter says, that "the constitution confers absolutely on the government of the union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."[ ] and from the power to acquire territory, he continues, arises as "the inevitable consequence" the right to govern it.[ ] subsequently, powers have been repeatedly ascribed to the national government by the court on grounds which ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the "rights expressly given, and duties expressly enjoined" by the constitution;[ ] the power to impart to the paper currency of the government the quality of legal tender in the payment of debts;[ ] the power to acquire territory by discovery;[ ] the power to legislate for the indian tribes wherever situated in the united states;[ ] the power to exclude and deport aliens;[ ] and to require that those who are admitted be registered and fingerprinted;[ ] and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. in the words of justice sutherland in united states _v._ curtiss-wright export corporation,[ ] decided in : "the broad statement that the federal government can exercise no powers except those specifically enumerated in the constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. in that field, the primary purpose of the constitution was to carve from the general mass of legislative powers _then possessed by the states_ such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states.... that this doctrine applies only to powers which the states had, is self evident. and since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the united states from some other source.... a political society cannot endure without a supreme will somewhere. sovereignty is never held in suspense. when, therefore, the external sovereignty of great britain in respect of the colonies ceased, it immediately passed to the union.... it results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the constitution. the powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the constitution, would have vested in the federal government as necessary concomitants of nationality."[ ] yet for the most part, these holdings do not, as justice sutherland suggests, directly affect "the internal affairs" of the nation; they touch principally its peripheral relations, as it were. the most serious inroads on the doctrine of enumerated powers are, in fact, those which have taken place under cover of the doctrine--the vast expansion in recent years of national legislative power in the regulation of commerce among the states and in the expenditure of the national revenues; and verbally at least marshall laid the ground for these developments in some of the phraseology above quoted from his opinion in mcculloch _v._ maryland. nondelegability of legislative power origin of doctrine at least three distinct ideas have contributed to the development of the principle that legislative power cannot be delegated. one is the doctrine of separation of powers: why go to the trouble of separating the three powers of government if they can straightway remerge on their own motion? the second is the concept of due process of law, which precludes the transfer of regulatory functions to private persons. lastly, there is the maxim of agency "_delegata potestas non potest delegari_," which john locke borrowed and formulated as a dogma of political science.[ ] in hampton jr. & co. _v._ united states,[ ] chief justice taft offered the following explanation of the origin and limitations of this idea as a postulate of constitutional law: "the well-known maxim '_delegata potestas non potest delegari_,' applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our federal and state constitutions than it has in private law. the federal constitution and state constitutions of this country divide the governmental power into three branches. * * * in carrying out that constitutional division * * * it is a breach of the national fundamental law if congress gives up its legislative power and transfers it to the president, or to the judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. this is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. in determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination."[ ] functions which may be delegated yielding to "common sense and the inherent necessities of governmental co-ordination" the court has sustained numerous statutes granting in the total vast powers to administrative or executive agencies. two different theories, both enunciated during the chief justiceship of john marshall, have been utilized to justify these results. first in importance is the theory that another department may be empowered to "fill up the details" of a statute.[ ] the second is that congress may legislate contingently, leaving to others the task of ascertaining the facts which bring its declared policy into operation.[ ] power to supplement statutory provisions the pioneer case which recognized the right of congress to lodge in another department the power to "fill up the details" of a statute arose out of the authority given to federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the united states. chief justice marshall overruled the objection that this constituted an invalid delegation of legislative power, saying: "it will not be contended, that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. but congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. * * * the line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details."[ ] standards for administrative action before another agency can "fill up the details," congress must enact something to be thus supplemented. in the current idiom, the lawmakers must first adopt a policy or set up an "intelligible standard" to which administrative action must conform.[ ] but the court has taken a generous view of what constitutes a policy or standard. although it has said that "procedural safeguards cannot validate an unconstitutional delegation,"[ ] the nature of the proceedings appears to be one of the elements weighed in determining whether a specific delegation is constitutional.[ ] in cases where the delegated power is exercised by orders directed to particular persons after notice and hearing, with findings of fact and of law based upon the record made in the hearing, the court has ruled that such general terms as "public interest,"[ ] "public convenience, interest, or necessity,"[ ] or "excessive profits,"[ ] were sufficient to satisfy constitutional requirements. but in two cases arising under the national industrial recovery act, a policy declaration of comparable generality was held insufficient for the promulgation of rules applicable to all persons engaged in a designated activity, without the procedural safeguards which surround the issuance of individual orders.[ ] by subsequent decisions, somewhat more elaborate, but still very broad, standards have been deemed adequate for various price fixing measures.[ ] in a recent case,[ ] the court sustained a statute which, without any explicit standards whatever, authorized the federal home loan bank board to make rules and regulations for the supervision of federal savings and loan associations. that decision was influenced by the fact that the corporation was chartered by federal law as well as by the peculiar problems involved in the supervision of financial institutions. the court was at pains to make clear that this decision would not necessarily govern the disposition of dissimilar cases.[ ] rule-making power after wayman _v._ southard, nearly three quarters of a century elapsed before the court had occasion to approve the delegation to an executive officer of power to issue regulations for the administration of a statute. in it sustained the authority granted to the commissioner of internal revenue to designate the "marks, brands and stamps" to be affixed to packages of oleomargarine.[ ] soon thereafter it upheld an act which directed the secretary of the treasury to promulgate minimum standards of quality and purity for tea imported into the united states.[ ] it has approved the delegation to executive or administrative officials of authority to make rules governing the use of forest reservations;[ ] permitting reasonable variations and tolerances in the marking of food packages to disclose their contents;[ ] designating tobacco markets at which grading of tobacco would be compulsory;[ ] establishing priorities for the transportation of freight during a period of emergency;[ ] prescribing price schedules for the distribution of milk;[ ] or for all commodities[ ] and for rental housing[ ] in time of war; regulating wages and prices in the production and distribution of coal;[ ] imposing a curfew to protect military resources in designated areas from espionage and sabotage;[ ] providing for the appointment of receivers or conservators for federal savings and loan associations;[ ] allotting marketing quotas for tobacco;[ ] and prescribing methods of accounting for carriers in interstate commerce.[ ] orders directed to particular persons the now familiar pattern of regulation of important segments of the economy by boards or commissions which combine in varying proportions the functions of all three departments of government was first established by the states in the field of railroad rate regulation. discovering that direct action was impracticable, the state legislatures created commissions to deal with the problem. one of the pioneers in this development was minnesota, whose supreme court justified the practice in an opinion which, with the implied[ ] and later the explicit,[ ] endorsement of the supreme court, practically settled the law on this point: "if such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject, and who, after investigation of the facts, can fix rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the ever-varying conditions of traffic."[ ] contemporaneously congress created the interstate commerce commission to regulate the rates and practices of railroads with respect to interstate commerce. although the supreme court has never had occasion to render a direct decision on the delegation of rate-making power to the commission, it has repeatedly affirmed rate orders issued by that agency.[ ] likewise it has sustained the power of the secretary of war to order the removal or alteration of bridges which unreasonably obstructed navigation over navigable waters;[ ] the power of the federal reserve board to authorize national banks to act as fiduciaries;[ ] the authority of the secretary of labor to deport aliens of certain enumerated classes, if after hearing he found such aliens to be "undesirable residents";[ ] the responsibility of the interstate commerce commission to approve railroad consolidations found to be in the "public interest";[ ] and the powers of the federal radio commission[ ] and the federal communications commission[ ] to license broadcasting stations as "public convenience, interest and necessity" may require. the terms, however, in which a statute delegates authority to an administrative agent are subject to judicial review; and in a recent case the court disallowed an order of the secretary of agriculture proporting resting on § of the agricultural marketing agreement act of [ ] as _ultra vires_.[ ] delegation to private persons although in a few early cases the supreme court enforced statutes which gave legal effect to local customs of miners with respect to mining claims on public lands,[ ] and to standards adopted by railroads for equipment on railroad cars,[ ] it held, in schechter poultry corp. _v._ united states,[ ] and carter _v._ carter coal company[ ] that private trade groups could not be empowered to issue binding rules concerning methods of competition or wages and hours of labor. on the other hand, statutes providing that restrictions upon the production or marketing of agricultural commodities shall become operative only upon a favorable vote by a prescribed majority of the persons affected have been upheld.[ ] the position of the court is that such a requirement does not involve any delegation of legislative authority, since congress has merely placed a restriction upon its own regulation by withholding its operation in a given case unless it is approved upon a referendum.[ ] power to give effect to contingent legislation an entirely different problem arises when, instead of directing another department of government to apply a general statute to individual cases, or to supplement it by detailed regulation, congress commands that a previously enacted statute be revived, suspended or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. since the delegated function in such cases is not that of "filling up the details" of a statute, authority for it must be sought elsewhere than in wayman _v._ southard and its progeny. it is to be found in an even earlier case--the brig aurora[ ]--where the revival of a law upon the issuance of a presidential proclamation was upheld in . after previous restraints on british shipping had lapsed, congress passed a new law stating that those restrictions should be renewed in the event the president found and proclaimed that france had abandoned certain practices which violated the neutral commerce of the united states. to the objection that this was an invalid delegation of legislative power, the court answered briefly that "we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of march st, , either expressly or conditionally, as their judgment should direct."[ ] modification of tariff laws this point was raised again in field _v._ clark,[ ] where the tariff act of was assailed as unconstitutional because it directed the president to suspend the free importation of enumerated commodities "for such time as he shall deem just" if he found that other countries imposed upon agricultural or other products of the united states duties or other exactions which "he may deem to be reciprocally unequal and unjust." in sustaining this statute the court relied heavily upon two factors: ( ) legislative precedents which demonstrated that "in the judgment of the legislative branch of the government, it is often desirable, if not essential, * * *, to invest the president with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations";[ ] ( ) that the act "did not, in any real sense, invest the president with the power of legislation. * * * congress itself prescribed, in advance, the duties to be levied, * * *, while the suspension lasted. nothing involving the expediency or the just operation of such legislation was left to the determination of the president. * * * he had no discretion in the premises except in respect to the duration of the suspension so ordered."[ ] by similar reasoning, the court sustained the flexible provisions of the tariff act of whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the president.[ ] arms embargo that the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was clearly indicated in united states _v._ curtiss-wright export corp.[ ] there the court upheld the joint resolution of congress which made it unlawful to sell arms to certain warring countries "if the president finds that the prohibition of the sale of arms and munitions of war in the united states to those countries now engaged in armed conflict in the chaco may contribute to the reestablishment of peace * * *, and if * * *, he makes proclamation to that effect, * * *" said justice sutherland for the court: "it is important to bear in mind that we are here dealing not alone with an authority vested in the president by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations--* * *, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the president a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved."[ ] internal affairs panama refining co. _v._ ryan[ ] was the first case in which the president had been authorized to put into effect by proclamation, a new and independent rule pertaining to internal affairs. one section of the national industrial recovery act authorized the president to forbid the shipment in interstate commerce of oil produced or withdrawn from storage in violation of state law. apart from the purposes broadly stated in the first section--economic recovery and conservation of natural resources--the measure contained no standard or statement of policy by which the president should be guided in determining whether or when to issue the order. nor did it require him to make any findings of fact to disclose the basis of his action. by a vote of eight-to-one the court held the delegation invalid. the only case in which the power of an administrative official to modify a rule enacted by congress relating to domestic affairs has been sustained is opp cotton mills _v._ administrator.[ ] that case involved the provisions of the fair labor standards act which authorized the appointment of industry advisory committees to investigate conditions in particular industries, with notice and opportunity to be heard afforded to interested parties. upon consideration of factors enumerated in the law and upon finding that the conditions specified in the law were fulfilled, such committees were empowered to recommend and the administrator to adopt, higher minimum wage rates for particular industries. emphasizing the procedure which the agency was directed to follow and the fact that it would be impossible for congress to prescribe specific minimum wages for particular industries,[ ] a unanimous court sustained the law on the ground that the sole function of the administrator was to put into effect the definite policy adopted by the legislators. emergency statutes occupying a midway station between legislation which deals with foreign affairs and purely domestic legislation is what may be termed "emergency statutes." these are largely the outgrowth of the two world wars. thus on december , , president truman issued a proclamation declaring "the existence of a national emergency," and by so doing "activated" more than sixty statutes or parts thereof which by their terms apply to or during "a condition of emergency" or "in time of war or national emergency," etc. most of these specifically leave it to the president to determine the question of emergency, and the white house assumption seems to be that they all do so. many of the provisions thus activated delegate powers of greater or less importance to the president himself or remove statutory restrictions thereon.[ ] punishment of violations if congress so provides, violations of valid administrative regulations may be punished as crimes.[ ] but the penalties must be provided in the statute itself; additional punishment cannot be imposed by administrative action.[ ] in an early case, the court held that a section prescribing penalties for any violation of a statute did not warrant a prosecution for wilful disobedience of regulations authorized by, and lawfully issued pursuant to, the act.[ ] without disavowing this general proposition, the court, in , upheld a suspension order issued by the opa whereby a dealer in fuel oil who had violated rationing regulations was forbidden to receive or deal on that commodity.[ ] although such an order was not explicitly authorized by statute, it was sustained as being a reasonable measure for effecting a fair allocation of fuel oil, rather than as a means of punishment for an offender. in another opa case, the court ruled that in a criminal prosecution, a price regulation was subject to the same rule of strict construction as a statute, and that omissions from, or indefiniteness in, such a regulation, could not be cured by the administrator's interpretation thereof.[ ] congressional investigations investigations in aid of legislation no provision of the constitution expressly authorized either house of congress to make investigations and exact testimony to the end that it may exercise its legislative function effectively and advisedly. but such a power had been frequently exercised by the british parliament and by the assemblies of the american colonies prior to the adoption of the constitution.[ ] it was asserted by the house of representatives as early as when it appointed a committee to investigate the disaster to general st. clair and his army in the northwest and empowered it to "call for such persons, papers, and records, as may be necessary to assist their inquiries."[ ] conduct of executive department for many years the investigating function of congress was limited to inquiries into the administration of the executive department or of instrumentalities of the government. until the administration of andrew jackson this power was not seriously challenged.[ ] during the controversy over renewal of the charter of the bank of the united states, john quincy adams contended that an unlimited inquiry into the operations of the bank would be beyond the power of the house.[ ] four years later the legislative power of investigation was challenged by the president. a committee appointed by the house of representatives "with power to send for persons and papers, and with instructions to inquire into the condition of the various executive departments, the ability and integrity with which they have been conducted, * * *"[ ] called upon the president and the heads of departments for lists of persons appointed without the consent of the senate and the amounts paid to them. resentful of this attempt "to invade the just rights of the executive departments" the president refused to comply and the majority of the committee acquiesced.[ ] nevertheless congressional investigations of executive departments have continued to the present day. shortly before the civil war, contempt proceedings against a witness who refused to testify in an investigation of john brown's raid upon the arsenal at harper's ferry occasioned a thorough consideration by the senate of the basis of this power. after a protracted debate, which cut sharply across sectional and party lines, the senate voted overwhelmingly to imprison the contumacious witness.[ ] notwithstanding this firmly established legislative practice the supreme court took a narrow view of the power in the case of kilbourn _v._ thompson.[ ] it held that the house of representatives had overstepped its jurisdiction when it instituted an investigation of losses suffered by the united states as a creditor of jay cooke and company, whose estate was being administered in bankruptcy by a federal court. but nearly half a century later, in mcgrain _v._ daugherty,[ ] it ratified in sweeping terms, the power of congress to inquire into the administration of an executive department and to sift charges of malfeasance in such administration. private affairs beginning with the resolution adopted by the house of representatives in which vested its committee on manufactures "with the power to send for persons and papers with a view to ascertain and report to this house such facts as may be useful to guide the judgment of this house in relation to a revision of the tariff duties on imported goods,"[ ] the two houses have asserted the right to inquire into private affairs when necessary to enlighten their judgment on proposed legislation. in kilbourn _v._ thompson,[ ] the court denied the right of congress to pry into private affairs. again, in interstate commerce commission _v._ brimson,[ ] in sustaining a statute authorizing the courts to use their process to compel witnesses to give testimony sought by the commission for the enforcement of the act, the court warned that, "neither branch of the legislative department, still less any merely administrative body, established by congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen."[ ] finally, however, in mcgrain _v._ daugherty,[ ] the power of either house "to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the constitution, * * *"[ ] was judicially recognized and approved. purpose of inquiry in the absence of any showing that legislation was contemplated as a result of the inquiry undertaken in kilbourn _v._ thompson, the supreme court concluded that the purpose was an improper one--to pry into matters with which the judiciary alone was empowered to deal.[ ] subsequent cases have given the legislature the benefit of a presumption that its object is legitimate. in re chapman[ ] established the proposition that to make an investigation lawful "it was certainly not necessary that the resolutions should declare in advance what the senate meditated doing when the investigation was concluded."[ ] similarly, in mcgrain _v._ daugherty, the investigation was presumed to have been undertaken in good faith to aid the senate in legislating.[ ] going one step further in sinclair _v._ united states,[ ] which on its facts presented a close parallel to the kilbourn case, the court affirmed the right of the senate to carry on its investigation of fraudulent leases of government property after suit for the recovery thereof had been instituted. the president of the lessee corporation had refused to testify on the ground that the questions related to his private affairs and to matters cognizable only in the courts wherein they were pending and that the committee avowedly had departed from any inquiry in aid of legislation. the senate prudently had directed the investigating committee to ascertain what, if any, other or additional legislation may be advisable. conceding "that congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits," the court declared that the authority "to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits."[ ] judicial functions when either house exercises a judicial function, as in judging of elections or determining whether a member should be expelled, it is clearly entitled to compel the attendance of witnesses to disclose the facts upon which its action must be based. thus the court held that since a house had a right to expel a member for any offense which it deemed incompatible with his trust and duty as a member, it was entitled to investigate such conduct and to summon private individuals to give testimony concerning it.[ ] the decision in barry _v._ united states ex rel. cunningham[ ] sanctioned the exercise of a similar power in investigating a senatorial election. sanctions of the investigatory power contempt explicit judicial recognition of the right of either house of congress to commit for contempt a witness who ignores its summons or refuses to answer its inquiries dates from mcgrain _v._ daugherty. but the principle there applied had its roots in an early case, anderson _v._ dunn,[ ] which affirmed in broad terms the right of either branch of the legislature to attach and punish a person other than a member for contempt of its authority--in that case an attempt to bribe one of its members. the right to punish a contumacious witness was conceded in marshall _v._ gordon,[ ] although the court there held that the implied power to deal with contempt did not extend to the arrest of a person who published matter defamatory of the house. both anderson _v._ dunn and marshall _v._ gordon emphasized that the power to punish for contempt rests upon the right of self-preservation; that is, in the words of chief justice white, "the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed."[ ] whence it was argued, in jurney _v._ maccracken[ ] that the senate had no power to punish a witness who, having been commanded to produce papers, destroyed them after service of the subpoena, because the "power to punish for contempt may never be exerted, in the case of a private citizen, solely _qua_ punishment. * * * the power to punish ceases as soon as the obstruction has been removed, or its removal has become impossible; * * *" the court confirmed the power to punish for a past contempt as an appropriate means for vindicating "the established and essential privilege of requiring the production of evidence."[ ] criminal prosecutions under the rule laid down by anderson _v._ dunn, imprisonment for contempt of one of the houses of congress could not extend beyond the adjournment of the body which ordered it.[ ] this limitation seriously impaired the efficacy of such sanction. accordingly, in congress found it necessary to provide criminal penalties for recalcitrant witnesses, in order to make its power to compel testimony more effective. the supreme court held that the purpose of this statute was merely to supplement the power of contempt by providing additional punishment, and overruled all constitutional objections to it saying: "we grant that congress could not divest itself, or either of its houses, of the essential and inherent power to punish for contempt, in cases to which the power of either house properly extended; but, because congress, by the act of , sought to aid each of the houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved; * * *."[ ] in a prosecution for wilful failure of a person to produce records within her custody and control pursuant to a lawful subpoena issued by a committee of the house of representatives, the supreme court ruled that the presence of a quorum of the committee at the time of the return of the subpoena was not an essential element of the offense.[ ] previously the court had held that a prosecution could not be maintained under a general perjury statute for false testimony given before a congressional committee unless a quorum of the committee was present when the evidence was given.[ ] section . clause . the house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. clause . no person shall be a representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the united states, and who shall not, when elected, be an inhabitant of the state in which he shall be chosen. qualifications of members of congress congressional protection of right to vote for representatives although the qualifications of electors of members of congress are defined by state law,[ ] the right to vote for such representatives is derived from the federal constitution.[ ] unlike the rights guaranteed by the fourteenth and fifteenth amendments, this privilege is secured against the actions of individuals as well as of the states.[ ] it embraces the right to cast a ballot and to have it counted honestly.[ ] where a primary election is made by law an integral part of the procedure of choice or where the choice of a representative is in fact controlled by the primary, the constitution safeguards the rights of qualified electors to participate therein.[ ] congress may protect this right by appropriate legislation.[ ] in prosecutions instituted under section of the criminal code,[ ] the court had held that failure to count ballots lawfully cast,[ ] or dilution of their value by stuffing the ballot box with fraudulent ballots[ ] constitutes a denial of the constitutional right to elect representatives in congress. but the bribery of voters, although within reach of congressional power under other clauses of the constitution, is not deemed to be an interference with the rights guaranteed by this section to other qualified voters.[ ] when the above qualifications must be possessed the principal disputes which have arisen under these sections have related to the time as of which members-elect must fulfill the conditions of eligibility, and whether additional requirements may be imposed by federal or state law. although on two occasions when it refused to seat persons who were ineligible when they sought to take the oath of office, the senate indicated that eligibility must exist at the time of election, it is now established in both houses that it is sufficient if the requirements are met when the oath is administered. thus persons elected to either house before attaining the required age or term of citizenship have been admitted as soon as they became qualified.[ ] enlargement of qualifications writing in the federalist[ ] with reference to the election of members of congress, hamilton expressed the opinion that "the qualifications of persons who may * * * be chosen * * * are defined and fixed in the constitution and are unalterable by the legislature." the question remained academic until the civil war, when congress passed a law requiring its members to take an oath that they had never been disloyal to the federal government. in subsequent contests over the seating of men charged with disloyalty, the right of congress to establish by law other qualifications for its members than those contained in the constitution was sharply challenged. nevertheless, both the house and senate, relying on this act, did refuse to seat several persons.[ ] at this time the principal argument against the statute was that all persons were eligible for the office of representative unless the constitution made them ineligible. in burton _v._ united states,[ ] the argument was given a new twist. a law providing that a senator or representative convicted of unlawfully receiving money for services rendered before a government department should be "rendered forever thereafter incapable of holding any office of honor, trust or profit under the government of the united states," was assailed as an unconstitutional interference with the authority of each house to judge the qualifications of, or to expel, one of its own members. the court construed the statute not to affect the offender's tenure as a senator, and left undecided the power of congress to impose additional qualifications (or disqualifications).[ ] in exercising the power granted by section to judge the qualifications of its own members, each house has asserted the power to inquire into the conduct of a member-elect prior to his election. in the house of representatives refused to seat a person who practiced polygamy,[ ] and in the senate voted to exclude a senator-elect on the ground that his acceptance of large campaign contributions from persons who were subject to regulation by a state administrative commission of which he had been chairman were "contrary to sound public policy" and tainted his credentials with fraud and corruption.[ ] inability of the states to enlarge a state may not add to the qualifications prescribed by the constitution for members of the senate and house of representatives. asserting this principle, the house in seated a member whose election was contested on the ground that he had not been twelve months a resident of the district from which elected as required by state law. no attempt was made to ascertain whether these requirements were met because the state law was deemed to be unconstitutional.[ ] both the house and senate have seated members elected during their term of office as state judges, despite the provision of state constitutions purporting to bar the election of judges to any other office under the state or the united states during such term.[ ] clause . [representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding indians not taxed, three fifths of all other persons].[ ] the actual enumeration shall be made within three years after the first meeting of the congress of the united states, and within every subsequent term of ten years, in such manner as they shall by law direct. the number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumeration shall be made, the state of new hampshire shall be entitled to chuse three, massachusetts eight, rhode-island and providence plantations one, connecticut five, new-york six, new jersey four, pennsylvania eight, delaware one, maryland six, virginia ten, north carolina five, south carolina five, and georgia three. the census requirement while section expressly provides for an enumeration of persons, congress has repeatedly directed an enumeration not only of the free persons in the states, but also of those in the territories, and has required all persons over eighteen years of age to answer an ever-lengthening list of inquiries concerning their personal and economic affairs. this extended scope of the census has received the implied approval of the supreme court;[ ] it is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action. although taking an enlarged view of its power in making the enumeration of persons called for by this section, congress has not always complied with its positive mandate to reapportion representatives among the states after the census is taken. it failed to make such a reapportionment after the census of , being unable to reach agreement for allotting representation without further increasing the size of the house. ultimately, by the act of june , ,[ ] it provided that the membership of the house of representatives should henceforth be restricted to members, to be distributed among the states by the so-called "method of major fractions" which had been earlier employed in the apportionment of . clause . when vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. clause . the house of representatives shall chuse their speaker and other officers; and shall have the sole power of impeachment. section . clause . [the senate of the united states shall be composed of two senators from each state, chosen by the legislature thereof, for six years; and each senator shall have one vote]. clause . immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. the seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year; [and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies].[ ] clause . no person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. clause . the vice president of the united states shall be president of the senate, but shall have no vote, unless they be equally divided. clause . the senate shall chuse their other officers, and also a president pro tempore, in the absence of the vice president, or when he shall exercise the office of president of the united states. clause . the senate shall have the sole power to try all impeachments. when sitting for that purpose, they shall be on oath or affirmation. when the president of the united states is tried, the chief justice shall preside: and no person shall be convicted without the concurrence of two thirds of the members present. clause . judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the united states; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. section . clause . the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the congress may at any time by law make or alter such regulations, except as to the places of chusing senators. federal legislation under this clause not until did congress undertake to exercise the power to regulate the "times, places and manner of holding elections for senators and representatives." in that year it passed a law requiring the election of representatives by districts.[ ] prior to that time some of the states had sought to increase their influence by electing all of their representatives on a general ticket. the frequent deadlocks between the two houses of state legislatures with respect to the election of senators prompted congress to pass a further act in , which compelled the two bodies to meet in joint session on a specified day, and to meet everyday thereafter and vote for a senator until one was elected.[ ] the first comprehensive federal statute dealing with elections was adopted in . under the enforcement act of and kindred measures,[ ] false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required of him by state of federal law, were made federal offenses. provision was made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election tally sheets. after twenty-four years experience congress repealed those portions of the reconstruction legislation which dealt specifically with elections, but left in effect those dealing generally with civil rights.[ ] as seen earlier, those sections have been invoked for the prosecution of election offenses which interfere with the rights of voters guaranteed by the second section of this article. the election laws, of the reconstruction period were held invalid in part as applied to municipal elections,[ ] but were found to be a constitutional exercise of the authority conferred by this section with respect to the election of members of congress.[ ] legislature defined while requiring the election of representatives by districts, congress has left it to the states to define the areas from which members should be chosen. this has occasioned a number of disputes concerning the validity of action taken by the states. in ohio ex rel. davis _v._ hildebrant,[ ] a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. after the reapportionment made pursuant to the census, deadlocks between the governor and legislature in several states, produced a series of cases in which the right of the governor to veto a reapportionment bill was questioned. contrasting this function with other duties committed to state legislatures by the constitution, the court decided that it was legislative in character and hence subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the state constitution.[ ] present inequality of election districts the reapportionment act of [ ] omitted a requirement contained in the law[ ] that congressional districts be "composed of a contiguous and compact territory, * * * containing as nearly as practicable an equal number of inhabitants." since the earlier act was not repealed it was argued that the mandate concerning compactness, contiguity and equality of population of districts was still controlling. the supreme court rejected this view.[ ] in colegrove _v._ green,[ ] the illinois apportionment law, which created districts now having glaringly unequal populations, was attacked as unconstitutional on the ground that it denied to voters in the more populous districts the full right to vote and to the equal protection of the laws. the court dismissed the complaint, three justices asserting that the issue was not justiciable, and a fourth that the case was one in which the court should decline to exercise jurisdiction.[ ] justice black, dissenting in an opinion in which justices douglas and murphy joined, argued: "while the constitution contains no express provision requiring that congressional election districts established by the states must contain approximately equal populations, the constitutionally guaranteed right to vote and the right to have one's vote counted clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight of each vote case. * * * legislation which must inevitably bring about glaringly unequal representation in the congress in favor of special classes and groups should be invalidated, 'whether accomplished ingeniously or ingenuously'."[ ] congressional protection of the electoral process congress can by law protect the voter from personal violence or intimidation and the election itself from corruption and fraud.[ ] to accomplish these ends it may adopt the statutes of the states and enforce them by its own sanctions.[ ] it may punish a state election officer for violating his duty under a state law governing congressional elections.[ ] it may also punish federal officers and employees who solicit or receive contributions to procure the nomination of a particular candidate in a state primary election.[ ] at one time the court held that congress had no power, at least prior to the adoption of the seventeenth amendment, to limit the expenditures made to procure a primary nomination to the united states senate,[ ] but this decision has been greatly weakened, and the right of the national government to regulate primary elections conducted under state law for the nomination of members of congress has been squarely recognized where such primary is made by state law "an integral part of the procedure of choice, or where in fact the primary effectively controls the choice,..."[ ] clause . [the congress shall assemble at least once in every year, and such meeting shall be on the first monday in december, unless they shall by law appoint a different day]. section . clause . each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide. clause . each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member. clause . each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal. clause . neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. powers and duties of the houses power to judge elections each house, in judging of elections under this clause acts as a judicial tribunal, with like power to compel attendance of witnesses. in the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.[ ] it may punish perjury committed in testifying before a notary public upon a contested election.[ ] the power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.[ ] refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the senate to inquire into the legality of the election.[ ] nor does such refusal unlawfully deprive the state which elected such person of its equal suffrage in the senate.[ ] "a quorum to do business" for many years the view prevailed in the house of representatives that it was necessary for a majority of the members to vote on any proposition submitted to the house in order to satisfy the constitutional requirement for a quorum. it was a common practice for the opposition to break a quorum by refusing to vote. this was changed in , by a ruling made by speaker reed, and later embodied in rule xv of the house, that members present in the chamber but not voting would be counted in determining the presence of a quorum.[ ] the supreme court upheld this rule in united states _v._ ballin,[ ] saying that the capacity of the house to transact business is "created by the mere presence of a majority," and that since the constitution does not prescribe any method for determining the presence of such majority "it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact."[ ] the rules of the senate provide for the ascertainment of a quorum only by a roll call,[ ] but in a few cases it has held that if a quorum is present, a proposition can be determined by the vote of a lesser number of members.[ ] rules of procedure in the exercise of their constitutional power to determine their rules of proceedings the houses of congress may not "ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. but within these limitations all matters of method are open to the determination of the house, * * * the power to make rules is not one which once exercised is exhausted. it is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."[ ] where a rule affects private rights, the construction thereof becomes a judicial question. in united states _v._ smith,[ ] the court held that the senate's attempt to reconsider its confirmation of a person nominated by the president as chairman of the federal power commission was not warranted by its rules, and did not deprive the appointee of his title to the office. in christoffel _v._ united states[ ] a sharply divided court upset a conviction for perjury in the district courts of one who had denied under oath before a house committee any affiliation with communism. the reversal was based on the ground that inasmuch as a quorum of the committee, while present at the outset, was not present at the time of the alleged perjury, testimony before it was not before a "competent tribunal" within the sense of the district of columbia code.[ ] four justices, speaking by justice jackson dissented, arguing that under the rules and practices of the house, "a quorum once established is presumed to continue unless and until a point of no quorum is raised" and that the court was, in effect, invalidating this rule, thereby invalidating at the same time the rule of self-limitation observed by courts "where such an issue is tendered."[ ] powers of the houses over members congress has authority to make it an offense against the united states for a member, during his continuance in office, to receive compensation for services before a government department in relation to proceedings in which the united states is interested. such a statute does not interfere with the legitimate authority of the senate or house over its own members.[ ] in upholding the power of the senate to investigate charges that some senators had been speculating in sugar stocks during the consideration of a tariff bill, the supreme court asserted that "the right to expel extends to all cases where the offence is such as in the judgment of the senate is inconsistent with the trust and duty of a member."[ ] it cited with apparent approval the action of the senate in expelling william blount in for attempting to seduce an american agent among the indians from his duty and for negotiating for services in behalf of the british government among the indians--conduct which was not a "statutable offense" and which was not committed in his official character, nor during the session of congress nor at the seat of government. the duty to keep a journal the object of the clause requiring the keeping of a journal is "to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents."[ ] when the journal of either house is put in evidence for the purpose of determining whether the yeas and nays, were ordered, and what the vote was on any particular question, the journal must be presumed to show the truth, and a statement therein that a quorum was present, though not disclosed by the yeas and nays, is final.[ ] but when an enrolled bill, which has been signed by the speaker of the house and by the president of the senate, in open session, receives the approval of the president and is deposited in the department of state, its authentication as a bill that has passed congress is complete and unimpeachable, and it is not competent to show from the journals of either house that an act so authenticated, approved, and deposited, in fact omitted one section actually passed by both houses of congress.[ ] section . clause . the senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the united states. they shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. compensation, immunities and disabilities of members when the pay starts a member of congress who receives his certificate of admission, and is seated, allowed to vote, and serve on committees, is _prima facie_ entitled to the seat and salary, even though the house subsequently declares his seat vacant. the one who contested the election and was subsequently chosen to fill the vacancy is entitled to salary only from the time the compensation of such "predecessor" has ceased.[ ] privilege from arrest this clause is practically obsolete. it applies only to arrests in civil suits, which were still common in this country at the time the constitution was adopted.[ ] it does not apply to service of process in either civil[ ] or criminal cases.[ ] nor does it apply to arrest in any criminal case. the phrase "treason, felony or breach of the peace" is interpreted to withdraw all criminal offenses from the operation of the privilege.[ ] the privilege of speech or debate the protection of this clause is not limited to words spoken in debate, but is applicable to written reports, to resolutions offered, to the act of voting and to all things generally done in a session of the house by one of its members in relation to the business before it.[ ] in kilbourn _v._ thompson[ ] the supreme court quoted with approval the following excerpt from the opinion of chief justice parsons in the early massachusetts of coffin _v._ coffin,[ ] giving a broad scope to the immunity of legislators: "'these privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. i, therefore, think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. i will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office. and i would define the article as securing to every member exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular, according to the rules of the house, or irregular and against their rules. i do not confine the member to his place in the house; and i am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives' chamber.'"[ ] accordingly the court ruled that members of the house of representatives were not liable to a suit for false imprisonment by reason of their initiation and prosecution of the legislative proceedings under which plaintiff was arrested.[ ] nor does the claim of an unworthy purpose destroy the privilege. "legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. one must not expect uncommon courage even in legislators".[ ] clause . no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the united states, which shall have been created, or the emoluments whereof shall have been encreased during such time; and no person holding any office under the united states, shall be a member of either house during his continuance in office. incompatible offices according to legislative precedents, visitors to academies, regents, directors and trustees of public institutions, and members of temporary commissions who receive no compensation as such, are not officers within the constitutional inhibition of section .[ ] government contractors and federal officers who resign before presenting their credentials may be seated as members of congress.[ ] in , after having increased the salary of the secretary of state,[ ] congress reduced it to the former figure so that a member of the senate at the time the increase was voted would be eligible for that office.[ ] the first clause again became a subject of discussion in , when justice black was appointed to the supreme court in face of the fact that congress had recently improved the financial position of justices retiring at seventy and the term for which mr. black had been elected to the senate from alabama in had still some time to run. the appointment was defended by the argument that inasmuch as mr. black was only fifty-one years old at the time and so would be ineligible for the "increased emolument" for nineteen years, it was not _as to him_ an increased emolument.[ ] section . clause . all bills for raising revenue shall originate in the house of representatives; but the senate may propose or concur with amendments as on other bills. clause . every bill which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the united states; if he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. if after such reconsideration two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house, it shall become a law. but in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the congress by their adjournment prevent its return, in which case it shall not be a law. the legislative process revenue bills only bills to levy taxes in the strict sense of the word are comprehended by the phrase "all bills for raising revenue"; bills for other purposes, which incidentally create revenue, are not included.[ ] an act providing a national currency secured by a pledge of bonds of the united states, which, "in the furtherance of that object, and also to meet the expenses attending the execution of the act," imposed a tax on the circulating notes of national banks was held not to be a revenue measure which must originate in the house of representatives.[ ] neither was a bill which provided that the district of columbia should raise by taxation and pay to designated railroad companies a specified sum for the elimination of grade crossings and the construction of a union railway station.[ ] the substitution of a corporation tax for an inheritance tax,[ ] and the addition of a section imposing an excise tax upon the use of foreign built pleasure yachts,[ ] have been held to be within the senate's constitutional power to propose amendments. approval by the president the president is not restricted to signing a bill on a day when congress is in session.[ ] he may sign within ten days (sundays excepted) after the bill is presented to him, even if that period extends beyond the date of the final adjournment of congress.[ ] his duty in case of approval of a measure is merely to sign it. he need not write on the bill the word "approved" nor the date. if no date appears on the face of the roll, the court may ascertain the fact by resort to any source of information capable of furnishing a satisfactory answer.[ ] a bill becomes law on the date of its approval by the president.[ ] when no time is fixed by the act it is effective from the date of its approval,[ ] which usually is taken to be the first moment of the day, fractions of a day being disregarded.[ ] the veto power if congress adjourns within ten days (sundays excepted) of the presentation of a bill to the president, the return of the bill is prevented within the meaning of this clause. consequently it does not become law if the president does not sign it, but succumbs to what in congressional parlance is called a "pocket veto."[ ] but a brief recess by the house in which a bill originated, while the congress is still in session, does not prevent the return of a bill by delivery to one of the officers of the house who has implied authority to receive it.[ ] the two-thirds vote of each house required to pass a bill over a veto means two-thirds of a quorum.[ ] after a bill becomes law the president has no authority to repeal it. asserting this truism, the supreme court held in the confiscation cases,[ ] that the immunity proclamation issued by the president in did not require reversal of a decree condemning property which had been seized under the confiscation act of .[ ] clause . every order, resolution, or vote to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to the president of the united states; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill. presentation of resolutions the sweeping nature of this obviously ill-considered provision is emphasized by the single exception specified to its operation. actually, it was impossible from the first to give it any such scope. otherwise the intermediate stages of the legislative process would have been bogged down hopelessly, not to mention other highly undesirable results. in a report rendered by the senate judiciary committee in it was shown that the word "necessary" in the clause had come in practice to refer "to the necessity occasioned by the requirement of other provisions of the constitution, whereby every exercise of 'legislative powers' involves the concurrence of the two houses"; or more briefly, "necessary" here means necessary if an "order, resolution, or vote" is to have the force of law. such resolutions have come to be termed "joint resolutions" and stand on a level with "bills," which if "enacted" become statutes. but "votes" taken in either house preliminary to the final passage of legislation need not be submitted to the president, nor resolutions passed by the houses concurrently with a view to expressing an opinion or to devising a common program of action (e.g., the concurrent resolutions by which during the fight over reconstruction the southern states were excluded from representation in the house and senate, the joint committee on reconstruction containing members from both houses was created, etc.), or to directing the expenditure of money appropriated to the use of the two houses.[ ] within recent years the concurrent resolution has been put to a new use--the termination of powers delegated to the chief executive, or the disapproval of particular exercises of power by him. most of the important legislation enacted for the prosecution of world war ii provided that the powers granted to the president should come to an end upon adoption of concurrent resolutions to that effect.[ ] similarly, measures authorizing the president to reorganize executive agencies have provided that a reorganization plan promulgated by him should be reported by congress and should not become effective if one[ ] or both[ ] houses adopted a resolution disapproving it. also, it was settled as early as that resolutions of congress proposing amendments to the constitution need not be submitted to the president, the bill of rights having been referred to the states without being laid before president washington for his approval--a procedure which the court ratified in due course.[ ] section . the congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the united states; but all duties, imposts and excises shall be uniform throughout the united states. the taxing-spending power kinds of taxes permitted by the terms of the constitution, the power of congress to levy taxes is subject to but one exception and two qualifications. articles exported from any state may not be taxed at all. direct taxes must be levied by the rule of apportionment and indirect taxes by the rule of uniformity. the court has emphasized the sweeping character of this power by saying from time to time that it "reaches every subject,"[ ] that it is "exhaustive"[ ] or that it "embraces every conceivable power of taxation."[ ] despite these generalizations, the power has been at times substantially curtailed by judicial decision with respect to the subject matter of taxation, the manner in which taxes are imposed, and the objects for which they may be levied. decline of the forbidden subject matter test in recent years the supreme court has restored to congress the power to tax most of the subject matter which had previously been withdrawn from its reach by judicial decision. the holding of evans _v._ gore[ ] and miles _v._ graham[ ] that the inclusion of the salaries received by federal judges in measuring the liability for a nondiscriminatory income tax violated the constitutional mandate that the compensation of such judges should not be diminished during their continuance in office was repudiated in o'malley _v._ woodrough.[ ] the specific ruling of collector _v._ day[ ] that the salary of a state officer is immune to federal income taxation also has been overruled.[ ] but the principle underlying that decision--that congress may not lay a tax which would impair the sovereignty of the states--is still recognized as retaining some vitality. the rise and fall of collector _v._ day collector _v._ day was decided in while the country was still in the throes of reconstruction. as noted by chief justice stone in a footnote to his opinion in helvering _v._ gerhardt,[ ] the court had not then determined how far the civil war amendments had broadened the federal power at the expense of the states; the fact that the taxing power had recently been used with destructive effect upon notes issued by state banks[ ] suggested the possibility of similar attacks upon the existence of the states themselves. two years later the court took the logical further step of holding that the federal income tax could not be imposed on income received by a municipal corporation from its investments.[ ] a far-reaching extension of private immunity was granted in pollock _v._ farmers loan and trust co.,[ ] where interest received by a private investor on state or municipal bonds was held to be exempt from federal taxation. as the apprehensions of this era subsided, the doctrine of these cases was pushed into the background. it never received the same wide application as did mcculloch _v._ maryland[ ] in curbing the power of the states to tax operations or instrumentalities of the federal government. only once since the turn of the century has the national taxing power been further narrowed in the name of dual federalism. in the court held that a federal excise tax was inapplicable to the manufacture and sale to a municipal corporation of equipment for its police force.[ ] justices stone and brandeis dissented from this decision and it is doubtful whether it would be followed today. federal taxation of state interests within a decade after the pollock decision the retreat from collector _v._ day began. in , a succession tax upon a bequest to a municipality for public purposes was upheld on the ground that the tax was payable out of the estate before distribution to the legatee. looking to form and not to substance, in disregard of the mandate of brown _v._ maryland,[ ] a closely divided court declined to "regard it as a tax upon the municipality, though it might operate incidentally to reduce the bequest by the amount of the tax."[ ] when south carolina embarked upon the business of dispensing alcoholic beverages, its agents were held to be subject to the national internal revenue tax, the ground of the holding being that in such a business was not regarded as one of the ordinary functions of government.[ ] another decision marking a clear departure from the logic of collector _v._ day was flint _v._ stone tracy company,[ ] where the court sustained an act of congress taxing the privilege of doing business as a corporation, the tax being measured by the income. the argument that the tax imposed an unconstitutional burden on the exercise by a state of its reserved power to create corporate franchises was rejected, partly in consideration of the principle of national supremacy, and partly on the ground that the corporate franchises were private property. this case also qualified pollock _v._ farmers loan and trust company to the extent of allowing interest on state bonds to be included in measuring the tax on the corporation. subsequent cases have sustained an estate tax on the net estate of a decedent, including state bonds;[ ] excise taxes on the transportation of merchandise in performance of a contract to sell and deliver it to a county;[ ] on the importation of scientific apparatus by a state university;[ ] on admissions to athletic contests sponsored by a state institution, the net proceeds of which were used to further its educational program;[ ] and on admissions to recreational facilities operated on a nonprofit basis by a municipal corporation.[ ] income derived by independent engineering contractors from the performance of state functions;[ ] the compensation of trustees appointed to manage a street railway taken over and operated by a state;[ ] profits derived from the sale of state bonds;[ ] or from oil produced by lessees of state lands;[ ] have all been held to be subject to federal taxation despite a possible economic burden on the state. is any immunity left the states? although there have been sharp differences of opinion among members of the supreme court in recent cases dealing with the tax immunity of state functions and instrumentalities, it has been stated that "all agree that not all of the former immunity is gone."[ ] twice the court has made an effort to express its new point of view in a statement of general principles by which the right to such immunity shall be determined. however, the failure to muster a majority in concurrence with any single opinion in the more recent of these cases leaves the question very much in doubt. in helvering _v._ gerhardt,[ ] where, without overruling collector _v._ day, it narrowed the immunity of salaries of state officers and federal income taxation, the court announced "* * *, two guiding principles of limitation for holding the tax immunity of state instrumentalities to its proper function. the one, dependent upon the nature of the function being performed by the state or in its behalf, excludes from the immunity activities thought not to be essential to the preservation of state governments even though the tax be collected from the state treasury. * * * the other principle, exemplified by those cases where the tax laid upon individuals affects the state only as the burden is passed on to it by the taxpayer, forbids recognition of the immunity when the burden on the state is so speculative and uncertain that if allowed it would restrict the federal taxing power without affording any corresponding tangible protection to the state government; even though the function be thought important enough to demand immunity from a tax upon the state itself, it is not necessarily protected from a tax which well may be substantially or entirely absorbed by private persons."[ ] conflicting views on the court the second attempt to formulate a general doctrine was made in new york _v._ united states,[ ] where, on review of a judgment affirming the right of the united states to tax the sale of mineral waters taken from property owned and operated by the state of new york, the court was asked to and did reconsider the right of congress to tax business enterprises carried on by the states. justice frankfurter, speaking for himself and justice rutledge, made the question of discrimination _vel non_ against state activities the test of the validity of such a tax. they found "no restriction upon congress to include the states in levying a tax exacted equally from private persons upon the same subject matter."[ ] in a concurring opinion in which justices reed, murphy, and burton joined, chief justice stone rejected the criterion of discrimination. he repeated what he had said in an earlier case to the effect that "'* * * the limitation upon the taxing power of each, so far as it affects the other, must receive a practical construction which permits both to function with the minimum of interference each with the other; and that limitation cannot be so varied or extended as seriously to impair either the taxing power of the government imposing the tax * * * or the appropriate exercise of the functions of the government affected by it.'"[ ] justices douglas and black dissented in an opinion written by the former on the ground that the decision disregarded the tenth amendment, placed "the sovereign states on the same plane as private citizens," and made them "pay the federal government for the privilege of exercising powers of sovereignty guaranteed them by the constitution."[ ] in the most recent case dealing with state immunity the court sustained the tax on the second ground mentioned in helvering _v._ gerhardt--that the burden of the tax was borne by private persons--and did not consider whether the function was one which the federal government might have taxed if the municipality had borne the burden of the exaction.[ ] the rule of uniformity whether a tax is to be apportioned among the states according to the census taken pursuant to article i, section , or imposed uniformly throughout the united states depends upon its classification as direct or indirect.[ ] the rule of uniformity for indirect taxes is easy to obey. it exacts only that the subject matter of a levy be taxed at the same rate wherever found in the united states; or, as it is sometimes phrased, the uniformity required is "geographical," not "intrinsic."[ ] the clause accordingly places no obstacle in the way of legislative classification for the purpose of taxation, nor in the way of what is called progressive taxation.[ ] a taxing statute does not fail of the prescribed uniformity because its operation and incidence may be affected by differences in state laws.[ ] a federal estate tax law which permitted a deduction for a like tax paid to a state was not rendered invalid by the fact that one state levied no such tax.[ ] the term "united states" in this clause refers only to the states of the union, the district of columbia, and incorporated territories. congress is not bound by the rule of uniformity in framing tax measures for unincorporated territories.[ ] indeed, in binns _v._ united states,[ ] the court sustained license taxes imposed by congress but applicable only in alaska, where the proceeds, although paid into the general fund of the treasury, did not in fact equal the total cost of maintaining the territorial government. purposes of taxation regulation by taxation the discretion of congress in selecting the objectives of taxation has also been held at times to be subject to limitations implied from the nature of the federal system. apart from matters which congress is authorized to regulate, the national taxing power, it has been said, "reaches only existing subjects."[ ] congress may tax any activity actually carried on, regardless of whether it is permitted or prohibited by the laws of the united states[ ] or by those of a state.[ ] but so-called federal "licenses," so far as they relate to trade within state limits, merely express "the purpose of the government not to interfere * * * with the trade nominally licensed, if the required taxes are paid." whether the "licensed" trade shall be permitted at all is a question for decision by the state.[ ] this, nevertheless, does not signify that congress may not often regulate to some extent a business within a state in order the more effectively to tax it. under the necessary and proper clause, congress may do this very thing. not only has the court sustained regulations concerning the packaging of taxed articles such as tobacco[ ] and oleomargarine,[ ] ostensibly designed to prevent fraud in the collection of the tax; it has also upheld measures taxing drugs[ ] and firearms[ ] which prescribed rigorous restrictions under which such articles could be sold or transferred, and imposed heavy penalties upon persons dealing with them in any other way. these regulations were sustained as conducive to the efficient collection of the tax though they clearly transcended in some respects this ground of justification. extermination by taxation a problem of a different order is presented where the tax itself has the effect of suppressing an activity or where it is coupled with regulations which clearly have no possible relation to the collection of the tax. where a tax is imposed unconditionally, so that no other purpose appears on the face of the statute, the court has refused to inquire into the motives of the lawmakers and has sustained the tax despite its prohibitive proportions.[ ] in the language of a recent opinion: "it is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. * * * the principle applies even though the revenue obtained is obviously negligible, * * *, or the revenue purpose of the tax may be secondary, * * * nor does a tax statute necessarily fall because it touches on activities which congress might not otherwise regulate. as was pointed out in magnano co. _v._ hamilton, u.s. , ( ): 'from the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishment.'"[ ] but where the tax is conditional, and may be avoided by compliance with regulations set out in the statute, the validity of the measure is determined by the power of congress to regulate the subject matter. if the regulations are within the competence of congress, apart from its power to tax, the exaction is sustained as an appropriate sanction for making them effective;[ ] otherwise it is invalid.[ ] during the prohibition era, congress levied a heavy tax upon liquor dealers who operated in violation of state law. in united states _v._ constantine[ ] the court held that this tax was unenforceable after the repeal of the eighteenth amendment, since the national government had no power to impose an additional penalty for infractions of state law. the protective tariff the earliest examples of taxes levied with a view to promoting desired economic objectives in addition to raising revenue were, of course, import duties. the second statute adopted by the first congress was a tariff act which recited that "it is necessary for the support of government, for the discharge of the debts of the united states, and the encouragement and protection of manufactures, that duties be laid on goods, wares and merchandise imported."[ ] after being debated for nearly a century and a half, the constitutionality of protective tariffs was finally settled by the unanimous decision of the supreme court in hampton and company _v._ united states,[ ] where chief justice taft wrote: "the second objection to § is that the declared plan of congress, either expressly or by clear implication, formulates its rule to guide the president and his advisory tariff commission as one directed to a tariff system of protection that will avoid damaging competition to the country's industries by the importation of goods from other countries at too low a rate to equalize foreign and domestic competition in the markets of the united states. it is contended that the only power of congress in the levying of customs duties is to create revenue, and that it is unconstitutional to frame the customs duties with any other view than that of revenue raising. * * * in this first congress sat many members of the constitutional convention of . this court has repeatedly laid down the principle that a contemporaneous legislative exposition of the constitution when the founders of our government and framers of our constitution were actively participating in public affairs, long acquiesced in, fixes the construction to be given its provisions. * * * the enactment and enforcement of a number of customs revenue laws drawn with a motive of maintaining a system of protection, since the revenue law of , are matters of history. * * * whatever we may think of the wisdom of a protection policy, we can not hold it unconstitutional. so long as the motive of congress and the effect of its legislative action are to secure revenue for the benefit of the general government, the existence of other motives in the selection of the subject of taxes cannot invalidate congressional action."[ ] spending for the general welfare the grant of power to "provide * * * for the general welfare" raises a two-fold question: how may congress provide for "the general welfare" and what is "the general welfare" which it is authorized to promote? the first half of this question was answered by thomas jefferson in his opinion on the bank as follows: "* * * the laying of taxes is the _power_, and the general welfare the _purpose_ for which the power is to be exercised. they [congress] are not to lay taxes _ad libitum for any purpose they please_; but only _to pay the debts or provide for the welfare of the union_. in like manner, they are not _to do anything they please_ to provide for the general welfare, but only to _lay taxes_ for that purpose."[ ] the clause, in short, is not an independent grant of power, but a qualification of the taxing power. although a broader view has been occasionally asserted,[ ] congress has not acted upon it and the courts have had no occasion to adjudicate the point. hamilton _v._ madison with respect to the meaning of "the general welfare" the pages of the federalist itself disclose a sharp divergence of views between its two principal authors. hamilton adopted the literal, broad meaning of the clause;[ ] madison contended that the powers of taxation and appropriation of the proposed government should be regarded as merely instrumental to its remaining powers, in other words, as little more than a power of self-support.[ ] from an early date congress has acted upon the interpretation espoused by hamilton. appropriations for subsidies[ ] and for an ever increasing variety of "internal improvements"[ ] constructed by the federal government, had their beginnings in the administrations of washington and jefferson.[ ] since , federal grants-in-aid,--sums of money apportioned among the states for particular uses, often conditioned upon the duplication of the sums by the recipient state, and upon observance of stipulated restrictions as to its use--have become commonplace.[ ] triumph of the hamiltonian theory the scope of the national spending power was brought before the supreme court at least five times prior to , but the court disposed of four of them without construing the "general welfare" clause. in the pacific railway cases[ ] and smith _v._ kansas city title and trust company,[ ] it affirmed the power of congress to construct internal improvements, and to charter and purchase the capital stock of federal land banks, by reference to the powers of the national government over commerce, the post roads and fiscal operations, and to its war powers. decisions on the merits were withheld in two other cases--massachusetts _v._ mellon and frothingham _v._ mellon[ ]--on the ground that neither a state nor an individual citizen is entitled to a remedy in the courts against an unconstitutional appropriation of national funds. in united states _v._ gettysburg electric railway co.,[ ] however, the court had invoked "the great power of taxation to be exercised for the common defence and the general welfare,"[ ] to sustain the right of the federal government to acquire land within a state for use as a national park. finally, in united states _v._ butler,[ ] the court gave its unqualified endorsement to hamilton's views on the taxing power. wrote justice roberts for the court: "since the foundation of the nation sharp differences of opinion have persisted as to the true interpretation of the phrase. madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the united states is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the congress. in this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the united states. each contention has had the support of those whose views are entitled to weight. this court had noticed the question, but has never found it necessary to decide which is the true construction. justice story, in his commentaries, espouses the hamiltonian position. we shall not review the writings of public men and commentators or discuss the legislative practice. study of all these leads us to conclude that the reading advocated by justice story is the correct one. while, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § which bestow and define the legislative powers of the congress. it results that the power of congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the constitution."[ ] the security act cases although holding that the spending power is not limited by the specific grants of power contained in article i, section , the court found, nevertheless, that it was qualified by the tenth amendment, and on this ground ruled in the butler case that congress could not use moneys raised by taxation to "purchase compliance" with regulations "of matters of state concern with respect to which congress has no authority to interfere."[ ] within little more than a year this decision was reduced to narrow proportions by steward machine co. _v._ davis,[ ] which sustained the tax imposed on employers to provide unemployment benefits, and the credit allowed for similar taxes paid to a state. to the argument that the tax and credit in combination were "weapons of coercion, destroying or impairing the autonomy of the states," the court replied that relief of unemployment was a legitimate object of federal expenditure under the "general welfare" clause; that the social security act represented a legitimate attempt to solve the problem by the cooperation of state and federal governments; that the credit allowed for state taxes bore a reasonable relation "to the fiscal need subserved by the tax in its normal operation,"[ ] since state unemployment compensation payments would relieve the burden for direct relief borne by the national treasury. the court reserved judgment as to the validity of a tax "if it is laid upon the condition that a state may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power."[ ] earmarked funds the appropriation of the proceeds of a tax to a specific use does not affect the validity of the exaction, if the general welfare is advanced and no other constitutional provision is violated. thus a processing tax on coconut oil was sustained despite the fact that the tax collected upon oil of philippine production was segregated and paid into the philippine treasury.[ ] in helvering _v._ davis,[ ] the excise tax on employers, the proceeds of which were not earmarked in any way, although intended to provide funds for payments to retired workers, was upheld under the "general welfare" clause, the tenth amendment being found to be inapplicable. conditional grants-in-aid in the steward machine company case, it was a taxpayer who complained of the invasion of the state sovereignty and the court put great emphasis on the fact that the state was a willing partner in the plan of cooperation embodied in the social security act.[ ] a decade later the right of congress to impose conditions upon grants-in-aid over the objection of a state was squarely presented in oklahoma _v._ united states civil service commission.[ ] the state objected to the enforcement of a provision of the hatch act,[ ] whereby its right to receive federal highway funds would be diminished in consequence of its failure to remove from office a member of the state highway commission found to have taken an active part in party politics while in office. although it found that the state had created a legal right which entitled it to an adjudication of its objection, the court denied the relief sought on the ground that, "while the united states is not concerned with, and has no power to regulate local political activities as such of state officials, it does have power to fix the terms upon which its money allotments to state shall be disbursed. * * * the end sought by congress through the hatch act is better public service by requiring those who administer funds for national needs to abstain from active political partisanship. so even though the action taken by congress does have effect upon certain activities within the state, it has never been thought that such effect made the federal act invalid."[ ] "debts of the united states" the power to pay the debts of the united states is broad enough to include claims of citizens arising on obligations of right and justice.[ ] the court sustained an act of congress which set apart for the use of the philippine islands, the revenue from a processing tax on coconut oil of philippine production, as being in pursuance of a moral obligation to protect and promote the welfare of the people of the islands.[ ] curiously enough, this power was first invoked to assist the united states to collect a debt due to it. in united states _v._ fisher[ ] the supreme court sustained a statute which gave the federal government priority in the distribution of the estates of its insolvent debtors. the debtor in that case was the endorser of a foreign bill of exchange which apparently had been purchased by the united states. invoking the "necessary and proper" clause, chief justice marshall deduced the power to collect a debt from the power to pay its obligations by the following reasoning: "the government is to pay the debt of the union, and must be authorized to use the means which appear to itself most eligible to effect that object. it has, consequently, a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe."[ ] clause . _the congress shall have power_ * * * to borrow money on the credit of the united states. the borrowing power the original draft of the constitution reported to the convention by its committee of detail empowered congress "to borrow money and emit bills on the credit of the united states."[ ] when this section was reached in the debates, gouverneur morris moved to strike out the clause "and emit bills on the credit of the united states." madison suggested that it might be sufficient "to prohibit the making them a tender." after a spirited exchange of views on the subject of paper money the convention voted, nine states to two, to delete the words "and emit bills."[ ] nevertheless, in , the court relied in part upon this clause in holding that congress had authority to issue treasury notes and to make them legal tender in satisfaction of antecedent debts.[ ] when it borrows money "on the credit of the united states" congress creates a binding obligation to pay the debt as stipulated and cannot thereafter vary the terms of its agreement. a law purporting to abrogate a clause in government bonds calling for payment in gold coin was held to contravene this clause, although the creditor was denied a remedy in the absence of a showing of actual damage.[ ] clause . _the congress shall have power_ * * * to regulate commerce with foreign nations, and among the several states, and with the indian tribes. purpose of the clause this clause serves a two-fold purpose: it is the direct source of the most important powers which the national government exercises in time of peace: and, except for the due process of law clause of amendment xiv, it is the most important limitation imposed by the constitution on the exercise of state power. the latter, or restrictive, operation of the clause was long the more important one from the point of view of constitutional law. of the approximately cases which reached the supreme court under the clause prior to , the overwhelming proportion stemmed from state legislation.[ ] it resulted that, with an important exception to be noted in a moment, the guiding lines in construction of the clause were initially laid down from the point of view of its operation as a curb on state power, rather than of its operation as a source of national power; and the consequence of this was that the word "commerce," as designating the thing to be protected against state interference, came to dominate the clause, while the word "regulate" remained in the background. definition of terms: gibbons _v._ ogden "commerce" the etymology of the word, "cum merce (with merchandise)" carries the primary meaning of traffic--i.e., "to buy and sell goods; to trade" (webster's international). this narrow conception was replaced in the great leading case of gibbons _v._ ogden, wheat. ( ), by a much broader one, on which interpretation of the clause has been patterned ever since. the case arose out of a series of acts of the legislature of new york, passed between the years and , which conferred upon livingston and fulton the exclusive right to navigate the waters of that state with steam-propelled vessels. gibbons challenged the monopoly by sending from elizabethtown, new jersey, into the hudson in the state of new york two steam vessels which had been licensed and enrolled to engage in the coasting trade under an act passed by congress in . counsel for ogden (an assignee of livingston and fulton) argued that since gibbons' vessels carried only passengers between new jersey and new york, they were not engaged in traffic and hence not in "commerce" in the sense of the constitution. this argument chief justice marshall answered as follows: "the subject to be regulated is commerce; * * * the counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. this would restrict a general term, applicable to many objects, to one of its significations. commerce, undoubtedly, is traffic, but it is something more--it is intercourse."[ ] the term, therefore, included navigation--a conclusion which marshall supported by appeal to general understanding, to the prohibition in article i, § , against any preference being given "'* * * by any regulation of commerce or revenue, to the ports of one state over those of another,'" and to the admitted and demonstrated power of congress to impose embargoes.[ ] "commerce" today later in his opinion marshall qualified the word "intercourse" with the word "commercial."[ ] today "commerce" in the sense of the constitution, and hence "interstate commerce" when it is carried on across state lines, covers every species of movement of persons and things, whether for profit or not;[ ] every species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise;[ ] every species of commercial negotiation which, as shown "by the established course of the business," will involve sooner or later an act of transportation of persons or things, or the flow of services or power across state lines.[ ] from time to time the court has said that certain things were not interstate commerce, such as mining or manufacturing undertaken "with the intent" that the product shall be transported to other states;[ ] insurance transactions when carried on across state lines;[ ] exhibitions of baseball between professional teams which travel from state to state;[ ] the making of contracts for the insertion of advertisements in periodicals in another state;[ ] contracts for personal services to be rendered in another state.[ ] recent decisions either overturn or cast doubt on most if not all of these holdings. by one of these the gathering of news by a press association and its transmission to client newspapers is termed interstate commerce.[ ] by another the activities of a group health association which serves only its own members are held to be "trade" within the protection of the sherman act and hence capable, if extended, of becoming interstate commerce.[ ] by a third the business of insurance when transacted between an insurer and an insured in different states is interstate commerce.[ ] the "necessary and proper" clause in the majority of the above cases the commerce clause was involved solely as a limitation on the powers of the states. but when the clause is treated as a source of national power it is, of course, read in association with the power of congress "* * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, * * *,"[ ] with the result that, as is pointed out later, "interstate commerce" has come in recent years practically to connote both those operations which precede as well as those which follow commercial intercourse itself, provided such operations are deemed by the court to be capable of "affecting" such intercourse.[ ] "among the several states" in cohens _v._ virginia, decided in , marshall had asserted, "for all commercial purposes we are one nation."[ ] in gibbons _v._ ogden, however, he conceded that the phrase commerce "among the several states" was "not one which would probably have been selected to indicate the completely interior traffic of a state"; and added: "the genius and character of the whole government seem to be, that its action is to be applied to all external concerns of the nation, and to those internal concerns which affect the states generally; but not those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government."[ ] this recognition of an "exclusively internal" commerce of a state ("intrastate commerce" today) appears at times to have been regarded as implying the existence of an area of state power which congress was not entitled constitutionally to enter.[ ] this inference overlooked the fact that, in consequence of its powers under the necessary and proper clause, congress can, as marshall indicates in the words above quoted, interfere with the completely internal concerns of a state "for the purpose of executing its general powers," one of which is its power over foreign and interstate commerce. it is today established doctrine that "no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to congress."[ ] and while the word "among" serves to demark "the completely internal" commerce of a state from that which "extends to or affects" other states, it also serves, as marshall further pointed out, to emphasize the fact that "the power of congress does not stop at the jurisdictional lines of the several states," but "must be exercised whenever [wherever?] the subject exists. * * * commerce among the states must, of necessity, be commerce [within?] the states. * * * the power of congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several states."[ ] "regulate" elucidating this word in his opinion for the court in gibbons _v._ ogden, chief justice marshall said: "we are now arrived at the inquiry--what is this power? it is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. this power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. these are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. if, as has always been understood, the sovereignty of congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the united states. the wisdom and the discretion of congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. they are the restraints on which the people must often rely solely, in all representative governments."[ ] interstate versus foreign commerce there are certain later judicial dicta which urge or suggest that congress's power to regulate interstate commerce restrictively is less than its analogous power over foreign commerce, the argument being that whereas the latter is a branch of the nation's unlimited power over foreign relations, the former was conferred upon the national government primarily in order to protect freedom of commerce from state interference. the four dissenting justices in the lottery case (decided in ) endorsed this view in the following words: "it is argued that the power to regulate commerce among the several states is the same as the power to regulate commerce with foreign nations, and among the indian tribes. but is its scope the same? * * *, the power to regulate commerce with foreign nations and the power to regulate interstate commerce, are to be taken _diverso intuitu_, for the latter was intended to secure equality and freedom in commercial intercourse as between the states, not to permit the creation of impediments to such intercourse; while the former clothes congress with that power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, generally speaking, to no implied or reserved power in the states. the laws which would be necessary and proper in the one case, would not be necessary or proper in the other. * * * but that does not challenge the legislative power of a sovereign nation to exclude foreign persons or commodities, or place an embargo, perhaps not permanent, upon foreign ships or manufactures. * * * the same view must be taken as to commerce with indian tribes. there is no reservation of police powers or any other to a foreign nation or to an indian tribe, and the scope of the power is not the same as that over interstate commerce."[ ] and twelve years later chief justice white, speaking for the court, expressed the same view, as follows: "in the argument reference is made to decisions of this court dealing with the subject of the power of congress to regulate interstate commerce, but the very postulate upon which the authority of congress to absolutely prohibit foreign importations as expounded by the decisions of this court rests is the broad distinction which exists between the two powers and therefore the cases cited and many more which might be cited announcing the principles which they uphold have obviously no relation to the question in hand."[ ] but dicta to the contrary are much more numerous and span a far longer period of time. thus chief justice taney wrote in : "the power to regulate commerce among the several states is granted to congress in the same clause, and by the same words, as the power to regulate commerce with foreign nations, and is coextensive with it."[ ] and nearly fifty years later justice field, speaking for the court, said: "the power to regulate commerce among the several states was granted to congress in terms as absolute as is the power to regulate commerce with foreign nations."[ ] today it is firmly established doctrine that the power to regulate commerce, whether with foreign nations or among the several states comprises the power to restrain or prohibit it at all times for the welfare of the public, provided only the specific limitations imposed upon congress's powers, as by the due process clause of the fifth amendment, are not transgressed.[ ] nor does the power to regulate commerce stop with, nor in fact is it most commonly exercised in, measures designed to outlaw some branch of commerce. in the words of the court: it is the power to provide by appropriate legislation for its "protection and advancement";[ ] to adopt measures "to promote its growth and insure its safety";[ ] "to foster, protect, control and restrain, [commerce]."[ ] this protective power has, moreover, two dimensions. in the first place, it includes the power to reach and remove every conceivable obstacle to or restriction upon interstate and foreign commerce from whatever source arising, whether it results from unfavorable conditions within the states or from state legislative policy, like the monopoly involved in gibbons _v._ ogden; or from both combined. in the second place, it extends--as does also the power to restrain commerce--to the instruments and agents by which commerce is carried on; nor are such instruments and agents confined to those which were known or in use when the constitution was adopted.[ ] instruments of commerce the applicability of congress's power to the agents and instruments of commerce is implied in marshall's opinion in gibbons _v._ ogden,[ ] where the waters of the state of new york in their quality as highways of interstate and foreign transportation are held to be governed by the overruling power of congress. likewise, the same opinion recognizes that in "the progress of things," new and other instruments of commerce will make their appearance. when the licensing act of was passed, the only craft to which it could apply were sailing vessels, but it and the power by which it was enacted were, marshall asserted, indifferent to the "principle" by which vessels were moved. its provisions therefore reached steam vessels as well. a little over half a century later the principle embodied in this holding was given its classic expression in the opinion of chief justice waite in the case of the pensacola telegraph co. _v._ western union co.,[ ] a case closely paralleling gibbons _v._ ogden in other respects also. the passage alluded to reads as follows: "the powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of times and circumstances. they extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. they were intended for the government of the business to which they relate, at all times and under all circumstances. as they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of congress to see to it that intercourse among the states and the transmission of intelligence are not obstructed or unnecessarily encumbered by state legislation."[ ] the radio act of whereby "all forms of interstate and foreign radio transmissions within the united states, its territories and possessions" were brought under national control, affords another illustration. thanks to the foregoing doctrine the measure met no serious constitutional challenge either on the floors of congress or in the courts.[ ] congressional regulation of waterways navigation in the case of pennsylvania _v._ wheeling & belmont bridge co.,[ ] decided in , the court, on the application of the complaining state, acting as representative of the interests of its citizens, granted an injunction requiring that a bridge, erected over the ohio under a charter from the state of virginia, either be altered so as to admit of free navigation of the river, or else be entirely abated. the decision was justified by the court on the basis both of the commerce clause and of a compact between virginia and kentucky, whereby both these states had agreed to keep the ohio river "free and common to the citizens of the united states." the injunction was promptly rendered inoperative by an act of congress declaring the bridge to be "a lawful structure" and requiring all vessels navigating the ohio to be so regulated as not to interfere with it.[ ] this act the court sustained as within congress's power under the commerce clause, saying: "so far, * * *, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of congress, they [the said acts] are to be regarded as modified by this subsequent legislation; and, although it still may be an obstruction in fact, [it] is not so in the contemplation of law. * * * that body [congress] having in the exercise of this power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. that authority combines the concurrent powers of both governments, state and federal, which, if not sufficient, certainly none can be found in our system of government."[ ] in short, it is congress and not the court which is authorized by the constitution to regulate commerce. the law and doctrine of the earlier cases with respect to the fostering and protection of navigation are well summed up in the following frequently cited passage from the court's opinion in gilman _v._ philadelphia,[ ] decided in . "commerce includes navigation. the power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the united states which are accessible from a state other than those in which they lie. for this purpose they are the public property of the nation, and subject to all requisite legislation by congress. this necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. for these purposes, congress possesses all the powers which existed in the states before the adoption of the national constitution, and which have always existed in the parliament in england."[ ] thus congress was within its powers in vesting the secretary of war with power to determine whether a structure of any nature in or over a navigable stream is an obstruction to navigation and to order its abatement if he so finds.[ ] nor is the united states required to compensate the owners of such structures for their loss, since they were always subject to the servitude represented by congress's powers over commerce; and the same is true of the property of riparian owners which is damaged.[ ] and while it was formerly held that lands adjoining nonnavigable streams were not subject to the above mentioned servitude,[ ] this rule has been impaired by recent decisions;[ ] and at any rate it would not apply as to a stream which had been rendered navigable by improvements.[ ] in exercising its power to foster and protect navigation congress legislates primarily on things external to the act of navigation. but that act itself and the instruments by which it is accomplished are also subject to congress's power if and when they enter into or form a part of "commerce among the several states." when does this happen? words quoted above from the court's opinion in the gilman case answered this question to some extent; but the decisive answer to it was returned five years later in the case of the "daniel ball."[ ] here the question at issue was whether an act of congress, passed in and amended in , which required that steam vessels engaged in transporting passengers or merchandise upon the "bays, lakes, rivers, or other navigable waters of the united states," applied to the case of a vessel which navigated only the waters of the grand river, a stream which lies entirely in the state of michigan. argued counsel for the vessel: "the navigable rivers of the united states pass through states, they form their boundary lines, they are not in any one state, nor the exclusive property of any one, but are common to all. to make waters navigable waters of the united states, some other incident must attach to them besides the territorial and the capability for public use. this term contrasts with _domestic_ waters of the united states, and implies, not simply that the waters are public and within the union, but that they have attached to them some circumstance that brings them within the scope of the sovereignty of the united states as defined by the constitution." then as a sort of _reductio ad absurdum_ counsel added: "* * * if merely because a stream is a highway it becomes a navigable water of the united states, in a sense that attaches to it and to the vessels trading upon it the regulating control of congress, then every highway must be regarded as a highway of the united states, and the vehicles upon _it_ must be subject to the same control. but this will not be asserted on the part of the government."[ ] the court answered: "in this case it is admitted that the steamer was engaged in shipping and transporting down grand river, goods destined and marked for other states than michigan, and in receiving and transporting up the river goods brought within the state from without its limits; * * * so far as she was employed in transporting goods destined for other states, or goods brought from without the limits of michigan and destined to places within that state, she was engaged in commerce between the states, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of congress. she was employed as an instrument of that commerce; for whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced."[ ] turning then to counsel's _reductio ad absurdum_, the court added: "we answer that the present case relates to transportation on the navigable waters of the united states, and we are not called upon to express an opinion upon the power of congress over interstate commerce when carried on by land transportation. and we answer further, that we are unable to draw any clear and distinct line between the authority of congress to regulate an agency employed in commerce between the states, when the agency extends through two or more states, and when it is confined in its action entirely within the limits of a single state. if its authority does not extend to an agency in such commerce, when that agency is confined within the limits of a state, its entire authority over interstate commerce may be defeated. several agencies combining, each taking up the commodity transported at the boundary line at one end of a state, and leaving it at the boundary line at the other end, the federal jurisdiction would be entirely ousted, and the constitutional provision would become a dead letter."[ ] in short, it was admitted inferentially, that the principle of the decision would apply to land transportation; but the actual demonstration of the fact still awaited some years.[ ] see _infra_. hydroelectric power as a consequence, in part, of its power to forbid or remove obstructions to navigation in the navigable waters of the united states, congress has acquired the right to develop hydroelectric power, and the ancillary right to sell it to all takers. by a long-standing doctrine of constitutional law the states possess dominion over the beds of all navigable streams within their borders,[ ] but on account of the servitude which congress's power to regulate commerce imposes upon such streams, they are practically unable, without the assent of congress, to utilize their prerogative for power development purposes. sensing, no doubt, that controlling power to this end must be attributed to some government in the united states and that "in such matters there can be no divided empire,"[ ] the court held, in , in united states _v._ chandler-dunbar co.,[ ] that in constructing works for the improvement of the navigability of a stream, congress was entitled, as a part of a general plan, to authorize the lease or sale of such excess water power as might result from the conservation of the flow of the stream. "if the primary purpose is legitimate," it said, "we can see no sound objection to leasing any excess of power over the needs of the government. the practice is not unusual in respect to similar public works constructed by state governments."[ ] congress's jurisdiction over navigable streams today since the chandler-dunbar case the court has come, in effect, to hold that it will sustain any act of congress which purports to be for the improvement of navigation whatever other purposes it may also embody; nor does the stream involved have to be one which is "navigable in its natural state." such, at least, seems to be the algebraic sum of its holdings in arizona _v._ california,[ ] decided in , and in the united states _v._ appalachian electric power co.,[ ] decided in . in the former the court, speaking through justice brandeis, said that it was not free to inquire into the motives "which induced members of congress to enact the boulder canyon project act," adding: "as the river is navigable and the means which the act provides are not unrelated to the control of navigation, * * *, the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon congress. whether the particular structures proposed are reasonably necessary, is not for this court to determine. * * * and the fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of congressional power."[ ] and in the appalachian electric power case, the court, abandoning previous holdings which had laid down the doctrine that to be subject to congress's power to regulate commerce a stream must be "navigable in fact," said: "a waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken," provided there must be a "balance between cost and need at a time when the improvement would be useful. * * * nor is it necessary that the improvements should be actually completed or even authorized. the power of congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic. * * * nor is it necessary for navigability that the use should be continuous. * * * even absence of use over long periods of years, because of changed conditions, * * * does not affect the navigability of rivers in the constitutional sense."[ ] purposes for which power may be exercised furthermore, the court defined the purposes for which congress may regulate navigation in the broadest terms, as follows: "it cannot properly be said that the constitutional power of the united states over its waters is limited to control for navigation. * * * that authority is as broad as the needs of commerce. * * * flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control."[ ] these views the court has since reiterated.[ ] nor is it by virtue of congress's power over navigation alone that the national government may develop super-power. its war powers and power of expenditure in furtherance of the common defense and the general welfare supplement its powers over commerce in this respect.[ ] congressional regulation of land transportation early acts; federal provision for highways the acquisition and settlement of california stimulated congress some years before the civil war to authorize surveys of possible routes for railway lines to the pacific; but it was not until , in the midst of war, with its menace of a general dissolution of the union, that more decisive action was taken. that year congress voted aid in the construction of a line from missouri river to the pacific; and four years later it chartered the union pacific company.[ ] first and last, litigation growing out of this type of legislation has resulted in the establishment in judicial decision of the following propositions: _first_, that congress may provide highways for interstate transportation (earlier, as well as today, this result might have followed from congress's power of spending, independently of the commerce clause, as well as from its war and postal powers, which were also invoked by the court in this connection); _second_, that it may charter private corporations for the purpose of doing the same thing; _third_, that it may vest such corporations with the power of eminent domain in the states; and _fourth_, that it may exempt their franchises from state taxation.[ ] beginnings of federal railway regulation congress began regulating the railroads of the country in a more positive sense in . by the so-called garfield act of that year "every railroad company in the united states, whose road is operated by steam," was authorized by congress "* * * to connect with roads of other states so as to form continuous lines for the transportation of passengers, freight, troops, governmental supplies, and mails, to their destination";[ ] while by an act passed on july of the same year it was ordered, "in the interest of commerce and the convenient transmission of intelligence * * * by the government of the united states and its citizens, that the erection of telegraph lines shall, so far as state interference is concerned, be free to all who will submit to the conditions imposed by congress, and that corporations organized under the laws of one state for constructing and operating telegraph lines shall not be excluded by another from prosecuting their business within its jurisdiction, if they accept the terms proposed by the national government for this national privilege."[ ] another act of the same period provided that "no railroad company within the united states whose road forms any part of a line of road over which cattle, sheep, swine, or other animals are conveyed from one state to another, or the owners or masters of steam, sailing, or other vessels carrying or transporting cattle, sheep, swine, or other animals from one state to another, shall confine the same in cars, boats, or vessels of any description, for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented from so unloading by storm or other accidental causes."[ ] regulation of railroad rates: the interstate commerce commission on account of the large element of "fixed charges" which enters into the setting of rates by railway companies, competition between lines for new business was from the first very sharp, and resulted in many evils which, in the early 's, led in the middle west to the enactment by the state legislatures of the so-called "granger laws"; and in the famous "granger cases," headed by munn _v._ illinois,[ ] the court at first sustained this legislation, in relation to both the commerce clause and the due process of law clause of amendment xiv. the principal circumstance, however, which shaped the court's attitude toward the "granger laws" had, by a decade later, disappeared, the fact, namely, that originally the railroad business was largely in local hands. in consequence, first, of the panic of , and then of the panic of , hundreds of these small lines went into bankruptcy, from which they emerged consolidated into great interstate systems. the result for the court's interpretation of the commerce clause was determinative. in the case of wabash, st. louis and pacific r. co. _v._ illinois,[ ] decided in , it was ruled that a state may not regulate charges for the carriage even within its own boundaries of goods brought from without the state or destined to points outside it; that in this respect congress's power over interstate commerce was exclusive. the following year, congress, responding to a widespread public demand, passed the original interstate commerce act.[ ] by this measure a commission of five was created with authority to pass upon the "reasonableness" of all charges by railroads for the transportation of goods or persons in interstate commerce and to order the discontinuance of all such charges as it found to be "unreasonable," or otherwise violative of the provisions of the act. in interstate commerce commission _v._ brimson,[ ] decided in , the validity of the commission as a means "necessary and proper" for the enforcement of congress's power to regulate commerce among the states was sustained, as well as its right to enter the courts of the united states in order to secure process for the execution of its orders. later decisions of the court, however, including one in which the act was construed not to give the commission power to set reasonable maximum rates in substitution for those found by it to be unreasonable, disappointed earlier expectations.[ ] the history of the commission as an effective instrument of government dates from the hepburn act of [ ] which was followed four years later by the mann-elkins act.[ ] by the former the commission was explicitly endowed with the power, after a full hearing on a complaint made to it, "to determine and prescribe just and reasonable" maximum rates. by the latter it was further authorized to set such rates on its own initiative, and without waiting for a complaint; while any increase of rates by a carrier was made subject to suspension by the commission until its approval could be obtained. at the same time, the commission's jurisdiction was extended to telegraphs, telephones and cables.[ ] the interstate commerce commission today the powers of the commission, which has been gradually increased to a body of eleven, are today largely defined in the transportation act of february , . by that act they were extended not only to all "railroads," comprehensively defined, but also to the following additional categories of "'common carriers' * * * all pipeline companies; telegraph, telephone, and cable companies operating by wire or wireless [_see_ note above][transcriber's note: refers to article i, footnote [ ].]; express companies; sleeping-car companies; and all persons, natural or artificial, engaged in such transportation or transmission as aforesaid as common carriers for hire." the jurisdiction of the commission covers not only the characteristic activities of such carriers in commerce among the states, but also the issuance of securities by them, and all consolidations of existing companies, or lines. furthermore, for the first time, the commission was put under the injunction, in exercising its control over rates and charges, to "give due consideration, among other things, to the transportation needs of the country and the necessity (under honest, efficient and economical management of existing transportation facilities) of enlarging such facilities in order to provide the people of the united states with adequate transportation."[ ] railway rate control itself, which was originally entered upon by the national government exclusively from the point of view of restraint, has thus been assimilated to the idea of "fostering and promoting" transportation. two types of constitutional questions have presented themselves under the legislation just passed in review: . those arising out of the safeguards which the bill of rights throws about property rights; . those arising out of the intermingling of the interstate and intrastate operations of the same carriers, and the resulting tangency of state with national power. only the latter are considered at this point. the shreveport case section of the act of contains the proviso "that the provisions of this act shall not apply to 'transportation' wholly within the state." section of the act prohibits "any common carrier subject to the provisions" of the act from giving "any unreasonable preference or advantage" to any person, firm, or locality. in the shreveport case,[ ] decided in , the commission, reading § independently of § , had ordered several texas lines to increase certain of their rates between points in texas till they should approximate rates already approved by the commission to adjoining points in louisiana. the latter rates, being interstate, were admittedly subject to the commission. the local rates were as clearly within the normal jurisdiction of the state, and had in fact been set by the texas railway commission. the court found that the interstate commerce commission had not exceeded its statutory powers. the constitutional objection to the commission's action was stated thus: "that congress is impotent to control the intrastate charges of an interstate carrier even to the extent necessary to prevent injurious discrimination against interstate traffic." this objection the court met, as follows: "wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is congress, and not the state, that is entitled to prescribe the final and dominant rule, for otherwise congress would be denied the exercise of its constitutional authority and the state, and not the nation, would be supreme in the national field."[ ] this, the court continued, "is not to say that congress possesses the authority to regulate the internal commerce of a state as such, but that it does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled."[ ] the act of and state railway rate regulation the power of the commission under § of the act of , as interpreted in the shreveport case, was greatly enlarged by § of the act of , which authorizes the commission to remove "any undue, unreasonable, or unjust discrimination against interstate or foreign commerce." thus, commerce as a whole, instead of specific firms or localities, is made the beneficiary of the restriction. in the wisconsin r.r. comm. _v._ chicago, b. & q.r.r. co.,[ ] the court held that this section sustained the interstate commerce commission in annulling intrastate passenger rates which it found to be unduly low, in comparison with rates which the commission had established for interstate travel, and so tending to thwart, in deference to a merely local interest, the general purpose of the act to maintain an efficient transport service for the benefit of the country at large.[ ] regulation of other agents of carriage and communication in the pipe line cases, decided in ,[ ] the court affirmed the power of congress to regulate the transportation of oil and gas in pipe lines from one state to another and held that this power applies to such transportation even though the oil (or gas) in question was the property of the owner of the lines.[ ] thirteen years later, in , the court ruled that an order by a state commission fixing rates on electric current generated within the state and sold to a distributor in another state was invalid as imposing a burden on interstate commerce, thus holding impliedly that congress' power to regulate the transmission of electric current from one state to another carried with it the power to regulate the price of such electricity.[ ] proceeding on this implication congress, in the federal power act of ,[ ] conferred upon the federal power commission the power to govern the wholesale distribution of electricity in interstate commerce; and three years later vested in the same body like power over natural gas moving in interstate commerce.[ ] in federal power commission _v._ natural gas pipeline company,[ ] the power of the commission to set the prices at which gas, originating in one state and transported into another, should be sold to distributors wholesale in the latter state, was sustained by the court in the following terms: "the argument that the provisions of the statute applied in this case are unconstitutional on their face is without merit. the sale of natural gas originating in the state and its transportation and delivery to distributors in any other state constitutes interstate commerce, which is subject to regulation by congress. * * * it is no objection to the exercise of the power of congress that it is attended by the same incidents which attend the exercise of the police power of a state. the authority of congress to regulate the prices of commodities in interstate commerce is at least as great under the fifth amendment as is that of the states under the fourteenth to regulate the prices of commodities in intrastate commerce."[ ] other acts regulative of interstate commerce and communication which belong to this period are the federal communications act of , which regulates, through the federal communications commission,[ ] "interstate and foreign communication by wire and radio"; the federal motor carrier act of , which, through the interstate commerce commission, governs the transportation of persons and property by motor vehicle common carriers;[ ] the civil aeronautics act of , enacted for the purpose of bringing under the control of a central agency, called "the civil aeronautics authority" (functioning through the civil aeronautics administrator and the civil aeronautics board) all phases of airborne commerce, foreign and interstate.[ ] none of these measures have provoked challenge to the power of congress to enact them. acts of congress protective of labor engaged in interstate transportation in the course of the years to congress enacted a series of such measures which were notable both on account of their immediate purpose and as marking the entry of the national government into the field of labor legislation. the safety appliance act of ,[ ] which applied only to cars and locomotives engaged in moving interstate traffic, was amended in to embrace "all trains, locomotives, tenders, cars," etc., "used on any railway engaged in interstate commerce * * * and to all other locomotives * * * cars," etc., "used in connection therewith."[ ] in southern railway company _v._ united states,[ ] the validity of this extension of the act was challenged. the court sustained the measure as being within congress's power, saying: "* * * this is so, not because congress possesses any power to regulate intrastate commerce as such, but because its power to regulate interstate commerce is plenary and competently may be exerted to secure the safety of the persons and property transported therein and of those who are employed in such transportation, no matter what may be the source of the dangers which threaten it. that is to say, it is no objection to such an exertion of this power that the dangers intended to be avoided arise, in whole or in part, out of matters connected with intrastate commerce."[ ] four years later the hours of service act of [ ] was passed, requiring, as a safety measure, that carriers engaged in the transportation of passengers or property by railroad in interstate or foreign commerce should not work their employees for longer periods than those prescribed by the act. in sustaining this legislation the court, speaking through justice hughes, said: "the fundamental question here is whether a restriction upon the hours of labor of employés who are connected with the movement of trains in interstate transportation is comprehended within this sphere of authorized legislation. this question admits of but one answer. the length of hours of service has direct relation to the efficiency of the human agencies upon which protection of life and property necessarily depends. * * * in its power suitably to provide for the safety of the employés and travelers, congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced within the class defined by the act."[ ] but by far the most notable of these safety measures were the federal employers liability acts of and ,[ ] the second of which merely reenacted the first with certain "unconstitutional" features eliminated. what the amended act does, in short, is to modify, in the case of injuries incurred by the employees of interstate carriers while engaged in interstate commerce, the defenses that had hitherto been available to the carriers at common law. the principal argument against the acts was that the commerce clause afforded no basis for an attempt to regulate the relation of master and servant, which had heretofore in all cases fallen to the reserved powers of the states; that indeed the rules of common law modified or abrogated by the act existed solely under state authority, and had always been enforced, in the main, in the courts of the states.[ ] countering this argument, the court, speaking by justice van devanter, quoted the following passage from the brief of the solicitor-general: "interstate commerce--if not always, at any rate when the commerce is transportation--is an act. congress, of course, can do anything which, in the exercise by itself of a fair discretion, may be deemed appropriate to save the act of interstate commerce from prevention or interruption, or to make that act more secure, more reliable or more efficient. the act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce. if the agents or instruments are destroyed while they are doing the act, commerce is stopped; if the agents or instruments are interrupted, commerce is interrupted; if the agents or instruments are not of the right kind or quality, commerce in consequence becomes slow or costly or unsafe or otherwise inefficient; and if the conditions under which the agents or instruments do the work of commerce are wrong or disadvantageous, those bad conditions may and often will prevent or interrupt the act of commerce or make it less expeditious, less reliable, less economical and less secure. therefore, congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whenever such legislation bears, or in the exercise of a fair legislative discretion can be deemed to bear, upon the reliability or promptness or economy or security or utility of the interstate commerce act."[ ] the adair case but while the idea expressed here that the human agents of commerce, in the sense of transportation, are instrumentalities of it, and so, in that capacity, within the protective power of congress, signalized the entrance of congress into the field of labor legislation, the court was not at the time prepared to give the idea any considerable scope. pertinent in this connection is the case of adair _v._ united states,[ ] which was decided between the two employers' liability cases. here was involved the validity of § of the "erdman act" of ,[ ] by which it was made a misdemeanor for a carrier or agent thereof to require of an employee, as a condition of employment, that he should not become or remain a member of a trade union, or to threaten him with loss of employment if he should become or remain a member. this proviso the court held not to be a regulation of commerce, there being no connection between an employee's membership in a labor organization and the carrying on of interstate commerce. twenty-two years later, however, in , the court conceded that the connection between interstate commerce and union membership was a real and substantial one, and on that ground sustained the power of congress in the railway labor act of [ ] to prevent employers from interfering with the right of employees to select freely their own collective bargaining representatives.[ ] the railroad retirement act still pursuing the idea of protecting commerce and the labor engaged in it concurrently, congress, by the railroad retirement act of june , ,[ ] ordered the compulsory retirement of superannuated employees of interstate carriers, and provided that they be paid pensions out of a fund comprising compulsory contributions from the carriers and their present and future employees. in railroad retirement board _v._ alton r.r. company,[ ] however, a closely divided court held this legislation to be in excess of congress's power to regulate commerce and contrary to the due process clause of amendment v. said justice roberts for the majority: "we feel bound to hold that a pension plan thus imposed is in no proper sense a regulation of the activity of interstate transportation. it is an attempt for social ends to impose by sheer fiat noncontractual incidents upon the relation of employer and employee, not as a rule or regulation of commerce and transportation between the states, but as a means of assuring a particular class of employees against old age dependency. this is neither a necessary nor an appropriate rule or regulation affecting the due fulfillment of the railroads' duty to serve the public in interstate transportation."[ ] chief justice hughes, speaking for the dissenters, contended, on the contrary, that "the morale of the employees [had] an important bearing upon the efficiency of the transportation service." he added: "the fundamental consideration which supports this type of legislation is that industry should take care of its human wastage, whether that is due to accident or age. that view cannot be dismissed as arbitrary or capricious. it is a reasoned conviction based upon abundant experience. the expression of that conviction in law is regulation. when expressed in the government of interstate carriers, with respect to their employees likewise engaged in interstate commerce, it is a regulation of that commerce. as such, so far as the subject matter is concerned, the commerce clause should be held applicable."[ ] under subsequent legislation, an excise is levied on interstate carriers and their employees, while by separate but parallel legislation a fund is created in the treasury out of which pensions are paid along the lines of the original plan. the constitutionality of this scheme appears to be taken for granted in railroad retirement board _v._ duquesne warehouse company.[ ] bills of lading; the ferger case some years earlier the court had had occasion in united states _v._ ferger,[ ] decided in , to reiterate the rule laid down in the southern railway case, that congress's protective power over interstate commerce reaches all kinds of obstructions whatever the source of their origin. ferger and associates had been indicted under a federal statute for issuing a false bill of lading, to cover a fictitious shipment in interstate commerce. their defense was that, since there could be no commerce in a fraudulent bill of lading, therefore congress's power could not reach their alleged offense, a contention which chief justice white, speaking for the court, answered thus: "but this mistakenly assumes that the power of congress is to be necessarily tested by the intrinsic existence of commerce in the particular subject dealt with, instead of by the relation of that subject to commerce and its effect upon it. we say mistakenly assumes, because we think it clear that if the proposition were sustained it would destroy the power of congress to regulate, as obviously that power, if it is to exist, must include the authority to deal with obstructions to interstate commerce (_in re debs_, u.s. ) and with a host of other acts which, because of their relation to and influence upon interstate commerce, come within the power of congress to regulate, although they are not interstate commerce in and of themselves. * * * that as instrumentalities of interstate commerce, bills of lading are the efficient means of credit resorted to for the purpose of securing and fructifying the flow of a vast volume of interstate commerce upon which the commercial intercourse of the country, both domestic and foreign, largely depends, is a matter of common knowledge as to the course of business of which we may take judicial notice. indeed, that such bills of lading and the faith and credit given to their genuineness and the value they represent are the producing and sustaining causes of the enormous number of transactions in domestic and foreign exchange, is also so certain and well known that we may notice it without proof."[ ] congressional regulation of commerce as traffic the sherman act; the "sugar trust case" congress's chief effort to regulate commerce in the primary sense of "traffic" is embodied in the sherman antitrust act of , the opening section of which declares "every contract, combination in the form of trust or otherwise," or "conspiracy in restraint of trade and commerce among the several states, or with foreign nations" to be "illegal," while the second section makes it a misdemeanor for anybody to "monopolize or attempt to monopolize any part of such commerce."[ ] the act was passed to curb the growing tendency to form industrial combinations and the first case to reach the court under it was the famous "sugar trust case," united states _v._ e.c. knight co.[ ] here the government asked for the cancellation of certain agreements, whereby, through purchases of stock in other companies, the american sugar refining company, had "acquired," it was conceded, "nearly complete control of the manufacture of refined sugars in the united states." the question of the validity of the act was not expressly discussed by the court, but was subordinated to that of its proper construction. so proceeding, the court, in pursuance of doctrines of constitutional law which were then dominant with it, turned the act from its intended purpose and destroyed its effectiveness for several years, as that of the interstate commerce act was being contemporaneously impaired. the following passage early in chief justice fuller's opinion for the court, sets forth the conception of the federal system that controlled the decision: "it is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the autonomy of the states as required by our dual form of government; and acknowledged evils, however grave and urgent they may appear to be, had better be borne, than risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality."[ ] in short, what was needed, the court felt, was a hard and fast line between the two spheres of power, and in the following series of propositions it endeavored to lay down such a line: ( ) production is always local, and under the exclusive domain of the states; ( ) commerce among the states does not commence until goods "commence their final movement from their state of origin to that of their destination"; ( ) the sale of a product is merely an incident of its production and while capable of "bringing the operation of commerce into play," affects it only incidentally; ( ) such restraint as would reach commerce, as above defined, in consequence of combinations to control production "in all its forms," would be "indirect, however inevitable and whatever its extent," and as such beyond the purview of the act.[ ] applying then the above reasoning to the case before it, the court proceeded: "the object [of the combination] was manifestly private gain in the manufacture of the commodity, but not through the control of interstate or foreign commerce. it is true that the bill alleged that the products of these refineries were sold and distributed among the several states, and that all the companies were engaged in trade or commerce with the several states and with foreign nations; but this was no more than to say that trade and commerce served manufacture to fulfil its function. sugar was refined for sale, and sales were probably made at philadelphia for consumption, and undoubtedly for resale by the first purchasers throughout pennsylvania and other states, and refined sugar was also forwarded by the companies to other states for sale. nevertheless it does not follow that an attempt to monopolize, or the actual monopoly of, the manufacture was an attempt, whether executory or consummated, to monopolize commerce, even though, in order to dispose of the product, the instrumentality of commerce was necessarily invoked. there was nothing in the proofs to indicate any intention to put a restraint upon trade or commerce, and the fact, as we have seen that trade or commerce might be indirectly affected was not enough to entitle complainants to a decree."[ ] the sherman act revised four years later occurred the case of addyston pipe and steel co. _v._ united states,[ ] in which the antitrust act was successfully applied as against an industrial combination for the first time. the agreements in the case, the parties to which were manufacturing concerns, effected a division of territory among them, and so involved, it was held, a "direct" restraint on the distribution and hence of the transportation of the products of the contracting firms. the holding, however, did not question the doctrine of the earlier case, which in fact continued substantially undisturbed until , when swift and co. _v._ united states,[ ] was decided. the "current of commerce" concept: the swift case defendants in the swift case were some thirty firms engaged in chicago and other cities in the business of buying livestock in their stockyards, in converting it at their packing houses into fresh meat, and in the sale and shipment of such fresh meat to purchasers in other states. the charge against them was that they had entered into a combination to refrain from bidding against each other in the local markets, to fix the prices at which they would sell, to restrict shipments of meat, and to do other forbidden acts. the case was appealed to the supreme court on defendants' contention that certain of the acts complained of were not acts of interstate commerce and so did not fall within a valid reading of the sherman act. the court, however, sustained the government on the ground that the "scheme as a whole" came within the act, and that the local activities alleged were simply part and parcel of this general scheme.[ ] referring to the purchases of livestock at the stockyards, the court, speaking by justice holmes, said: "commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business. when cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stockyards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce."[ ] likewise the sales alleged of fresh meat at the slaughtering places fell within the general design. even if they imported a technical passing of title at the slaughtering places, they also imported that the sales were to persons in other states, and that shipments to such states were part of the transaction.[ ] thus, sales of the type which in the sugar trust case were thrust to one side as immaterial from the point of view of the law, because they enabled manufacture "to fulfill its function," were here treated as merged in an interstate commerce stream. thus, the concept of commerce as _trade_, that is, as _traffic_, again entered the constitutional law picture, with the result that conditions which directly affected interstate trade could not be dismissed on the ground that they affected interstate commerce, in the sense of interstate _transportation_, only "indirectly." lastly, the court added these significant words: "but we do not mean to imply that the rule which marks the point at which state taxation or regulation becomes permissible necessarily is beyond the scope of interference by congress in cases where such interference is deemed necessary for the protection of commerce among the states."[ ] that is to say, the line that confines state power from one side does not always confine national power from the other. for even though the line accurately divides the subject matter of the complementary spheres, still national power is always entitled to take on such additional extension as is requisite to guarantee its effective exercise, and is furthermore supreme. the danbury hatters case in this respect, the swift case only states what the shreveport case was later to declare more explicitly; and the same may be said of an ensuing series of cases in which combinations of employees engaged in such intrastate activities as manufacturing, mining, building construction, and the distribution of poultry were subjected to the penalties of the sherman act because of the effect or intended effect of their activities on interstate commerce.[ ] stockyards and grain futures acts in congress passed the packers and stockyards act[ ] whereby the business of commission men and livestock dealers in the chief stockyards of the country was brought under national supervision; and the year following it passed the grain futures act[ ] whereby exchanges dealing in grain futures were subjected to control. the decisions of the court sustaining these measures both built directly upon the swift case. in stafford _v._ wallace,[ ] which involved the former act, chief justice taft, speaking for the court, said: "the object to be secured by the act is the free and unburdened flow of livestock from the ranges and farms of the west and southwest through the great stockyards and slaughtering centers on the borders of that region, and thence in the form of meat products to the consuming cities of the country in the middle west and east, or, still as livestock, to the feeding places and fattening farms in the middle west or east for further preparation for the market."[ ] the stockyards, therefore, were "not a place of rest or final destination." they were "but a throat through which the current flows," and the sales there were not merely local transactions. "they do not stop the flow;--but, on the contrary" are "indispensable to its continuity."[ ] in chicago board of trade _v._ olsen,[ ] involving the grain futures act, the same course of reasoning was repeated. speaking of the swift case, chief justice taft remarked: "that case was a milestone in the interpretation of the commerce clause of the constitution. it recognized the great changes and development in the business of this vast country and drew again the dividing line between interstate and intrastate commerce where the constitution intended it to be. it refused to permit local incidents of a great interstate movement, which taken alone were intrastate, to characterize the movement as such."[ ] of special significance, however, is the part of the opinion which was devoted to showing the relation between future sales and cash sales, and hence the effect of the former upon the interstate grain trade. the test, said the chief justice, was furnished by the question of price. "the question of price dominates trade between the states. sales of an article which affect the country-wide price of the article directly affect the country-wide commerce in it."[ ] thus a practice which demonstrably affects prices would also affect interstate trade "directly," and so, even though local in itself, would fall within the regulatory power of congress. in the following passage, indeed, chief justice taft whittles down, in both cases, the "direct-indirect" formula to the vanishing point: "whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of congress under the commerce clause, and it is primarily for congress to consider and decide the fact of the danger and meet it. this court will certainly not substitute its judgment for that of congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent."[ ] and it was in reliance on the doctrine of these cases that congress first set to work to combat the depression in and the years immediately following. but in fact, much of its legislation at this time marked a wide advance upon the measures just passed in review. they did not stop with regulating traffic among the states and the instrumentalities thereof; they also essayed to govern production and industrial relations in the field of production. confronted with this revolutionary claim to power on congress' part, the court again deemed itself called upon to define a limit to the commerce power that would save to the states their historical sphere, and especially their customary monopoly of legislative power in relation to industry and labor management. the securities and exchange commission not all antidepression legislation, however, was of this revolutionary type. the securities exchange act of [ ] and the public utility company act ("wheeler-rayburn act") of [ ] were not. the former creates the securities and exchange commission, and authorizes it to lay down regulations designed to keep dealing in securities honest and above-board and closes the channels of interstate commerce and the mails to dealers refusing to register under the act. the latter requires, by sections (a) and , the companies which are governed by it to register with the securities and exchange commission and to inform it concerning their business, organization and financial structure, all on pain of being prohibited use of the facilities of interstate commerce and the mails; while by section , the so-called "death sentence" clause, the same act closes after a certain date the channels of interstate communication to certain types of public utility companies whose operations, congress found, were calculated chiefly to exploit the investing and consuming public. all these provisions have been sustained,[ ] gibbons _v._ ogden, furnishing the court its principal reliance.[ ] congressional regulation of production and industrial relations antidepression legislation in the following words of chief justice hughes, spoken in a case which was decided a few days after president franklin d. roosevelt's first inauguration, the problem which confronted the new administration was clearly set forth: "when industry is grievously hurt, when producing concerns fail, when unemployment mounts and communities dependent upon profitable production are prostrated, the wells of commerce go dry."[ ] the national industrial recovery act the initial effort of congress to deal with this situation was embodied in the national industrial recovery act of june , .[ ] the opening section of the act asserted the existence of "a national emergency productive of widespread unemployment and disorganization of industry which" burdened "interstate and foreign commerce," affected "the public welfare," and undermined "the standards of living of the american people." to effect the removal of these conditions the president was authorized, upon the application of industrial or trade groups, to approve "codes of fair competition," or to prescribe the same in cases where such applications were not duly forthcoming. among other things such codes, of which eventually more than were promulgated, were required to lay down rules of fair dealing with customers and to furnish labor certain guarantees respecting hours, wages and collective bargaining. for the time being business and industry were to be cartelized on a national scale. the schechter case in the case of schechter corp. _v._ united states,[ ] one of these codes, the live poultry code, was pronounced unconstitutional. although it was conceded that practically all poultry handled by the schechters came from outside the state, and hence via interstate commerce, the court held, nevertheless, that once the chickens came to rest in the schechters' wholesale market interstate commerce in them ceased. the act, however, also purported to govern business activities which "affected" interstate commerce. this, chief justice hughes held, must be taken to mean "directly" affect such commerce: "the distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. otherwise, * * *, there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government."[ ] in short, the case was governed by the ideology of the sugar trust case, which was not mentioned in the court's opinion.[ ] the agricultural adjustment act congress' second attempt to combat the depression comprised the agricultural adjustment act of .[ ] as is pointed out elsewhere the measure was set aside as an attempt to regulate production, a subject which was held to be "prohibited" to the united states by amendment x.[ ] _see_ pp. - . the bituminous coal conservation act the third measure to be disallowed was the guffey-snyder bituminous coal conservation act of .[ ] the statute created machinery for the regulation of the price of soft coal, both that sold in interstate commerce and that sold "locally," and other machinery for the regulation of hours of labor and wages in the mines. the clauses of the act dealing with these two different matters were declared by the act itself to be separable so that the invalidity of the one set would not affect the validity of the other; but this strategy was ineffectual. a majority of the court, speaking by justice sutherland held that the act constituted one connected scheme of regulation which, inasmuch as it invaded the reserved powers of the states over conditions of employment in productive industry, was violative of the constitution and void.[ ] justice sutherland's opinion set out from chief justice hughes's assertion in the schechter case of the "fundamental" character of the distinction between "direct" and "indirect" effects; that is to say, from the doctrine of the sugar trust case. it then proceeded: "much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby. but, ..., the conclusive answer is that the evils are all local evils over which the federal government has no legislative control. the relation of employer and employee is a local relation. at common law, it is one of the domestic relations. the wages are paid for the doing of local work. working conditions are obviously local conditions. the employees are not engaged in or about commerce, but exclusively in producing a commodity. and the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local work undertaken to accomplish that local result. such effect as they may have upon commerce, however extensive it may be, is secondary and indirect. an increase in the greatness of the effect adds to its importance. it does not alter its character."[ ] we again see the influence of the ideology of the sugar trust case.[ ] the national labor relations act the case in which the court reduced the distinction between "direct" and "indirect" effects to the vanishing point, and thereby put congress in the way of governing productive industry and labor relations in such industry was national labor relations board _v._ jones and laughlin steel corp.,[ ] decided april , . here the statute involved was the national labor relations act of july , ,[ ] which forbids "any unfair labor practice affecting interstate commerce" and lists among these "the denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining." ignoring recent holdings, government counsel appealed to the "current of commerce" concept of the swift case. the scope of respondent's activities, they pointed out, was immense. besides its great steel-producing plants, it owned and operated mines, steamships, and terminal railways scattered through several states, and altogether it gave employment to many thousands of workers. a vast industrial commonwealth such as this, whose operations constantly traversed state lines, comprised, they contended, a species of territorial enclave which was subject in all its parts to the only governmental power capable of dealing with it as an entity, that is, the national government. yet even if this were not so, still the protective power of congress over interstate commerce must be deemed to extend to disruptive strikes by employees of such an immense concern, and hence to include power to remove the causes of such strikes. the court, speaking through chief justice hughes, held the corporation to be subject to the act on the latter ground. "the close and intimate effect," said he, "which brings the subject within the reach of federal power may be due to activities in relation to productive industry although the industry when separately viewed is local." nor will it do to say that such effect is "indirect." considering defendant's "far-flung activities," the effect of strife between it and its employees "* * * would be immediate and [it] might be catastrophic. we are asked to shut our eyes to the plainest facts of our national life and to deal with the question of direct and indirect effects in an intellectual vacuum. * * * when industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war? we have often said that interstate commerce itself is a practical conception. it is equally true that interferences with that commerce must be appraised by a judgment that does not ignore actual experience."[ ] while the act was thus held to be within the constitutional powers of congress in relation to a productive concern, the interruption of whose business by strike "might be catastrophic," the decision was forthwith held to apply also to two minor concerns;[ ] and in a later case the court stated specifically that "the smallness of the volume of commerce affected in any particular case" is not a material consideration.[ ] moreover, the doctrine of the jones-laughlin case applies equally to "natural" products, to coal mined, to stone quarried, to fruit and vegetables grown.[ ] the fair labor standards act; the darby case in congress enacted the fair labor standards act.[ ] the measure prohibits not only the shipment in interstate commerce of goods manufactured by employees whose wages are less than the prescribed minimum or whose weekly hours of labor are greater than the prescribed maximum, but also the employment of workmen in the production of goods for such commerce at other than the prescribed wages and hours. interstate commerce is defined by the act to mean "trade, commerce, transportation, transmission, or communication among the several states or from any state to any place outside thereof." it was further provided that "for the purposes of this act an employee shall be deemed to have been engaged in the production of goods [that is, for interstate commerce] if such employee was employed * * *, or in any process or occupation necessary to the production thereof, in any state." sustaining an indictment under the act, a unanimous court, speaking by chief justice stone, said: "the motive and purpose of the present regulation are plainly to make effective the congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which commerce flows."[ ] in support of the decision the court invokes chief justice marshall's reading of the necessary and proper clause in mcculloch _v._ maryland and his reading of the commerce clause in gibbons _v._ ogden.[ ] objections purporting to be based on the tenth amendment are met from the same point of view: "our conclusion is unaffected by the tenth amendment which provides: 'the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.' the amendment states but a truism that all is retained which has not been surrendered. there is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. _see_ e.g., ii elliot's debates, , ; iii id. , , ; iv id. , ; i annals of congress, , , - ; story, commentaries on the constitution, §§ - ."[ ] commenting recently on this decision, former justice roberts said: "of course, the effect of sustaining the fair labor standards act was to place the whole matter of wages and hours of persons employed throughout the united states, with slight exceptions, under a single federal regulatory scheme and in this way completely to supersede state exercise of the police power in this field."[ ] in a series of later cases construing terms of the act, it had been given wide application.[ ] the agricultural marketing agreement act meantime congress had returned to the task of bolstering agriculture by passing the agricultural marketing agreement act of june , ,[ ] authorizing the secretary of agriculture to fix the minimum prices of certain agricultural products, when the handling of such products occurs "in the current of interstate or foreign commerce or * * * directly burdens, obstructs or affects interstate or foreign commerce in such commodity or product thereof." in united states _v._ wrightwood dairy company[ ] the court sustained an order of the secretary of agriculture fixing the minimum prices to be paid to producers of milk in the chicago "marketing area." the dairy company demurred to the regulation on the ground of its applying to milk produced and sold intrastate. sustaining the order the court said: "congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce, * * *, and it possesses every power needed to make that regulation effective. the commerce power is not confined in its exercise to the regulation of commerce among the states. it extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. _see_ mcculloch _v._ maryland, wheat. , ; * * * the power of congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution. gibbons _v._ ogden, wheat. , . it follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to congress. hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power."[ ] in wickard _v._ filburn[ ] a still deeper penetration by congress into the field of production was sustained. as amended by the act of , the agricultural adjustment act of ,[ ] regulates production even when not intended for commerce but wholly for consumption on the producer's farm. sustaining this extension of the act, the court pointed out that the effect of the statute was to support the market. it said: "it can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. this may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. but if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. home-grown wheat in this sense competes with wheat in commerce. the stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. this record leaves us in no doubt that congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices."[ ] and it elsewhere stated: "questions of the power of congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce. * * * the court's recognition of the relevance of the economic effects in the application of the commerce clause, * * *, has made the mechanical application of legal formulas no longer feasible."[ ] acts of congress prohibiting commerce foreign commerce; jefferson's embargo "jefferson's embargo" of - , which cut all trade with europe, was attacked on the ground that the power to regulate commerce was the power to preserve it, not the power to destroy it. this argument was rejected by judge davis of the united states district court for massachusetts in the following words: "a national sovereignty is created [by the constitution]. not an unlimited sovereignty, but a sovereignty, as to the objects surrendered and specified, limited only by the qualifications and restrictions, expressed in the constitution. commerce is one of those objects. the care, protection, management and control, of this great national concern, is, in my opinion, vested by the constitution, in the congress of the united states; and their power is sovereign, relative to commercial intercourse, qualified by the limitations and restrictions, expressed in that instrument, and by the treaty making power of the president and senate. * * * power to regulate, it is said, cannot be understood to give a power to annihilate. to this it may be replied, that the acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. it will be admitted that partial prohibitions are authorized by the expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the national government, to whom the subject appears to be committed? * * * the term does not necessarily include shipping or navigation; much less does it include the fisheries. yet it never has been contended, that they are not the proper objects of national regulation; and several acts of congress have been made respecting them. * * * [furthermore] if it be admitted that national regulations relative to commerce, may apply it as an instrument, and are not necessarily confined to its direct aid and advancement, the sphere of legislative discretion is, of course, more widely extended; and, in time of war, or of great impending peril, it must take a still more expanded range. congress has power to declare war. it, of course, has power to prepare for war; and the time, the manner, and the measure, in the application of constitutional means, seem to be left to its wisdom and discretion. * * * under the confederation, * * * we find an express reservation to the state legislatures of the power to pass prohibitory commercial laws, and, as respects exportations, without any limitations. some of them exercised this power. * * * unless congress, by the constitution, possess the power in question, it still exists in the state legislatures--but this has never been claimed or pretended, since the adoption of the federal constitution; and the exercise of such a power by the states, would be manifestly inconsistent with the power, vested by the people in congress, 'to regulate commerce.' hence i infer, that the power, reserved to the states by the articles of confederation, is surrendered to congress, by the constitution; unless we suppose, that, by some strange process, it has been merged or extinguished, and now exists no where."[ ] foreign commerce; protective tariffs tariff laws have customarily contained prohibitory provisions, and such provisions have been sustained by the court under congress's revenue powers (_see above_) and under its power to regulate foreign commerce. speaking for the court in university of illinois _v._ united states,[ ] in , chief justice hughes said: "the congress may determine what articles may be imported into this country and the terms upon which importation is permitted. no one can be said to have a vested right to carry on foreign commerce with the united states. * * * it is true that the taxing power is a distinct power; that it is distinct from the power to regulate commerce. * * * it is also true that the taxing power embraces the power to lay duties. art. i, § , cl. . but because the taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce. the contrary is well established. gibbons _v._ ogden, wheat. , . 'under the power to regulate foreign commerce congress impose duties on importations, give drawbacks, pass embargo and nonintercourse laws, and make all other regulations necessary to navigation, to the safety of passengers, and the protection of property.' groves _v._ slaughter, pet. , . the laying of duties is 'a common means of executing the power.' story on the constitution, § ."[ ] foreign commerce; banned articles the forerunners of more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. this power congress has exercised since . in that year it forbade the importation of obscene literature or pictures from abroad.[ ] six years later it passed an act "to prevent the importation of spurious and adulterated drugs" and to provide a system of inspection to make the prohibition effective.[ ] such legislation guarding against the importation of noxiously adulterated foods, drugs, or liquor has been on the statute books ever since. in the importation by chinese nationals of smoking opium was prohibited,[ ] and subsequent statutes passed in and made it unlawful for anyone to import it.[ ] in congress forbade the importation of any tea "inferior in purity, quality, and fitness for consumption" as compared with a legal standard.[ ] the act was sustained in , in the leading case of buttfield _v._ stranahan.[ ] in "the abby dodge" case an act excluding sponges taken by means of diving or diving apparatus from the waters of the gulf of mexico or straits of florida was sustained, but construed as not applying to sponges taken from the territorial waters of a state.[ ] in weber _v._ freed[ ] an act prohibiting the importation and interstate transportation of prize-fight films or of pictorial representation of prize fights was upheld. speaking for the unanimous court, chief justice white said: "in view of the complete power of congress over foreign commerce and its authority to prohibit the introduction of foreign articles recognized and enforced by many previous decisions of this court, the contentions are so devoid of merit as to cause them to be frivolous."[ ] in brolan _v._ united states[ ] the court again stressed the absolute nature of congress's power over foreign commerce, saying: "in the argument reference is made to decisions of this court dealing with the subject of the power of congress to regulate interstate commerce, but the very postulate upon which the authority of congress to absolutely prohibit foreign importations as expounded by the decisions of this court rests is the broad distinction which exists between the two powers and therefore the cases cited and many more which might be cited announcing the principles which they uphold have obviously no relation to the question in hand."[ ] interstate commerce; conflict of doctrine and opinion the question whether congress's power to regulate commerce "among the several states" embraced the power to prohibit it furnished the topic of one of the most protracted debates in the entire history of the constitution's interpretation, a debate the final resolution of which in favor of congressional power is an event of first importance for the future of american federalism. the issue was as early as brought forward by henry clay, in an argument before the court in which he raised the specter of an act of congress forbidding the interstate slave trade.[ ] the debate was concluded ninety-nine years later by the decision in united states _v._ darby, in which the fair labor standards act was sustained. the résumé of it which is given below is based on judicial opinions, arguments of counsel, and the writings of jurists and political scientists. much of this material was evoked by efforts of congress, from about onward, to stop the shipment interstate of the products of child labor. acts of congress prohibitive of interstate commerce the earliest such acts were in the nature of quarantine regulations and usually dealt solely with interstate transportation. in the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden.[ ] in power was conferred upon the secretary of agriculture to establish regulations to prevent the spread of such diseases through foreign or interstate commerce.[ ] in the same official was authorized to lay an absolute embargo or quarantine upon all shipments of cattle from one state to another when the public necessity might demand it.[ ] a statute passed in forbade the transportation in foreign and interstate commerce and the mails of certain varieties of moths, plant lice, and other insect pests injurious to plant crops, trees, and other vegetation.[ ] in a similar exclusion of diseased nursery stock was decreed,[ ] while by the same act, and again by an act of ,[ ] the secretary of agriculture was invested with powers of quarantine on interstate commerce for the protection of plant life from disease similar to those above described for the prevention of the spread of animal disease. while the supreme court originally held federal quarantine regulations of this sort to be constitutionally inapplicable to intrastate shipments of livestock, on the ground that federal authority extends only to foreign and interstate commerce,[ ] this view has today been abandoned. _see_ pp. - . the lottery case the first case to come before the court in which the issues discussed above were canvassed at all thoroughly was champion _v._ ames,[ ] involving the act of "for the suppression of lotteries."[ ] an earlier act excluding lottery tickets from the mails had been upheld in the earlier case of in re rapier,[ ] on the proposition that congress clearly had the power to see that the very facilities furnished by it were not put to bad uses. but in the case of commerce the facilities are not ordinarily furnished by the national government, and the right to engage in foreign and interstate commerce comes from the constitution itself, or is anterior to it. how difficult the court found the question produced by the act of , forbidding any person to bring within the united states or to cause to be "carried from one state to another" any lottery ticket, or an equivalent thereof, "for the purpose of disposing of the same," is shown by the fact that the case was thrice argued before the court, and the fact that the court's decision finally sustaining the act was a five-to-four decision. the opinion of the court, on the other hand, prepared by justice harlan, marked an almost unqualified triumph at the time for the view that congress's power to regulate commerce among the states includes the power to prohibit it, especially to supplement and support state legislation enacted under the police power.[ ] early in the opinion extensive quotation is made from chief justice marshall's opinion in gibbons _v._ ogden,[ ] with special stress upon the definition there given of the phrase "to regulate." justice johnson's assertion on the same occasion is also given: "the power of a sovereign state over commerce, * * *, amounts to nothing more than, a power to limit and restrain it at pleasure." further along is quoted with evident approval justice bradley's statement in brown _v._ houston,[ ] that "the power to regulate commerce among the several states is granted to congress in terms as absolute as is the power to regulate commerce with foreign nations." national prohibitions and state police power following in the wake of champion _v._ ames, congress has repeatedly brought its prohibitory powers over interstate commerce and communications to the support of certain local policies of the states in the exercise of their reserved powers, thereby aiding them in the repression of the liquor traffic,[ ] of traffic in game taken in violation of state laws,[ ] of commerce in convict-made goods,[ ] of the white slave traffic,[ ] of traffic in stolen motor vehicles,[ ] of kidnapping,[ ] of traffic in stolen property,[ ] of racketeering,[ ] of prize-fight films or other pictorial representation of encounters of pugilists.[ ] the conception of the federal system on which the court based its validation of this legislation was stated by it in in sustaining the mann "white slave" act in the following words: "our dual form of government has its perplexities, state and nation having different spheres of jurisdiction, * * *, but it must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material, and moral."[ ] at the same time, the court made it plain that in prohibiting commerce among the states, congress was equally free to support state legislative policy or to devise a policy of its own. "congress," it said, "may exercise this authority in aid of the policy of the state, if it sees fit to do so. it is equally clear that the policy of congress acting independently of the states may induce legislation without reference to the particular policy or law of any given state. acting within the authority conferred by the constitution it is for congress to determine what legislation will attain its purposes. the control of congress over interstate commerce is not to be limited by state laws."[ ] hammer _v._ dagenhart however, it is to be noted that none of this legislation operated in the field of industrial relations. so when the court was confronted in , in the case of hammer _v._ dagenhart,[ ] with an act which forbade manufacturers and others to offer child-made goods for transportation in interstate commerce,[ ] it held the act, by the narrow vote of five justices to four, to be not an act regulative of commerce among the states, but one which invaded the reserved powers of the states. "the maintenance of the authority of the states over matters purely local," said justice day for the court, "is as essential to the preservation of our institutions as is the conservation of the supremacy of the federal power in all matters entrusted to the nation by the federal constitution."[ ] as to earlier decisions sustaining congress's prohibitory powers, justice day said: "in each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results. * * * this element is wanting in the present case. * * * the goods shipped are in themselves harmless. * * * when offered for shipment, and before transportation begins, the labor of their production is over, and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power. * * * 'when commerce begins is determined, not by the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, * * *, but by its actual delivery to a common carrier for transportation, * * *' (mr. justice jackson in _in re greene_, fed. rep. ). this principle has been recognized often in this court. coe _v._ errol, u.s. * * *."[ ] the decision in hammer _v._ dagenhart was, in short, governed by the same general conception of the interstate commerce process as that which governed the decision in the sugar trust case. commerce was envisaged as beginning only with an act of transportation from one state to another. and from this it was deduced that the only commerce which congress may prohibit is an act of transportation from one state to the other which is followed in the latter by an act within the normal powers of government to prohibit. commerce, however, is primarily _traffic_; and the theory of the child labor act was that it was designed to discourage a widespread and pernicious interstate traffic in the products of child labor--pernicious because it bore "a real and substantial relation" to the existence of child labor employment in some states and constituted a direct inducement to its spread to other states. deprived of the interstate market which this decision secured to it, child labor could not exist. interstate commerce in stolen goods banned in brooks _v._ united states,[ ] decided in , the court, in sustaining the national motor vehicle theft act of ,[ ] materially impaired the _ratio decidendi_ of hammer _v._ dagenhart. at the outset of his opinion for the court, chief justice taft stated the general proposition that "congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin." this statement was buttressed by a review of previous cases, including the explanation that the goods involved in hammer _v._ dagenhart were "harmless" and did not spread harm to persons in other states. passing then to the measure before the court, the chief justice noted "the radical change in transportation" brought about by the automobile, and the rise of "elaborately organized conspiracies for the theft of automobiles * * *, and their sale or other disposition" in another police jurisdiction from the owner's. this, the opinion declared, "is a gross misuse of interstate commerce. congress may properly punish such interstate transportation by anyone with knowledge of the theft, because of its harmful result and its defeat of the property rights of those whose machines against their will are taken into other jurisdictions."[ ] the motor vehicle act was sustained, therefore, mainly as protective of owners of automobiles, that is to say, of interests in "the state of origin." it was designed to repress automobile thefts, and that notwithstanding the obvious fact that such thefts must necessarily occur before transportation of the thing stolen can take place, that is, under the formula followed in hammer _v._ dagenhart, before congress's power over interstate commerce becomes operative. also, the court took cognizance of "elaborately organized conspiracies" for the theft and disposal of automobiles across state lines--that, to say, of a widespread traffic in such property. the darby case the formal overruling of hammer _v._ dagenhart, however, did not occur until when, in sustaining the fair labor standards act, a unanimous court, speaking by justice stone, said: "hammer _v._ dagenhart has not been followed. the distinction on which the decision was rested that congressional power to prohibit interstate commerce is limited to articles which in themselves have some harmful or deleterious property--a distinction which was novel when made and unsupported by any provision of the constitution--has long since been abandoned. * * * the thesis of the opinion that the motive of the prohibition or its effect to control in some measure the use or production within the states of the article thus excluded from the commerce can operate to deprive the regulation of its constitutional authority has long since ceased to have force. * * * and finally we have declared 'the authority of the federal government over interstate commerce does not differ in extent or character from that retained by the states over intrastate commerce.' united states _v._ rock royal co-operative, u.s. , . the conclusion is inescapable that hammer _v._ dagenhart, was a departure from the principles which have prevailed in the interpretation of the commerce clause both before and since the decision and that such vitality, as a precedent, as it then had has long since been exhausted. it should be and now is overruled."[ ] and commenting in a recent case on the fair labor standards act, justice burton, speaking for the court said: "the primary purpose of the act is not so much to regulate interstate commerce as such, as it is, through the exercise of legislative power, to prohibit the shipment of goods in interstate commerce if they are produced under substandard labor conditions."[ ] congress and the federal system in view of these developments the following dictum by justice frankfurter, was no doubt, intended to be reassuring as to the future of the federal system: "the interpenetrations of modern society have not wiped out state lines. it is not for us [the court] to make inroads upon our federal system either by indifference to its maintenance or excessive regard for the unifying forces of modern technology. scholastic reasoning may prove that no activity is isolated within the boundaries of a single state, but that cannot justify absorption of legislative power by the united states over every activity."[ ] while this may be conceded, the unmistakable lesson of recent cases is that the preservation of our federal system depends today mainly upon congress. the commerce clause as a restraint on state powers doctrinal background the grant of power to congress over commerce, unlike that of power to levy customs duties, the power to raise armies, and some others, is unaccompanied by correlative restrictions on state power. this circumstance does not, however, of itself signify that the states were expected still to participate in the power thus granted congress, subject only to the operation of the supremacy clause. as hamilton points out in the federalist, while some of the powers which are vested in the national government admit of their "concurrent" exercise by the states, others are of their very nature "exclusive," and hence render the notion of a like power in the states "contradictory and repugnant."[ ] as an example of the latter kind of power hamilton mentioned the power of congress to pass a uniform naturalization law. was the same principle expected to apply to the power over foreign and interstate commerce? unquestionably one of the great advantages anticipated from the grant to congress of power over commerce was that state interferences with trade, which had become a source of sharp discontent under the articles of confederation, would be thereby brought to an end. as webster stated in his argument for appellant in gibbons _v._ ogden: "the prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different states, and to place it under the protection of a uniform law." in other words, the constitutional grant was itself a regulation of commerce in the interest of uniformity. justice johnson's testimony in his concurring opinion in the same case is to like effect: "there was not a state in the union, in which there did not, at that time, exist a variety of commercial regulations; * * * by common consent, those laws dropped lifeless from their statute books, for want of sustaining power that had been relinquished to congress";[ ] and madison's assertion, late in life, that power had been granted congress over interstate commerce mainly as "a negative and preventive provision against injustice among the states,"[ ] carries a like implication. that, however, the commerce clause, unimplemented by congressional legislation, took from the states any and all power over foreign and interstate commerce was by no means universally conceded; and ogden's attorneys directly challenged the idea. moreover, as was pointed out on both sides in gibbons _v._ ogden, legislation by congress regulative of any particular phase of commerce would still leave many other phases unregulated and consequently raise the question whether the states were entitled to fill the remaining gaps, if not by virtue of a "concurrent" power over interstate and foreign commerce, then by virtue of "that immense mass of legislation," as marshall termed it, "which embraces everything within the territory of a state, not surrendered to the general government,"[ ]--in a word, the "police power." the commerce clause does not, therefore, without more ado, settle the question of what power is left to the states to adopt legislation regulating foreign or interstate commerce in greater or less measure. to be sure, in cases of flat conflict between an act or acts of congress regulative of such commerce and a state legislative act or acts, from whatever state power ensuing, the act of congress is today recognized, and was recognized by marshall, as enjoying an unquestionable supremacy.[ ] but suppose, _first_, that congress has passed no act; or _secondly_, that its legislation does not clearly cover the ground which certain state legislation before the court attempts to cover--what rules then apply? since gibbons _v._ ogden both of these situations have confronted the court, especially as regards interstate commerce, hundreds of times, and in meeting them the court has, first and last, coined or given currency to numerous formulas, some of which still guide, even when they do not govern, its judgment. doctrinal background; webster's contribution the earliest, and the most successful, attempt to set forth a principle capable of guiding the court in adjusting the powers of the states to unexercised power of congress under the commerce clause was that which was made by daniel webster in his argument in gibbons _v._ ogden, in the following words: "he contended, * * *, that the people intended, in establishing the constitution, to transfer from the several states to a general government, those high and important powers over commerce, which, in their exercise, were to maintain a uniform and general system. from the very nature of the case, these powers must be exclusive; that is, the higher branches of commercial regulation must be exclusively committed to a single hand. what is it that is to be regulated? not the commerce of the several states, respectively, but the commerce of the united states. henceforth, the commerce of the states was to be a unit; and the system by which it was to exist and be governed, must necessarily be complete, entire and uniform." at the same time webster conceded "that the words used in the constitution, 'to regulate commerce,' are so very general and extensive, that they might be construed to cover a vast field of legislation, part of which has always been occupied by state laws; and therefore, the words must have a reasonable construction, and the power should be considered as exclusively vested in congress, so far, and so far only, as the nature of the power requires."[ ] webster also dealt with the problem which arises when congress has exercised its power. the results of its act, he contended, must be treated as a unit, so that when congress had left subject matter within its jurisdiction unregulated, it must be deemed to have done so of design, and its omissions, or silences, accordingly be left undisturbed by state action. although marshall, because he thought the new york act creating the livingston-fulton monopoly to be in direct conflict with the enrolling and licensing act of , was not compelled to pass on either of webster's theories, he indicated his sympathy with them.[ ] cooley _v._ board of port wardens aside from marshall's opinion in in brown _v._ maryland,[ ] in which the famous "original package" formula made its debut, the most important utterance of the court touching interpretation of the commerce clause as a restriction on state legislative power is that for which cooley _v._ board of wardens of port of philadelphia,[ ] decided in , is usually cited. the question at issue was the validity of a pennsylvania pilotage act so far as it applied to vessels engaged in foreign commerce and the coastwise trade. the court, speaking through justice curtis, sustained the act on the basis of a distinction between those subjects of commerce which "imperatively demand a single uniform rule" operating throughout the country and those which "as imperatively" demand "that diversity which alone can meet the local necessities of navigation," that is to say, of commerce. as to the former the court held congress's power to be "exclusive"--as to the latter it held that the states enjoyed a power of "concurrent legislation." while this formula obviously stems directly from webster's argument in gibbons _v._ ogden, it covers considerably less ground. citation, nevertheless, of the cooley case throughout the next half century eliminated the difference and brought the curtis dictum abreast of webster's earlier argument. the doctrine consequently came to be established, _first_, that congress's power over interstate commerce is "exclusive" as to those phases of it which require "uniform regulation"; _second_, that outside this field, as plotted by the court, the states enjoyed a "concurrent" power of regulation, subject to congress's overriding power.[ ] judicial formulas but meantime other formulas had emerged from the judicial smithy, several of which are brought together into something like a doctrinal system, in justice hughes' comprehensive opinion for the court in the minnesota rate cases,[ ] decided in . "direct" regulation of foreign or interstate commerce by a state is here held to be out of the question. at the same time, the states have their police and taxing powers, and may use them as their own views of sound public policy may dictate even though interstate commerce may be "incidentally" or "indirectly" regulated, it being understood that such "incidental" or "indirect" effects are always subject to congressional disallowance. "our system of government," justice hughes reflects, "is a practical adjustment by which the national authority as conferred by the constitution is maintained in its fall scope without unnecessary loss of local efficiency."[ ] in more concrete terms, the varied formulas which characterize this branch of our constitutional law have been devised by the court from time to time in an endeavor to effect "a practical adjustment" between two great interests, the maintenance of freedom of commerce except so far as congress may choose to restrain it, and the maintenance in the states of efficient local governments. thus, while formulas may serve to steady and guide its judgment, the court's real function in this area of judicial review is essentially that of an arbitral or quasi-legislative body. so much so is this the case that in three justices joined in an opinion in which they urged that the business of drawing the line between the immunity of interstate commerce and the taxing power of the states "should be left to the legislatures of the states and the congress," with the final remedy in the hands of the latter.[ ] state taxing power and foreign commerce brown _v._ maryland; the original package doctrine the leading case under this heading is brown _v._ maryland,[ ] decided in , the issue in which was the validity of a maryland statute requiring "all importers of foreign articles or commodities," preparatory to selling the same, to take out a license. holding this act to be void under both article i, sec. , and the commerce clause, the court, speaking through chief justice marshall, advanced the following propositions: ( ) that "commerce is intercourse; one of its most ordinary ingredients is traffic"; ( ) that the right to import includes the right to sell; ( ) that a tax on the sale of an article is a tax on the article itself--a conception of the incidence of taxation which has at times had important repercussions in other fields of constitutional law; ( ) that the taxing power of the state does not extend in any form to imports from abroad so long as they remain "the property of the importer, in his warehouse, in the original form or package" in which they were imported--the famous "original package doctrine"; ( ) that once, however, the importer parts with his importations "or otherwise mixes them with the general property of the state by breaking up his packages," the law may treat them as part and parcel of such property; ( ) that even while in the original package imports are subject to the incidental operation of police measures adopted by the state in good faith for the protection of the public against apparent dangers. lastly, in determining whether a state law amounts to a regulation of commerce the court would, marshall announced, be guided by "substance" and not by "form"--a proposition which has many times opened the way to extensive inquiries by the court into the actualities both of commercial practice and of state administration. the decision in brown _v._ maryland, but more especially the "original package doctrine" there laid down, has been sometimes criticised as going too far. it would have been sufficient, the critics contend, for the court to have held the maryland act void on account of its obviously discriminatory character; and they urge that original packages receiving the protection of the state ought to be subject to nondiscriminatory taxation by it. the criticism was partially anticipated by marshall himself in the apprehensions which he voiced that any concession to "the great importing states" might be turned by them against the rest of the country. indeed, he is uncertain whether the original package doctrine will prove sufficient for its purposes and accordingly offers it not as a rule "universal in its application," but rather as a stop-gap principle. history has proved, however, that in this he builded better than he knew. for in the field of foreign commerce the original package doctrine has never been disturbed, and it has scarcely been added to; and so confined, it has never been surpassed by any later piece of judicial legislation, whether in point of durability or in that of definiteness and easy comprehensibility.[ ] state taxation of the subject matter of interstate commerce general considerations the task of drawing the line between state power and the commercial interest has proved a comparatively simple one in the field of foreign commerce, the two things being in great part territorially distinct. with "commerce among the states" it is very different. this is conducted in the interior of the country, by persons and corporations that are ordinarily engaged also in local business; its usual incidents are acts which, if unconnected with commerce among the states, would fall within the state's powers of police and taxation; while the things it deals in and the instruments by which it is carried on comprise the most ordinary subject matter of state power. in this field the court has, consequently, been unable to rely upon sweeping solutions. to the contrary, its judgments have often been fluctuating and tentative, even contradictory; and this is particularly the case as respects the infringement of the state taxing power on interstate commerce. in the words of justice frankfurter: "the power of the states to tax and the limitations upon that power imposed by the commerce clause have necessitated a long, continuous process of judicial adjustment. the need for such adjustment is inherent in a federal government like ours, where the same transaction has aspects that may concern the interests and involve the authority of both the central government and the constituent states. the history of this problem is spread over hundreds of volumes of our reports. to attempt to harmonize all that has been said in the past would neither clarify what has gone before nor guide the future. suffice it to say that especially in this field opinions must be read in the setting of the particular cases and as the product of preoccupation with their special facts."[ ] the state freight tax case the great leading case dealing with the relation of the state's taxing power to interstate commerce is that of the state freight tax,[ ] decided in . the question before the court was the validity of a pennsylvania statute, passed eight years earlier, which required every company transporting freight within the state, with certain exceptions, to pay a tax at specified rates on each ton of freight carried by it. overturning the act, the court held: "( ) the transportation of freight, or of the subjects of commerce, is a constituent part of commerce itself; ( ) a tax upon freight, transported from state to state, is a regulation of commerce among the states; ( ) whenever the subjects in regard to which a power to regulate commerce is asserted are in their nature national, or admit of one uniform system or plan of regulation, they are exclusively within the regulating control of congress; ( ) transportation of passengers or merchandise through a state, or from one state to another, is of this nature; ( ) hence a statute of a state imposing a tax upon freight, taken up within the state and carried out of it, or taken up without the state and brought within it, is repugnant to that provision of the constitution of the united states, which ordains that 'congress shall have power to regulate commerce with foreign nations and among the several states, and with the indian tribes.'"[ ] goods in transit states, therefore, may not tax property in transit in interstate commerce. a nondiscriminatory tax, however, is permitted if the goods have not yet started in interstate commerce, or have completed the interstate transit even though still in the original package, unless they are foreign imports in the original package; and states may also impose a nondiscriminatory tax when there is a break in an interstate transit, and the goods have not been restored to the current of interstate commerce. such is the law in brief. two questions arise, first, when do goods originating in a state pass from under its power to tax; and, second, when do goods arriving from another state lose their immunity? the leading case dealing with the first of these questions is coe _v._ errol,[ ] in which the matter at issue was the right of the town of errol, new hampshire, to tax certain logs on their way to points in maine, while they lay in the river before the town or along its shore awaiting the spring freshets and consequent rise of the river. as to the logs in the river, which had come from maine on their way to lewiston in the same state, but had been detained at errol by low water, the supreme court of new hampshire itself ruled that the local tax did not apply, the logs being still in transit. as to the logs which had been cut in new hampshire and lay on the shore or in tributaries of the river, both courts were again in agreement that they were still subject to local taxation, notwithstanding the intention of their owners to send them out of the state. said justice bradley: "* * * goods do not cease to be part of the general mass of property in the state, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation to another state, or have been started upon such transportation in a continuous route or journey."[ ] state taxation of manufacturing and mining under the above rule, obviously, production is not interstate commerce even though the thing produced is intended for the interstate market. thus a pennsylvania _ad valorem_ tax on anthracite coal when prepared and ready for shipment was held not to be an interference with interstate commerce although applied to coal destined for a market in other states;[ ] and in oliver iron company _v._ lord[ ] an occupation tax on the mining of iron ore was upheld, although substantially all of the ore was immediately and continuously loaded on cars and shipped into other states. said the court: "mining is not interstate commerce, but, * * * subject to local regulation and taxation. its character in this regard is intrinsic, is not affected by the intended use or disposal of the product, is not controlled by contractual engagements, and persists even though the business be conducted in close connection with interstate commerce."[ ] likewise an annual privilege tax on the business of producing natural gas in the state, computed on the value of the gas produced "as shown by the gross proceeds derived from the sale thereof by the producer," was held constitutional even though most of the gas passed into interstate commerce in continuous movement from the wells.[ ] and in utah power and light co. _v._ pfost[ ] the generation of electricity in a state was held to be distinguishable from its transmission over wires to consumers in another state, and hence taxable by the former state. likewise, a state statute imposing a privilege tax on the production of mechanical power for sale or use did not contravene the interstate commerce clause although applied to an engine operating a compressor to increase the pressure of natural gas and thereby permit it to be transported to purchasers in other states.[ ] similarly, a tax so much per pound on shrimp taken within the three-mile belt of the coast of the taxing state was valid, since the taxable event, the taking of the shrimp, occurred before they could be said to have entered the interstate commerce stream.[ ] production for an established market but while the production of goods intended for the interstate market is taxable by the state where it takes place, their purchase for an established market in another state is interstate commerce and as such is neither regulatable nor taxable by the state of origin, provided at any rate their trans-shipment is not unduly delayed.[ ] thus, oil gathered into the pipe lines of a distributing company and intended for the most part for customers outside the state, is in interstate commerce from the moment it leaves the wells;[ ] and a like result has been reached as to natural gas.[ ] "the typical and actual course of events," says the court, "marks the carriage of the greater part as commerce among the states and theoretical possibilities may be left out of account."[ ] rejection of the original package concept in interstate commerce but the question also arises as to when goods entering a state from another state become part of the mass of property of the former and hence taxable by it? in brown _v._ maryland,[ ] chief justice marshall, had remarked at the close of his opinion, "we suppose the principles laid down in this case, apply equally to importations from a sister state."[ ] forty-two years later, in woodruff _v._ parham,[ ] an effort was made to induce the court, in reliance on this dictum, to apply the original package doctrine against a mobile, alabama tax on sales at auction, so far as it reached "imports" from sister states. the court refused the invitation; first on the ground that marshall's statement was _obiter_, the point not having been involved in brown _v._ maryland; second, because usage contemporary with the constitution and of the constitution itself confined the term "imports" as employed in article i, section to imports from abroad; third, because the tax in question was nondiscriminatory. at the same time, nevertheless, reference was made to the power of congress to interpose at any time in exercise of its power over commerce, "in such a manner as to prevent the states from any oppressive interference with the free interchange of commodities by the citizens of one state with those of another."[ ] the same result was reached a few years later in brown _v._ houston,[ ] where it was held that coal transported down the mississippi from pennsylvania had been validly subjected by louisiana to a general _ad valorem_ property tax, having "come to its place of rest, for final disposal or use," and hence become "a part of the general mass of property in the state."[ ] again, however, a caveat was entered in behalf of the power of congress to impose a different rule affording "a temporary exemption" of property transported from one state to another from taxation by the latter.[ ] inspection charges woodruff _v._ parham and brown _v._ houston are still good law for the most part.[ ] nevertheless, there is one respect in which imports from sister states are treated as "imports" in the sense of the constitution, and that is in being exempt from "unreasonable" inspection charges.[ ] it is true, also, that in a series of cases involving sales of oil about the court appeared to be contemplating reviving the original package doctrine,[ ] but these holdings were presently "qualified" in a sweeping opinion by chief justice taft, reviewing the cases.[ ] but taxation is one thing, prohibition another. in the field of the police power, where its applicability was not so much as suggested in brown _v._ maryland, the original package doctrine has been frequently invoked by the court against state legislation, and even today, perhaps retains a spark of life.[ ] local sales: peddlers by the same token, local sales of goods brought into a state from another state are subject to a nondiscriminatory exercise of its taxing power. such a tax, the court has said, "has never been regarded as imposing a direct burden upon interstate commerce and has no greater or different effect upon that commerce than a general property tax to which all those enjoying the protection of the state may be subjected"; and this is true, even of goods immediately to be used in interstate commerce.[ ] the commerce clause, therefore, does not prohibit a state from imposing special license taxes on merchants using profit sharing coupons and trading stamps although the coupons may have been inserted in retail packages by the manufacturer or shipper outside the state and are redeemable outside the state, either by such manufacturer or shipper, or by some other agency outside the state;[ ] nor yet a nondiscriminatory tax upon local peddling of goods and sales thereof by peddlers even though the goods are foreign or interstate imports, since the sale occurs after foreign or interstate commerce thereof has ended.[ ] and in kehrer _v._ stewart[ ] it was held that a state tax upon resident managing agents of nonresident meatpacking houses did not conflict with the commerce clause, regardless of the fact that the greater portion of the business was interstate in character, the tax having been construed by the highest court of the state as applying only to the business of selling to local customers from the stock of "original packages" shipped into the state without a previous sale or contract to sell, and kept and held for sale in the ordinary course of trade. contrariwise, a tax on sales discriminatory in its incidence against merchandise because of its origin in another state is _ipso facto_ unconstitutional. the leading case is welton _v._ missouri,[ ] decided in , in which a peddler's license tax confined to the sale of goods manufactured outside the state was set aside. the doctrine of welton _v._ missouri has been reiterated many times.[ ] stoppage in transit it also follows logically from coe _v._ errol,[ ] and the cases deriving from it, that a state may impose a nondiscriminatory tax when there is a break in interstate transit, and the goods have not been restored to the current of interstate commerce. the effect of an interruption upon the continuity of an interstate movement depends upon its causes and purposes. if the delay is due to the necessities of the journey, as in the coe case, where the logs were detained for a time within the state by low water, they are deemed "in the course of commercial transportation, and * * * clearly under the protection of the constitution."[ ] intention thus often enters into the determination of the question whether goods from another state have come to rest sufficiently to subject them to the local taxing power. in a typical case the court held that oil shipped from pennsylvania and held in tanks in memphis, tennessee for separation, distribution and reshipment, was subject to the taxing power of the latter state.[ ] the delay in transportation resulting from these proceedings on the part of the owners, the court pointed out, was clearly designed for their own profit and convenience and was not a necessary incident to the method of transportation adopted, as had been the delay of the logs coming from maine in coe _v._ errol. the distinction is fundamental.[ ] applying this rule in more recent cases, the court has upheld state taxation: on the use and storage of gasoline brought into the state by a railroad company and unloaded and stored there, to be used for its interstate trains;[ ] on gasoline imported and stored by an airplane company and withdrawn to fill airplanes that use it in their interstate travel;[ ] on supplies brought into the state by an interstate railroad company to be used in replacements, repairs and extensions, and installed immediately upon arrival in the taxing state;[ ] on equipment brought into the state by a telephone and telegraph company for operation, maintenance, and repair of its interstate system.[ ] in all these cases the court applied the principle that "use and storage" are subject to local taxation when "there is an interval after the articles have reached the end of their interstate movement and before their consumption in interstate operation has begun."[ ] on the other hand, in the absence of such an "interval," the court declared invalid state gasoline taxes imposed per gallon of gasoline imported by interstate carriers as fuel for use in such vehicles, and used within the state as well as in their interstate travel.[ ] the drummer cases; robbins _v._ shelby county taxing district but there is one situation in which goods introduced into one state from another have until recent years enjoyed a special immunity from taxation by the former, and that is when they were introduced in consequence of a contract of sale. the leading case is robbins _v._ shelby county taxing district,[ ] in which the court, after a penetrating survey of commercial practices, ruled that "the negotiation of sales of goods"--in this instance by sample--"which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce." in short, whereas in foreign commerce, importation is succeeded by the right to sell in the original package, in interstate commerce sale was succeeded by the right of importation, which continued until the goods reached the hands of the purchaser. the benefits of this holding were extended in a series of rulings in which it was held to apply whether solicitation of orders was or was not made with sample,[ ] and to sales which were not, accurately speaking, consummated until the actual delivery of the goods, which was attended by local incidents. so, where a north carolina agent of a chicago firm took orders for framed pictures, which were then sent to him packed separately from the frames and then framed by him before delivery, the rule laid down in the robbins case was held to apply throughout, with the result that north carolina could tax or license no part of the transaction described;[ ] so also as to a sewing machine ordered by a customer in north carolina and sent to her c.o.d.;[ ] so also as to brooms sent in quantity for the fulfillment of a number of orders, and subject to rejection by the purchaser if deemed by him not up to sample.[ ] said justice holmes in the case last referred to: "'commerce among the states' is a practical conception not drawn from the 'witty diversities' * * * of the law of sales. * * * the brooms were specifically appropriated to specific contracts, in a practical, if not in a technical, sense. under such circumstances it is plain that, wherever might have been the title, the transport of the brooms for the purpose of fulfilling the contracts was protected commerce."[ ] nor did it make any difference that the solicitor received his compensation in form of down payment by the purchaser.[ ] moreover, sales under a mail order business, with delivery taking place within the state to a carrier for through shipment to another state to fill orders, was held to be beyond the taxing power of the first state.[ ] the fact that a concern doing a strictly interstate business had goods on hand within the state which were capable of being used in intrastate commerce, did not, the court declared, take the business out of the protection of the commerce clause and allow the state to impose a privilege tax on such concern. limitation of the robbins case on the other hand, it was early held that the rule laid down in the robbins case did not prevent a state from taxing a resident citizen who engaged in a general commission business, on the profits thereof, although the business consisted "for the time being, wholly or partially in negotiating sales between resident and nonresident merchants, of goods situated in another state."[ ] also, it has been held that a stamp tax on transfers of corporate stock, as applied to a sale between two nonresidents, of the stock of foreign railway corporations, was not an interference with interstate commerce.[ ] likewise, the business of taking orders on commission for the purchase and sale of grain and cotton for future delivery not necessitating interstate shipment was ruled not to be interstate commerce, and as such exempt from taxation, although deliveries were sometimes made by interstate shipment.[ ] and in banker bros. co. _v._ pennsylvania[ ] it was held that a tax upon a domestic corporation selling automobiles built by a foreign corporation under an arrangement by which the latter agreed to build for and sell to the former, for cash, at a specified price less than list price, was not a tax on interstate transactions, there being nothing which connected the ultimate buyer with the manufacturer but a warranty and the buyer's agreement to pay the list price f.o.b. factory. similarly, in browning _v._ waycross[ ] it was held that the business of erecting lightning rods within the limits of a town by the agent of a nonresident manufacturer on whose behalf such agent had solicited orders for the sale of the rods, and from whom he had received them when shipped into the state, was validly subjected to a municipal license tax. "it was not," said the court, "within the power of the parties by the form of their contract to convert what was exclusively a local business, * * *, into an interstate commerce business * * *"[ ] also, a municipal license tax upon persons engaged in the business of buying or selling cotton for themselves was found not to impose a forbidden burden upon interstate commerce even though the cotton was purchased with a view to ultimate shipment in some other state or country.[ ] nor was a gallonage tax imposed by a state upon a distributor of liquid fuel rendered repugnant to the commerce clause by the fact that the distributor caused fuel sold to customers in the state to be shipped from another state for delivery in tank cars--"deemed original packages"--on purchaser's siding, as agreed. said the court: "the contracts were executory and related to unascertained goods. * * * it does not appear that when they were made appellant had any fuels of the kinds covered, or that those to be delivered were then in existence. there was no selection of goods by purchasers. appellant was not required by the contracts to obtain the fuels at wilmington but was free to effect performance by shipping from, any place within or without pennsylvania."[ ] the robbins case today in the cases reviewed in the preceding paragraph protestants against local taxation appealed, but unavailingly, to the robbins case. so it would seem that the generative powers of that prolific precedent had begun to wane somewhat even before the depression, an event which rendered judicial reaction against it still more pronounced. indeed, by the court's decision in mcgoldrick _v._ berwind-white co.,[ ] in , the authority of the entire line of cases descending from robbins _v._ shelby county taxing district was seriously impaired, for the time being, while a second holding the same year seemed to reduce the significance of the robbins case itself to that of a reassertion of the elementary rule against discrimination. "the commerce clause," justice reed remarked sententiously, "forbids discrimination, whether forthright or ingenious."[ ] depression cases: use taxes with a majority of the states on the verge of bankruptcy, extensive recourse was had to sales taxes and, as an offset to these in favor of the local economy, "use" taxes on competing products coming from sister states. the basic decision sustaining the use tax, in this novel employment of it, was henneford _v._ silas mason co.,[ ] in which was involved a state of washington two per cent tax on the privilege of using products coming from sister states. excepted from the tax, on the other hand, was any property the sole use of which had already been subjected to an equal or greater tax, whether under the laws of washington or any other state. stressing this provision in its opinion, the court said: "equality is the theme that runs through all the sections of the statute. * * * when the account is made up, the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates."[ ] there being no actual discrimination in favor of washington products, the tax was valid. depression cases: sales taxes a companion piece of the henneford case in motivation, although it occurred three years later, was mcgoldrick _v._ berwind-white coal mining company,[ ] in which it was held that in the absence of congressional action, a new york city general sales tax was applicable to sales of coal under contracts entered into within the municipality and calling for delivery therein. speaking for the majority, justice stone declared any "distinction * * * between a tax laid on sales made, without previous contract, after the merchandise had crossed the state boundary, and sales, the contracts for which when made contemplate or require the transportation of merchandise interstate to the taxing state," to be "without the support of reason or authority";[ ] and the robbins case was held to be "narrowly limited to fixed-sum license taxes imposed on the business of soliciting order for the purchase of goods to be shipped interstate, * * *"[ ] three justices, speaking by chief justice hughes, dissented. three companion cases decided the same day were found to follow the berwind-white pattern,[ ] while a fourth was held not to, on the ground that foreign commerce was involved.[ ] for the time being robbins and family looked to be on the way out. end of the depression cases two cases, decided respectively in and , signalized the end of the depression. in mcleod _v._ dilworth co.,[ ] a divided court ruled that a sales tax could not be validly imposed by a state on sales to its residents which were consummated by acceptance of orders in, and shipment of goods from another state, in which title passed upon delivery to the carrier. said justice frankfurter for the majority: "a sales tax and a use tax in many instances may bring about the same result. but they are different in conception, are assessments upon different transactions, * * * a sales tax is a tax on the freedom of purchase * * * a use tax is a tax on the enjoyment of that which was purchased. in view of the differences in the basis of these two taxes and the differences in the relation of the taxing state to them, a tax on an interstate sale like the one before us and unlike the tax on the enjoyment of the goods sold, involves an assumption of power by a state which the commerce clause was meant to end."[ ] he also "distinguished" the berwind-white case--just as it had "distinguished" the robbins case--but not to the satisfaction of three of his brethren, who found the decision to mark a retreat from the berwind-white case.[ ] the second case, nippert _v._ richmond,[ ] involved a municipal ordinance imposing upon solicitors of orders for goods a license tax of fifty dollars and one-half of one per cent of the gross earnings, commissions, etc., for the preceding year in excess of $ , . speaking for the same majority that had decided mcleod _v._ dilworth co., justice rutledge found that "as the case has been made, the issue is substantially whether the long line of so-called 'drummer cases' beginning with robbins _v._ shelby county taxing district, u.s. , shall be adhered to in result or shall now be overruled in the light of what attorneys for the city say are recent trends requiring that outcome."[ ] the tax was held void, berwind-white being not only "distinguished" this time, but also "explained." "the drummer," said justice rutledge, "is a figure representative of a by-gone day," citing wright, hawkers and walkers in early america ( ). "but his modern prototype persists under more euphonious appellations. so endure the basic reasons which brought about his protection from the kind of local favoritism the facts of this case typify."[ ] a year later a mississippi "privilege tax" laid upon each person soliciting business for a laundry not licensed in the state, was set aside directly on the authority of the robbins case.[ ] it would appear that robbins and his numerous progeny can once more claim full constitutional status.[ ] taxation of carriage of persons whether the carriage of persons from one state to another was a branch of interstate commerce was a question which the court was able to side-step in gibbons _v._ ogden.[ ] a quarter of a century later, however, an affirmative answer was suggested in the passenger cases,[ ] in which a state tax on each passenger arriving on a vessel from a foreign country was set aside, though chiefly in reliance on existing treaties and acts of congress. but similar cases arising after the civil war were disposed of by direct recourse to the commerce clause.[ ] meantime, in , the newly admitted state of nevada, in an endeavor to prevent a threatened dissipation of its population, levied a special tax on railroad and stage companies for every passenger they carried out of the state, and in crandall _v._ nevada[ ] this act was held void on the general ground that the national government had at all times the right to require the services of its citizens at the seat of government and they the correlative right to visit the seat of government, rights which, if the nevada tax was valid, were at the mercy of any state, the power to tax being without limit. reference was also made to the right of the government to transport troops at all times by the most expeditious method. two of the justices, however, rejected this line of reasoning and held the act to be void under the commerce clause.[ ] but it was not until that the court, in deciding gloucester ferry company _v._ pennsylvania,[ ] stated flatly that "commerce among the states * * * includes the transportation of persons,"[ ] and hence was not taxable by the states, a proposition which is still good law.[ ] four years earlier it had been held that the transmission of telegraph messages from one state to another, being interstate commerce, was something that the state of origin could not tax.[ ] state taxation of the interstate commerce privilege: foreign corporations doctrinal history in the famous case of paul _v._ virginia,[ ] decided in , it was held that a corporation chartered by one state could enter other states only with their assent, which might "be granted upon such terms and conditions as those states may think proper to impose";[ ] but along with this holding went the statement that "the power conferred upon congress to regulate commerce includes as well commerce carried on by corporations as commerce carried on by individuals."[ ] and in the state freight tax case it is implied that no state can regulate or restrict the right of a "foreign" corporation--one chartered by another state--to carry on interstate commerce within its borders,[ ] an implication which soon became explicit. in leloup _v._ port of mobile,[ ] decided in , the court had before it a license tax on a telegraph company which was engaged in both domestic and interstate business. the general nature of the exaction did not suffice to save it. said the court: "the question is squarely presented to us, * * *, whether a state, as a condition of doing business within its jurisdiction, may exact a license tax from a telegraph company, a large part of whose business is the transmission of messages from one state to another and between the united states and foreign countries, and which is invested with the powers and privileges conferred by the act of congress passed july , , and other acts incorporated in title lxv of the revised statutes? can a state prohibit such a company from doing such a business within its jurisdiction, unless it will pay a tax and procure a license for the privilege? if it can, it can exclude such companies, and prohibit the transaction of such business altogether. we are not prepared to say that this can be done."[ ] in crutcher _v._ kentucky[ ] a like result was reached, without assistance from an act of congress, with respect to a kentucky statute which provided that the agent of an express company not incorporated by the laws of that state should not carry on business there without first obtaining a license from the state, and that, preliminary thereto, he must satisfy the auditor of the state that the company he represented was possessed of an actual capital of at least $ , . the act was held to be a regulation of interstate commerce so far as applied to a corporation of another state in that business. "to carry on interstate commerce," said the court, "is not a franchise or a privilege granted by the state; it is a right which every citizen of the united states is entitled to exercise under the constitution and laws of the united states; and the accession of mere corporate facilities, as a matter of convenience in carrying on their business, cannot have the effect of depriving them of such right, unless congress should see fit to interpose some contrary regulation on the subject."[ ] license taxes the demand for what in effect is a license is, of course, capable of assuming various guises. in ozark pipe line _v._ monier[ ] an annual franchise tax on foreign corporations equal to one-tenth of one per cent of the par value of their capital stock and surplus employed in business in the state was found to be a privilege tax, and hence one which could not be exacted of a foreign corporation whose business in the taxing state consisted exclusively of the operation of a pipe line for transporting petroleum through the state in interstate commerce, and of activities the sole purpose of which was the furtherance of its interstate business. likewise a massachusetts tax based on "the corporate surplus" of a foreign corporation having only an office in the state for the transaction of interstate business was held in alpha portland cement co. _v._ massachusetts to be virtually an attempt to license interstate commerce.[ ] in the same category of unconstitutional taxation of the interstate commerce privilege, the court has also included the following: a state "franchise" tax on a foreign corporation, whose sole business in the state consisted in landing, storing and selling in the original package goods imported by it from abroad, the tax being imposed annually on the doing of such business and measured by the value of the goods on hand;[ ] a state privilege or occupation tax on every corporation engaged in the business of operating and maintaining telephone lines and furnishing telephone service in the state, of so much for each telephonic instrument controlled and operated by it, as applied to a company furnishing both interstate and intrastate service, and employing the same telephones, wires, etc., in both as integrated parts of its system;[ ] a state occupation tax measured by the entire gross receipts of the business of a radio broadcasting station, licensed by the federal communications commission, and engaged in broadcasting advertising "programs" for customers for hire to listeners within and beyond the state, since it did not "appear that any of the taxed income ... [was] allocable to interstate commerce";[ ] a state occupation tax on the business of loading and unloading vessels engaged in interstate and foreign commerce;[ ] an indiana income tax imposed on the gross receipts from commerce inasmuch as the tax reached indiscriminately and without apportionment the gross income from both interstate commerce and intrastate activities;[ ] an arkansas statute making entry into the state of motor vehicles carrying more than twenty gallons of gasoline conditional on the payment of an excise on the excess.[ ] doctrine of western union telegraph _v._ kansas ex rel. coleman one of the most striking concessions ever made by the court to the interstate commercial interest at the expense of the state's taxing power was that which appeared originally in , in western union telegraph. co. _v._ kansas ex rel. coleman,[ ] which involved a percentage tax upon the total capitalization of all foreign corporations doing or seeking to do a local business in the state. the court pronounced the tax, as to the western union, a burden upon the company's interstate business and upon its property located and used outside the state, and hence void under both the commerce clause and the due process of law clause of the fourteenth amendment. the decision was substantially aided by the fact that the company had been doing a general telegraphic business within the state for more than fifty years without having been subjected to such an exaction.[ ] spread of the doctrine the doctrine of the case, however, soon cast off these initial limitations. in looney _v._ crane company[ ] a similar tax by the state of texas was disallowed as to an illinois corporation, engaged in its home state in the manufacture of hardware, but maintaining in texas depots and warehouses from which orders were filled and sales made, likewise, in international paper company _v._ massachusetts,[ ] it was clearly stated that "the immunity of interstate commerce from state taxation" is not confined to what is done by carriers in such commerce, but "is universal and covers every class of ... [interstate] commerce, including that conducted by merchants and trading companies." on the same occasion the general proposition was laid down that "the power of a state to regulate the transaction of a local business within its borders by a foreign corporation, ... is not unrestricted or absolute, but must be exerted in subordination to the limitations which the constitution places on state action."[ ] status of the doctrine today the precise standing of this doctrine is, nevertheless, seriously clouded by certain more recent holdings. in sprout _v._ south bend,[ ] decided in , the doctrine was still applied, to disallow a license tax on concerns operating a bus interstate. pointing to the fact that the ordinance made no distinction between busses engaged exclusively interstate and those engaged intrastate or both interstate and intrastate, the court said: "in order that the fee or tax shall be valid, it must appear that it is imposed solely on account of the intrastate business; that the amount exacted is not increased because of the interstate business done; that one engaged exclusively in interstate commerce would not be subject to the imposition; and that the person taxed could discontinue the intrastate business without withdrawing also from the interstate business."[ ] likewise, in cooney _v._ mountain states telephone and telegraph co., the court asserted that to sustain a state occupation tax on one whose business is both interstate and intrastate, "it must appear * * *, and that the one [who is] taxed could discontinue the intrastate business without [also] withdrawing from the interstate business."[ ] a year later, nevertheless, justice brandeis, speaking for the court in pacific telephone and telegraph co. _v._ tax commission,[ ] asserted flatly: "no decision of this court lends support to the proposition that an occupation tax upon local business, otherwise valid, must be held void merely because the local and interstate branches are for some reason inseparable."[ ] an occupation tax, like other taxes and expenses, lessens the benefit derived by interstate commerce from the joint operation with it of the intrastate business of the carrier; but it is not an undue burden on interstate commerce where, as in this case, the advantage to the carrier, and to the interstate commerce, of continuing the intrastate business is greatly in excess of the tax. and subsequent holdings in cases involving foreign corporations doing a mixed business, comprising both interstate and intrastate elements, have tended on the whole to restore the rule stated in paul _v._ virginia[ ] shortly after the civil war, that the constitution does not confer upon a foreign corporation the right to engage in local business in a state without its assent, which it may give on such terms as it chooses.[ ] state taxation of property engaged in, and of the proceeds from, interstate commerce general issue in this area of constitutional law the principle asserted in the state freight tax case,[ ] that a state may not tax interstate commerce, is confronted with the principle that a state may tax all purely domestic business within its borders and all property "within its jurisdiction." inasmuch as most large concerns prosecute both an interstate and a domestic business, while the instrumentalities of interstate commerce and the pecuniary returns from such commerce are ordinarily property within the jurisdiction of some state or other, the task before the court in drawing the line between the immunity claimed by interstate business on the one hand and the prerogatives claimed by local power on the other has at times involved it in self-contradiction, as successive developments have brought into prominence novel aspects of its complex problem or have altered the perspective in which the interests competing for its protection have appeared. in this field words of the late justice rutledge, spoken in , are especially applicable: "for cleanly as the commerce clause has worked affirmatively on the whole, its implied negative operation on state power has been uneven, at times highly variable. * * * into what is thus left open for inference to fill, divergent ideas of meaning may be read much more readily than into what has been made explicit by affirmation. that possibility is broadened immeasurably when not logic alone, but large choices of policy, affected in this instance by evolving experience of federalism, control in giving content to the implied negation."[ ] development of the apportionment rule at the outset the court appears to have thought that it could solve all difficulties by the simple device of falling back on marshall's opinion in brown _v._ maryland;[ ] and on the same day that it set aside pennsylvania's freight tax by appeal to that transcendent precedent, it sustained, by reference to the same authority, a pennsylvania tax on the gross receipts of all railroads chartered by it, the theory being that such receipts had, by tax time, become "part of the mass of property of the state."[ ] this precedent stood fourteen years, being at last superseded by a ruling in which substantially the same tax was held void as to a pennsylvania chartered steamship company.[ ] a year later the court sustained massachusetts in levying a tax on western union, a new york corporation, on account of property owned and used by it in the state, taking as the basis of the assessment such proportion of the value of its capital stock as the length of its lines within the state bore to their entire length throughout the country.[ ] the tax was characterized by the court as an attempt by massachusetts "to ascertain the just amount which any corporation engaged in business within its limits shall pay as a contribution to the support of its government upon the amount and value of the capital so employed by it therein."[ ] and drawing on certain decisions in which it had sought to limit the principle of tax exemption as applied in the case of railroads chartered by the united states, it expressed concern that "the necessary powers of the states" should not be destroyed or "their efficient exercise" be prevented.[ ] three years later pennsylvania, still in quest of revenue, was sustained in applying the massachusetts idea to pullman's palace car company, a "foreign" corporation.[ ] pointing to the fact that the company had at all times substantially the same number of cars within the state and continuously and constantly used there a portion of its property, the court commended the state for taking "as a basis of assessment such proportion of the capital stock of the company as the number of miles over which it ran cars within the state bore to the whole number of miles, in that and other states, * * *" this, said the court, was "a just and equitable method of assessment;" one which, "if it were adopted by all the states through which these cars ran, the company would be assessed upon the whole value of its capital stock, and no more."[ ] the unit rule and pursuing the same course of thought, the court, in adams express company _v._ ohio,[ ] decided in , sustained that state in taxing property worth less than $ , . at a valuation of more than half a million, on the ground that the latter figure did not exceed, in relation to the total capital value of the company, the proportion borne by the railway mileage which the company covered in ohio to the total mileage which it covered in all states. to the objection that "the intangible values" reached by the tax were derived from interstate commerce, the court replied with the "cardinal rule * * * that whatever property is worth for purposes of income and sale it is also worth for purposes of taxation,"[ ] which obviously does not meet the issue. what the case indubitably establishes is that a state may tax property within its limits "as part of a going concern" and hence "at its value as it is in its organic relations," although those relations constitute interstate commerce.[ ] in short, values created by interstate commerce _are_ taxed. thus emerged the concept of an "apportioned" tax, or as it is called when applied to the problem of property valuation, the "unit rule," which till afforded the court its chief reliance in the field of constitutional law now under review. the theory underlying the concept appears to be that it is always possible for a state to devise a formula whereby it may assign to the property employed in interstate commerce within its limits, or to the proceeds from such commerce, a value which it may tax or by which it may "measure" a tax, without unconstitutionally burdening or interfering with interstate commerce, while at the same time exacting from it a fair return for the protection which the state gives it. the question in each case is, of course, whether the state has guessed right. apportioned property taxes in reliance on the apportionment concept the court has at various times sustained, in the case of a sleeping car company, as we have seen, a valuation based on the ratio of the miles of track over which the company runs within the state to the whole track mileage over which it runs;[ ] in the case of a railroad company, a valuation based on the ratio of its mileage within the state to its total mileage;[ ] in the case of a telegraph company, a valuation based upon the ratio of its length of line within the state to its total length;[ ] in the case of an express company, as we have just seen, a valuation based upon the ratio of miles covered by it in the state to the mileage covered by it in all states.[ ] also, a tax has been upheld as to a railroad line whose principal business was hauling ore from mines in the taxing state to terminal docks outside the state, where the line and the docks were treated by the railway as a unit, the charge for the dock service being absorbed in the charge per ton transported; and where the evidence did not show that the mileage value of the part of the line outside of the taxing state, with the docks included, was greater than the mileage value of part within it.[ ] nor does the commerce clause preclude the assessment of an interstate railway within a state by taking such part of the value of the railroad's entire system, less the value of its localized property, such as terminal buildings, shops and nonoperating real estate, as is represented by the ratio which the railroad's mileage within the state bears to its total mileage.[ ] to the objection that the mileage formula was inapplicable in this instance because of the disparity of the revenue-producing capacity between the lines in and out of the state, the court answered that mathematical exactitude in making an apportionment had never been a constitutional requirement. "wherever," it explained, "the state's taxing authorities have been held to have intruded upon the protected domain of interstate commerce in their use of a mileage formula, the special circumstances of the particular situation, in the view which this court took of them, precluded a defensible utilization of the mileage basis."[ ] the principle of apportionment is, moreover, applicable to the intangible property of a company engaged in both interstate and local commerce, as well as to its tangible property.[ ] apportioned gross receipts taxes the first state to attempt to employ the apportionment device in order to tax the gross receipts of companies engaged in interstate commerce was maine, in connection with a so-called "franchise tax," which was levied on such proportion of the revenues of railroads operating in the state as their mileage there bore to their total mileage. in maine _v._ grand trunk railway company,[ ] a sharply divided court upheld the tax on the basis of its designation, giving scant attention to its apportionment feature. said justice field for the majority: "the privilege of exercising the franchises of a corporation within a state is generally one of value, and often of great value, and the subject of earnest contention. it is natural, therefore, that the corporation should be made to bear some proportion of the burdens of government. as the granting of the privilege rests entirely in the discretion of the state, whether the corporation be of domestic or foreign origin, it may be conferred upon such conditions, pecuniary or otherwise, as the state in its judgment may deem most conducive to its interests or policy."[ ] four justices, speaking by justice bradley, protested forcefully that the decision directly contradicted a whole series of decisions holding that the states are without power to tax interstate commerce;[ ] and seventeen years later another sharply divided court endorsed this contention when it overturned a texas gross receipts tax drawn on the lines of the earlier maine statute.[ ] the maine tax, however, the later court suggested, had been in the nature of a commutation tax in lieu of all taxes, which the texas tax was not.[ ] franchise taxes today the term, franchise tax, possesses no specific saving quality of its own. if the tax is merely a "just equivalent" of other taxes it is valid however calculated.[ ] conversely, when such taxes are in addition to other taxes then their fate will be determined by the same rules as would apply had the label been omitted.[ ] more precisely, the rule governing this species of tax is ordinarily the apportionment concept, and if the basis of apportionment adopted by the taxing state is deemed by the court to be a fair and reasonable one, the tax will be sustained; otherwise, not. thus a franchise tax may be measured by such proportion of the company's net income as its capital invested in the taxing state and its business carried on there bear to its total capital and business;[ ] also by the net income justly attributable to business done within the state although a part of this was derived from foreign or interstate commerce;[ ] also by such proportion of the company's outstanding capital stock, surplus and undivided profits, plus its long-term obligations, as the gross receipts of its local business bear to its total gross receipts from its entire business;[ ] also by such proportion of the company's total capital stock as the value of its property in the taxing state and of the business done there bears to the total value of its property and of its business.[ ] on the other hand, a "franchise" tax on the unapportioned gross receipts of railroad companies engaged in interstate commerce, was, as we saw above, held void;[ ] as was also one which was measured by assigning to the company's property in the state the same proportion of the total value of its stocks and bonds as its mileage in the state bore to its total mileage, no account being taken of the greater cost of construction of the company's lines in other states or of its valuable terminals elsewhere.[ ] other examples were given earlier.[ ] gross receipts taxes, classes of the late justice rutledge classified gross receipts taxes which have been sustained by the court as follows: (a) those which were judged to be fairly apportioned;[ ] (b) those which were justified on a "local incidence" theory, or the burden of which on interstate commerce was held to be "remote";[ ] (c) those which were justified as not inviting the danger of multiple taxation of interstate commerce.[ ] gross receipts taxes which, on the other hand, have been invalidated under the commerce clause he placed in the following groups: (a) those which were held not to be fairly apportioned;[ ] (b) those which were not apportioned at all and were bound to subject interstate commerce to the risk of multiple taxation;[ ] (c) those in which a discriminatory element was detected in that they were directed exclusively at transportation or communication;[ ] (d) those in which there was no discrimination but a possible multiple burden;[ ] and, of course, any tax which it disallows the court is always free to stigmatize as an unconstitutional attempt to tax or license the interstate commerce privilege.[ ] "multiple taxation" test that the depression--allowing for the customary judicial lag--greatly altered the court's conception of congress's powers under the commerce clause, was pointed out earlier.[ ] to a less, but appreciable degree, it also affected its views as to the allowable scope under the clause of the taxing power of the states, a majority of which were on the verge of bankruptcy. the more evident proofs of this fact occurred in relation to state taxation of the subject matter of interstate commerce, as is indicated above.[ ] but a certain revision of doctrine, apparently temporary in nature, however, is to be seen in the connection with state taxes impinging on property engaged in interstate commerce and the revenues from such commerce, the principal manifestation of which is to be seen in the emphasis which was for a time given the "multiple taxation" test. thus in his opinion in the western live stock case,[ ] cited above, justice stone seems to be engaged in an endeavor to erect this into an almost exclusive test of the validity, or invalidity of state taxation affecting interstate commerce. "it was not," he there remarks, "the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business. 'even interstate business must pay its way,' * * * and the bare fact that one is carrying on interstate commerce does not relieve him from many forms of state taxation which add to the cost of his business."[ ] then citing cases, he continues: "all of these taxes in one way or another add to the expense of carrying on interstate commerce, and in that sense burden it; but they are not for that reason prohibited. on the other hand, local taxes, measured by gross receipts from interstate commerce, have often been pronounced unconstitutional. the vice characteristic of those which have been held invalid is that they have placed on the commerce burdens of such a nature as to be capable, in point of substance, of being imposed * * * [or added to] with equal right by every state which the commerce touches, merely because interstate commerce is being done, so that without the protection of the commerce clause it would bear cumulative burdens not imposed on local commerce. * * * the multiplication of state taxes measured by the gross receipts from interstate transactions would spell the destruction of interstate commerce and renew the barriers to interstate trade which it was the object of the commerce clause to remove," citing cases, most of which have been discussed above.[ ] and speaking again for the court eleven months later, in gwin, white and prince _v._ henneford,[ ] justice stone applied the test to invalidate a state of washington tax. "such a tax," said he, "at least when not apportioned to the activities carried on within the state, * * * would, if sustained, expose it [interstate commerce] to multiple tax burdens, each measured by the entire amount of the commerce, to which local commerce is not subject." the tax thus discriminated against interstate commerce; and threatened to "reestablish the barriers to interstate trade which it was the object of the commerce clause to remove."[ ] the adoption by the court of the multiple taxation principle as an exclusive test of state taxing power in relation to interstate commerce would have enlarged the former; but this was not the sole reason for its temporary vogue with the court, or at least a section of it. discontent with the difficulties and uncertainties of the apportionment rule also played a great part. thus in his concurring opinion in the gwin case, justice butler, speaking for himself and justice mcreynolds after showing the instability of decisions in this area of constitutional law, contend that "the problems of conjectured 'multiple taxation' or 'apportionment'" should be left to congress,[ ] a suggestion which justice black, speaking also for justices frankfurter and douglas a year later, made the basis of a dissenting opinion,[ ] from the doctrines of which, however, justice frankfurter appears since to have recanted.[ ] recent cases in freedman _v._ hewit,[ ] decided in , the court held void as an "unconstitutional burden on interstate commerce" an indiana gross income tax of the proceeds from certain securities sent outside the state to be sold. justice frankfurter spoke for the court; justice rutledge concurred in an opinion deploring the majority's failure to employ the multiple taxation test;[ ] three justices dissented.[ ] in joseph _v._ carter and weekes stevedoring co.,[ ] also decided in , the court, reaffirming an earlier ruling, held void the application of a washington gross receipts tax to the receipts of a stevedoring company from loading and unloading vessels employed in interstate and foreign commerce, or to the privilege of engaging in such business measured by their receipts. said justice reed for the court: "although state laws do not discriminate against interstate commerce or * * * subject it to the cumulative burden of multiple levies, those laws may be unconstitutional because they burden or interfere with [interstate] commerce."[ ] this time justice rutledge was among the dissenters so far as interstate commerce was concerned.[ ] in central greyhound lines, inc. _v._ mealey,[ ] decided in , five members of the court ruled that a new york tax on the gross income of public utilities doing business in the state could not be constitutionally imposed on a carrier's unapportioned receipts from continuous transportation between termini in the state over a route a material part of which passes through other states. justice frankfurter, speaking for the court, held, however, that the tax was sustainable as to receipts apportioned as to the mileage within the state.[ ] justice rutledge concurred without opinion. justice murphy, for himself and justices black and douglas, thought the tax was on an essentially local activity and that the transportation through other states was "a mere geographic incident," conceding at the same time, that this view invited the other states involved to levy similar taxes and exposed the company to the danger of multiple taxation. in memphis natural gas co. _v._ stone,[ ] also of the grist, a mississippi franchise tax, measured by the value of capital invested or employed in the state, was sustained in the case of a gas pipeline company a portion of whose line passed through the state but which did no local business there. three justices, speaking by justice reed, held that the tax was on the intrastate activities of the company in maintaining its facilities there, and was no more burdensome than the concededly valid _ad valorem_ tax on the company's property in the state. justice rutledge held that the tax was valid because it did not discriminate against interstate commerce nor invite multiple taxation, while justice black concurred without opinion. four justices, speaking by justice frankfurter, contended that the pipeline already paid the _ad valorem_ tax to which justice reed had adverted, and that the franchise tax must therefore be regarded as being on the interstate commerce privilege. this survey of recent cases leaves the impression that the court is at loose ends for intermediate guiding principles in this field of constitutional law. the "leave it to congress" formula is evidently in the discard, although justice black's successive dissents without opinion may indicate that he still thinks it sound. the multiple tax test seems to be in an equally bad way, with both chief justice stone and justice rutledge in the grave. the concept of an apportioned tax still has some vitality however, although just how much is difficult to assess. thus in interstate oil pipe line co. _v._ stone,[ ] which was decided in , we find justice rutledge, speaking for himself and justices black, douglas, and murphy, endorsing the view that mississippi was within her rights in imposing on a delaware corporation, as a condition of doing a local business, a "privilege" tax equal to two per cent of its intrastate business even though the exaction amounted to "a 'direct' tax on the 'privilege' of engaging in interstate commerce," an assertion which was countered by one just as positive, and also endorsed by four justices, that no state may "levy privilege, excise or franchise taxes on a foreign corporation for the privilege of carrying on or the actual doing of solely interstate business," even though the tax is not discriminatory and is fairly apportioned between the corporation's intrastate and interstate business. the tax in controversy was sustained by the vote of the ninth justice, who construed it as being levied only on the privilege of engaging in intrastate commerce, a conclusion which obviously ignores the question of the tax's actual impact on interstate commerce, the precise question on which many previous decisions have turned.[ ] taxes on net income the leading case under this caption is united states glue co. _v._ oak creek[ ] where it was held that the state of wisconsin, in laying a general income tax upon the gains and profits of a domestic corporation, was entitled to include in the computation the net income derived from transportations in interstate commerce. pointing out the difference between such a tax and one on gross receipts, the court said the latter "affects each transaction in proportion to its magnitude and irrespective of whether it is profitable or otherwise. conceivably it may be sufficient to make the difference between profit and loss, or to so diminish the profit as to impede or discourage the conduct of the commerce. a tax upon the net profits has not the same deterrent effect, since it does not arise at all unless a gain is shown over and above expenses and losses, and the tax cannot be heavy unless the profits are large." such a tax "constitutes one of the ordinary and general burdens of government, from which persons and corporations otherwise subject to the jurisdiction of the states are not exempted * * * because they happen to be engaged in commerce among the states."[ ] adhering to this precedent, the court has held that a tax upon the net income of a nonresident from business carried on by him in the state is not a burden on interstate commerce merely because the products of the business are shipped out of the state;[ ] also that a tax which is levied upon the proportion of the net profits of a foreign corporation earned by operations conducted within the taxing state is valid, if the method of allocation employed be not arbitrary or unreasonable.[ ] where, however, the method of allocating the net income of a foreign corporation attributed to the state an amount of income out of all proportion to the business there transacted by the corporation, it was held void.[ ] also, a state may impose a tax upon the net income of property, as distinguished from the net income of him who owns or operates it, although the property is used in interstate commerce;[ ] also a "franchise tax" measured by the net income justly attributable to business done by corporations within the state, although part of the income so attributable comes from interstate and foreign commerce;[ ] also a tax on corporate net earnings derived from business done wholly within the state may be applied to the income of a foreign pipeline corporation which is commercially domiciled there and which pipes natural gas into that state for delivery to, and sale by, a local distributing corporation to local consumers.[ ] indeed it was asserted that even if the taxpayer's business were wholly interstate commerce, such a nondiscriminatory tax upon its net income "is not prohibited by the commerce clause," there being no showing that the income was not on net earnings partly attributable to the taxing state;[ ] but a more recent holding appears to contradict this position.[ ] miscellaneous taxes affecting interstate commerce vessels in gloucester ferry company _v._ pennsylvania,[ ] decided in , the court held inapplicable to a new jersey corporation which was engaged solely in transporting passengers across the delaware river and entered pennsylvania only to discharge and receive passengers and freight, a statute which taxed the capital stock of all corporations doing business within the state. such transactions, the court held, were interstate commerce; nor were the company's vessels subject to taxation by pennsylvania, their taxing _situs_ being in the company's home state. the only property held by the company in pennsylvania was the lease there of a wharf which could be taxed by the state according to its appraised value; and the state could also levy reasonable charges by way of tolls for the use of such facilities as it might itself furnish for the carrying on of commerce. this ruling rested on two earlier ones. in , the court had held that vessels registered in new york, owned by a new york corporation, and plying between new york city and san francisco had the former city for their home port, and were not taxable by california where they remained no longer than necessary to discharge passengers and freight;[ ] and in it had sustained keokuk, iowa in charging tolls for the use by vessels plying the mississippi of wharves owned by the municipality, said tolls being reasonable and not discriminatory as between interstate and intrastate commerce.[ ] today it is still the general rule as to vessels plying between ports of different states and engaged in the coastwise trade, that the domicile of the owner is deemed to be the _situs_ of the vessel for purposes of taxation,[ ] unless the vessel has acquired actual _situs_ in another state, by continuous employment there, in which event it may be taxed there.[ ] recently, however, this long standing rule has been amended by the addition to it of the apportionment rule as developed in the pullman case. this occurred in ott _v._ mississippi barge line co.,[ ] decided in , in which the court sustained louisiana in levying an _ad valorem_ tax on vessels owned by an interstate carrier and used within the state, the assessment for the tax being based on the ratio between the number of miles of the carrier's lines within the state and its total mileage. airplanes when, however, it was confronted by an attempt on the part of the state of minnesota to impose a personal property tax on the entire air fleet owned and operated by a company in interstate commerce although only a part of it was in the state on tax day, the court found itself unable to recruit a majority for any of the above formulas.[ ] pointing to the fact that the company was a minnesota corporation and that its principal place of business was located in the state, justice frankfurter for himself and three others wished to stress the prerogatives of the state of domicile.[ ] justice black, concurring in this view, added the caveat that the taxing rights of other states should not be foreclosed and made reference to his "leave it to congress" notion.[ ] justice jackson, after speaking lightly of the apportionment theory,[ ] joined the affirming brethren on the ground that the record seemed "to establish minnesota as a 'home port' within the meaning of the old and somewhat neglected but to me wise authorities cited," to wit, the hays case and those decided by analogy to it.[ ] four justices, speaking by chief justice stone dissented, urging the pullman case[ ] as an applicable model and the fact that "the rationale found necessary to support the present tax leaves other states free to impose comparable taxes on the same property."[ ] evidently in this area of constitutional law the court is still much at sea or better perhaps, "up in the air." motor vehicles in the matter of motor vehicle taxation, on the other hand, durable and consistent results have been achieved. this is because most such taxation has been readily classifiable as the exaction of a toll for the use of the state's highways, and the only question was whether the toll was exorbitant. moreover, such taxation is apt to be designed not merely to raise revenue but to promote safety on the highways. in the leading case, hendrick _v._ maryland,[ ] decided in , the court took cognizance of the fact that "the movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves";[ ] and on this factual basis it has held that registration may be required by a state for out-of-state vehicles operated therein,[ ] or passing through from one state to another;[ ] that a special fee may be exacted for the privilege of transporting motor vehicles on their own wheels in caravans,[ ] unless excessive;[ ] that taxes may also be imposed on carriers based on capacity[ ] or mileage,[ ] or as a flat fee;[ ] but that a privilege tax on motor busses operated exclusively in interstate commerce, cannot be sustained unless it appears affirmatively in some way, that it is levied only as compensation for use of the highways in the state or to defray the expense of regulating motor traffic.[ ] later decisions follow in the same general track,[ ] the most recent one being capitol greyhound lines _v._ brice,[ ] in which the court, speaking by justice black passed upon a maryland excise tax on the fair market value of motor vehicles used in interstate commerce as a condition to the issuance of certificates of title as prerequisites to the registration and operation of motor vehicles in the state. because the tax was applied to vehicles used in both interstate and intrastate commerce and the proceeds were used for road purposes and because the court considered the tax, though actually separate, to be an adjunct of maryland's mileage tax, it was able to find that the total charge varied substantially with the mileage travelled, and on that ground sustained it, being constant, it said with "rough approximation rather than precision," no showing having been made that maryland's taxes considered as a whole exceeded "fair compensation for the privilege of using state roads." justice frankfurter, who was joined by justice jackson, dissented, and in so doing contributed as an appendix to his opinion a useful analysis of decisions involving state taxation of motor vehicles engaged in interstate commerce, for highway purposes.[ ] public utilities; regulatory charges "the principles governing decision [in this class of cases] have repeatedly been announced and were not questioned below.[ ] in the exercise of its police power the state may provide for the supervision and regulation of public utilities, such as railroads; may delegate the duty to an officer or commission; and may exact the reasonable cost of such supervision and regulation from the utilities concerned and allocate the exaction amongst the members of the affected class without violating the rule of equality imposed by the fourteenth amendment.[ ] the supervision and regulation of the local structures and activities of a corporation engaged in interstate commerce, and the imposition of the reasonable expense thereof upon such corporation, is not a burden upon, or regulation of, interstate commerce in violation of the commerce clause of the constitution.[ ] a law exhibiting the intent to impose a compensatory fee for such a legitimate purpose is _prima facie_ reasonable.[ ] if the exaction be so unreasonable and disproportionate to the service as to impugn the good faith of the law[ ] it cannot stand either under the commerce clause or the fourteenth amendment.[ ] the state is not bound to adjust the charge after the fact, but may, in anticipation, fix what the legislature deems to be a fair fee for the expected service, the presumption being that if, in practice, the sum charged appears inordinate the legislative body will reduce it in the light of experience.[ ] such a statute may, in spite of the presumption of validity, show on its face that some part of the exaction is to be used for a purpose other than the legitimate one of supervision and regulation and may, for that reason, be void.[ ] and a statute fair upon its face may be shown to be void and unenforceable on account of its actual operation.[ ] if the exaction be clearly excessive it is bad _in toto_ and the state cannot collect any part of it."[ ] dominance of congress the supreme court has never forgotten the lesson which was administered it by the act of congress of august , ,[ ] which pronounced the wheeling bridge "a lawful structure," thereby setting aside the court's determination to the contrary earlier the same year.[ ] this lesson, stated in the court's own language thirty years later, was, "it is congress, and not the judicial department, to which the constitution has given the power to regulate commerce * * *."[ ] a parallel to the wheeling bridge episode occurred in . the mccarran act: regulation of insurance less than a year after the ruling in united states _v._ south-eastern underwriters association[ ] that insurance transactions across state lines constituted interstate commerce, thereby logically establishing their immunity from discriminatory state taxation, congress passed the mccarran act[ ] authorizing state regulation and taxation of the insurance business; and in prudential insurance co. _v._ benjamin,[ ] a statute of south carolina which imposed on foreign insurance companies, as a condition of their doing business in the state, an annual tax of three per cent of premiums from business done in south carolina, while imposing no similar tax on local corporations, was sustained. "obviously," said justice rutledge for the court, "congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance. this was done in two ways. one was by removing obstructions which might be thought to flow from its own power, whether dormant or exercised, except as otherwise expressly provided in the act itself or in future legislation. the other was by declaring expressly and affirmatively that continued state regulation and taxation of this business is in the public interest and that the business and all who engage in it 'shall be subject to' the laws of the several states in these respects. * * * the power of congress over commerce exercised entirely without reference to coordinated action of the states is not restricted, except as the constitution expressly provides, by any limitation which forbids it to discriminate against interstate commerce and in favor of local trade. its plenary scope enables congress not only to promote but also to prohibit interstate commerce, as it has done frequently and for a great variety of reasons. * * * this broad authority congress may exercise alone, subject to those limitations, or in conjunction with coordinated action by the states, in which case limitations imposed for the preservation of their powers become inoperative and only those designed to forbid action altogether by any power or combination of powers in our governmental system remain effective."[ ] the generality of this language enforces again the sweeping nature of congress's power to prohibit interstate commerce.[ ] the police power and foreign commerce origin of police power in gibbons _v._ ogden[ ] cognizance was taken of the existence in the states of an "immense mass" of legislative power to be used for the protection of their welfare and the promotion of local interests.[ ] in marshall's opinion in brown _v._ maryland[ ] this power is christened "the police power," a name which has since come to supply one of the great titles of constitutional law. counsel for maryland had argued that if the state was not permitted to _tax_ imports in the original package before they left the hands of the importer, it would also be unable to prevent their introduction into its midst although they might comprise articles dangerous to the public health and safety. "the power to direct the removal of gunpowder," the chief justice answered, "is a branch of the police power, which unquestionably remains, and ought to remain, with the states;" and the power to direct "the removal or destruction of infectious or unsound articles" fell within the same category.[ ] state curbs on entry of foreigners in short, the power to tax was one thing, the police power something quite different. to concede the former would be to concede a power which could be exercised to any extent and at the will of its possessor;[ ] to concede the latter was to concede a power which was limited of its own inherent nature to certain necessary objectives. in new york _v._ miln,[ ] however, the court which came after marshall inclined toward the notion of a power of internal police which was also unlimited; and on this ground upheld a new york statute which required masters of all vessels arriving at the port of new york to make reports as to passengers carried, and imposed fines for failure to do so. "we are of opinion," the court said, "that the act is not a regulation of commerce, but of police." but, when new york, venturing a step further, passed an act to authorize state health commissioners to collect certain fees from captains arriving in ports of that state, and when massachusetts enacted a statute requiring captains of ships to give bonds as to immigrants landed, both measures were pronounced void, either as conflicting with treaties and laws of the united states or as invading the "exclusive" power of congress to regulate foreign commerce.[ ] following the civil war, indeed, new york _v._ miln was flatly overruled, and a new york statute similar to the one sustained in was pronounced void as intruding upon congress's powers.[ ] nothing was gained, said the court, by invoking "[the police power] * * *, it is clear, from the nature of our complex form of government, that, whenever the statute of a state invades the domain of legislation which belongs exclusively to the congress of the united states, it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the states."[ ] at the same time a california statute requiring a bond from shipowners as a condition precedent to their being permitted to land persons whom a state commissioner of immigration might choose to consider as coming within certain enumerated classes, e.g., "debauched women," was also disallowed. said the court: "if the right of the states to pass statutes to protect themselves in regard to the criminal, the pauper, and the diseased foreigner, landing within their borders, exists at all, it is limited to such laws as are absolutely necessary for that purpose; and this mere police regulation cannot extend so far as to prevent or obstruct other classes of persons from the right to hold personal and commercial intercourse with the people of the united states."[ ] state quarantine laws on the other hand, it has been repeatedly held that the states may, in the absence of legislation by congress, enact quarantine laws, even though in effect they thereby regulate foreign commerce; and furthermore that such legislation may be, in the interest of effective enforcement, applied beyond the mere exclusion of diseased persons. thus in the leading case the state of louisiana was sustained in authorizing its board of health in its discretion to prohibit the introduction into any infected portion of the state of "persons acclimated, unacclimated or said to be immune, when in its judgment the introduction of such persons would add to or increase the prevalence of the disease."[ ] at the same time it was emphasized that all such legislation was subject to be supplanted by congress at any time. state game protection and foreign commerce the court's tolerance of legal provisions which might not standing alone be constitutional, when they are designed to make legislation within the police power practically enforceable, is also illustrated in connection with state game laws. in the case of silz _v._ hesterberg[ ] the court was confronted with a new york statute establishing a closed season for certain game, during which season it was a penal offense to take or possess any of the protected animals, fish or birds; and providing farther that the ban should equally apply "to such fish, game or flesh coming from without the state as to that taken within the state." this provision was held to have been validly applied in the case of a dealer in imported game who had in his possession during the closed season "one dead body of an imported grouse, ..., and taken in russia." again the absence of conflicting legislation by congress was adverted to.[ ] the police power and interstate commerce general principles in southern pacific co. _v._ arizona,[ ] decided in , chief justice stone made the following systematic statement of principles which have guided the court in the exercise of its power of judicial review of state legislation affecting interstate commerce: "although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation. ever since willson _v._ black-bird creek marsh co., pet. , and cooley _v._ board of wardens, how. , it has been recognized that, in the absence of conflicting legislation by congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.[ ] thus the states may regulate matters which, because of their number and diversity, may never be adequately dealt with by congress.[ ] when the regulation of matters of local concern is local in character and effect, and its impact on the national commerce does not seriously interfere with its operation, and the consequent incentive to deal with them nationally is slight, such regulation has been generally held to be within state authority.[ ] "but ever since gibbons _v._ ogden, wheat. , the states have not been deemed to have authority to impede substantially the free flow of commerce from state to state, or to regulate those phases of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority.[ ] whether or not this long-recognized distribution of power between the national and the state governments is predicated upon the implications of the commerce clause itself,[ ] or upon the presumed intention of congress, where congress has not spoken,[ ] the result is the same. "in the application of these principles some enactments may be found to be plainly within and others plainly without state power. but between these extremes lies the infinite variety of cases, in which regulation of local matters may also operate as a regulation of commerce, in which reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommodation of the competing demands of the state and national interests involved.[ ] "for a hundred years it has been accepted constitutional doctrine that the commerce clause, without the aid of congressional legislation, thus affords some protection from state legislation inimical to the national commerce, and that in such cases, where congress has not acted, this court, and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests.[ ] "congress has undoubted power to redefine the distribution of power over interstate commerce. it may either permit the states to regulate the commerce in a manner which would otherwise not be permissible,[ ] or exclude state regulation even of matters of peculiarly local concern which nevertheless affect interstate commerce.[ ] "but in general congress has left it to the courts to formulate the rules thus interpreting the commerce clause in its application, doubtless because it has appreciated the destructive consequences to the commerce of the nation if their protection were withdrawn,[ ] and has been aware that in their application state laws will not be invalidated without the support of relevant factual material which will 'afford a sure basis' for an informed judgment.[ ] meanwhile, congress has accommodated its legislation, as have the states, to these rules as an established feature of our constitutional system. there has thus been left to the states wide scope for the regulation of matters of local state concern, even though it in some measure affects the commerce, provided it does not materially restrict the free flow of commerce across state lines, or interfere with it in matters with respect to which uniformity of regulation is of predominant national concern." state regulation of agencies of interstate commerce railway rate regulation in one of the granger cases decided in the court upheld the power of the legislature of wisconsin in the absence of legislation by congress, to prescribe by law the maximum charges to be made by a railway company for fare and freight upon the transportation of persons and property within the state, or taken up outside the state and brought within it, or taken up inside and carried without it.[ ] ten years later, in wabash, st. louis and pacific railway co. _v._ illinois[ ] this decision was reversed as to persons and property taken up within the state and transported out of it and as to persons and property brought into the state from outside. as to these, the court held that the regulation of rates and charges must be uniform and that, therefore, the states had no power to deal with the subject even when congress had not acted. the following year congress passed the interstate commerce act[ ] to fill the gap created by the wabash decision. today, the states still exercise the power to regulate railway rates for the carriage of persons and property taken up and put down within their borders, but do so subject to the rule, which is enforced by the interstate commerce commission, that such rates may not discriminate against interstate commerce.[ ] adequate service regulations in many other respects the power still remains with the states to require by statute or administrative order a fair and adequate service for their inhabitants from railway companies, including interstate carriers operating within their borders, so long as the burdens thus imposed upon interstate commerce are, in the judgment of the court, "reasonable." in an instructive brace of cases the court was asked to say whether a carrier, in the interest of providing proper local facilities of commerce, could be required to stop its interstate trains. in one case a state regulation requiring all regular passenger trains operating wholly within the state to stop at all county seats was held to have been validly applied to interstate connection trains;[ ] while in the other case a statute requiring _all_ passenger trains to stop at county seats was held invalid, there being "other and ample accommodation."[ ] comparing these and other like decisions, the court has stated "the applicable general doctrine" to be as follows: ( ) it is competent for a state to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules. ( ) such facilities existing--that is, the local conditions being adequately met--the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. ( ) and this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. ( ) the fact of local facilities this court may determine, such fact being necessarily involved in the determination of the federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbitrary requirement.[ ] "there is, however," it later added, "no inevitable test of the instances; the facts in each must be considered."[ ] in the same way a state regulation requiring intersecting railways to make track connections was held valid,[ ] as was also a regulation requiring equality of car service between shippers;[ ] while a regulation requiring the delivery of shipments on private sideways[ ] and one requiring cars for local shipments to be furnished on demand, were held to be invalid.[ ] in the first brace of decisions, the application of the local regulation to interstate commerce was found not to be "unduly" burdensome; in the second brace the contrary conclusion was reached. safety and other regulations a class of regulations as to which the court has exhibited marked tolerance although they "incidentally" embrace interstate transportation within their operation are those which purport to be in furtherance of "public safety."[ ] the leading case is smith _v._ alabama,[ ] in which the court held it to be within the police power of the state to require locomotive engineers to be examined and licensed, and to enforce this requirement until congress should decree otherwise in the case of an engineer employed exclusively in interstate transportation. also upheld as applicable to interstate trains were a statute which forbade the heating of passenger cars by stoves;[ ] a municipal ordinance restricting the speed of trains within city limits;[ ] the order of a public utility commission requiring the elimination of grade crossings;[ ] a statute requiring electric headlights of a specified minimum capacity;[ ] a statute requiring three brakemen on freight trains of over twenty-five cars.[ ] in the last case the court admitted that "under the evidence," there was "some room for controversy" as to whether the statute was necessary, but thought it "not so unreasonable as to justify the court in adjudging it" to be "merely an arbitrary exercise of power" and "not germane" to objects which the state was entitled to accomplish.[ ] and in the court sustained, though again in somewhat doubtful terms, the order of a state railroad commission requiring a terminal railroad which served both interstate and local commerce to provide caboose cars for its employees.[ ] at times, indeed, the court has made surprising concession to local views that had nothing to do with safety. hennington _v._ georgia,[ ] decided in , where was sustained a georgia statute forbidding freight trains to run on sunday, is perhaps the supreme example. whether such an act would pass muster today is doubtful. and earlier statutes reinforcing the legal liability of railroads as common carriers and the carriers of passengers were sustained in the absence of legislation by congress.[ ] invalid state regulations "the principle that, without controlling congressional action, a state may not regulate interstate commerce so as substantially to affect its flow or deprive it of needed uniformity in its regulation is not to be avoided by 'simply invoking the convenient apologetics of the police power.'" so remarks chief justice stone in his summarizing opinion cited above, in southern pacific co. _v._ arizona.[ ] among others he lists the following instances in which state legislation was invalidated on the basis of this rule: "in the kaw valley case[ ] the court held that the state was without constitutional power to order a railroad to remove a railroad bridge over which its interstate trains passed, as a means of preventing floods in the district and of improving its drainage, because it was 'not pretended that local welfare needs the removal of the defendants' bridges at the expense of the dominant requirements of commerce with other states, but merely that it would be helped by raising them.' and in seaboard air line r. co. _v._ blackwell,[ ] it was held that the interference with interstate rail transportation resulting from a state statute requiring as a safety measure that trains come almost to a stop at grade crossings, outweigh the local interest in safety, when it appealed that compliance increased the scheduled running time more than six hours in a distance of one hundred and twenty-three miles."[ ] and "more recently in kelly _v._ washington,"[ ] the chief justice continued, "we have pointed out that when a state goes beyond safety measures which are permissible because only local in their effect upon interstate commerce, and 'attempts to impose particular standards as to structure, design, equipment and operation [of vessels plying interstate] which in the judgment of its authorities may be desirable but pass beyond what is plainly essential to safety and seaworthiness, the state will encounter the principle that such requirements, if imposed at all, must be through the action of congress which can establish a uniform rule. whether the state in a particular matter goes too far must be left to be determined when the precise question arises.'" state regulation of length of trains applying the test of these precedents, the chief justice concluded that arizona, in making it unlawful to operate within the state a railroad train of more than fourteen passenger or seventy freight cars, had gone "too far"; and in support of this conclusion he recites the following facts: "in arizona, approximately % of the freight traffic and % of the passenger traffic is interstate. because of the train limit law appellant is required to haul over % more trains in arizona than would otherwise have been necessary. the record shows a definite relationship between operating costs and the length of trains, the increase in length resulting in a reduction of operating costs per car. the additional cost of operation of trains complying with the train limit law in arizona amounts for the two railroads traversing that state to about $ , , a year. the reduction in train lengths also impedes efficient operation. more locomotives and more manpower are required; the necessary conversion and reconversion of train lengths at terminals and the delay caused by breaking up and remaking long trains upon entering and leaving the state in order to comply with the law, delays the traffic and diminishes its volume moved in a given time, especially when traffic is heavy. "at present the seventy freight car laws are enforced only in arizona and oklahoma, with a fourteen car passenger car limit in arizona. the record here shows that the enforcement of the arizona statute results in freight trains being broken up and reformed at the california border and in new mexico, some distance from the arizona line. frequently it is not feasible to operate a newly assembled train from the new mexico yard nearest to arizona, with the result that the arizona limitation governs the flow of traffic as far east as el paso, texas. for similar reasons the arizona law often controls the length of passenger trains all the way from los angeles to el paso. "if one state may regulate train lengths, so may all the others, and they need not prescribe the same maximum limitation. the practical effect of such regulation is to control train operations beyond the boundaries of the state exacting it because of the necessity of breaking up and reassembling long trains at the nearest terminal points before entering and after leaving the regulating state. the serious impediment to the free flow of commerce by the local regulation of train lengths and the practical necessity that such regulation, if any, must be prescribed by a single body having a nation-wide authority are apparent. "the trial court found that the arizona law had no reasonable relation to safety, and made train operation more dangerous. examination of the evidence and the detailed findings makes it clear that this conclusion was rested on facts found which indicate that such increased danger of accident and personal injury as may result from the greater length of trains is more than offset by the increase in the number of accidents resulting from the larger number of trains when train lengths are reduced. in considering the effect of the statute as a safety measure, therefore, the factor of controlling significance for present purposes is not whether there is basis for the conclusion of the arizona supreme court that the increase in length of trains beyond the statutory maximum has an adverse effect upon safety of operation. the decisive question is whether in the circumstances the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it and subject it to local regulation which does not have a uniform effect on the interstate train journey which it interrupts."[ ] the lesson of southern pacific co. _v._ arizona the lesson to be extracted from southern pacific co. _v._ arizona is a threefold one: ) where uniformity is judged by the court to be "essential for the functioning of commerce, a state may not interpose its regulation"; ) in resolving this question the court will canvass what it considers to be relevant facts extensively; ) its task is, however, in the last analysis, one of weighing competing values, in brief, arbitral rather than strictly judicial. the lesson of southern pacific is further exemplified by the more recent holding in morgan _v._ virginia,[ ] in which the court was confronted with a state statute which, in providing for the segregation of white and colored passengers, required passengers to change seats from time to time as might become necessary to increase the number of seats available to the one race or the other. first, reciting the rule of uniformity, justice heed, for the court, said: "congress, within the limits of the fifth amendment, has authority to burden [interstate] commerce if that seems to it a desirable means of accomplishing a permitted end. * * * as no state law can reach beyond its own border nor bar transportation of passengers across its boundaries, diverse seating requirements for the races in interstate journeys result. as there is no federal act dealing with the separation of races in interstate transportation, we must decide the validity of this virginia statute on the challenge that it interferes with commerce, as a matter of balance between the exercise of the local police power and the need for national uniformity in the regulations for interstate travel. it seems clear to us that seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and protect national travel. consequently, we hold the virginia statute in controversy invalid." state regulation of motor vehicles; valid regulations cases arising under this caption further illustrate the competition for judicial recognition between the interstate commerce interest and local interests, especially that of public safety. a new element enters the problem, however, which lends some added weight to the claims of the police power, the fact, namely, that motor vehicles use highways furnished and maintained by the state. a state is entitled to enact a comprehensive scheme for the licensing and regulation of motor vehicles using its highways with a view to insuring itself of reasonable compensation for the facilities afforded and to providing adequate protection of the public safety; and such scheme may embrace out-of-state vehicles using the state's highways.[ ] thus legislation limiting the net loads of trucks using the state's highways is valid;[ ] as are also, in the absence of national legislation on the subject, state regulations limiting the weight and width of the vehicles themselves, provided such regulations are applied without discrimination as between vehicles moving in interstate commerce and those operating only intrastate.[ ] likewise, a state may deny a certificate of public convenience and necessity to one desiring to operate a common carrier over a particular highway to an out-of-state destination in an adjacent state, on the ground that the specified route is already congested. so it was held in bradley _v._ public utilities commission of ohio,[ ] in which the court took cognizance of the full hearing accorded the appellant, and of his failure to choose another route, although he was at liberty to do so. and in maurer _v._ hamilton a pennsylvania[ ] statute prohibiting the operation over its highways of any motor vehicle carrying any other vehicle over the head of the operator was upheld in the absence of conflicting congressional legislation. similarly, in welch _v._ new hampshire[ ] a statute of that state establishing maximum hours for drivers of motor vehicles was held not to be superseded by the federal motor carrier act prior to the effective date of regulations by the interstate commerce commission dealing with the subject. nor was pendency before the interstate commerce commission of an application under the motor carrier act for a license to operate a motor carrier in interstate commerce found to supersede as to the applicant the authority of a state to enforce "reasonable regulations" of traffic upon its highways. "in the absence of the exercise of federal authority," said the court, "and in the light of local exigencies, the state is free to act in order to protect its legitimate interests even though interstate commerce is directly affected."[ ] and for the same reason new york city was entitled to apply to trucks engaged in the delivery of goods from new jersey a traffic regulation forbidding the operation on the streets of an advertising vehicle.[ ] said justice douglas for the court: "many of these trucks are engaged in delivering goods in interstate commerce from new jersey to new york. where traffic control and the use of highways are involved and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce."[ ] also, the court has consistently sustained state regulations requiring motor carriers to provide adequate insurance protection for injuries caused by the negligent operation of their vehicles.[ ] invalid state acts affecting motor carriers a state law which imposes upon all persons engaged in transporting for hire by motor vehicle over the public highways of the state the burdens and duties of common carriers and requires them to furnish bonds to secure the payment of claims and liabilities resulting from injury to property carried, may not be validly applied to a private carrier which is engaged exclusively in hauling from one state to another state the goods of particular factories under standing contracts with their owners, the said carrier enjoying neither a special franchise nor using the eminent domain power.[ ] on the other hand, a state statute which prohibits common carriers for hire from using the highways of the state between fixed termini or over regular routes without having first obtained from a director of public works a certificate of public convenience, is primarily not a regulation to secure safety on the highways or to conserve them, but a ban on competition and, as applied to a common carrier by motor vehicle of passengers and express purely in interstate commerce, is both violation of the commerce clause and defeats the express purpose of congressional legislation rendering federal aid for the construction of interstate highways.[ ] transportation agencies the special characteristics of motor travel have brought about a reversal of the court's attitude toward state control of transportation agencies. sustaining in a california statute requiring that agents engaged in negotiating for the transportation of passengers in motor vehicles over the highways of the state take out a license, justice (later chief justice) stone, speaking for the court, said: "in di santo _v._ pennsylvania,[ ] this court took a different view * * *, it held that a pennsylvania statute requiring others than railroad or steamship companies, who engage in the intrastate sale of steamship tickets or of orders for transportation to and from foreign countries, to procure a license by giving proof of good moral character and filing a bond as security against fraud and misrepresentation to purchasers, was an infringement of the commerce clause. since the decision in that case this court has been repeatedly called upon to examine the constitutionality of numerous local regulations affecting interstate motor vehicle traffic. it has uniformly held that in the absence of pertinent congressional legislation there is constitutional power in the states to regulate interstate commerce by motor vehicle wherever it affects the safety of the public or the safety and convenient use of its highways, provided only that the regulation does not in any other respect unnecessarily obstruct interstate commerce."[ ] navigation; general doctrine in gibbons _v._ ogden[ ] the court, speaking by chief justice marshall, held that new york legislation which excluded from the navigable waters of that state steam vessels enrolled and licensed under an act of congress to engage in the coasting trade was in conflict with the act of congress and hence void. in willson _v._ blackbird creek and marsh co.[ ] the same court held that in the absence of an act of congress, "the object of which was to control state legislation over those small navigable creeks into which the tide flows," the state of delaware was entitled to incorporate a company vested with the right to erect a dam across such a creek. from these two cases the court in cooley _v._ the board of wardens,[ ] decided in , extracted the rule that in the absence of conflicting legislation by congress states were entitled to enact legislation adapted to the local needs of interstate and foreign commerce, that a pilotage law was of this description, and was, accordingly, constitutionally applicable until congress acted to the contrary to vessels engaged in the coasting trade. in the main, these three holdings have controlled the decision of cases under the above and the following caption, there being generally no applicable act of congress involved. but the power which the rule attributed to the states, they must use "reasonably," something they have not always done in the judgment of the court. thus an alabama statute which required that owners of vessels using the public waters of the enacting state be enrolled, pay fees, file statements as to ownership, etc., was held to be inapplicable to vessels licensed under the act of congress to engage in the coasting trade;[ ] as was also a louisiana statute ordering masters and wardens of the port of orleans to survey the hatches of all vessels arriving there and to enact a fee for so doing.[ ] "the unreason and the oppressive character of the act" was held to take it out of the class of local legislation protected by the rule of the cooley case.[ ] likewise, while control by a state of navigable waters wholly within its borders has been often asserted to be complete in the absence of regulation by congress,[ ] congress may assume control at any time;[ ] and when such waters connect with other similar waters "so as to form a waterway to other states or foreign nations, [they] cannot be obstructed or impeded so as to impair, defeat, or place any burden upon a right to their navigation granted by congress."[ ] on the other hand, in kelly _v._ washington,[ ] decided in , the court sustained the state in applying to motor-driven tugs operating in navigable waters of the united states legislation which provided for the inspection and regulation of every vessel operated by machinery if the same was not subject to inspection under the laws of the united states. it was conceded that there was "elaborate" federal legislation in the field, but it was asserted that the washington statute filled a gap. "the principle is thoroughly established," said chief justice hughes for the court, "that the exercise by the state of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot 'be reconciled or consistently stand together.'"[ ] and in bob-lo excursion co. _v._ michigan,[ ] the court, elbowing aside a decision of many years standing,[ ] ruled that the commerce clause does not preclude a state, in the absence of federal statute or treaty, from forbidding racial discrimination by one carrying passengers by vessel to and from a port in the united states to an island situated in canadian territory. bridges, dams, ferries, wharves the holding in willson _v._ blackbird creek marsh co.[ ] has been invoked by the court many times in support of state legislation permitting the construction across navigable streams of dams, booms, and other shore protections,[ ] as well as in support of state legislation authorizing the erection of bridges and the operation of ferries across such streams.[ ] bridges, it is true, may obstruct some commerce, but they may more than compensate for this by aiding other commerce.[ ] in justice field's words in huse _v._ glover,[ ] it should not be forgotten that: "the state is interested in the domestic as well as in the interstate and foreign commerce conducted on the illinois river, and to increase its facilities, and thus augment its growth, it has full power. it is only when, in the judgment of congress, its action is deemed to encroach upon the navigation of the river as a means of interstate and foreign commerce, that that body may interfere and control or supersede it. * * * how the highways of a state, whether on land or by water, shall be best improved for the public good is a matter for state determination, subject always to the right of congress to interpose in the cases mentioned."[ ] the same principle applies to the construction of piers and wharves in a navigable stream,[ ] as well as to harbor improvements by a state for the aid and protection of navigation;[ ] and reasonable tolls may be charged for the use of such aids, and reasonable regulations laid down governing their employment.[ ] ferries a state may license individuals to operate a ferry across an interstate river bounding its territory, or may incorporate a company for the purpose.[ ] nor may a neighbor state make the securing of its consent and license a condition precedent to the operation of such a ferry to one of its towns.[ ] earlier the right of a state to regulate the rates to be charged by an interstate bridge company for passage across its structure was denied by a closely divided court.[ ] the ruling does not, however, control the regulation of rates to be charged by an interstate ferry company. these the chartering state may, in the absence of action by congress, regulate except in the case of ferries operated in connection with railroads,[ ] as to which congress has acted with the result of excluding all state action.[ ] a state may also regulate the rates of a vessel plying between two points within the state although the journey is over the high seas; although again action by congress may supersede state action at any time.[ ] telegraphs and telephones an indiana statute which required telegraph companies to deliver dispatches by messenger to the persons to whom they were addressed if the latter resided within one mile of the telegraph station or within the city or town where it was located, and which prescribed the order of preference to be given various kinds of messages, was held to be an unconstitutional interference with interstate commerce;[ ] as was also the order of the massachusetts public service commission interfering with the transmission to firms within the state's borders of continuous quotations of the new york stock exchange by means of ticker service.[ ] but a virginia statute which imposed a penalty on a telegraph company for failure in its "clear common-law duty" of transmitting messages without unreasonable delay, was held, in the absence of legislation by congress, to be valid;[ ] as was also a michigan statute which prohibited the stipulation by a company against liability for nonperformance of such duty.[ ] however, a south carolina statute which sought to make mental anguish caused by the negligent nondelivery of a telegram a cause of action, was held to be, as applied to messages transmitted from one state to another or to the district of columbia, an unconstitutional attempt to regulate interstate commerce.[ ] a state has no authority to interfere with the operation of the lines of telegraph companies constructed along postal routes within its borders under the authority of the post road act of ,[ ] nor to exclude altogether a company proposing to take advantage of the act;[ ] but that act does not deprive the state or a municipality of the right to subject telegraph companies to reasonable regulations, and an ordinance regulating the erection and use of poles and wires in the streets does not interfere with the exercise of authority under that act.[ ] the jurisdiction conferred by the transportation act of upon the interstate commerce commission, and since transferred to the federal communications commission, over accounts and depreciation rates of telephone companies does not, in the absence of exercise by the federal agency of its power, operate to curtail the analogous state authority;[ ] nor is an unconstitutional burden laid upon interstate commerce by the action of a state agency in requiring a telephone company to revise its intrastate toll rates so as to conform to rates charged for comparable distances in interstate service.[ ] gas and electricity the business of piping natural gas from one state to another to local distributors which sell it locally to consumers is a branch of interstate commerce which a state may not regulate.[ ] likewise, an order by a state commission fixing rates on electric current generated within the states and sold to a distributor in another state, imposes an unconstitutional burden on interstate commerce, although the regulation of such rates would necessarily benefit local consumers of electricity furnished by the same company.[ ] in the absence, on the other hand, of contrary regulation by congress a state may regulate the sale to consumers in its cities of natural gas produced in and transmitted from another state;[ ] nor did congress, by the national gas act of , impose any such contrary regulation.[ ] likewise, a state is left free by the same act to require a gas company engaged in interstate commerce to obtain a certificate of convenience before selling directly to customers in the state.[ ] and where a pipe line is used to distribute both gas that is brought in from without the state and gas that is produced and used within the state, and the two are commingled, but their proportionate quantities are known, an order by the state commission directing the gas company to continue supplying gas from the line to a certain community does not burden interstate commerce.[ ] the transportation of natural gas from sources outside the state to local consumers in its municipalities ceases to be interstate commerce at the point where it passes from a pressure producing station into local distributing stations, and from that point is subject to state regulation.[ ] a state public utilities commission is entitled to require a natural gas distributing company seeking an increase of rates to show the fairness and reasonableness of the rate paid by it to the pipe line company from which it obtains its supplies, both companies being subsidiaries of a third.[ ] a state agency may require a company which sells natural gas to local consumers and distributing companies, transporting it in pipe lines from other states, to file contracts, agreements, etc., for sales and deliveries to the distributing companies;[ ] nor does the fact that a natural gas pipe line from the place of production to the distributing points in the same state cuts across a corner of another state render it improper, in determining maximum rates for gas sold by the owner of the pipe line to distributing companies, to include the value of the total line in the rate base.[ ] a state may, as a conservation measure, fix the minimum prices at the wellhead on natural gas produced in the state and sold interstate.[ ] foreign corporations a state may require that a foreign corporation as a condition of its being admitted to do a local business or to having access to its courts obtain a license, and in connection therewith furnish information as to its home state or country, the location of its principal office, the names of its officers and directors, its authorized capitalization, and the like, and that it pay a reasonable license fee;[ ] nor is a corporation licensed by the national government to act as a customs broker thereby relieved from meeting such conditions.[ ] so it was decided in . the holding does not necessarily disturb one made thirty years earlier in which the court ruled that a statute which closed the courts of the enacting state to any action on any contract in the state by a foreign corporation unless it had previously appointed a resident agent to accept process, could not be constitutionally applied to the right of a foreign corporation to sue on an interstate transaction.[ ] a suit brought in a state court by a foreign corporation having its principal place of business in the state against another foreign corporation engaged in interstate commerce on a cause of action arising outside the state does not impose an undue burden on such commerce; and the forum being in other respects appropriate, its jurisdiction is not forfeited because the property attached is an instrumentality of interstate commerce.[ ] there is nothing in the commerce clause which immunizes a foreign corporation doing business in a state from any fair inquiry, judicial or legislative, that is required by local laws.[ ] miscellaneous banks and banking a state statute which forbids individuals or partnerships to engage in the banking business without a license is not, as to one whose business chiefly consists in receiving deposits for periodic shipment to other states and to foreign countries, invalid as a regulation of interstate and foreign commerce.[ ] brokers a statute which requires dealers in securities evidencing title or interest in property to obtain a license from a state officer, is not invalid as applied to dispositions within the state securities transported from other states.[ ] commission men a statute requiring commission merchants to give bonds for the protection of consignees may be validly applied to commission merchants handling produce shipped to them from without the state.[ ] attachment and garnishment railway cars are not exempt from attachment under state laws, although they may have been or are intended to be used in interstate commerce.[ ] statutory liens a state statute which gives a lien upon all vessels whether domestic or foreign, and whether engaged in interstate commerce or not, for injuries to persons and property within the state, does not as applied to nonmaritime torts offend the commerce clause, there being no act of congress in conflict.[ ] nor can the enforcement of a lien for materials used in the construction of a vessel be avoided because the vessel is engaged in interstate commerce.[ ] the police power and the subject-matter of commerce scope of the police power "quarantine regulations are essential measures of protection which the states are free to adopt when they do not come into conflict with federal action. in view of the need of conforming such measures to local conditions, congress from the beginning has been content to leave the matter for the most part, notwithstanding its vast importance, to the states and has repeatedly acquiesced in the enforcement of state laws. * * * such laws undoubtedly operate upon interstate and foreign commerce. they could not be effective otherwise. they cannot, of course, be made the cover for discriminations and arbitrary enactments having no reasonable relation to health * * *; but the power of the state to take steps to prevent the introduction or spread of disease, although interstate and foreign commerce are involved (subject to the paramount authority of congress if it decides to assume control), is beyond question.[ ] * * * state inspection laws and statutes designed to safeguard the inhabitants of a state from fraud and imposition are valid when reasonable in their requirements and not in conflict with federal rules, although they may affect interstate commerce in their relation to articles prepared for export or by including incidentally those brought into the state and held for sale in the original imported packages."[ ] quarantine laws in two earlier cases a missouri statute which prohibited the driving of all texan, mexican, and indian cattle into the state during certain seasons of the year was held void;[ ] while a statute making anybody in the state who had texas cattle which had not wintered north of a certain line liable for damage through the communication of disease from these to other cattle was sustained;[ ] as were also the regulations of a sanitary commission which excluded all cattle, horses, and mules, from the state at a certain period when anthrax was prevalent.[ ] reviewing previous cases in the one last cited, the court declared their controlling principle to be simply whether the police power of the state had been exerted to exclude "_beyond what is necessary for any proper quarantine_," a question predominantly of fact, and one therefore to be determined for each case with only general guidance from earlier decisions.[ ] more recent cases conform to the same pattern. among measures sustained are the following: an ohio statute forbidding the sale in that state of condensed milk unless made from unadulterated milk;[ ] a new york statute penalizing the sale with intent to defraud of preparations falsely represented to be kosher;[ ] a new york statute requiring that cattle shall not be imported for dairy or breeding purposes unless accompanied by the certificate of a proper sanitary official in the state of origin, in order to prevent the spread of an infectious disease;[ ] an order of a state department of agriculture, pursuant to a state law, regulating the standards of containers in which agricultural products (berries) may be marketed within the state;[ ] a state statute restricting the processing of fish found within the waters of the state with the purpose of conserving it for food, even though it also operates upon fish brought into the state from without;[ ] the price fixing and licensing provisions of a state milk and cream act, not applicable to transactions in interstate commerce, by declaration of the act;[ ] a maine statute requiring the registration with the state health department of cosmetic preparations for the purpose of ascertaining whether the products are harmless;[ ] an indiana animals disposal act requiring that animal carcasses, not promptly disposed of by the owner, be delivered to the representative of a disposal plant licensed by the state, and prohibiting their transportation on the public highways for any other purpose;[ ] a pennsylvania statute providing for the licensing and bonding of all milk dealers and fixing a minimum price to be paid producers, as applied to a dealer purchasing milk within the state for shipment to points outside it.[ ] state inspection laws the application of state inspection laws to imports from outside the state has been sustained as warranted by local interests and as not discriminating against out-of-state products, in the following instances: a north carolina statute providing that "every bag, barrel, or other package" of commercial fertilizer offered for sale in the state should bear a label truly describing its chemical composition, which must comply with certain requirements, and charging cents per ton to meet the cost of inspection;[ ] an indiana statute forbidding the sale in the original package of concentrated feeding stuffs prior to inspection and analysis for the purpose of ascertaining whether certain minimum standards as to composition had been met;[ ] a minnesota statute requiring as a precondition of its being offered for sale in the state, the inspection of illuminating oil and gasoline;[ ] a kansas statute forbidding any moving picture film or reel to be exhibited in the state unless it had been examined by the state superintendent of instruction and certified by him as moral and instructive and not tending to debase or corrupt the morals.[ ] a minnesota statute, on the other hand, which forbade the sale in any city of the state of any beef, mutton, lamb, or pork which, had not been inspected on the hoof by local inspectors within twenty-four hours of slaughter, was held void.[ ] its "necessary operation," said the court, was to ban from the state wholesome and properly inspected meat from other states.[ ] also a virginia statute which required the inspection and labelling of all flour brought into the state for sale was disallowed because flour produced in the state was not subject to inspection;[ ] likewise a florida statute providing for the inspection of all cement imported into the state and enacting a fee therefor, but making no provision for the inspection of the local product, met a like fate;[ ] as did also a madison, wisconsin ordinance which sought to exclude a foreign corporation from selling milk in that city solely because its pasteurization plants were more than five miles away.[ ] state prohibition laws; the original package doctrine the original package doctrine made its debut in brown _v._ maryland,[ ] where it was applied to remove imports from abroad which were still in the hands of the importer in the original package, out of the reach of the state's taxing power. this rule the court, overriding a dictum in marshall's opinion in brown _v._ maryland,[ ] rejected outright after the civil war as to imports from sister states.[ ] however, when in the late eighties and early nineties state-wide prohibition laws began making their appearance, the court seized on the rejected dictum and began applying it as a brake on the operation of such laws with respect to interstate commerce in intoxicants, which the court denominated "legitimate articles of commerce." while holding that a state was entitled to prohibit the manufacture and sale within its limits of intoxicants,[ ] even for an outside market--manufacture being no part of commerce[ ]--it contemporaneously laid down the rule, in bowman _v._ chicago and northwestern railroad co.,[ ] that so long as congress remained silent in the matter, a state lacked the power, even as part and parcel of a program of statewide prohibition of the traffic in intoxicants, to prevent the shipment into it of intoxicants from a sister state; and this holding was soon followed by another to the effect that, so long as congress remained silent, a state had no power to prevent the sale in the original package of liquors introduced from another state.[ ] the effect of the latter decision was soon overcome by an act of congress, the so-called wilson act, repealing its alleged silence,[ ] but the bowman decision still stood, the act in question being interpreted by the court not to subject liquors from sister states to local authority until their arrival in the hands of the person to whom consigned.[ ] not till was the effect of the decision in the bowman case fully nullified by the webb-kenyon act,[ ] which placed intoxicants entering a state from another state under the control of the former for all purposes whatsoever. oleomargarine and cigarettes long before this the immunity temporarily conferred by the original package doctrine upon liquors had been extended to cigarettes[ ] and, with an instructive exception, to oleomargarine. the exception referred to was made in plumley _v._ massachusetts,[ ] where the court held that a statute of that state forbidding the sale of oleomargarine colored to look like butter could validly be applied to oleomargarine brought from another state and still in the original package. the justification of the statute to the court's mind was that it sought "to suppress false pretenses and promote fair dealing in the sale of an article of food." nor did leisy and co. _v._ hardin[ ] apply, said justice harlan for the court, because the beer in that case was "genuine beer, and not a liquid or drink colored artificially so as to cause it to look like beer." that decision was never intended, he continued, to hold that "a state is powerless to prevent the sale of articles manufactured in or brought from another state, and subjects of traffic and commerce, if their sale may cheat the people into purchasing something they do not intend to buy * * *."[ ] obviously, the argument was conclusive only on the assumption that a state has a better right to prevent frauds than it has to prevent drunkenness and like evils; and doubtless that is the way the court felt about the matter at that date. on the one hand, the liquor traffic was a very ancient, if not an altogether, venerable institution, while oleomargarine was then a relatively novel article of commerce whose wholesomeness was suspect. on the other hand, laws designed to secure fair dealing and condemnatory of fraud followed closely the track of the common law, while anti-liquor laws most decidedly did not. the real differentiation of the two cases had to be sought in historical grounds. yet the state must not put unreasonable burdens upon interstate commerce even in oleomargarine. thus a pennsylvania statute forbidding the sale of this product even in the unadulterated condition was pronounced invalid so far as it operated to prevent the introduction of such oleomargarine from another state and its sale in the original package;[ ] as was also a new hampshire statute which required that all oleomargarine marketed in the state be colored pink.[ ] a little later in the case above mentioned involving cigarettes, the court discovered some of the difficulties of the original package doctrine when applied to interstate commerce, in which the package is not so apt to be standardized as it is in foreign commerce.[ ] demise of the original package doctrine what importance has the original package doctrine today as a restraint on state legislation affecting interstate commerce? the answer is, very little, if any. state laws prohibiting the importation of intoxicating liquor, have since the passage of the twenty-first amendment consistently been upheld, even when imposing a burden on interstate commerce or discriminating against liquor imported from another state.[ ] indeed the court has, without appealing to the twenty-first amendment, even gone so far as to uphold a statute requiring a permit for transportation of liquor through the enacting state.[ ] in whitfield _v._ ohio,[ ] moreover, the court upheld a state law prohibiting the sale in open market of convict-made goods including sales of goods imported from other states and still in the original package. while the decision is based on the hawes-cooper act of ,[ ] which follows the pattern of the webb-kenyon act, justice sutherland speaking for the court, takes pains to disparage the "unbroken-package doctrine, as applied to interstate commerce, * * *, as more artificial than sound."[ ] indeed, earlier cases make it clear that the enforcement of state quarantine and inspection acts, otherwise constitutional, is not to be impeded by the doctrine in any way.[ ] curbs on the interstate movement of persons prior to the civil war the slaveholding states, ever fearful of a slave uprising, adopted legislation meant to exclude from their borders free negroes whether hailing from abroad or from sister states, and in a south carolina negro seamen's act embodying this objective was held void by justice william johnson, himself a south carolinian, in a case arising in the carolina circuit and involving a colored british sailor.[ ] the basis of the ruling, which created tremendous uproar in charleston,[ ] was the commerce clause and certain treaties of the united states. there followed two rulings of attorneys general, the earlier by attorney general wirt, denouncing such legislation as unconstitutional;[ ] the latter by attorney general berrien, sustaining it;[ ] and in city of new york _v._ miln[ ] the court, speaking by justice barbour of virginia, asserted, six years after nat turner's rebellion, the power of the states to exclude undesirables in sweeping terms, which in the passenger cases,[ ] decided in , a narrowly divided court considerably qualified. shortly after the civil war the court overturned a nevada statute which sought to halt the further loss of population by a special tax on railroads on every passenger carried out of the state.[ ] this time only two justices invoked the commerce clause; the majority, speaking by justice miller held the measure to be an unconstitutional interference with a right of national citizenship--a holding today translatable, in the terminology of the fourteenth amendment, as an abridgment of a privilege or immunity of citizens of the united states. against this background the court in , in edwards _v._ california,[ ] held void a statute which penalized the bringing into that state, or the assisting to bring into it, any nonresident knowing him to be "an indigent person." five justices, speaking by justice byrnes, held the act to be even as to "persons who are presently destitute of property and without resources to obtain the necessities of life, and who have no relatives or friends able and willing to support them,"[ ] an unconstitutional interference with interstate commerce. "the state asserts," justice byrnes recites, "that the huge influx of migrants into california in recent years has resulted in problems of health, morals, and especially finance, the proportions of which are staggering. it is not for us to say that this is not true. we have repeatedly and recently affirmed, and we now reaffirm, that we do not conceive it our function to pass upon 'the wisdom, need, or appropriateness' of the legislative efforts of the states to solve such difficulties. * * * but this does not mean that there are no boundaries to the permissible area of state legislative activity. there are. and none is more certain than the prohibition against attempts on the part of any single state to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. it is frequently the case that a state might gain a momentary respite from the pressure of events by the simple expedient of shutting its gates to the outside world. but, in the words of mr. justice cardozo: 'the constitution was framed under the dominion of a political philosophy less parochial in range. it was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division'."[ ] four of the justices would have preferred to rest the holding of unconstitutionality on the rights of national citizenship under the privileges and immunities clause of amendment xiv.[ ] state conservation and embargo measures in geer _v._ connecticut[ ] the court sustained the right of the state to forbid the shipment beyond its borders of game taken within the state--this on the ground, in part, that a state has an underlying property right to wild things found within its limits, and so is entitled to qualify the right of individual takers thereof to any extent it chooses; and a similar ruling was laid down in a later case as to the prohibition by a state of the transportation out of it of water from its important streams.[ ] in oklahoma _v._ kansas natural gas co.,[ ] however, this doctrine was held inapplicable to the case of natural gas, on the ground: first, that "gas, when reduced to possession, is a commodity, the individual property" of the owner; and secondly, that "the business welfare of the state," is subordinated by the commerce clause to that of the nation as a whole. if the states had the power asserted in the oklahoma statute, said justice mckenna, "a singular situation might result. pennsylvania might keep its coal, the northwest its timber, the mining states their minerals. and why may not the products of the field be brought within the principle? * * * and yet we have said that 'in matters of foreign and interstate commerce there are no state lines.' in such commerce, instead of the states, a new power appears and a new welfare, a welfare which transcends that of any state. but rather let us say it is constituted of the welfare of all the states and that of each state is made greater by a division of its resources, * * *, with every other state, and those of every other state with it. this was the purpose, as it is the result, of the interstate commerce clause of the constitution of the united states."[ ] in pennsylvania _v._ west virginia[ ] the same doctrine was enforced in disallowance of a west virginia statute whereby that state sought to require that a preference be accorded local consumers of gas produced within the state. west virginia's argument that the supply of gas within the state was waning and no longer sufficed for both the local and the interstate markets, and that therefore the statute was a legitimate measure of conservation in the interest of the people of the state, was answered in the words just quoted. in the above cases the state prohibition overturned was directed specifically to shipments beyond the state. in two other cases the state enactments involved reached all commerce, both domestic and interstate without discrimination. in the first of these, sligh _v._ kirkwood,[ ] the court upheld the application to oranges which were intended for the interstate market of a florida statute prohibiting the sale, shipment, or delivery for shipment of any citrus fruits which were immature or otherwise unfit for consumption. the burden thus imposed upon interstate commerce was held by the court to be incidental merely to the effective enforcement of a measure intended to safeguard the health of the people of florida. moreover, said the court, "we may take judicial notice of the fact that the raising of citrus fruits is one of the great industries of the state of florida. it was competent for the legislature to find that it was essential for the success of that industry that its reputation be preserved in other states wherein such fruits find their most extensive market."[ ] in lemke _v._ farmers grain co.,[ ] on the other hand, a north dakota statute which confined the purchase of grain within that state to those holding licenses from the state and which regulated prices, was pronounced void under the commerce clause. to the argument that such legislation was "in the interest of the grain growers and essential to protect them from fraudulent purchases, and to secure payment to them of fair prices for the grain actually sold," the court answered that, "congress is amply authorized to pass measures to protect interstate commerce if legislation of that character is needed." the differentiation of the above two cases is twofold. the statute under review in the earlier one was of the ordinary type of inspection law and was applied without discrimination to fruits designed for the home and the interstate market. the north dakota act was far more drastic, approximating an attempt on the part of the state to license interstate commerce. what is even more important, however, the later case represents a new rule of law, and one which at the time the florida act was before the court had not yet been heard of. this is embodied in the head note of the case in the following words: "the business of buying grain in north dakota, practically all of which is intended for shipment to, and sale at, terminal markets in other states, conformably to the usual and general course of business in the grain trade, is interstate commerce."[ ] the application of this rule in the field of state taxation was mentioned on a previous page.[ ] state conservation and embargo measures: the milk cases certain recent cases have had to deal with state regulation of the milk business. in nebbia _v._ new york,[ ] decided in , that state's law regulating the price of milk was sustained by the court against objections based on the due process clause of amendment xiv. a year later, in baldwin _v._ seelig[ ] the refusal of a license under the same act to a dealer who had procured his milk at a lower minimum price than producers were guaranteed in new york, was set aside as an unconstitutional interference with interstate commerce. however, a pennsylvania statute requiring dealers to obtain licenses was sustained as to one who procured milk from neighboring farms and shipped it all into a neighboring state for sale.[ ] the purpose of the act, explained justice roberts, was to control "a domestic situation in the interest of the welfare of the producers and consumers," and its application to the kind of case before the court was essential to its effective enforcement and affected interstate commerce only incidentally.[ ] but when a distributor of milk in massachusetts, who already had two milk stations in eastern new york, was refused a license for a third on the ground, among others, that the further diversion of milk to massachusetts would deprive the local market of a supply needed during the short season, a narrowly divided court interposed its veto on the basis of oklahoma _v._ kansas natural gas co.[ ] state conservation and embargo measures: the shrimp cases meantime, geer _v._ connecticut has been somewhat overcast by subsequent rulings. in a case, decided in , it was held that a louisiana statute which permitted the shipment of shrimp taken in the tidal waters of louisiana marshes only if the heads and hulls have been previously removed was unconstitutional.[ ] distinguishing geer _v._ connecticut the court said: "as the representative of its people, the state might have retained the shrimp for [local] consumption and use therein." but the object of the louisiana statute was in direct opposition to the conservation of a local food supply. its object was to favor the canning of shrimp for the interstate market. "* * * by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the state necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control. * * * and those taking the shrimp under the authority of the act necessarily thereby become entitled to the rights of private ownership and the protection of the commerce clause."[ ] on the same reasoning a south carolina statute which required that owners of shrimp boats, fishing in the marine waters off the coast of the state, dock at a state port and unload, pack and stamp their catch with a tax stamp before shipping or transporting it to another state, was pronounced void in .[ ] however, a california statute which restricted the processing of fish, both that taken in the waters of the state and that brought into the state in a fresh condition, was found by the court to be purely a food conservation measure, and hence valid.[ ] the application of the act to fish brought from outside was held to be justified "by rendering evasion of it less easy."[ ] concurrent federal and state legislation the general issue since the turn of the century federal legislation under the commerce clause has penetrated more and more deeply into areas once occupied exclusively by the police power of the states. the result has been that state laws have come under increasingly frequent attack as being incompatible with acts of congress operating in the same general field. the court's decisions resolving such alleged conflicts fall into three groups: _first_, those which follow webster's theory, advanced in gibbons _v._ ogden, that when congress acts upon a particular phase of interstate commerce, it designs to appropriate the entire field with the result that no room is left for supplementary state action; _second_, those in which, in the absence of conflict between specific provisions of the state and congressional measures involved, the opposite result is reached; _third_, those in which the state legislation involved is found to conflict with certain acts of congress, and in which the principle of national supremacy is invoked by the court. most of the earlier cases stemming from state legislation affecting interstate railway transportation fall in the first class; while illustrations of the second category usually comprise legislation intended to promote the public health and fair dealing. more recent cases are more difficult to classify, especially as between the first and third categories. the hepburn act no act ever passed by congress was more destructive of legislation on the state statute books than the hepburn act of ,[ ] amending the interstate commerce act. thus a state statute which, while prohibiting a railway from giving free passes or free transportation, authorized the issuance of transportation in payment for printing and advertising, was found to conflict with the unqualified prohibition by congress of free interstate transportation.[ ] likewise, a state statute which penalized a carrier for refusing to receive freight for transportation whenever tendered at a regular station was found to conflict with the congressional provision that no carrier "shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act."[ ] in enacting this provision, the court found, congress had intended to occupy the entire field. in a third case, it was held that the hepburn act had put it outside the power of a state to regulate the delivery of cars for interstate shipments;[ ] and on the same ground, a state statute authorizing recovery of a penalty for delay in giving notice of the arrival of freight was disallowed;[ ] as was also the similar rule of a state railroad commission with respect to failure to deliver freight at depots and warehouses within a stated time limit.[ ] and in adams express co. _v._ croninger[ ] it was sweepingly ruled that the so-called carmack amendment to the hepburn act, which puts the responsibility for loss of, or injury to, cargo upon the initial carrier, had superseded all state statutes limiting recovery for loss or injury to goods in transportation to an agreed or declared value. substantially contemporaneous with these holdings were others in which the court ruled that the federal employers' liability act of , as amended in ;[ ] the federal hours of service act (railroads) of ;[ ] and the federal safety appliance acts of , as amended in [ ] superseded all state legislation dealing with the same subjects so far as such legislation affected interstate commerce.[ ] however, the states were still able to regulate the time and manner of payment of the employees of railroads, including those engaged in interstate commerce,[ ] congress having not legislated on the subject. quarantine cases in it was held that a new york statute prohibiting the manufacture or sale of any adulterated food or drug, or the coloring or coating of food whereby it is made to appear better than it really is, was not, as applied to imported coffee, repugnant to either the commerce clause or the meat inspection act of ,[ ] prohibiting the importation into the united states of adulterated and unwholesome food, but as exertion by the state of power to legislate for the protection of the health and safety of the community and to provide against deception and fraud.[ ] and in it was held that an indiana statute regulating the sale of concentrated commercial feeding stuff and requiring the disclosure of ingredients by certificate and label, and providing for inspection and analysis, was not in conflict with the pure food and drugs act of .[ ] however, when wisconsin about the same time passed an act requiring that when certain commodities were offered for sale in that state they should bear the label required by state law and no other, she was informed that she could not validly apply it to articles which had been labeled in accordance with the federal statute nor did it make any difference that the goods in question had been removed from the container in which they had been shipped into the state, inasmuch as they could still be proceeded against under the act of congress.[ ] the original package doctrine, it was added, "was not intended to limit the right of congress, * * *, to keep the channels of interstate commerce free from the carriage of injurious or fraudulently branded articles and to choose appropriate means to that end."[ ] but a north dakota statute requiring that lard compound or substitutes, unless sold in bulk, should be put up in pails or containers holding one, three, or five pounds net weight, or some multiple of these numbers, was held not to be repugnant to the pure food and drugs act.[ ] on the other hand, a decade later the court found that the plant quarantine act of , as amended in ,[ ] had so completely occupied the field indicated by its title that a state was left without power to prevent the importation of plants infected by a particular disease to which the secretary of agriculture's regulations did not apply.[ ] congress promptly intervened by further amending the federal statute to permit the states to impose quarantines in such overlooked cases.[ ] recent cases sustaining state legislation in , it was held[ ] that an order of the new york commissioner of agriculture prohibiting the importation of cattle for dairy or breeding purposes unless such cattle and the herds from which they come had been certified by the chief sanitary officer of the state of origin as being free from bang's disease, was not in conflict with the cattle contagious diseases acts.[ ] in , it was ruled[ ] that a georgia statute fixing maximum charges for handling and selling leaf tobacco did not, as applied to sales of tobacco destined for export, conflict with the tobacco inspection act.[ ] in ,[ ] it was held that an order of the wisconsin employment relations board which commanded a union, its agents, and members, to desist from mass picketing of a factory, threatening personal injury or property damage to employees desiring to work, obstructing the streets about the factory, and picketing the homes of employees, was not in conflict with the national labor relations act,[ ] to which the employer was admittedly subject but which had not been invoked. an "intention of congress," said the court, "to exclude states from exerting their police power must be clearly manifested."[ ] in ,[ ] the court sustained the marketing program for the california raisin crop, adopted pursuant to the california agricultural prorate act. although it was conceded that the program and act operated to eliminate competition among producers concerning terms of sale and price as to product destined for the interstate market, they were held not to conflict with the commerce clause or with the sherman act or the agricultural marketing agreement act.[ ] to the contrary, said chief justice stone, speaking for the unanimous court, the program "is one which it has been the policy of congress to aid and encourage through federal agencies" under federal act.[ ] the case was not one, he further observed, which was to be resolved by "mechanical test," but with the object in view of accommodating "the competing demands of the state and national interests involved."[ ] in ,[ ] the court upheld the right of minnesota to exclude from its courts a firm licensed by the national government to carry on the business of customs broker because of its failure to comply with a state statute requiring foreign corporations to obtain a license to do business in the state. speaking for the court, justice frankfurter, again disparaged "the generalities" to which certain cases had given utterance. actually, he asserted, "the fate of state legislation in these cases has not been determined by these generalities but by the weight of the circumstances and the practical and experienced judgment in applying these generalities to the particular instances."[ ] in cases, decided in ,[ ] the court ruled that indiana had not violated the natural gas act[ ] by attempting to regulate the rates for natural gas sold within the state by an interstate pipe line company to local industrial consumers; and that illinois was not precluded by the commodity exchange act[ ] from imposing upon grain exchanges doing business within her borders regulations not at variance with the provisions of the act or with regulations promulgated under it by the secretary of agriculture. nor, it was held by a bare majority of the court in , did the motor carrier act of , as amended in ,[ ] prevent california from prohibiting the sale or arrangement of any transportation over its public highways if the transporting carrier has no permit from the interstate commerce commission.[ ] the opposed opinions line up most of the cases on either side of the question. recent cases nullifying state action on the other side of the ledger appear the following cases, decided contemporaneously with those just reviewed: one in in which it was held that a gas company engaged in the business of piping natural gas from without the state of illinois and selling it wholesale to distributors in that state was subject to the jurisdiction of the federal power commission under the natural gas act,[ ] and hence could not be required by the illinois commerce commission to extend its facilities in the absence of a certificate of convenience from the federal power commission;[ ] one, in the same year, in which it was held, by a sharply divided court, that federal regulation of the production of renovated butter under the internal revenue code[ ] prevented the state of alabama from inspecting, seizing and detaining stock butter from which such butter was made, some of it being intended for interstate commerce;[ ] one in holding that the united states warehouse act, as amended,[ ] must be construed as superseding state authority to regulate licenses thereunder, and hence overruled the stricter requirements of illinois law dealing with such subject as rate discrimination, the dual position of grain warehousemen storing their own grain, the mixing of inferior grain owned by the warehousemen with superior grain of other users of the facility, delay in loading grain, the sacrificing or rebating of storage charges, retraining desirable transit tonnage, utilizing preferred storage space, maintenance of unsafe and inadequate grain elevators, inadequate and ineffectual warehouse service, the obtaining of a license, the abandonment of warehousing service, and the rendition of warehousing service without filing and publishing rate schedules;[ ] one decided the same year in which it was held that the authority of the federal power commission under the natural gas act[ ] extended to and superseded state regulatory power over sales made within a state by a natural gas producing company to pipe line companies which transported the purchased gas to markets in other states;[ ] one in , in which a sharply divided court held that michigan law governing the rights of dissenting stockholders could not be applied to embarrass a merger agreement between two railroad companies which had been approved by the interstate commerce commission under the interstate commerce act[ ] as "just and reasonable";[ ] and finally one decided the same year in which it was held by a unanimous court that the interstate commerce commission may, in approving the acquisition by a railroad corporation of one state of railroad lines in another, relieve such corporation from being incorporated under the laws of the latter state.[ ] federal versus state labor laws one group of cases, which has caused the court some difficulty and its attitude in which has perhaps shifted in some measure, deals with the question of the effect of the wagner, and, latterly, of the taft-hartley act on state power to govern labor union activities. in a case decided in [ ] it was held that a florida statute which required business agents of a union operating in the state to file annual reports and pay an annual fee of one dollar conflicted with the wagner act,[ ] standing, as the court put it, "'as an obstacle to the accomplishment and execution of the full purposes and objectives of congress.'"[ ] in two cases decided in , however, state legislation regulative of labor relations was sustained. in one a "cease and desist" order of the wisconsin employment relations board[ ] implementing the state employment peace act, which made it an unfair labor practice for an employee to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike, was found not to conflict with either the wagner or the taft-hartley act,[ ] both of which, the court asserted, designedly left open an area for state control. in the other,[ ] the wisconsin board, acting under the same statute, was held to be within its powers in labelling as "an unfair labor practice" the discharge by an employer of an employee under a maintenance of membership clause which had been inserted in the contract of employment in under pressure from the national war labor board, but which was contrary to provisions of the wisconsin act. on the other hand, in , the court invalidated a michigan mediation statute, and in , a wisconsin public utility anti-strike act, on the ground that these matters were governed by the policies embodied in the wagner and taft-hartley acts.[ ] commerce with indian tribes united states _v._ kagama congress is given power to regulate commerce "with the indian tribes." faced in with a congressional enactment which prescribed a system of criminal laws for indians living on their reservations, the court rejected the government's argument which sought to base the act on the commerce clause. it sustained the act, however, on the following grounds: "from their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. this has always been recognized by the executive and by congress, and by this court, whenever the question has arisen. * * * the power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. it must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the united states, because it has never been denied, and because it alone can enforce its laws on all the tribes." moreover, such power was operative within the states.[ ] obviously, this line of reasoning renders the commerce clause superfluous as a source of power over the indian tribes; and some years earlier, in , congress had forbidden the further making of treaties with them.[ ] however, by a characteristic judicial device the effort has been made at times to absorb the doctrine of the kagama case into the commerce clause,[ ] although more commonly the court, in sustaining congressional legislation, prefers to treat the commerce clause and "the recognized relations of tribal indians," as joint sources of congress's power.[ ] most of the cases have arisen, in fact, in connection with efforts by congress to ban the traffic in "fire water" with tribal indians. in this connection it has been held that even though an indian has become a citizen, yet so long as he remains a member of his tribe, under the charge of an indian agent, and so long as the united states holds in trust the title to land which has been allotted him, congress can forbid the sale of intoxicants to him.[ ] also congress can prohibit the introduction of intoxicating liquors into land occupied by a tribe of uncivilized indians within territory admitted to statehood.[ ] nor can a state withdraw indians within its borders from the operation of acts of congress regulating trade with them by conferring on them rights of citizenship and suffrage, whether by its constitution or its statutes.[ ] and when a state is admitted into the union congress may, in the enabling act, reserve authority to legislate in the future respecting the indians residing within the new state, and may declare that existing acts of congress relating to traffic and intercourse with them shall remain in force.[ ] clause . _the congress shall have power_ * * * to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the united states. naturalization and citizenship categories of naturalized persons naturalization has been defined by the supreme court as "the act of adopting a foreigner, and clothing him with the privileges of a native citizen, * * *"[ ] in the dred scott case,[ ] the court asserted that the power of congress under this clause applies only to "persons born in a foreign country, under a foreign government."[ ] these dicta are much too narrow to sustain the power which congress has actually exercised on the subject. the competence of congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. in the words of the court: "as a government, the united states is invested with all the attributes of sovereignty. as it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries."[ ] by the immigration and nationality act of june , ,[ ] which codifies much previous legislation, it is enacted that the following shall be citizens of the united states at birth: "( ) a person born in the united states, and subject to the jurisdiction thereof; "( ) a person born in the united states to a member of an indian, eskimo, aleutian, or other aboriginal tribe: _provided_, that the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property; "( ) a person born outside of the united states and its outlying possessions of parents both of whom are citizens of the united states and one of whom has had a residence in the united states or one of its outlying possessions, prior to the birth of such person; "( ) a person born outside of the united states and its outlying possessions of parents one of whom is a citizen of the united states who has been physically present in the united states or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the united states; "( ) a person born in an outlying possession of the united states of parents one of whom is a citizen of the united states who has been physically present in the united states or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person; "( ) a person of unknown parentage found in the united states while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the united states; "( ) a person born outside the geographical limits of the united states and its outlying possessions of parents one of whom is an alien, and the other a citizen of the united states who, prior to the birth of such person, was physically present in the united states or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: _provided_, that any periods of honorable service in the armed forces of the united states by such citizen parent may be included in computing the physical presence requirements of this paragraph."[ ] by the same act, "persons born in the canal zone and panama after february , , one or both of whose parents were at the time of birth of such person citizens of the united states, are declared to be citizens of the united states; as likewise are of certain categories of persons born in puerto rico, alaska, hawaii, the virgin islands and guam on or after certain stated dates."[ ] who are eligible for naturalization naturalization is a privilege to be given, qualified, or withheld as congress may determine, which an alien may claim only upon compliance with the terms which congress imposes. earlier the privilege was confined to white persons and persons of african descent, but was extended by the act of december , , to descendants of races indigenous to the western hemisphere and chinese persons or persons of chinese descent;[ ] and by the act of june , , "the rights of a person to become a naturalized citizen of the united states shall not be denied or abridged because of race or sex or because the person is married."[ ] but, any person "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches * * *" opposition to all organized government, or "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches the overthrow by force or violence or other unconstitutional means of the government of the united states" may not be naturalized as a citizen of the united states.[ ] these restrictive provisions are, moreover, "applicable to any applicant for naturalization who at any time within a period of ten years immediately preceding the filing of the petition for naturalization or after such filing and before taking the final oath of citizenship is, or has been found to be within any of the classes enumerated within this section, notwithstanding that at the time the petition is filed he may not be included within such classes."[ ] the procedure of naturalization this involves as its principal and culminating event the taking in open court by the applicant of an oath: "( ) to support the constitution of the united states; ( ) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; ( ) to support and defend the constitution and the laws of the united states against all enemies, foreign and domestic; ( ) to bear true faith and allegiance to the same; and ( )(a) to bear arms on behalf of the united states when required by the law, or (b) to perform noncombatant service in the armed forces of the united states when required by the law, or (c) to perform work of national importance under civilian direction when required by law."[ ] any naturalized person who takes this oath with mental reservations or conceals beliefs and affiliations which under the statute disqualify one for naturalization, is subject, upon these facts being shown in a proceeding brought for the purpose, to have his certificate of naturalization cancelled.[ ] furthermore, if a naturalized person shall within five years "following his naturalization become a member of or affiliated with any organization, membership in or affiliation with which at the time of naturalization would have precluded such person from naturalization under the provisions of section , it shall be considered prima facie evidence that such person was not attached to the principles of the constitution of the united states and was not well disposed to the good order and happiness of the united states at the time of naturalization, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the revocation and setting aside of the order admitting such person to citizenship and the cancellation of the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation. * * *" [ ] rights of naturalized persons chief justice marshall early stated the dictum that "a naturalized citizen * * * become[s] a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. the constitution does not authorize congress to enlarge or abridge those rights. the simple power of the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual."[ ] a similar idea was expressed in in knauer _v._ united states:[ ] "citizenship obtained through naturalization is not a second-class citizenship. * * * [it] carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws including the very charter of our government."[ ] but, as shown above, a naturalized citizen is subject at any time to have his good faith in taking the oath of allegiance to the united states inquired into, and to lose his citizenship if lack of such faith is shown in proper proceedings.[ ] also, "a person who has become a national by naturalization" may lose his nationality by "having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated," or by "having a continuous residence for five years in any other foreign state or states."[ ] however, in the absence of treaty or statute to the contrary effect, a child born in the united states who is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, does not thereby lose his american citizenship provided that on attaining his majority he elects to retain it and returns to the united states to assume its duties.[ ] congress' power exclusive congress' power over naturalization is an exclusive power. a state cannot denationalize a foreign subject who has not complied with federal naturalization law and constitute him a citizen of the united states, or of the state, so as to deprive the federal courts of jurisdiction over a controversy between him and a citizen of a state.[ ] but power to naturalize aliens may be, and early was, devolved by congress upon state courts having a common law jurisdiction.[ ] also states may confer the right of suffrage upon resident aliens who have declared their intention to become citizens, and have frequently done so.[ ] right of expatriation: loss of citizenship notwithstanding evidence in early court decisions[ ] and in the commentaries of chancellor kent of a brief acceptance of the ancient english doctrine of perpetual and unchangeable allegiance to the government of one's birth, whereby a citizen is precluded from renouncing his allegiance without permission of that government, the united states, since enactment of the act of ,[ ] if indeed not earlier, has expressly recognized the right of everyone to expatriate himself and choose another country. retention of citizenship is not dependent entirely, however, upon the desires of the individual; for, although it has been "conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen," the united states, by virtue of the powers which inhere in it as a sovereign nation, has been deemed competent to provide that an individual voluntarily entering into certain designated conditions shall, as a consequence thereof, suffer the loss of citizenship.[ ] exclusion of aliens the power of congress "to exclude aliens from the united states and to prescribe the terms and conditions on which they come in" is absolute, being an attribute of the united states as a sovereign nation. in the words of the court: "that the government of the united states, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. jurisdiction over its own territory to that extent is an incident of every independent nation. it is a part of its independence. if it could not exclude aliens, it would be to that extent subject to the control of another power. * * * the united states, in their relation to foreign countries and their subjects or citizens are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory."[ ] by the immigration and nationality act of june , , some thirty-one categories of aliens are excluded from the united states[ ] including "aliens who are, or at any time have been, members * * * of or affiliated with any organization that advocates or teaches * * * the overthrow by force, violence, or other unconstitutional means of the government of the united states * * *"[ ] with this power of exclusion goes also the power to assert a considerable degree of control over aliens after their admission to the country. by the alien registration act of [ ] it was provided that all aliens in the united states, fourteen years of age and over, should submit to registration and finger printing, and wilful failure to do so was made a criminal offense against the united states. this act, taken in conjunction with other laws regulating immigration and naturalization, has constituted a comprehensive and uniform system for the regulation of all aliens and precludes enforcement of a state registration act. said the court, speaking by justice black: "with a view to limiting prospective residents from foreign lands to those possessing the qualities deemed essential to good and useful citizenship in america, carefully defined qualifications are required to be met before aliens may enter our country. these qualifications include rigid requirements as to health, education, integrity, character, and adaptability to our institutions. nor is the alien left free from the application of federal laws after entry and before naturalization. if during the time he is residing here he should be found guilty of conduct contrary to the rules and regulations laid down by congress, he can be deported. at the time he enters the country, at the time he applies for permission to acquire the full status of citizenship, and during the intervening years, he can be subjected to searching investigations as to conduct and suitability for citizenship."[ ] the act of june , , repeats these requirements of the act of .[ ] recent cases underscore the sweeping nature of the powers of the national government to exclude aliens from the united states and to deport by administrative process members of excluded classes. in knauff _v._ shaughnessy,[ ] decided early in , an order of the attorney general excluding, on the basis of confidential information, a wartime bride who was prima facie entitled to enter the united states under the war brides act of ,[ ] was held to be not reviewable by the courts; nor were regulations on which the order was based invalid as representing an undue delegation of legislative power. said the court: "normally congress supplies the conditions of the privilege of entry into the united states. but because the power of exclusion of aliens is also inherent in the executive department of the sovereign, congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent."[ ] in cases decided in march and april, , comparable results were reached: the internal security act of , section , in authorizing the attorney general to hold in custody, without bail, aliens who are members of the communist party of the united states, pending determination as to their deportability, is not unconstitutional.[ ] nor was it unconstitutional to deport under the alien registration act of [ ] a legally resident alien because of membership in the communist party, although such membership ended before the enactment of the act. such application of the act did not make it _ex post facto_, being but an exercise of the power of the united states to terminate its hospitality _ad libitum_.[ ] and a statutory provision[ ] which makes it a felony for an alien against whom a specified order of deportation is outstanding "to willfully fail or refuse to make timely application for travel or other documents necessary to his departure" is not on its face void for "vagueness."[ ] the power of congress to legislate with respect to the conduct of alien residents is, however, a concomitant of its power to prescribe the terms and conditions on which they may enter the united states; to establish regulations for sending out of the country such aliens as have entered in violation of law; and to commit the enforcement of such conditions and regulations to executive officers. it is not a power to lay down a special code of conduct for alien residents or to govern private relations with them. purporting to enforce the above distinction, the court, in , held void a statutory provision which, in prohibiting the importation of "any alien woman or girl for the purpose of prostitution," provided further that whoever should keep for the purpose of prostitution "any alien woman or girl within three years after she shall have entered the united states" should be deemed guilty of a felony and punished therefor.[ ] three justices, however, thought the measure justifiable on the principle that "for the purpose of excluding those who unlawfully enter this country congress has power to retain control over aliens long enough to make sure of the facts. * * * to this end it may make their admission conditional for three years. * * *" [and] "if congress can forbid the entry * * *, it can punish those who cooperate in their fraudulent entry."[ ] bankruptcy persons who may be released from debt in an early case on circuit justice livingston suggested that inasmuch as the english statutes on the subject of bankruptcy from the time of henry viii down had applied only to traders it might "well be doubted, whether an act of congress subjecting to such a law every description of persons within the united states, would comport with the spirit of the powers vested in them in relation to this subject."[ ] neither congress nor the supreme court has ever accepted this limited view. the first bankruptcy law, passed in , departed from the english practice to the extent of including bankers, brokers, factors and underwriters as well as traders.[ ] asserting that the narrow scope of the english statutes was a mere matter of policy, which by no means entered into the nature of such laws, justice story defined a law on the subject of bankruptcies in the sense of the constitution as a law making provisions for cases of persons failing to pay their debts.[ ] this interpretation has been ratified by the supreme court. in hanover national bank _v._ moyses,[ ] it held valid the bankruptcy act of which provided that persons other than traders might become bankrupts and that this might be done on voluntary petition. the court has given tacit approval to the extension of the bankruptcy laws to cover practically all classes of persons and corporations,[ ] including even municipal corporations.[ ] liberalization of relief granted as the coverage of the bankruptcy laws has been expanded, the scope of the relief afforded to debtors has been correspondingly enlarged. the act of , like its english antecedents, was designed primarily for the benefit of creditors. beginning with the act of , which opened the door to voluntary petitions, rehabilitation of the debtor has become an object of increasing concern to congress. an adjudication in bankruptcy is no longer requisite to the exercise of bankruptcy jurisdiction. in the debtor for the first time was permitted, either before or after adjudication of bankruptcy, to propose terms of composition which would become binding upon acceptance by a designated majority of his creditors and confirmation by a bankruptcy court. this measure was held constitutional,[ ] as were later acts which provided for the reorganization of corporations which are insolvent or unable to meet their debts as they mature,[ ] and for the composition and extension of debts in proceedings for the relief of individual farmer-debtors.[ ] nor is the power of congress limited to adjustment of the rights of creditors. the supreme court has also ruled that the rights of a purchaser at a judicial sale of the debtor's property are within reach of the bankruptcy power, and may be modified by a reasonable extension of the period for redemption from such sale.[ ] the sympathetic attitude with which the court has viewed these developments is reflected in the opinion in continental illinois national bank and trust co. _v._ chicago, r.i. and p.r. co.,[ ] where justice sutherland wrote, on behalf of a unanimous court: "* * * these acts, far-reaching though they may be, have not gone beyond the limit of congressional power; but rather have constituted extensions into a field whose boundaries may not yet be fully revealed."[ ] constitutional limitations on the power in the exercise of its bankruptcy powers congress must not transgress the fifth and tenth amendments. it may not take from a creditor specific property previously acquired from a debtor nor circumscribe the creditor's right to such an unreasonable extent as to deny him due process of law;[ ] neither may it subject the fiscal affairs of a political subdivision of a state to the control of a federal bankruptcy court.[ ] since congress may not supersede the power of a state to determine how a corporation shall be formed, supervised and dissolved, a corporation which has been dissolved by a decree of a state court may not file a petition for reorganization under the bankruptcy acts.[ ] but congress may impair the obligation of a contract and may extend the provisions of the bankruptcy laws to contracts already entered into at the time of their passage.[ ] it may also empower courts of bankruptcy to entertain petitions by taxing agencies or instrumentalities for a composition of their indebtedness where the state has consented to the proceeding and the federal court is not authorized to interfere with the fiscal or governmental affairs of the petitioner.[ ] also bankruptcy legislation must be uniform, but the uniformity required is geographic, not personal. congress may recognize the laws of the states relating to dower, exemption, the validity of mortgages, priorities of payment and similar matters, even though such recognition leads to different results from state to state.[ ] the power not exclusive prior to congress exercised the power to establish "uniform laws on the subject of bankruptcies" only very intermittently. the first national bankruptcy law was not enacted until to be repealed in ; the second was passed in and repealed two years later; the third was enacted in and repealed in .[ ] thus during the first years under the constitution a national bankruptcy law was in existence only sixteen years altogether. consequently the most important problems of interpretation which arose during that period concerned the effect of this clause on state law. the supreme court ruled at an early date that in the absence of congressional action the states may enact insolvency laws since it is not the mere existence of the power but rather its exercise which is incompatible with the exercise of the same power by the states.[ ] later cases were to settle further that the enactment of a national bankruptcy law does not invalidate state laws in conflict therewith but serves only to relegate them to a state of suspended animation with the result that upon repeal of the national statute they again come into operation without reenactment.[ ] constitutional status of state insolvency laws a state is, of course, without power to enforce any law governing bankruptcies which impairs the obligation of contracts,[ ] extends to persons or property outside its jurisdiction,[ ] or conflicts with the national bankruptcy laws.[ ] giving effect to the policy of the federal statute, the supreme court has held that a state statute regulating the distribution of property of an insolvent was suspended by that law,[ ] and that a state court was without power to proceed with pending foreclosure proceedings after a farmer-debtor had filed a petition in the federal bankruptcy court for a composition or extension of time to pay his debts.[ ] a state law governing fraudulent transfers was found to be compatible with the act of congress,[ ] as was a statute which provided that a discharge in bankruptcy should be unavailing to terminate the suspension of the driver's license of a person who failed to pay a judgment rendered against him for damages resulting from his negligent operation of a motor vehicle.[ ] if a state desires to participate in the assets of a bankrupt it must submit to the appropriate requirements of the bankruptcy court with respect to the filing of claims by a designated date; it cannot assert a claim for taxes by filing a demand therefor at a later date.[ ] clauses and . _the congress shall have power_ * * * to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. * * * to provide for the punishment of counterfeiting the securities and current coin of the united states. fiscal and monetary powers of congress coinage, weights and measures the power "to coin money" and "regulate the value thereof" has been broadly construed to authorize regulation of every phase of the subject of currency. congress may charter banks and endow them with the right to issue circulating notes,[ ] and may restrain the circulation of notes not issued under its own authority.[ ] to this end it may impose a prohibitive tax upon the circulation of the notes of state banks[ ] or of municipal corporations.[ ] it may require the surrender of gold coin and of gold certificates in exchange for other currency not redeemable in gold. a plaintiff who sought payment for the gold coin and certificates thus surrendered in an amount measured by the higher market value of gold, was denied recovery on the ground that he had not proved that he would suffer any actual loss by being compelled to accept an equivalent amount of other currency.[ ] inasmuch as "every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power,"[ ] the supreme court sustained the power of congress to make treasury notes legal tender in satisfaction of antecedent debts,[ ] and, many years later, to abrogate the clauses in private contracts calling for payment in gold coin, even though such contracts were executed before the legislation was passed.[ ] the power to coin money also imports authority to maintain such coinage as a medium of exchange at home, and to forbid its diversion to other uses by defacement, melting or exportation.[ ] the punishments of counterfeiting in its affirmative aspect this clause has been given a narrow interpretation; it has been held not to cover the circulation of counterfeit coin or the possession of equipment susceptible of use for making counterfeit coin.[ ] at the same time the supreme court has rebuffed attempts to read into this provision a limitation upon either the power of the states or upon the powers of congress under the preceding clause. it has ruled that a state may punish the utterance of forged coins.[ ] on the ground that the power of congress to coin money imports "the correspondent and necessary power and obligation to protect and to preserve in its purity this constitutional currency for the benefit of the nation,"[ ] it has sustained federal statutes penalizing the importation or circulation of counterfeit coin,[ ] or the willing and conscious possession of dies in the likeness of those used for making coins of the united states.[ ] in short, the above clause is entirely superfluous. congress would have had the power which it purports to confer under the necessary and proper clause; and the same is the case with the other enumerated crimes which it is authorized to punish. the enumeration was unnecessary and is not exclusive.[ ] the borrowing power versus the fiscal power usually the aggregate of the fiscal and monetary powers of the national government--to lay and collect taxes, to borrow money and to coin money and regulate the value thereof--have reinforced each other, and, cemented by the necessary and proper clause, have provided a secure foundation for acts of congress chartering banks and other financial institutions,[ ] or making its treasury notes legal tender in the payment of antecedent debts.[ ] but in the opposite situation arose--one in which the power to regulate the value of money collided with the obligation incurred in the exercise of the power to borrow money. by a vote of eight-to-one the supreme court held that the obligation assumed by the exercise of the latter was paramount, and could not be repudiated to effectuate the monetary policies of congress.[ ] in a concurring opinion justice stone declined to join with the majority in suggesting that "the exercise of the sovereign power to borrow money on credit, which does not override the sovereign immunity from suit, may nevertheless preclude or impede the exercise of another sovereign power, to regulate the value of money; or to suggest that although there is and can be no present cause of action upon the repudiated gold clause, its obligation is nevertheless, in some manner and to some extent, not stated, superior to the power to regulate the currency which we now hold to be superior to the obligation of the bonds."[ ] clause . _the congress shall have power_ * * * to establish post offices and post roads. the postal power "establish" the great question raised in the early days with reference to the postal clause concerned the meaning to be given to the word "establish"--did it confer upon congress the power to _construct_ post offices and post roads, or only the power to _designate_ from existing places and routes those that should serve as post offices and post roads? as late as justice mclean stated that this power "has generally been considered as exhausted in the designation of roads on which the mails are to be transported," and concluded that neither under the commerce power nor the power to establish post roads could congress construct a bridge over a navigable water.[ ] a decade earlier, however, the court, without passing upon the validity of the original construction of the cumberland road, held that being "charged, * * *, with the transportation of the mails," congress could enter a valid compact with the state of pennsylvania regarding the use and upkeep of the portion of the road lying in that state.[ ] the debate on the question was terminated in by the decision in kohl _v._ united states[ ] sustaining a proceeding by the united states to appropriate a parcel of land in cincinnati as a site for a post office and courthouse. power to protect the mails the postal powers of congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.[ ] and not only are the mails under the protection of the national government, they are in contemplation of law its property. this principle was recognized by the supreme court in in holding that wagons carrying united states mail were not subject to a state toll tax imposed for use of the cumberland road pursuant to a compact with the united states.[ ] half a century later it was availed of as one of the grounds on which the national executive was conceded the right to enter the national courts and demand an injunction against the authors of any wide-spread disorder interfering with interstate commerce and the transmission of the mails.[ ] anti-slavery and the mails prompted by the efforts of northern anti-slavery elements to disseminate their propaganda in the southern states through the mails, president jackson, in his annual message to congress in , suggested "the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the southern states, through the mail, of incendiary publications intended to instigate the slaves to insurrection."[ ] in the senate john c. calhoun resisted this recommendation, taking the position that it belonged to the states and not to congress to determine what is and what is not calculated to disturb their security. he expressed the fear that if congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary and enforce their circulation.[ ] power to prevent harmful use of the postal facilities some thirty years later congress passed the first of a series of acts to exclude from the mails publications designed to defraud the public or corrupt its morals. in the pioneer case of ex parte jackson,[ ] the court sustained the exclusion of circulars relating to lotteries on the general ground that "the right to designate what shall be carried necessarily involves the right to determine what shall be excluded."[ ] the leading fraud order case, decided in , holds to the same effect.[ ] pointing out that it is "an indispensable adjunct to a civil government," to supply postal facilities, the court restated its premise that the "legislative body in thus establishing a postal service, may annex such conditions to it as it chooses."[ ] later cases appear to have qualified these sweeping declarations. in upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness and circulation and that all paid advertisements in such publications be marked as such, the court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications. chief justice white warned that the court by no means intended to imply that it endorsed the government's "broad contentions concerning the existence of arbitrary power through the classification of the mails, or by way of condition * * *"[ ] again, in milwaukee social democratic publishing co. _v._ burleson,[ ] where the court sustained an order of the postmaster general excluding from the second-class privilege a newspaper which he found to have systematically published matter banned by the espionage act of , the claim of absolute power in congress to withhold this privilege was sedulously avoided. more recently, when reversing an order denying the second-class privilege to a mailable publication because of the poor taste and vulgarity of its contents, on the ground that the postmaster general exceeding his statutory authority, justice douglas assumed, in the opinion of the court, "that congress has a broad power of classification and need not open second-class mail to publications of all types."[ ] the exclusion power as an adjunct to other powers in the cases just reviewed the mails were closed to particular types of communication which were deemed to be harmful. a much broader power of exclusion was asserted in the public utility holding company act of .[ ] to induce compliance with the regulatory requirements of that act, congress denied the privilege of using the mails for any purpose to holding companies which failed to obey that law, irrespective of the character of the material to be carried. viewing the matter realistically, the supreme court treated this provision as a penalty. while it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid,[ ] it declared that "congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province, * * *."[ ] state regulations affecting the mails in determining the extent to which state laws may impinge upon persons or corporations whose services are utilized by congress in executing its postal powers, the task of the supreme court has been to determine whether particular measures are consistent with the general policies indicated by congress. broadly speaking, the court has approved regulations which have a trivial or remote relation to the operation of the postal service, while disallowing those which constitute a serious impediment to it. thus a state statute which granted to one company an exclusive right to operate a telegraph business in the state was found to be incompatible with a federal law which, in granting to any telegraph company the right to construct its lines upon post roads, was interpreted as a prohibition of state monopolies in a field which congress was entitled to regulate in the exercise of its combined power over commerce and post roads.[ ] an illinois statute which, as construed by the state courts, required an interstate mail train to make a detour of seven miles in order to stop at a designated station, also was held to be an unconstitutional interference with the power of congress under this clause.[ ] but a minnesota statute which required intrastate trains to stop at county seats was found to be unobjectionable.[ ] local laws classifying postal workers with railroad employees for the purpose of determining a railroad's liability for personal injuries,[ ] or subjecting a union of railway mail clerks to a general law forbidding any "labor organization" to deny any person membership because of his race, color or creed,[ ] have been held not to conflict with national legislation or policy in this field. despite the interference _pro tanto_ with the performance of a federal function, a state may arrest a postal employee charged with murder while he is engaged in carrying out his official duties,[ ] but it cannot punish a person for operating a mail truck over its highways without procuring a driver's license from state authorities.[ ] clause . _the congress shall have power_ * * * to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. copyrights and patents scope of the power this clause is the foundation upon which the national patent and copyright laws rest, although it uses neither of those terms. so far as patents are concerned, modern legislation harks back to the statute of monopolies of , whereby parliament endowed inventors with the sole right to their inventions for fourteen years.[ ] copyright law, in turn, traces back to the statute of which secured to authors of books the sole right of publishing them for designated periods.[ ] congress was not, however, by this provision, vested with anything akin to the royal prerogative in the creation and bestowal of monopolistic privileges. its power is limited as to subject matter, and as to the purpose and duration of the rights granted. only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts.[ ] while congress may grant exclusive rights only for a limited period, it may extend the term upon the expiration of the period originally specified, and in so doing may protect the rights of purchasers and assignees.[ ] the copyright and patent laws do not have, of their own force, any extraterritorial operation.[ ] patentable discoveries the protection afforded by acts of congress under this clause is limited to new and useful inventions,[ ] and while a patentable invention is a mental achievement,[ ] yet for an idea to be patentable it must have first taken physical form.[ ] despite the fact that the constitution uses the term "discovery" rather than "invention," a patent may not issue for the discovery of a hitherto unknown phenomenon of nature; "if there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."[ ] conversely, the mental processes which are thus applied must display "more ingenuity * * * than the work of a mechanic skilled in the art";[ ] and while combination patents have been at times sustained,[ ] the accumulation of old devices is patentable "only when the whole in some way exceeds the sum of its parts."[ ] the court's insistence on the presence of "inventive genius" as the test of patentability goes far back and has been reiterated again and again in slightly varying language,[ ] although it seems to have had little effect on the point of view of the patent office.[ ] procedure in issuing patents the standard of patentability is a constitutional standard, and the question of the validity of a patent is a question of law.[ ] congress may authorize the issuance of a patent for an invention by a special, as well as by general law, provided the question as to whether the patentees device is in truth an invention is left open to investigation under the general law.[ ] the function of the commissioner of patents in issuing letters patent is deemed to be quasi-judicial in character. hence an act granting a right of appeal from the commission to the court of appeals for the district of columbia is not unconstitutional as conferring executive power upon a judicial body.[ ] nature and scope of the right secured the leading case bearing on the nature of the rights which congress is authorized to _secure_ is that of wheaton _v._ peters. wheaton charged peters with having infringed his copyright on the twelve volumes of "wheaton's reports" wherein are reported the decisions of the united states supreme court for the years from to inclusive. peters's defense turned on the proposition that inasmuch as wheaton had not complied with all of the requirements of the act of congress, his alleged copyright was void. wheaton, while denying this assertion of fact, further contended that the statute was only intended to _secure_ him in his pre-existent rights at common law. these at least, he claimed, the court should protect. a divided court held in favor of peters on the legal question. it denied, in the first place, that there was any principle of the common law which protected an author in the sole right to continue to publish a work once published. it denied, in the second place, that there is any principle of law, common or otherwise, which pervades the union except such as are embodied in the constitution and the acts of congress. nor, in the third place, it held, did the word "securing" in the constitution recognize the alleged common law principle which wheaton invoked. the exclusive right which congress is authorized to _secure_ to authors and inventors owes its existence solely to the acts of congress securing it,[ ] from which it follows that the rights granted by a patent or copyright are subject to such qualifications and limitations as congress, in its unhampered consultation of the public interest, sees fit to impose.[ ] in giving to authors the exclusive right to dramatize any of their works, congress did not exceed its powers under this clause. even as applied to pantomime dramatization by means of silent motion pictures, the act was sustained against the objection that it extended the copyright to ideas rather than to the words in which they were clothed.[ ] but the copyright of the description of an art in a book was held not to lay a foundation for an exclusive claim to the art itself. the latter can be protected, if at all, only by letters patent.[ ] since copyright is a species of property distinct from the ownership of the equipment used in making copies of the matter copyrighted, the sale of a copperplate under execution did not pass any right to print and publish the map which the copperplate was designed to produce.[ ] a patent right may, however, be subjected, by bill in equity, to payment of a judgment debt of the patentee.[ ] power of congress over patent rights letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government without just compensation.[ ] congress may, however, modify rights under an existing patent, provided vested property rights are not thereby impaired,[ ] but it does not follow that it may authorize an inventor to recall rights which he has granted to others or reinvest in him rights of property which he had previously conveyed for a valuable and fair consideration.[ ] furthermore, the rights which the present statutes confer are subject to the anti-trust acts, though it can be hardly said that the cases in which the court has endeavored to draw the line between the rights claimable by patentees and the kind of monopolistic privileges which are forbidden by those acts exhibit entire consistency in their holdings.[ ] state power affecting patents and copyrights nor do the patent laws displace the police or taxing powers of the states. whatever rights are secured to inventors must be enjoyed in subordination to the general authority of the state over all property within its limits. a statute of kentucky requiring the condemnation of illuminating oils which were inflammable at less than degrees fahrenheit, was held not to interfere with any right secured by the patent laws, although the oil for which the patent was issued could not be made to comply with state specifications.[ ] in the absence of federal legislation, a state may prescribe reasonable regulations for the transfer of patent rights so as to protect its citizens from fraud. hence a requirement of state law that the words "given for a patent right" appear on the face of notes given in payment for such right is not unconstitutional.[ ] royalties received from patents or copyrights are subject to a nondiscriminating state income tax, a holding to the contrary in having been subsequently overruled.[ ] trade-marks and advertisements in the famous trade-mark cases,[ ] decided in , the supreme court held void acts of congress which, in apparent reliance upon this clause, extended the protection of the law to trade-marks registered in the patent office. "the ordinary trade-mark" said justice miller for the court, "has no necessary relation to invention or discovery"; nor is it to be classified "under the head of writings of authors." it does not "depend upon novelty, invention, discovery, or any work of the brain."[ ] not many years later the court, again speaking through justice miller, ruled that a photograph may be constitutionally copyright,[ ] while still more recently a circus poster was held to be entitled to the same protection. in answer to the objection of the circuit court that a lithograph which "has no other use than that of a mere advertisement * * * (would not be within) the meaning of the constitution," justice holmes summoned forth the shades of velasquez, whistler, rembrandt, ruskin, degas, and others in support of the proposition that it is not for the courts to attempt to judge the worth of pictorial illustrations outside the narrowest and most obvious limits.[ ] clause . _the congress shall have power_ * * * to constitute tribunals inferior to the supreme court; _see_ article iii, p. . clause . _the congress shall have power_ * * * to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. piracies, felonies, and offenses against the law of nations origin of the clause "when the united states ceased to be a part of the british empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and custom had established among civilized nations of europe, as their public law. * * * the faithful observance of this law is essential to national character, * * *"[ ] these words of chancellor kent expressed the view of the binding character of international law which was generally accepted at the time the constitution was adopted. during the revolutionary war, congress took cognizance of all matters arising under the law of nations and professed obedience to that law.[ ] under the articles of confederation, it was given exclusive power to appoint courts for the trial of piracies and felonies committed on the high seas, but no provision was made for dealing with offenses against the law of nations.[ ] the draft of the constitution submitted to the convention of by its committee of detail empowered congress "to declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the united states, and of offences against the law of nations."[ ] in the debate on the floor of the convention the discussion turned on the question as to whether the terms, "felonies" and the "law of nations," were sufficiently precise to be generally understood. the view that these terms were often so vague and indefinite as to require definition eventually prevailed and congress was authorized to define as well as punish piracies, felonies and offenses against the law of nations.[ ] definition of offenses the fact that the constitutional convention considered it necessary to give congress authority to define offenses against the law of nations does not mean that in every case congress must undertake to codify that law or mark its precise boundaries before prescribing punishments for infractions thereof. an act punishing "the crime of piracy, as defined by the law of nations" was held to be an appropriate exercise of the constitutional authority to "define and punish" the offense, since it adopted by reference the sufficiently precise definition of international law.[ ] similarly, in ex parte quirin,[ ] the court found that by the reference in the fifteenth article of war to "offenders or offenses that * * * by the law of war may be triable by such military commissions * * *," congress had "exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals."[ ] where, conversely, congress defines with particularity a crime which is "an offense against the law of nations," the law is valid, even if it contains no recital disclosing that it was enacted pursuant to this clause. thus the duty which the law of nations casts upon every government to prevent a wrong being done within its own dominion to another nation with which it is at peace, or to the people thereof, was found to furnish a sufficient justification for the punishment of the counterfeiting within the united states, of notes, bonds and other securities of foreign governments.[ ] extraterritorial reach of the power since this clause contains the only specific grant of power to be found in the constitution for the punishment of offenses outside the territorial limits of the united states, a lower federal court held in [ ] that the general grant of admiralty and maritime jurisdiction by article iii, section , could not be construed as extending either the legislative or judicial power of the united states to cover offenses committed on vessels outside the united states but not on the high seas. reversing that decision, the supreme court held that this provision "cannot be deemed to be a limitation on the powers, either legislative or judicial, conferred on the national government by article iii, § . the two clauses are the result of separate steps independently taken in the convention, by which the jurisdiction in admiralty, previously divided between the confederation and the states, was transferred to the national government. it would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. to construe the one clause as limiting rather than supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to both the states and the national government powers which were common attributes of sovereignty before the adoption of the constitution. the result would be to deny to both the power to define and punish crimes of less gravity than felonies committed on vessels of the united states while on the high seas, and crimes of every grade committed on them while in foreign territorial waters."[ ] within the meaning of this section an offense is committed on the high seas even where the vessel on which it occurs is lying at anchor on the road in the territorial waters of another country.[ ] clauses , , , and . _the congress shall have power_ * * *: to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years. to provide and maintain a navy. to make rules for the government and regulation of the land and naval forces. the war power source and scope three different views regarding the source of the war power found expression in the early years of the constitution and continued to vie for supremacy for nearly a century and a half. writing in the federalist,[ ] hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by article i, section . not many years later, in , the argument was advanced that the war power of the national government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written constitution.[ ] chief justice marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. in mcculloch _v._ maryland[ ] he listed the power "to declare _and conduct_ a war"[ ] as one of the "enumerated powers" from which the authority to charter the bank of the united states was deduced. during the era of the civil war the two latter theories were both given countenance by the supreme court. speaking for four justices in ex parte milligan, chief justice chase described the power to declare war as "necessarily" extending "to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns."[ ] in another case, adopting the terminology used by lincoln in his message to congress on july , ,[ ] the court referred to "the war power" as a single unified power.[ ] an inherent power thereafter we find the phrase, "the war power," being used by both chief justice white[ ] and chief justice hughes,[ ] the former declaring the power to be "complete and undivided."[ ] not until however did the court explain the logical basis for imputing such an inherent power to the federal government. in united states _v._ curtiss-wright export corp.,[ ] the reasons for this conclusion were stated by justice sutherland as follows: "as a result of the separation from great britain by the colonies acting as a unit, the powers of external sovereignty passed from the crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the united states of america. even before the declaration, the colonies were a unit in foreign affairs, acting through a common agency--namely the continental congress, composed of delegates from the thirteen colonies. that agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the declaration of independence. * * * it results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the constitution. the power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the constitution, would have vested in the federal government as necessary concomitants of nationality."[ ] a complexus of granted powers in the more recent case of lichter _v._ united states,[ ] on the other hand, the court speaks of the "war powers" of congress. upholding the renegotiation act, it declared that: "in view of this power 'to raise and support armies, * * *' and the power granted in the same article of the constitution 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, * * *' the only question remaining is whether the renegotiation act was a law 'necessary and proper for carrying into execution' the war powers of congress and especially its power to support armies."[ ] in a footnote it listed the preamble, the necessary and proper clause, the provisions authorizing congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the president as commander in chief of the army and navy, as being "among the many other provisions implementing the congress and the president with powers to meet the varied demands of war, * * *"[ ] a declaration of war, when required in the first draft of the constitution presented to the convention of by its committee of detail congress was empowered "to make war."[ ] on the floor of the convention according to madison's journal "mr. madison and mr. gerry, moved to insert '_declare_' striking out '_make_' war; leaving to the executive the power to repel sudden attacks"[ ] and their motion was adopted. when the bey of tripoli declared war upon the united states in a sharp debate was precipitated as to whether a formal declaration of war by congress was requisite to create the legal status of war. jefferson sent a squadron of frigates to the mediterranean to protect our commerce but its mission was limited to defense in the narrowest sense of the term. after one of the vessels in this squadron had been engaged by, and had defeated, a tripolitan cruiser, the latter was permitted to return home. jefferson defended this course in a message to congress saying, "unauthorized by the constitution, without the sanction of congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew."[ ] hamilton promptly espoused a different interpretation of the power given to congress to declare war. "it is the peculiar and exclusive province of congress," he declared "_when the nation is at peace_ to change that state into a state of war; whether from calculations of policy, or from provocations, or injuries received; in other words, it belongs to congress only _to go to war_. but when a foreign nation declares or openly and avowedly makes war upon the united states, they are then by the very fact _already at war_, and any declaration on the part of congress is nugatory; it is at least unnecessary."[ ] apparently congress shared the view that a formal declaration of war was unnecessary. it enacted a statute which authorized the president to instruct the commanders of armed vessels of the united states to "seize and make prize of all vessels, goods and effects, belonging to the bey of tripoli, * * *; and also to cause to be done all such other acts of precaution or hostility as _the state of war_ will justify, * * *"[ ] the prize cases, sixty years later the supreme court, in sustaining the blockade of the southern ports which lincoln had instituted in april , at a time when congress was not in session, adopted virtually the same line of reasoning as hamilton had advanced. "this greatest of civil wars" said the court "was not gradually developed * * * it * * * sprung forth suddenly from the parent brain, a minerva in the full panoply of _war_. the president was bound to meet it in the shape it presented itself, without waiting for congress to baptize it with a name; and no name given to it by him or them could change the fact."[ ] this doctrine was sharply challenged by a powerful minority of the court on the ground that while the president could unquestionably adopt such measures as the statutes permitted for the enforcement of the laws against insurgents, congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences which ensue a state of war.[ ] inasmuch as the court finally conceded that the blockade had been retroactively sanctioned by congress, that part of its opinion dealing with the power of the president, acting alone, was really _obiter_. but a similar opinion was voiced by chief justice chase on behalf of a unanimous court, after the war was over. in freeborn _v._ the "protector,"[ ] it became necessary to ascertain the exact dates on which the war began and ended in order to determine whether the statute of limitation had run against the asserted claim. to answer this question the chief justice said that "it is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of congress, must be taken. the proclamation of intended blockade by the president may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second."[ ] the power to raise and maintain armed forces purpose of specific grants the clauses of the constitution which give congress authority "to raise and support armies, to provide and maintain a navy" and so forth, were not inserted for the purpose of endowing the national government with power to do these things, but rather to designate the department of government which should exercise such powers. moreover, they permit congress to take measures essential to the national defense in time of peace as well as during a period of actual conflict. that these provisions grew out of the conviction that the executive should be deprived of the "sole power of raising and regulating fleets and armies" which blackstone attributed to the king under the british constitution,[ ] was emphasized by story in his commentaries. he wrote: "our notions, indeed, of the dangers of standing armies, in time of peace, are derived in a great measure from the principles and examples of our english ancestors. in england, the king possessed the power of raising armies in the time of peace according to his own good pleasure. and this prerogative was justly esteemed dangerous to the public liberties. upon the revolution of , parliament wisely insisted upon a bill of rights, which should furnish an adequate security for the future. but how was this done? not by prohibiting standing armies altogether in time of peace; but (as has been already seen) by prohibiting them _without the consent of parliament_. this is the very proposition contained in the constitution; for congress can alone raise armies; and may put them down, whenever they choose."[ ] the time limit on appropriations for the army prompted by the fear of standing armies to which story alluded, the framers inserted the limitation that "no appropriation of money to that use shall be for a longer term than two years." in the question arose whether this provision would be violated if the government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments were likely to continue for more than two years. solicitor-general hoyt ruled that such a contract would be lawful; that the appropriations limited by the constitution "are those only which are to raise and support armies in the strict sense of the word 'support,' and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense, * * *"[ ] relying on this earlier opinion, attorney general clark ruled in that there was "no legal objection to a request to the congress to appropriate funds to the air force for the procurement of aircraft and aeronautical equipment to remain available until expended."[ ] establishment of the air force by the national security act of [ ] there was established within the national military establishment "an executive department to be known as the department of the air force" which was made coordinate with the departments of the army and the navy. shortly after the passage of this act a joint resolution was offered in the house of representatives, proposing an amendment to the constitution whereby congress would be authorized to "provide and maintain an air force and to make rules for the government and regulation thereof," and the president would be designated as commander in chief of the air force.[ ] apparently in the belief that the broad sweep of the war power warranted the creation of the air force, without a constitutional amendment, congress took no action on this proposal. conscription the constitutions adopted during the revolutionary war by at least nine of the states sanctioned compulsory military service.[ ] towards the end of the war of , conscription of men for the army was proposed by james monroe, then secretary of war, but opposition developed and peace came before the bill could be enacted.[ ] in a compulsory draft law was adopted and put into operation without being challenged in the federal courts.[ ] not so the selective service act of . this measure was attacked on the grounds that it tended to deprive the states of the right to "a well-regulated militia," that the only power of congress to exact compulsory service was the power to provide for calling forth the militia for the three purposes specified in the constitution, which did not comprehend service abroad, and finally that the compulsory draft imposed involuntary servitude in violation of the thirteenth amendment. the supreme court rejected all of these contentions. it held that the powers of the states with respect to the militia were exercised in subordination to the paramount power of the national government to raise and support armies, and that the power of congress to mobilize an army was distinct from its authority to provide for calling the militia and was not qualified or in any wise limited thereby.[ ] before the united states entered the first world war, the court had anticipated the objection that compulsory military service would violate the thirteenth amendment and had answered it in the following words: "it introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc. the great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers."[ ] accordingly, in the selective draft law cases[ ] it dismissed the objection under that amendment as a contention that was "refuted by its mere statement."[ ] care of armed forces congress has a plenary and exclusive power to determine the age at which a soldier or seaman shall be received, the compensation he shall be allowed and the service to which he shall be assigned. this power may be exerted to supersede parents' control of minor sons who are needed for military service. where the statute which required the consent of parents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit of his mother was not binding on the government.[ ] since the possession of government insurance payable to the person of his choice, is calculated to enhance the morale of the serviceman, congress may permit him to designate any beneficiary he desires, irrespective of state law, and may exempt the proceeds from the claims of creditors.[ ] to safeguard the health and welfare of the armed forces, congress may authorize the suppression of houses of ill fame in the vicinity of the places where such forces are stationed.[ ] trial and punishment of offenses under its power to make rules for the government and regulation of the land and naval forces, congress may provide for the trial and punishment of military and naval offenses in the manner practiced by civilized nations. this authority is independent of the judicial power conferred by article iii.[ ] "cases arising in the land and naval forces" are expressly excepted from the provision of the fifth amendment requiring presentment by a grand jury for capital or infamous and by implication they are also excepted from amendment vi,[ ] which relates to the trial of criminal offenses. also the fifth amendment's provision against double-jeopardy apparently does not apply to military courts.[ ] a statute which provided that offenses not specifically mentioned therein should be punished "according to the laws and customs of such cases at sea" was held sufficient to give a naval court-martial jurisdiction to try a seaman of the united states navy for the unspecified offense of attempted desertion.[ ] in _habeas corpus_ proceedings a court can consider only whether the military tribunal had jurisdiction to act in the case under consideration.[ ] the acts of a court-martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by a writ of prohibition or otherwise.[ ] war legislation the revolutionary war legislation the american revolution affords many precedents for extensive and detailed regulation of the nation's economy in time of war. but since the resolves of congress under the articles of confederation were in practical effect mere recommendations to the state legislatures, it was the action of the latter which made these policies effective. on november , , for example, congress recommended to the states that they take steps "to regulate and ascertain the price of labour, manufactures, [and] internal produce."[ ] a month later the same body further recommended "to the respective legislatures of the united states, forthwith to enact laws, appointing suitable persons to seize and take, for the use of the continental army of the said states, all woolen cloths, blankets, linens, shoes, stockings, hats, and other necessary articles of clothing, * * *"[ ] responding to such appeals, or acting on their own initiative, the state legislatures enacted measure after measure which entrenched upon the normal life of the community very drastically. laws were passed forbidding the distillation of whiskey and other spirits in order to conserve grain supplies;[ ] fixing prices of labor and commodities, sometimes in greatest detail;[ ] levying requisitions upon the inhabitants for supplies needed by the army;[ ] and so on. in one instance a statute authorized the erection of an arms manufactory for the united states;[ ] in another, negro slaves were impressed for labor on fortifications.[ ] the fact that all this legislation came from the state legislatures whereas the war power was attributed to the "united states in congress assembled" served to obscure the fact that the former was really an outgrowth of the latter. civil war legislation the most pressing economic problem of the civil war was that of finance. when congress found itself unable to raise money to pay the soldiers in the field, it authorized the issuance of treasury notes which, although not redeemable in specie, were made legal tender in payment of private debts. upon its first consideration of this measure, the supreme court held it unconstitutional. it concluded that even if the circulation of such notes was facilitated by giving them the quality of legal tender, that result did not suffice to make the expedient an appropriate and plainly adapted means for the execution of the power to declare and carry on war.[ ] three of the seven justices then constituting the court dissented from this decision,[ ] and it was reversed within a little more than a year, after two vacancies in the membership of the court had been filled. one of the grounds relied upon by the new majority to sustain the statute was that the exigencies of war justified its enactment under the necessary and proper clause.[ ] world war i legislation in meeting the strain which world war i put on our national resources of men and material, the economic activities of the people were directed or restricted by the government on a scale previously unparalleled. the most sweeping measure of control was the lever food and fuel control act,[ ] which authorized the president to regulate by license the importation, manufacture, storage, mining or distribution of necessaries; to requisition foods, feeds, and fuels; to take over and operate factories, packinghouses, pipelines, mines or other plants; to fix a minimum price for wheat; to limit, regulate or prohibit the use of food materials in the production of alcoholic beverages; and to fix the price of coal and coke and to regulate the production, sale and distribution thereof. other statutes clothed him with power to determine priority in car service,[ ] to license trade with the enemy and his allies,[ ] and to take over and operate the rail and water transportation system,[ ] and the telephonic and telegraphic communication systems,[ ] of the country. world war ii legislation several of these world war i measures were still on the statute books when world war ii broke out. moreover, in the period of preparation preceding the latter, congress had enacted the priorities act of may , [ ] which gave the president power to allocate any material where necessary to facilitate the defense effort. by the second war powers act,[ ] passed early in , the authority to allocate materials was extended to facilities. these two acts furnished the statutory foundation for the extensive system of consumer rationing administered by the office of price administration, as well as for the comprehensive control of industrial materials and output which was exercised by the war production board. under the emergency price control act[ ] the office of price administration regulated the price of almost all commodities, as well as the rentals for housing accommodations in scores of defense rental areas. the war labor disputes act[ ] permitted the president to commandeer plants which were closed by strikes. mobilization of industrial resources while the validity of several of the measures just reviewed was assailed on one constitutional ground or another, the general power of congress to regulate their subject matter in time of war was not disputed. not until the government sought to recover excessive profits realized on war contracts did the supreme court have occasion to affirm the broad authority of the national government to mobilize the industrial resources of the nation in time of war. using the power of congress to conscript men for the armed forces as a measure of its power to regulate industry, the court sustained the legislation, saying: "the renegotiation act was developed as a major wartime policy of congress comparable to that of the selective service act. the authority of congress to authorize each of them sprang from its war powers. * * * with the advent of * * * [global] warfare, mobilized property in the form of equipment and supplies became as essential as mobilized manpower. mobilization of effort extended not only to the uniformed armed services but to the entire population. both acts were a form of mobilization. the language of the constitution authorizing such measures is broad rather than restrictive. * * * [it] * * * places emphasis upon the supporting as well as upon the raising of armies. the power of congress as to both is inescapably express, not merely implied."[ ] delegation of legislative power in wartime while insisting that, "in peace or in war it is essential that the constitution be scrupulously obeyed, and particularly that the respective branches of the government keep within the powers assigned to each,"[ ] the supreme court has recognized that in the conduct of a war delegations of power may be valid which would not be admissible in other circumstances. the cases in which this issue has been raised have been few in number. in one, the selective draft law cases,[ ] the objection was dismissed without discussion. in a second, the price-fixing authority exercised by the office of price administration during the second world war, was, on the issue of delegation of power, sustained by reference to peace time precedents.[ ] where the war power has been the basis of decision, two different theories concerning its significance can be recognized. the first is that since the war power is an inherent power shared by the legislative and executive departments rather than an enumerated power granted to the former, congress does not delegate _legislative_ power when it authorizes the president to exercise the war power in a prescribed manner. opposed to this is the view that the right of congress to delegate power to the president is limited in this as in other cases but that where the validity of the delegation depends upon whether or not too great a latitude of discretion has been conferred upon the executive, the existence of a state of war is a factor to be considered in determining whether the delegation in the particular case is necessary and hence permissible. the idea that a delegation of discretion in the exercise of the war power stands on a different footing than delegation of authority to levy a tax is implicit in justice bradley's opinion in hamilton _v._ dillin.[ ] the plaintiffs in that case contended that the sum they were required to pay for the privileges of buying cotton in the south was a tax, which, since it was imposed by the secretary of the treasury, was invalid because the taxing power was not susceptible of delegation to the executive department. to this argument the court replied: "it is hardly necessary, under the view we have taken of the character of the regulations in question, * * *, to discuss the question of the constitutionality of the act of july th, , regarded as authorizing such regulations. * * *, the power of the government to impose such conditions upon commercial intercourse with an enemy in time of war * * * does not belong to the same category as the power to levy and collect taxes, duties, and excises. it belongs to the war powers of the government * * *."[ ] the mergence of legislative and executive in wartime both theories receive countenance in different passages in the opinion of chief justice stone in hirabayashi _v._ united states.[ ] in disposing of the contention that the curfew imposed upon a citizen of japanese descent involved an invalid delegation of legislative power, the chief justice said: "the question then is not one of congressional power to delegate to the president the promulgation of the executive order, but whether, acting in cooperation, congress and the executive have constitutional authority to impose the curfew restriction here complained of. * * *, we conclude that it was within the constitutional power of congress and the executive arm of the government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power. * * * where, as in the present case, the standard set up for the guidance of the military commander, and the action taken and the reasons for it, are in fact recorded in the military orders, so that congress, the courts and the public are assured that the orders, in the judgment of the commander, conform to the standards approved by the president and congress, there is no failure in the performance of the legislative function."[ ] he went on to say, however, that: "the essentials of [the legislative] * * * function are the determination by congress of the legislative policy and its approval of a rule of conduct to carry that policy into execution. the very necessities which attend the conduct of military operations in time of war in this instance as in many others preclude congress from holding committee meetings to determine whether there is danger, before it enacts legislation to combat the danger."[ ] doctrine of lichter _v._ united states a similar ambiguity is found in lichter _v._ united states,[ ] but on the whole the opinion seems to espouse the second theory, as the following excerpts indicate: "_a constitutional power implies a power of delegation of authority under it sufficient to effect its purposes_.--this power is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to methods to be employed may be essential to an effective use of its war powers by congress. the degree to which congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition.[ ] * * * thus, while the constitutional structure and controls of our government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind. in , in the early stages of total global warfare, the exercise of a war power such as the power 'to raise and support armies, * * *' and 'to provide and maintain a navy; * * *,' called for the production by us of war goods in unprecedented volume with the utmost speed, combined with flexibility of control over the product and with a high degree of initiative on the part of the producers. faced with the need to exercise that power, the question was whether it was beyond the constitutional power of congress to delegate to the high officials named therein the discretion contained in the original renegotiation act of april , , and the amendments of october , . we believe that the administrative authority there granted was well within the constitutional war powers then being put to their predestined uses."[ ] war powers in time of peace to some indeterminate extent the power to wage war embraces the power to prepare for it and the further power to deal with the problem of adjustment after hostilities have ceased. in his commentaries, justice story wrote as follows with specific reference to the question of preparation for war: "'it is important also to consider, that the surest means of avoiding war is to be prepared for it in peace. * * * how could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? the means of security can be only regulated by the means and the danger of attack. * * * it will be in vain to oppose constitutional barriers to the impulse of self-preservation.'"[ ] authoritative judicial recognition of the power is found in ashwander _v._ tennessee valley authority,[ ] where, in sustaining the power of the government to construct and operate wilson dam and the power plant connected with it, pursuant to the national defense act of june , ,[ ] the court said: "while the district court found that there is no intention to use the nitrate plants or the hydroelectric units installed at wilson dam for the production of war materials in time of peace, 'the maintenance of said properties in operating condition and the assurance of an abundant supply of electric energy in the event of war, constitute national defense assets.' this finding has ample support."[ ] atomic energy act by far the most significant example of legislation adopted at a time when no actual "shooting war" was in progress, with the object of providing for the national defense, is the atomic energy act of .[ ] that law establishes an atomic energy commission of five members which is empowered to conduct through its own facilities, or by contracts with, or loans to private persons, research and developmental activity relating to nuclear processes, the theory and production of atomic energy and the utilization of fissionable and radioactive materials for medical, industrial and other purposes. the act further provides that the commission shall be the exclusive owner of all facilities (with minor exceptions) for the production of fissionable materials; that all fissionable material produced shall become its property; that it shall allocate such materials for research and developmental activities, and shall license all transfer of source materials. the commission is charged with the duty of producing atomic bombs, bomb parts, and other atomic military weapons at the direction of the president. patents relating to fissionable materials must be filed with the commission, the "just compensation" payable to the owners to be determined by a patent compensation board designated by the commission from among its employees. postwar legislation the war power "is not limited to victories in the field. * * * it carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress."[ ] accordingly, the supreme court held in that it was within the competence of congress to deduct from the period limited by statute for the bringing of an action the time during which plaintiff had been unable to prosecute his suit in consequence of the civil war. this principle was given a much broader application after the first world war in hamilton _v._ kentucky distilleries and wine co.,[ ] where the war time prohibition act adopted after the signing of the armistice was upheld as an appropriate measure for increasing war efficiency. it was conceded that the measure was valid when enacted, since the mere cessation of hostilities did not end the war or terminate the war powers of congress. the plaintiff contended however that in october , when the suit was brought, the war emergency had in fact passed, and that the law was therefore obsolete. inasmuch as the treaty of peace had not yet been concluded and other war activities had not been brought to a close, the court said it was "unable to conclude" that the act had ceased to be valid. but in it held upon the facts that we judicially know that the rent control law for the district of columbia, which had previously been upheld,[ ] had ceased to operate because the emergency which justified it had come to an end.[ ] a similar issue was present after world war ii in woods _v._ miller,[ ] where the supreme court reversed a decision of a lower court to the effect that the authority of congress to regulate rents by virtue of the war power ended with the presidential proclamation terminating hostilities on december , . this decision was coupled with a warning that: "we recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of congress but largely obliterate the ninth and the tenth amendments as well. there are no such implications in today's decision."[ ] in , a sharply divided court further ruled that the power which congress has conferred upon the president to deport enemy aliens in time of a declared war was not exhausted when the shooting war stopped. speaking for the majority of five, justice frankfurter declared: "it is not for us to question a belief by the president that enemy aliens who were justifiably deemed fit subjects for internment during active hostilites [sic] do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of peace has not come."[ ] private rights in wartime enemy country although, broadly speaking, the constitutional provisions designed for the protection of individual rights are operative in war as well as in peace, the incidents of war repeatedly give rise to situations in which judicially enforceable constitutional restraints are inapplicable. in the first place persons in enemy territory are entirely beyond the reach of constitutional limitations. they are subject, in relation to the war powers of the national government, to the laws of war as interpreted and applied by congress and by the president as commander in chief. to the question: "what is the law which governs an army invading an enemy's country?" the court gave the following answer in dow _v._ johnson:[ ] "it is not the civil law of the invaded country; it is not the civil law of the conquering country: it is military law,--the law of war,--and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty."[ ] theatre of military operations that substantially the same rule, resting on the same considerations, applies in the field of active military operations, was assumed by all members of the court in ex parte milligan.[ ] there the court held that the trial by a military commission of a civilian charged with acts of disloyalty committed in a part of the country which was remote from the theatre of military operations, and in which the civil courts were open and functioning, was invalid under the fifth and sixth amendments. although unanimous in holding that the military tribunal lacked jurisdiction to try the case, the court divided, five-to-four, as to the grounds of the decision. the point on which the justices differed was which department of the government had authority to say with finality what regions lie within the theatre of military operation. claiming this as a function of the courts, the majority held that the theatre of war did not embrace an area in which the civil courts were open and functioning.[ ] the minority argued that this was a question to be determined by congress.[ ] all rejected the argument of the government that the president's determination was conclusive in the absence of restraining legislation. a similar result was reached in duncan _v._ kahanamoku[ ] where, upon an examination of the circumstances existing in hawaii after pearl harbor, a divided court found that the authority which congress had granted to the territorial governor to declare martial law "in case of rebellion or invasion, or imminent danger thereof," did not warrant the trial of civilians by military tribunals. enemy property the position of enemy property was dealt with by chief justice marshall in the early case of brown _v._ united states.[ ] here it was held that the mere declaration of war by congress does not effect a confiscation of enemy property situated within the territorial jurisdiction of the united states, but the right of congress by further enactment to subject such property to confiscation was asserted in the most positive terms. being an exercise of the war powers of the government, such confiscation is not affected by the restrictions of the fifth and sixth amendments. since it has no relation to the personal guilt of the owner, it is immaterial whether the property belongs to an alien, a neutral, or even to a citizen of the united states. the whole doctrine of confiscation is built upon the foundation that it is an instrument of coercion, which, by depriving an enemy of property within the reach of his power, whether within his territory or without it, impairs his ability to resist the confiscating government, while at the same time it furnishes to that government means for carrying on the war. any property which the enemy can use, either by actual appropriation, or by the exercise of control over the owner, no matter what his nationality, is a proper subject of confiscation. congress may provide for immediate seizure of property which the president or his agent determines to be enemy property, leaving the question of enemy ownership to be settled later at the suit of a claimant. for these reasons the confiscation act of ,[ ] and the trading with the enemy act of and amendments thereto, were held to be within the power of congress to "make rules concerning captures on land and water."[ ] prizes of war the power of congress with respect to prizes is plenary; no one can have any interest in prizes captured except by permission of congress.[ ] nevertheless, since international law is a part of our law, the court will administer it so long as it has not been modified by treaty or by legislative or executive action. thus, during the civil war, the court found that the confiscation act of , and the supplementary act of , which, in authorizing the condemnation of vessels, made provision for the protection of interests of loyal citizens, merely created a municipal forfeiture and did not override or displace the law of prize. it decided, therefore, that when a vessel was liable to condemnation under either law, the government was at liberty to proceed under the more stringent rules of international law, with the result that the citizen would be deprived of the benefit of the protective provisions of the statute.[ ] similarly, when cuban ports were blockaded during the spanish-american war, the court held, over the vigorous dissent of three of its members, that the rule of international law exempting unarmed fishing vessels from capture was applicable in the absence of any treaty provision, or other public act of the government in relation to the subject.[ ] police regulations; rent control in enforcing the requirement of due process of law in its modern expanded sense of "reasonable law" the court has recognized that a war emergency may justify legislation which would otherwise be an unconstitutional invasion of private rights. shortly after the first world war, it sustained, by a narrow margin, a rent control law for the district of columbia, which not merely limited the rents which might be charged but which also gave the existing tenants the right to continue in occupancy of their dwellings at their own option, provided they paid rent and performed other stipulated conditions. the court, while conceding that ordinarily such legislation would transcend constitutional limitations, declared that "a public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation. * * * a limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change."[ ] during world war ii an apartment house owner who complained that the rentals allowed by the office of price administration did not afford a "fair return" on the property was told by the court that, "a nation which can demand the lives of its men and women in the waging of * * * war is under no constitutional necessity of providing a system of price control * * * which will assure each landlord a 'fair return' on his property."[ ] moreover, such rentals may be established without a prior hearing because "national security might not be able to afford the luxuries of litigation and the long delays which preliminary hearings traditionally have entailed. * * * where congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires."[ ] the more specific clauses of the bill of rights yield less readily, however, to the impact of a war emergency. in united states _v._ cohen grocery company,[ ] the court held that a statute which penalized the making of "'any unjust or unreasonable rate or charge in handling * * * any necessaries,'" was void on the ground that it set up no "ascertainable standard of guilt" and so was "repugnant to the fifth and sixth amendments * * * which require due process of law and that persons accused of crime shall be adequately informed of the nature and cause of the accusation."[ ] personal liberty in wartime that the power of congress to punish seditious utterances in time of war is limited by the first amendment was assumed by the supreme court in the series of cases[ ] in which it affirmed convictions for violation of the espionage act of .[ ] but in the famous opinion of justice holmes in schenck _v._ united states,[ ] it held that: "when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right."[ ] a state also has power to make it unlawful to advocate that citizens of the state should not assist in prosecuting a war against public enemies of the united states.[ ] the most drastic restraint of personal liberty imposed during world war ii was the detention and relocation of the japanese residents of the western states, including those who were native-born citizens of the united states. when various phases of this program were challenged, the court held that in order to prevent espionage and sabotage, the freedom of movement of such persons could be restricted by a curfew order,[ ] even by a regulation excluding them from a defined area,[ ] but that a citizen of japanese ancestry whose loyalty was concerned could not be detained against her will in a relocation camp.[ ] alien enemies the status of alien enemies was first considered in connection with the passage of the alien act of ,[ ] whereby the president was authorized to deport any alien or to license him to reside within the united states at any place to be designated by the president. critics of the measure conceded its constitutionality so far as enemy aliens were concerned, because, as madison wrote, "the constitution having expressly delegated to congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies."[ ] the substance of this early law was reenacted during the first world war. under it the president is authorized, in time of war, to prescribe "the manner and degree of the restraint to which [alien enemies] shall be subject and in what cases, and upon what security their residence shall be permitted," or to provide for their removal from the united states.[ ] this measure was held valid in ludecke _v._ watkins.[ ] eminent domain an often-cited dictum uttered shortly after the mexican war asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of the enemy, or for that taken for public use.[ ] in united states _v._ russell,[ ] decided following the civil war, a similar conclusion was based squarely on the fifth amendment, although the case did not necessarily involve the point. finally, in united states _v._ pacific railroad,[ ] also a civil war case, the court held that the united states was not responsible for the injury or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens which was taken for the use of the national forces. "in such cases," the court said, "it has been the practice of the government to make compensation for the property taken. * * *, although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses."[ ] meantime, however, in , a committee of the house of representatives, in an elaborate report on war claims growing out of the civil war, had voiced the opinion that the fifth amendment embodied the distinction between a taking of property in the course of military operations or other urgent military necessity, and other takings for war purposes, and required compensation of owners in the latter class of cases.[ ] in determining what constitutes just compensation for property requisitioned for war purposes during world war ii, the court has assumed that the fifth amendment is applicable to such takings.[ ] clause . _the congress shall have power_ * * * to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. clause . _the congress shall have power_ * * * to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress. the militia clauses calling out the militia the states as well as congress may prescribe penalties for failure to obey the president's call of the militia. they also have a concurrent power to aid the national government by calls under their own authority, and in emergencies may use the militia to put down armed insurrection.[ ] the federal government may call out the militia in case of civil war; its authority to suppress rebellion is found in the power to suppress insurrection and to carry on war.[ ] the act of february , ,[ ] which delegated to the president the power to call out the militia, was held constitutional.[ ] a militiaman who refused to obey such a call was not "employed in the service of the united states so as to be subject to the article of war," but was liable to be tried for disobedience of the act of .[ ] regulation of the militia the power of congress over the militia "being unlimited, except in the two particulars of officering and training them, * * *, it may be exercised to any extent that may be deemed necessary by congress. * * * the power of the state government to legislate on the same subjects, having existed prior to the formation of the constitution, and not having been prohibited by that instrument, it remains with the states, subordinate nevertheless to the paramount law of the general government, * * *"[ ] under the national defense act of ,[ ] the militia, which hitherto had been an almost purely state institution, was brought under the control of the national government. the term "militia of the united states" was defined to comprehend "all able-bodied male citizens of the united states and all other able-bodied males who have * * * declared their intention to become citizens of the united states," between the ages of eighteen and forty-five. the act reorganized the national guard, determined its size in proportion to the population of the several states, required that all enlistments be for "three years in service and three years in reserve," limited the appointment of officers to those who "shall have successfully passed such tests as to * * * physical, moral and professional fitness as the president shall prescribe," and authorized the president in certain emergencies to "draft into the military service of the united states to serve therein for the period of the war unless sooner discharged, any and all members of the national guard and national guard reserve," who thereupon should "stand discharged from the militia." clause . _congress shall have power_ * * * to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the united states, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings;--and the seat of government the jurisdiction of the united states over the district of columbia vested on the first monday of december, .[ ] by the act of february , ,[ ] the district was divided into two counties and in the following year the city of washington was erected into a municipality.[ ] the present form of government dates from ; all legislative powers with respect to district affairs are retained by congress, while an executive board of three commissioners vested with ordinance powers is appointed by the president.[ ] as a municipal corporation, the district has the legal capacity to sue and be sued.[ ] but the district commissioners are merely administrative officers, having only the ministerial powers given them by statute; accordingly they were found to have no power to submit a claim against the district to arbitration.[ ] nature and extent of rights ceded to united states in ceding the territory which became the district of columbia, both maryland and virginia provided that the united states should not acquire any right of property in the soil except by transfer by the individual owner. this proviso was held not to prevent the federal government from exercising the power of eminent domain within the district.[ ] under the agreement made between the original proprietors of the land on which the city of washington was laid out, and the commissioners appointed by the president to survey, define and locate the district for the seat of government, the united states became the owner in fee of the streets of the city although the trustees never carried out their agreement to convey them.[ ] both the right of dominion and of property of navigable waters and of the soil under them in the district, which originally had been granted by charles i, king of england to the lord proprietary of maryland, and to which maryland succeeded upon the american revolution, became vested in the united states by the cession from maryland.[ ] retrocession of alexandria county originally the district of columbia embraced the maximum area permitted by the constitution. in , however, congress authorized a referendum on the question of retroceding alexandria county to virginia, and declared that jurisdiction should be relinquished to that state if a majority of the voters in the county voted in favor of the change. the proposal was approved, whereupon, without any further action by congress, virginia declared the county annexed and resumed full jurisdiction over it. thirty years later, in a suit to recover taxes paid to the state, the supreme court called the retrocession "a violation of the constitution" but held that since congress had recognized the transfer as a settled fact, a resident of the county was estopped from challenging it.[ ] continuance of state laws under the act of july , ,[ ] which provided for the establishment of the seat of government, state laws were continued in operation until congress created a government for the district. the supreme court intimated that this was "perhaps, only declaratory of a principle which would have been in full operation without such declaration."[ ] in congress declared that the laws of virginia and maryland "as they now exist, shall be and continue in force" in the respective portions of the district ceded by those states.[ ] the only effect of the cession upon individuals was to terminate their state citizenship and the jurisdiction of the state governments over them;[ ] contract obligations were not affected,[ ] and liens on property for debt were continued.[ ] status of the district today chief justice marshall ruled in the early case of hepburn _v._ ellzey[ ] that the district of columbia is not a state within the meaning of the diversity of citizenship clause of article iii. this view was consistently adhered to for nearly a century and a half in the interpretation of later acts of congress regulating the jurisdiction of federal courts.[ ] in , however, congress expressly authorized those courts to take jurisdiction of nonfederal controversies between residents of the district of columbia and citizens of a state. by a five-to-four decision that statute was held constitutional, but the justices who voted to sustain it were not in agreement as to the grounds of the decision.[ ] three found it to be an appropriate exercise of the power of congress to legislate for the district of columbia without reference to article iii.[ ] six members of the court rejected this theory, but two of the six joined in upholding the act on another ground which seven of their brethren considered untenable,--namely, that hepburn _v._ ellzey was erroneously decided and that the district of columbia should be deemed to be a "state" within the meaning of article iii, section .[ ] it is not disputed that the district is a part of "the united states," and that its residents are entitled to the privilege of trial by jury, whether in civil or criminal cases,[ ] and of presentment by a grand jury.[ ] legislation which is restrictive of the rights of liberty and property in the district must find justification in facts adequate to support like legislation by a state in the exercise of its police power.[ ] legislative power over district of columbia congress possesses over the district of columbia the blended powers of a local and national legislature.[ ] even when legislating for the district, congress remains the legislature of the union, with the result that it may give its enactments nation-wide operations so far as is "necessary and proper" in order to make them locally effective. as was pointed out in cohens _v._ virginia,[ ] if a felon escapes from the state in which the crime was committed, the government of such state cannot pursue him into another state and there apprehend him, "but must demand him from the executive power of that other state." on the other hand, a felon escaping from the district of columbia or any other place subject to the exclusive power of congress, may be apprehended by the national government anywhere in the united states. "and the reason," declared chief justice marshall, "is, that congress is not a local legislature, but exercises this particular power, [of exclusive legislation], like all its other powers, in its high character, as the legislature of the union."[ ] taxation in the district persons and property within the district of columbia are subject to taxation by congress under both the first and seventeenth clauses of this section. a general tax levied throughout the united states may be applied to the district of columbia upon the same conditions as elsewhere;--e.g., if a direct tax, it must be levied in proportion to the census.[ ] but in laying taxes for district purposes only, "congress, like any state legislature unrestricted by constitutional provisions, may its discretion wholly exempt certain classes of property from taxation, or may tax them at a lower rate than other property."[ ] it is no impediment to the exercise of either power that residents of the district lack the suffrage and have politically no voice in the expenditure of the money raised by taxation.[ ] delegation of legislative power to municipal officers congress may delegate to municipal authorities legislative functions which are strictly local in character.[ ] it may confer upon them the power to improve or repair streets, to assess adjacent property therefor,[ ] and to regulate public markets.[ ] it may confirm assessments previously made by the district government without authority of law.[ ] but in stoutenburgh _v._ hennick,[ ] the court held that congress would not, and did not intend to, delegate to the district the power to impose a license tax on commercial agents who offered merchandise for sale by sample, since such a license amounted to a regulation of interstate commerce. courts of the district in its capacity as a local legislature congress may create courts for the district of columbia and may confer upon them powers and duties which lie outside the judicial power vested in "constitutional" courts. on appeal from an order of the district public utilities commission, a court for the district of columbia may be empowered to modify valuations, rates and regulations established by the commission and to make such orders as in its judgment the commission should have made. but inasmuch as the issuance of such orders is a legislative as distinguished from a judicial function, the provision for an appeal from them to the supreme court was held unconstitutional.[ ] despite the fact that congress, acting under this clause, imposed nonjudicial duties upon the supreme court and the court of appeals for the district of columbia, those tribunals were held to be constitutional courts, established under article iii, with the result that the compensation of the judges thereof may not be diminished during their continuance in office.[ ] since the courts established for the district are courts of the united states, their judgments stand upon the same footing, so far as concerns the obligations created by them, as domestic judgments of the states, wherever rendered and wherever sought to be enforced.[ ] authority over places purchased "places" this clause has been broadly construed to cover all structures necessary for carrying on the business of the national government.[ ] it includes post offices,[ ] a hospital and a hotel located in a national park,[ ] and locks and dams for the improvement of navigation.[ ] but it does not cover lands acquired for forests, parks, ranges, wild life sanctuaries or flood control.[ ] nevertheless the supreme court has held that a state may convey, and that congress may accept, either exclusive or qualified jurisdiction over property acquired within the geographical limits of a state, for purposes other than those enumerated in clause .[ ] after exclusive jurisdiction over lands within a state has been ceded to the united states, congress alone has the power to punish crimes committed within the ceded territory.[ ] private property located thereon is not subject to taxation by the state,[ ] nor can state statutes enacted subsequent to the transfer have any operation therein.[ ] but the local laws in force at the date of cession which are protective of private rights continue in force until abrogated by congress.[ ] duration of federal jurisdiction a state may qualify its cession of territory by a condition that jurisdiction shall be retained by the united states only so long as the place is used for specified purposes.[ ] such a provision operates prospectively and does not except from the grant that portion of a described tract which is then used as a railroad right of way.[ ] in , the court upheld the jurisdiction of the united states to try a person charged with murder on a military reservation, over the objection that the state had ceded jurisdiction only over such portions of the area as were used for military purposes, and that the particular place on which the murder was committed was used solely for farming. the court held that the character and purpose of the occupation having been officially established by the political department of the government, it was not open to the court to inquire into the actual uses to which any portion of the area was temporarily put.[ ] a few years later, however, it ruled that the lease to a city, for use as a market, of a portion of an area which had been ceded to the united states for a particular purpose, suspended the exclusive jurisdiction of the united states.[ ] recently the question arose whether the united states retains jurisdiction over a place which was ceded to it unconditionally after it has abandoned the use of the property for governmental purposes and entered into a contract for the sale thereof to private persons. minnesota asserted the right to tax the equitable interest of the purchaser in such land, and the supreme court upheld its right to do so. the majority assumed that "the government's unrestricted transfer of property to nonfederal hands is a relinquishment of the exclusive legislative power."[ ] in separate concurring opinions chief justice stone and justice frankfurter reserved judgment on the question of territorial jurisdiction.[ ] reservation of jurisdiction by states for more than a century the supreme court kept alive, by repeated dicta,[ ] the doubt expressed by justice story "whether congress are by the terms of the constitution, at liberty to purchase lands for forts, dockyards, etc., with the consent of a state legislature, where such consent is so qualified that it will not justify the 'exclusive legislation' of congress there. it may well be doubted if such consent be not utterly void."[ ] but when the issue was squarely presented in , the court ruled that where the united states purchases property within a state with the consent of the latter, it is valid for the state to convey, and for the united states to accept, "concurrent jurisdiction" over such land, the state reserving to itself the right to execute process "and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the united states."[ ] the holding logically renders the second half of clause superfluous. in a companion case, the court ruled further that even if a general state statute purports to cede exclusive jurisdiction, such jurisdiction does not pass unless the united states accepts it.[ ] clause . _the congress shall have power_ * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof. the coefficient or elastic clause scope of incidental powers that this clause is an enlargement, not a constriction, of the powers expressly granted to congress, that it enables the lawmakers to select any means reasonably adapted to effectuate those powers, was established by marshall's classic opinion in mcculloch _v._ maryland.[ ] "let the end be legitimate," he wrote, "let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."[ ] moreover, this provision gives congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the national government. conversely, where necessary for the efficient execution of its own powers, congress may delegate some measure of legislative power to other departments.[ ] operation of coefficient clause practically every power of the national government has been expanded in some degree by the coefficient clause. under its authority congress has adopted measures requisite to discharge the treaty obligations of the nation;[ ] it has organized the federal judicial system and has enacted a large body of law defining and punishing crimes. effective control of the national economy has been made possible by the authority to regulate the internal commerce of a state to the extent necessary to protect and promote interstate commerce.[ ] likewise the right of congress to utilize all known and appropriate means for collecting the revenue, including the distraint of property for federal taxes,[ ] and its power to acquire property needed for the operation of the government by the exercise of the power of eminent domain,[ ] have greatly extended the range of national power. but the widest application of the necessary and proper clause has occurred in the field of monetary and fiscal controls. inasmuch as the various specific powers granted by article i, section , do not add up to a general legislative power over such matters, the court has relied heavily upon this clause in sustaining the comprehensive control which congress has asserted over this subject.[ ] definition and punishment of crimes although the only crimes which congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the united states, its power to create, define and punish crimes and offenses whenever necessary to effectuate the objects of the federal government is universally conceded.[ ] illustrative of the offenses which have been punished under this power are the alteration of registered bonds;[ ] the bringing of counterfeit bonds into the country;[ ] conspiracy to injure prisoners in custody of a united states marshal;[ ] impersonation of a federal officer with intent to defraud;[ ] conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the constitution or laws of the united states;[ ] the receipt by government officials of contributions from government employees for political purposes;[ ] advocating, etc., the overthrow of the government by force.[ ] part i of title of the united states code comprises more than sections defining penal offenses against the united states. chartering of banks as an appropriate means for executing "the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies * * *" congress may incorporate banks and kindred institutions.[ ] moreover, it may confer upon them private powers which, standing alone, have no relation to the functions of the federal government, if those privileges are essential to the effective operation of such corporations.[ ] where necessary to meet the competition of state banks, congress may authorize national banks to perform fiduciary functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such business.[ ] the court will not undertake to assess the relative importance of the public and private functions of a financial institution which congress has seen fit to create. it sustained the act setting up the federal farm loan banks to provide funds for mortgage loans on agricultural land against the contention that the right of the secretary of the treasury, which he had not exercised, to use these banks as depositaries of public funds, was merely a pretext for chartering these banks for private purposes.[ ] currency regulations reinforced by the necessary and proper clause, the powers "'to lay and collect taxes, to pay the debts and provide for the common defence and general welfare of the united states,' and 'to borrow money on the credit of the united states and to coin money and regulate the value thereof * * *'";[ ] have been held to give congress virtually complete control over money and currency. a prohibitive tax on the notes of state banks;[ ] the issuance of treasury notes impressed with the quality of legal tender in payment of private debts[ ] and the abrogation of clauses in private contracts which called for payment in gold coin,[ ] were sustained as appropriate measures for carrying into effect some or all of the foregoing powers. power to charter corporations in addition to the creation of banks, congress has been held to have authority to charter a railroad corporation,[ ] or a corporation to construct an interstate bridge,[ ] as instrumentalities for promoting commerce among the states, and to create corporations to manufacture aircraft[ ] or merchant vessels[ ] as incidental to the war power. courts and judicial proceedings inasmuch as the constitution "delineated only the great outlines of the judicial power * * *, leaving the details to congress, * * * the distribution and appropriate exercise of the judicial power must * * * be made by laws passed by congress, * * *"[ ] as a necessary and proper provision for the exercise of the jurisdiction conferred by article iii, section congress may direct the removal from a state to a federal court of a criminal prosecution against a federal officer for acts done under color of federal law,[ ] and may authorize the removal before trial of civil cases arising under the laws of the united states.[ ] it may prescribe the effect to be given to judicial proceedings of the federal courts,[ ] and may make all laws necessary for carrying into execution the judgments of federal courts.[ ] when a territory is admitted as a state, congress may designate the court to which the records of the territorial courts shall be transferred, and may prescribe the mode for enforcement and review of judgments rendered by those courts.[ ] in the exercise of other powers conferred by the constitution, apart from article iii, congress may create legislative courts and "clothe them with functions deemed essential or helpful in carrying those powers into execution."[ ] special acts concerning claims this clause enables congress to pass special laws to require other departments of the government to prosecute or adjudicate particular claims, whether asserted by the government itself or by private persons. in ,[ ] congress adopted a joint resolution directing the president to cause suit to be instituted for the cancellation of certain oil leases alleged to have been obtained from the government by fraud, and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts. this resolution also authorized the appointment of special counsel to have charge of such litigation. private acts providing for a review of an order for compensation under the longshoreman's and harbor workers' compensation act,[ ] or conferring jurisdiction upon the court of claims to hear and determine certain claims of a contractor against the government, in conformity with directions given by congress, after that court had denied recovery on such claims, have been held constitutional.[ ] maritime law congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law which existed at the time the constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction.[ ] this power cannot be delegated to the states; hence acts of congress which purported to make state workmen's compensation laws applicable to maritime cases were held unconstitutional.[ ] section . clause . the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. powers denied to congress general purpose of the section this section of the constitution (containing eight clauses restricting or prohibiting legislation affecting the importation of slaves, the suspension of the writ of _habeas corpus_, the enactment of bills of attainder or _ex post facto_ laws, the levying of taxes on exports, the granting of preference to ports of one state over another, the granting of titles of nobility, etc.,) is devoted to restraints upon the power of congress and of the national government,[ ] and in no respect affects the states in the regulation of their domestic affairs.[ ] the above clause, which sanctioned the importation of slaves by the states for twenty years after the adoption of the constitution, when considered with the section requiring escaped slaves to be returned to their masters (art. iv, § , cl. ), was held by chief justice taney in scott _v._ sanford,[ ] to show conclusively that such persons and their descendants were not embraced within the term "citizen" as used in the constitution. today is interesting only as an historical curiosity. clause . the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. habeas corpus purpose of the writ this section, which restricts only the federal government and not the states,[ ] is the only place in the constitution where the writ of _habeas corpus_ is mentioned. the framers took for granted that the courts of the united states would be given jurisdiction to issue this, the greatest of the safeguards of personal liberty embodied in the common law, and the judiciary act of [ ] provided for the issuance of the writ according to "the usages and principles of law." at common law the purpose of such a proceeding was to obtain the liberation of persons who were imprisoned without just cause.[ ] while the supreme court conceded at an early date that the authority of the federal courts to entertain petitions for _habeas corpus_ derived solely from acts of congress,[ ] a narrow majority recently asserted the right to expand the scope of the writ by judicial interpretation and to sanction its use for a purpose unknown to the common law, i.e., to bring a prisoner into court to argue his own appeal. speaking for the majority justice murphy declared that: "however, we do not conceive that a circuit court of appeals, in issuing a writ of _habeas corpus_ under § of the judicial code, is necessarily confined to the precise forms of that writ in vogue at the common law or in the english judicial system. section says that the writ must be agreeable to the usages and principles of 'law,' a term which is unlimited by the common law or the english law. and since 'law' is not a static concept, but expands and develops as new problems arise, we do not believe that the forms of the _habeas corpus_ writ authorized by § are only those recognized in this country in , when the original judiciary act containing the substance of this section came into existence."[ ] errors which may be corrected on habeas corpus the writ of _habeas corpus_ provides a remedy for jurisdictional and constitutional errors at the trial without limit as to time.[ ] it may be used to correct errors of that order made by military as well as by civil courts.[ ] under the common law and the act car. ii c. ( ), where a person was detained pursuant to a conviction by a court having jurisdiction of the subject matter, _habeas corpus_ was available only if a want of jurisdiction appeared on the face of the record of the court which convicted him. a showing in a return to a writ that the prisoner was held under final process based upon a judgment of a court of competent jurisdiction closed the inquiry.[ ] under the judiciary act of [ ] the same rule obtained.[ ] but by the act of february , ,[ ] congress extended the writ to all persons restrained of their liberty in violation of the constitution or a law or treaty of the united states, and required the court to ascertain the facts and to "dispose of the party as law and justice require." this gave the prisoner a right to have a judicial inquiry in a court of the united states into the very truth and substance of the causes of his detention. the supreme court has said that there is "no doubt of the authority of the congress to thus liberalize the common law procedure on _habeas corpus_ * * *" .[ ] habeas corpus not a substitute for appeal since the writ of _habeas corpus_ is appellate in nature, congress may confer jurisdiction to issue it upon the supreme court as well as upon the inferior federal courts.[ ] the proceeding may not, however, be used as a substitute for an appeal or writ of error.[ ] but if special circumstances make it advantageous to use this writ in aid of a just disposition of a cause pending on appeal it may be used for that purpose.[ ] where facts dehors the record, which are not open to consideration upon appeal, are alleged to show a denial of constitutional rights, a judicial hearing must be granted to ascertain the truth or falsity of the allegations.[ ] issuance of the writ on application for a writ of _habeas corpus_, the court may either issue the writ, and, on the return, dispose of the case, or it may waive the issuing of the writ and consider whether, upon the facts presented in the petition, the prisoner, if brought before it, could be discharged.[ ] the proceeding may not be used to secure an adjudication of a question which, if determined in the prisoner's favor, could not result in his immediate release.[ ] a discharge of a prisoner on _habeas corpus_ is granted only in the exercise of a sound judicial discretion.[ ] while the strict doctrine of _res judicata_ does not apply to this proceeding,[ ] the court may, in its discretion, dismiss a petition for _habeas corpus_ where the ground on which it is sought had been alleged in a prior application, but the evidence to support it had been unjustifiably withheld for use on a second attempt if the first failed.[ ] where the government did not deny the allegation in a prisoner's fourth petition for _habeas corpus_, but sought dismissal of the proceedings on the ground that the prisoner had abused the writ, the prisoner was held to be entitled to a hearing to determine whether the charge of abusive use of the writ was well founded.[ ] suspension of the privilege a critical question under this section is who determines with finality whether the circumstances warrant suspension of the privilege of the writ. in england the writ may be suspended only by act of parliament,[ ] and in an early case chief justice marshall asserted that the decision as to when public safety calls for this drastic action depends "on political considerations, on which the legislature is to decide."[ ] at the beginning of the civil war lincoln authorized the commanding general of the army of the united states to suspend the writ along any military line between philadelphia and washington.[ ] in ex parte merryman,[ ] chief justice taney strongly denounced the president's action and reasserted the proposition that only congress could suspend the writ. attorney general bates promptly challenged taney's opinion. noting that in ex parte bollman, marshall did "not speak of suspending the _privilege_ of the writ, but of suspending the _powers vested in the court_ by the act," he took the position that the constitutional provision was itself the equivalent of an act of parliament.[ ] thereafter, by an express provision of the act of march , , congress declared, "that, during the present rebellion, the president of the united states, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of _habeas corpus_ in any case throughout the united states, or any part thereof."[ ] the validity of this statute was assumed in ex parte milligan,[ ] but a narrow majority of the court declared that the suspension of the writ did not authorize the arrest of any one, but simply denied to one arrested the privilege of the writ in order to obtain his liberty.[ ] clause . no bill of attainder or ex post facto law shall be passed. bills of attainder historically, the term "bills of attainder" was applied to "such special acts of the legislature as inflict capital punishment upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings." an act which inflicted a milder degree of punishment was called a bill of pains and penalties.[ ] within the meaning of the constitution, however, bills of attainder include bills of pains and penalties.[ ] as interpreted by the supreme court, this clause prohibits all legislative acts, "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial * * *"[ ] two acts of congress--one which required attorneys practicing in the federal courts to take an oath that they had never given aid to persons engaged in hostility to the united states,[ ] and another which prohibited the payment of compensation to certain named government employees who have been charged with subversive activity,[ ]--have been held unconstitutional on the ground that they amounted to bills of attainder. ex post facto laws definition at the time the constitution was adopted, many persons understood the terms _ex post facto_ laws, to "embrace all retrospective laws, or laws governing or controlling past transactions, whether * * * of a civil or a criminal nature."[ ] but in the early case of calder _v._ bull,[ ] the supreme court decided that the phrase, as used in the constitution, applies only to penal and criminal statutes. but although it is inapplicable to retroactive legislation of any other kind,[ ] the constitutional prohibition may not be evaded by giving a civil form to a measure which is essentially criminal.[ ] every law which makes criminal an act which was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an _ex post facto_ law within the prohibition of the constitution.[ ] a prosecution under a temporary statute which was extended before the date originally set for its expiration does not offend this provision even though it is instituted subsequent to the extension of the statute's duration for a violation committed prior thereto.[ ] since this provision has no application to crimes committed outside the jurisdiction of the united states against the laws of a foreign country, it is immaterial in extradition proceedings whether the foreign law is _ex post facto_ or not.[ ] what constitutes punishment an act of congress which prescribed as a qualification for practice before the federal courts an oath that the attorney had not participated in the rebellion was found unconstitutional since it operated as a punishment for past acts.[ ] but a statute which denied to polygamists the right to vote in a territorial election, was upheld even as applied to a person who had not practiced polygamy since the act was passed, because the law did not operate as an additional penalty for the offense of polygamy but merely defined it as a disqualification of a voter.[ ] a deportation law authorizing the secretary of labor to expel aliens for criminal acts committed before its passage is not _ex post facto_ since deportation is not a punishment.[ ] likewise an act permitting the cancellation of naturalization certificates obtained by fraud prior to the passage of the law was held not to impose a punishment but simply to deprive the alien of his ill-gotten privileges.[ ] change in place or mode of trial a change of the place of trial of an alleged offense after its commission, is not an _ex post facto_ law. if no place of trial was provided when the offense was committed, congress may designate the place of trial thereafter.[ ] a law which alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid,[ ] but a statute which simply enlarges the class of persons who may be competent to testify in criminal cases is not _ex post facto_ as applied to a prosecution for a crime committed prior to its passage.[ ] clause . no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken. direct taxes the hylton case the crucial problem under this section is to distinguish "direct" from other taxes. in its opinion in pollock _v._ farmers' loan and trust co., we find the court declaring: "it is apparent * * * that the distinction between direct and indirect taxation was well understood by the framers of the constitution and those who adopted it."[ ] against this confident dictum may be set the following brief excerpt from madison's notes on the convention: "mr. king asked what was the precise meaning of _direct_ taxation? no one answered."[ ] the first case to come before the court on this issue was hylton _v._ united states,[ ] which was decided early in . congress had levied, according to the rule of uniformity, a specific tax upon all carriages, for the conveyance of persons, which shall be kept by, or for any person, for his own use, or to be let out for hire, or for the conveying of passengers. in a fictitious statement of facts, it was stipulated that the carriages involved in the case were kept exclusively for the personal use of the owner and not for hire. the principal argument for the constitutionality of the measure was made by hamilton, who treated it as an "excise tax,"[ ] while madison both on the floors of congress and in correspondence attacked it as "direct" and so void, inasmuch as it was levied without apportionment.[ ] the court, taking the position that the direct tax clause constituted in practical operation an exception to the general taxing powers of congress, held that no tax ought to be classified as "direct" which could not be conveniently apportioned, and on this basis sustained the tax on carriages as one on their "use" and therefore an "excise." moreover, each of the judges advanced the opinion that the direct tax clause should be restricted to capitation taxes and taxes on land, or that at most, it might cover a general tax on the aggregate or mass of things which generally pervade all the states, especially if an assessment should intervene; while justice paterson, who had been a member of the federal convention, testified to his recollection that the principal purpose of the provision had been to allay the fear of the southern states lest their negroes and lands should be subjected to a specific tax.[ ] from the hylton to the pollock case the result of the hylton case was not challenged until after the civil war. a number of the taxes imposed to meet the demands of that war were assailed during the postwar period as direct taxes, but without result. the court sustained successively as "excises" or "duties," a tax on an insurance company's receipts for premiums and assessments;[ ] a tax on the circulating notes of state banks,[ ] an inheritance tax on real estate,[ ] and finally a general tax on incomes.[ ] in the last case, the court took pains to state that it regarded the term "direct taxes" as having acquired a definite and fixed meaning-to-wit, capitation taxes, and taxes on hand.[ ] then, almost one hundred years after the hylton case, the famous case of pollock _v._ farmers' loan and trust company[ ] arose under the income tax act of .[ ] undertaking to correct "a century of error" the court held, by a vote of five-to-four, that a tax on income from property was a direct tax within the meaning of the constitution and hence void because not apportioned according to the census. restriction of the pollock decision the pollock decision encouraged taxpayers to challenge the right of congress to levy by the rule of uniformity numerous taxes which had always been reckoned to be excises. but the court evinced a strong reluctance to extend the doctrine to such exactions. purporting to distinguish taxes levied "because of ownership" or "upon property as such" from those laid upon "privileges,"[ ] it sustained as "excises" a tax on sales on business exchanges;[ ] a succession tax which was construed to fall on the recipients of the property transmitted, rather than on the estate of the decedent,[ ] and a tax on manufactured tobacco in the hands of a dealer, after an excise tax had been paid by the manufacturer.[ ] again, in thomas _v._ united states,[ ] the validity of a stamp tax on sales of stock certificates was sustained on the basis of a definition of "duties, imposts and excises." these terms, according to the chief justice, "were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture and sale of certain commodities, privileges, particular business transactions, vocations, occupations and the like."[ ] on the same day it ruled, in spreckels sugar refining co. _v._ mcclain,[ ] that an exaction denominated a special excise tax imposed on the business of refining sugar and measured by the gross receipts thereof, was in truth an excise and hence properly levied by the rule of uniformity. the lesson of flint _v._ stone tracy co.[ ] is the same. here what was in form an income tax was sustained as a tax on the privilege of doing business as a corporation, the value of the privilege being measured by the income, including income from investments. similarly, in stanton _v._ baltic mining co.[ ] a tax on the annual production of mines was held to be "independently of the effect of the operation of the sixteenth amendment * * * not a tax upon property as such because of its ownership, but a true excise levied on the results of the business of carrying on mining operations."[ ] a convincing demonstration of the extent to which the pollock decision had been whittled down by the time the sixteenth amendment was adopted is found in billings _v._ united states.[ ] in challenging an annual tax assessed for the year on the use of foreign built yachts--a levy not distinguishable in substance from the carriage tax involved in the hylton case as construed by the supreme court-counsel did not even suggest that the tax should be classed as a direct tax. instead, he based his argument that the exaction constituted a taking of property without due process of law upon the premise that it was an excise, and the supreme court disposed of the case upon the same assumption. in the court cast aside the distinction drawn in knowlton _v._ moore between the right to transmit property on the one hand and the privilege of receiving it on the other, and sustained an estate tax as an excise. "upon this point" wrote justice holmes for a unanimous court, "a page of history is worth a volume of logic."[ ] this proposition being established, the court has had no difficulty in deciding that the inclusion in the computation of the estate tax of property held as joint tenants,[ ] or as tenants by the entirety,[ ] or the entire value of community property owned by husband and wife,[ ] or the proceeds of insurance upon the life of the decedent,[ ] did not amount to direct taxation of such property. similarly it upheld a graduated tax on gifts as an excise, saying that it was "a tax laid only upon the exercise of a single one of those powers incident to ownership, the power to give the property owned to another."[ ] in vain did justice sutherland, speaking for himself and two associates, urge that "the right to give away one's property is as fundamental as the right to sell it or, indeed, to possess it."[ ] miscellaneous the power of congress to levy direct taxes is not confined to the states which are represented in that body. such a tax may be levied in proportion to population in the district of columbia.[ ] a penalty imposed for nonpayment of a direct tax is not a part of the tax itself and hence is not subject to the rule of apportionment. accordingly, the supreme court sustained the penalty of fifty percent which congress exacted for default in the payment of the direct tax on land in the aggregate amount of twenty million dollars which was levied and apportioned among the states during the civil war.[ ] clause . no tax or duty shall be laid on articles exported from any state. taxes on exports this prohibition applies only to the imposition of duties on goods by reason of exportation.[ ] the word "export" signifies goods exported to a foreign country, not to an unincorporated territory of the united states.[ ] a general tax laid on all property alike, including that intended for export, is not within the prohibition, if it is not levied on goods in course of exportation nor because of their intended exportation.[ ] where the sale to a commission merchant for a foreign consignee was consummated by delivery of the goods to an exporting carrier, the sale was held to be a step in the exportation and hence exempt from a general tax on sales of such commodity.[ ] the giving of a bond for exportation of distilled liquor is not the commencement of exportation so as to exempt from an excise tax spirits which were not exported pursuant to such bond.[ ] a tax on the income of a corporation derived from its export trade is not a tax on "articles exported" within the meaning of the constitution.[ ] stamp taxes a stamp tax imposed on foreign bills of lading,[ ] charter parties,[ ] or marine insurance policies,[ ] is in effect a tax or duty upon exports, and so void; but an act requiring the stamping of all packages of tobacco intended for export in order to prevent fraud was held not to be forbidden as a tax on exports.[ ] clause . no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another. the "no preference" clause the limitations imposed by this section were designed to prevent preferences as between ports on account of their location in different states. they do not forbid such discriminations as between individual ports. acting under the commerce clause, congress may do many things which benefit particular ports and which incidentally result to the disadvantage of other ports in the same or neighboring states. it may establish ports of entry, erect and operate lighthouses, improve rivers and harbors, and provide structures for the convenient and economical handling of traffic.[ ] a rate order of the interstate commerce commission which allowed an additional charge to be made for ferrying traffic across the mississippi to cities on the east bank of the river was sustained over the objection that it gave an unconstitutional preference to ports in texas.[ ] although there were a few early intimations that this clause was applicable to the states as well as to congress,[ ] the supreme court declared emphatically in that state legislation was unaffected by it.[ ] after more than a century the court confirmed, over the objection that this clause was offended, the power which the first congress had exercised[ ] in sanctioning the continued supervision and regulation of pilots by the states.[ ] alaska is not deemed to be a state within the meaning of this clause.[ ] clause . no money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. appropriations this clause is a limitation upon the power of the executive department and does not restrict congress in appropriating moneys in the treasury.[ ] that body may recognize and pay a claim of an equitable, moral or honorary nature. where it directs a specific sum to be paid to a certain person, neither the secretary of the treasury nor any court has discretion to determine whether the person is entitled to receive it.[ ] in making appropriations to pay claims arising out of the civil war, the court held that it was lawful to provide that certain persons, i.e., those who had aided the rebellion, should not be paid out of the funds made available by the general appropriation, but that such persons should seek relief from congress.[ ] the court has also recognized that congress has a wide discretion as to the extent to which it shall prescribe details of expenditures for which it appropriates funds and has approved the frequent practice of making general appropriations of large amounts to be allotted and expended as directed by designated government agencies. citing as an example the act of june , [ ] where all moneys received from the sale and disposal of public lands in a large number of states and territories were set aside as a special fund to be expended under the direction of the secretary of the interior upon such projects as he determined to be practicable and advisable for the reclamation of arid and semi-arid lands within those states and territories, the court declared: "the constitutionality of this delegation of authority has never been seriously questioned."[ ] payment of claims no officer of the federal government is authorized to pay a debt due from the united states, whether reduced to judgment or not, without an appropriation for that purpose.[ ] after the civil war, a number of controversies arose out of attempts by congress to restrict the payment of the claims of persons who had aided the rebellion, but had thereafter received a pardon from the president. the supreme court held that congress could not prescribe the evidentiary effect of a pardon in a proceeding in the court of claims for property confiscated during the civil war,[ ] but that where the confiscated property had been sold and the proceeds paid into the treasury, a pardon did not of its own force authorize the restoration of such proceeds.[ ] it was within the competence of congress to declare that the amounts due to persons thus pardoned should not be paid out of the treasury and that no general appropriation should extend to their claims.[ ] clause . no title of nobility shall be granted by the united states: and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. in the attorney general of the united states ruled that: "a minister of the united states abroad is not prohibited by the constitution from rendering a friendly service to a foreign power, even that of negotiating a treaty for it, provided he does not become an officer of that power, but the acceptance of a formal commission, as minister plenipotentiary, creates an official relation between the individual thus commissioned and the government which in this way accredits him as its representative, which is prohibited by this clause of the constitution."[ ] section . no state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. powers denied to the states treaties, alliances or confederations at the time of the civil war this clause was one of the provisions upon which the court relied in holding that the confederation formed by the seceding states could not be recognized as having any legal existence.[ ] today, its practical significance lies in the limitations which it implies upon the power of the states to deal with matters having a bearing upon international relations. in the early case of holmes _v._ jennison,[ ] chief justice taney invoked it as a reason for holding that a state had no power to deliver up a fugitive from justice to a foreign state. recently the kindred idea that the responsibility for the conduct of foreign relations rests exclusively with the federal government prompted the court to hold that, since the oil under the three mile marginal belt along the california coast might well become the subject of international dispute and since the ocean, including this three mile belt, is of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world, the federal government has paramount rights in and power over that belt, including full dominion over the resources of the soil under the water area.[ ] in skiriotes _v._ florida,[ ] the court, on the other hand, ruled that this clause did not disable florida from regulating the manner in which its own citizens may engage in sponge fishing outside its territorial waters. speaking for a unanimous court, chief justice hughes declared: "when its action does not conflict with federal legislation, the sovereign authority of the state over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the united states over its citizens in like circumstances."[ ] bills of credit within the sense of the constitution, bills of credit signify a paper medium of exchange, intended to circulate between individuals; and between the government and individuals, for the ordinary purposes of society. it is immaterial whether the quality of legal tender is imparted to such paper. interest bearing certificates, in denominations not exceeding ten dollars, which were issued by loan offices established by the state of missouri, and made receivable in payment of taxes or other moneys due to the state, and in payment of the fees and salaries of state officers, were held to be bills of credit whose issuance was banned by this section.[ ] the states are not forbidden, however, to issue coupons receivable for taxes,[ ] nor to execute instruments binding themselves to pay money at a future day for services rendered or money borrowed.[ ] bills issued by state banks are not bills of credit;[ ] it is immaterial that the state is the sole stockholder of the bank,[ ] that the officers of the bank were elected by the state legislature,[ ] or that the capital of the bank was raised by the sale of state bonds.[ ] legal tender relying on this clause, which applies only to the states and not to the federal government,[ ] the supreme court has held that where the marshal of a state court received state bank notes in payment and discharge of an execution, the creditor was entitled to demand payment in gold or silver.[ ] since, however, there is nothing in the constitution which prohibits a bank depositor from consenting when he draws a check, that payment may be made by draft, a state law which provided that checks drawn on local banks should, at the option of the bank, be payable in exchange drafts was held valid.[ ] bills of attainder statutes passed after the civil war with the intent and result of excluding persons who had aided the confederacy from following certain callings, by the device of requiring them to take an oath that they had never given such aid, were held invalid as being bills of attainder, as well as _ex post facto_ laws.[ ] ex post facto laws scope of provision this clause, like the cognate restriction imposed on the federal government by section , relates only to penal and criminal legislation and not to civil laws which affect private rights adversely.[ ] it is directed only against legislative action and does not touch erroneous or inconsistent decisions by the courts.[ ] even though a law is _ex post facto_ and invalid as to crimes committed prior to its enactment, it is nonetheless valid as to subsequent offenses.[ ] if it mitigates the rigor of the law in force at the time the crime was committed,[ ] or if it merely penalizes the continuance of conduct which was lawfully begun before its passage, the statute is not _ex post facto_. thus measures penalizing the failure of a railroad to cut drains through existing embankments,[ ] or making illegal the continued possession of intoxicating liquors which were lawfully acquired,[ ] have been held valid. denial of future privileges to past offenders the right to practice a profession may be denied to one who was convicted of an offense before the statute was enacted if the offense may reasonably be regarded as a continuing disqualification for the profession. without offending the constitution, a statute making it a misdemeanor to practice medicine after conviction of a felony may be enforced against a person so convicted before the act was passed.[ ] but the test oath prescribed after the civil war, whereby office holders, teachers, or preachers were required to swear that they had not participated in the rebellion, were held invalid on the ground that it had no reasonable relation to fitness to perform official or professional duties, but rather was a punishment for past offenses.[ ] a similar oath required of suitors in the courts also was held void.[ ] changes in punishment statutes which changed an indeterminate sentence law to require a judge to impose the maximum sentence, whereas formerly he could impose a sentence between the minimum and maximum;[ ] abolished a rule which prevented a subsequent conviction of first-degree murder after a jury had found the accused guilty in the second-degree by a verdict which had been set aside;[ ] required criminals sentenced to death to be kept thereafter in solitary confinement,[ ] or allowed a warden to fix, within limits of one week, and keep secret the time of execution,[ ] were held to be _ex post facto_ as applied to offenses committed prior to their enactment. but laws providing heavier penalties for new crimes thereafter committed by habitual criminals;[ ] changing the punishment from hanging to electrocution, fixing the place therefor in the penitentiary, and permitting the presence of a greater number of invited witnesses;[ ] or providing for close confinement of six to nine months in the penitentiary, in lieu of three to six months in jail prior to execution, and substituting the warden for the sheriff as hangman, have been sustained.[ ] changes in procedure an accused person does not have a right to be tried in all respects in accordance with the law in force when the crime charged was committed.[ ] the mode of procedure may be changed so long as the substantial rights of the accused are not curtailed.[ ] laws shifting the place of trial from one county to another,[ ] increasing the number of appellate judges and dividing the appellate court into divisions,[ ] granting a right of appeal to the state,[ ] changing the method of selecting and summoning jurors,[ ] making separate trials for persons jointly indicted a matter of discretion for the trial court rather than a matter of right,[ ] and allowing a comparison of handwriting experts[ ] have been sustained over the objection that they were _ex post facto_. the contrary conclusion was reached with respect to the application to felonies committed before a territory was admitted to the union, of the provision in the state constitution which permitted the trial of criminal cases by a jury of eight persons, instead of the common law jury of twelve which was guaranteed by the sixth amendment during the period of territorial government.[ ] obligation of contracts definition of terms "law."--the term comprises statutes, constitutional provisions,[ ] municipal ordinances,[ ] and administrative regulations having the force and operation of statutes.[ ] how is it as to judicial decisions? not only does the abstract principle of the separation of powers forbid the idea that the courts "make" law, but the word "pass" in the above clause seems to confine it to the formal and acknowledged methods of exercise of the law-making function. accordingly, the court has frequently said that the clause does not cover judicial decisions, however erroneous, or whatever their effect on existing contract rights.[ ] nevertheless, there are important exceptions to this rule which are hereinafter set forth. status of judicial decisions.--also, while the highest state court usually has final authority in determining the construction as well as the validity of contracts entered into under the laws of the state, and the national courts will be bound by their decision of such matters, nevertheless, for reasons which are fairly obvious, this rule does not hold when the contract is one whose obligation is alleged to have been impaired by state law.[ ] otherwise, the challenged state authority could be vindicated through the simple device of a modification or outright nullification by the state court of the contract rights in issue. likewise, the highest state court usually has final authority in construing state statutes and determining their validity in relation to the state constitution. but this rule too has had to bend to some extent to the supreme court's interpretation of the obligation of contracts clause.[ ] suppose the following situation: ( ) a municipality, acting under authority conferred by a state statute, has issued bonds in aid of a railway company; ( ) the validity of this statute has been sustained by the highest state court; ( ) later the state legislature passes an act to repeal certain taxes to meet the bonds; ( ) it is sustained in doing so by a decision of the highest state court holding that the statute authorizing the bonds was unconstitutional _ab initio_. in such a case the supreme court would take an appeal from the state court and would reverse the latter's decision of unconstitutionally because of its effect in rendering operative the act to repeal the tax.[ ] suppose further, however, that the state court has reversed itself on the question of the constitutionality of the bonds in a suit by a creditor for payment without there having been an act of repeal. in this situation, as the cases stand today, the supreme court will still afford relief if the case is one between citizens of different states, which reaches it via a lower federal court.[ ] this is because in cases of this nature the court formerly felt free to determine questions of fundamental justice for itself. indeed, in such a case, the court has apparently in the past regarded itself as free to pass upon the constitutionality of the state law authorizing the bonds even though there has been no prior decision by the highest state court sustaining them, the idea being that contracts entered into simply on the faith of the _presumed_ constitutionality of a state statute are entitled to this protection.[ ] in other words, in cases of which it has jurisdiction because of diversity of citizenship, the court has held that the obligation of contracts is capable of impairment by subsequent judicial decisions no less than by subsequent statutes and that it is able to prevent such impairment. in cases, on the other hand, of which it obtains jurisdiction only on the constitutional ground, and by appeal from a state court, it has always adhered in terms to the doctrine that the word "laws" as used in article i, section , does not comprehend judicial decisions. yet even in these cases, it will intervene to protect contracts entered into on the faith of existing decisions from an impairment which is the direct result of a reversal of such decisions, but there must be in the offing, as it were, a statute of some kind--one possibly many years older than the contract rights involved--on which to pin its decision.[ ] in congress, through an amendment to the judicial code, endeavored to extend the reviewing power of the supreme court to suits involving "'* * * the validity of a contract wherein it is claimed that a change in the rule of law or construction of statutes by the highest court of a state applicable to such contract would be repugnant to the constitution of the united states * * *'" this appeared to be an invitation to the court to say frankly that the obligation of a contract can be impaired as well by a subsequent decision as by a subsequent statute. the court, however, declined the invitation in an opinion by chief justice taft which reviewed many of the cases covered in the preceding paragraphs. dealing with the gelpcke and adherent decisions, chief justice taft said: "these cases were not writs of error to the supreme court of a state. they were appeals or writs of error to federal courts where recovery was sought upon municipal or county bonds or some other form of contracts, the validity of which had been sustained by decisions of the supreme court of a state prior to their execution, and had been denied by the same court after their issue or making. in such cases the federal courts exercising jurisdiction between citizens of different states held themselves free to decide what the state law was, and to enforce it as laid down by the state supreme court before the contracts were made rather than in later decisions. they did not base this conclusion on article i, § , of the federal constitution, but on the state law as they determined it, which, in diverse citizenship cases, under the third article of the federal constitution they were empowered to do. burgess _v._ seligman, u.s. ( )."[ ] while doubtless this was an available explanation in , the decision in in erie railroad co. _v._ tompkins, u.s. , so cuts down the power of the federal courts to decide diversity of citizenship cases according to their own notions of "general principles of common law" as to raise the question whether the court will not be required eventually to put gelpcke and its companions and descendants squarely on the obligation of contracts clause, or else abandon them. "obligation."--a contract is analyzable into two elements: the _agreement_, which comes from the parties, and the _obligation_ which comes from the law and makes the agreement binding on the parties. the concept of obligation is an importation from the civil law and its appearance in the contracts clause is supposed to have been due to james wilson, a graduate of scottish universities and a civilian. actually the term as used in the contracts clause has been rendered more or less superfluous by the doctrine that the law in force when a contract is made enters into and comprises a part of the contract itself.[ ] hence the court sometimes recognizes the term in its decisions applying the clause, sometimes ignores it. in sturges _v._ crowninshield,[ ] decided in , marshall defines "obligation of contract" as "the law which binds the parties to perform their agreement"; but a little later the same year he sets forth the points presented for consideration in trustees of dartmouth college _v._ woodward[ ] to be: " . is this contract protected by the constitution of the united states? . is it impaired by the acts under which the defendant holds?"[ ] the word "obligation" undoubtedly does carry the implication that the constitution was intended to protect only _executory_ contracts--i.e., contracts still awaiting performance; but as is indicated in a moment, this implication was early rejected for a certain class of contracts, with immensely important result for the clause. "impair."--"the obligations of a contract," says chief justice hughes for the court in home building and loan association _v._ blaisdell,[ ] "are impaired by a law which renders them invalid, or releases or extinguishes them * * * and impairment, * * *, has been predicated of laws which without destroying contracts derogate from substantial contractual rights."[ ] but he straight-away adds: "not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. the policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worth while,--a government which retains adequate authority to secure the peace and good order of society. this principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this court."[ ] in short, the law from which the obligation stems must be understood to include constitutional law and, moreover, a "progressive" constitutional law.[ ] "contracts," extended to cover public contracts.--throughout the first century of government under the constitution, according to benjamin f. wright, the contract clause had been considered in almost forty per cent of all cases involving the validity of state legislation, and of these the vast proportion involved legislative grants of one type or other, the most important category being charters of incorporation.[ ] nor does this numerical prominence of such grants in the cases overrate their relative importance from the point of view of public interest. the question consequently arises whether the clause was intended to be applied solely in protection of private contracts, or in the protection also of public grants or, more broadly, in protection of public contracts, in short, those to which a state is party? writing late in life, madison explained the clause by allusion to what had occurred "in the internal administration of the states," in the years immediately preceding the constitutional convention, in regard to private debts. "a violation of contracts," said he, "had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, and installment laws, and the occlusions of the courts of justice."[ ] he had, in fact, written to the same effect in the federalist, while the adoption of the constitution was pending.[ ] the broader view of the intended purpose of the clause is, nevertheless, not without considerable support. for one thing, the clause departs from the comparable provision in the northwest ordinance ( ) in two respects: first, in the _presence_ of the word "obligation"; secondly, in the _absence_ of the word "private"; and there is good reason for believing that wilson may have been responsible for both alterations, inasmuch as two years earlier he had denounced a current proposal to repeal the bank of north america's pennsylvania charter, in the following words: "if the act for incorporating the subscribers to the bank of north america shall be repealed in this manner, a precedent will be established for repealing, in the same manner, every other legislative charter in pennsylvania. a pretence, as specious as any that can be alleged on this occasion, will never be wanting on any future occasion. those acts of the state, which have hitherto been considered as the sure anchors of privilege and of property, will become the sport of every varying gust of politics, and will float wildly backwards and forwards on the irregular and impetuous tides of party and faction."[ ] furthermore, in its first important constitutional case, that of chisholm _v._ georgia,[ ] the court ruled that its original jurisdiction extended to an action in assumpsit brought by a citizen of south carolina against the state of georgia. this construction of the federal judicial power was, to be sure, promptly repealed by the eleventh amendment, but without affecting the implication that the contracts protected by the constitution included public contracts. one important source of this diversity of opinion is to be found in that ever welling spring of constitutional doctrine in early days, the prevalence of natural law notions and the resulting vague significance of the term "law." in sturges _v._ crowninshield, as we saw, marshall defined the _obligation of contracts_ as "the law which binds the parties to perform their undertaking." whence, however, comes this law? if it comes from the state alone, which marshall was later to deny even as to private contracts,[ ] then it is hardly possible to hold that the states' own contracts are covered by the clause, which manifestly does not _create_ an obligation for contracts but only protects such obligation as already exists. but if, on the other hand, the law furnishing the obligation of contracts comprises natural law and kindred principles, as well as law which springs from state authority, then, inasmuch as the state itself is presumably bound by such principles, the state's own obligations, so far as harmonious with them, are covered by the clause. fletcher _v._ peck fletcher _v._ peck,[ ] which was decided in , has the double claim to fame that it was the first case in which the supreme court held a state enactment to be in conflict with the constitution,[ ] and also the first case to hold that the contracts clause protected public grants. by an act passed on january , , the georgia legislature directed the sale to four land companies of public lands comprising most of what are now the states of alabama and mississippi. as soon became known, the passage of the measure had been secured by open and wholesale bribery. so when a new legislature took over in the winter of - , almost its first act was to revoke the sale made the previous year. meantime, however, the land companies had disposed of several millions of acres of their holdings to speculators and prospective settlers, and following the rescinding act some of these took counsel with alexander hamilton as to their rights. in an opinion which was undoubtedly known to the court when it decided fletcher _v._ peck, hamilton characterized the repeal as contravening "the first principles of natural justice and social policy," especially so far as it was made, "to the prejudice * * * of third persons * * * innocent of the alleged fraud or corruption; * * * [moreover, he added,] the constitution of the united states, article first, section tenth, declares that no state shall pass a law impairing the obligations of contract. this must be equivalent to saying no state shall pass a law revoking, invalidating, or altering a contract. every grant from one to another, whether the grantor be a state or an individual, is virtually a contract that the grantee shall hold and enjoy the thing granted against the grantor, and his representatives. it, therefore, appears to me that taking the terms of the constitution in their large sense, and giving them effect according to the general spirit and policy of the provisions, the revocation of the grant by the act of the legislature of georgia may justly be considered as contrary to the constitution of the united states, and, therefore null. and that the courts of the united states, in cases within their jurisdiction, will be likely to pronounce it so."[ ] in the debate to which the "yazoo land frauds," as they were contemporaneously known, gave rise in congress, hamilton's views were quoted frequently. so far as it invokes the obligation of contracts clause, marshall's opinion in fletcher _v._ peck performs two creative acts. he recognizes that an obligatory contract is one still to be performed--in other words, is an executory contract; also that a grant of land is an executed contract--a conveyance. but, he asserts, every grant is attended by "an implied contract" on the part of the grantor not to claim again the thing granted. thus, grants are brought within the category of contracts having continuing obligation and so within article i, § . but the question still remained of the nature of this obligation. marshall's answer to this can only be inferred from his statement at the end of his opinion. the state of georgia, he says, "was restrained" from the passing of the rescinding act "either by general principles which are common to our free institutions, or by particular provisions of the constitution of the united states."[ ] new jersey _v._ wilson the protection thus thrown about land grants was presently extended, in the case of new jersey _v._ wilson,[ ] to a grant of immunity from taxation which the state of new jersey had accorded certain indian lands; and several years after that, in the dartmouth college case,[ ] to the charter privileges of an eleemosynary corporation. corporate charters, different ways of regarding there are three ways in which the charter of a corporation may be regarded. in the first place, it may be thought of simply as a license terminable at will by the state, like a liquor-seller's license or an auctioneer's license, but affording the incorporators, so long as it remains in force, the privileges and advantages of doing business in the form of a corporation. nowadays, indeed, when corporate charters are usually issued to all legally qualified applicants by an administrative officer who acts under a general statute, this would probably seem to be the natural way of regarding them were it not for the dartmouth college decision. but in charters were granted directly by the state legislatures in the form of special acts, and there were very few profit-taking corporations in the country.[ ] the later extension of the benefits of the dartmouth college decision to corporations organized under general law took place without discussion. secondly, a corporate charter may be regarded as a franchise constituting a vested or property interest in the hands of the holders, and therefore as forfeitable only for abuse or in accordance with its own terms. this is the way in which some of the early state courts did regard them at the outset.[ ] it is also the way in which blackstone regards them in relation to the royal prerogative, although not in relation to the sovereignty of parliament; and the same point of view finds expression in story's concurring opinion in dartmouth college _v._ woodward, as it did also in webster's argument in that case.[ ] the dartmouth college case the third view is the one formulated by chief justice marshall in his controlling opinion in trustees of dartmouth college _v._ woodward.[ ] this is that the charter of dartmouth college, a purely private institution, was the outcome and partial record of a contract between the donors of the college, on the one hand, and the british crown, on the other, which contract still continued in force between the state of new hampshire, as the successor to the crown and government of great britain, and the trustees, as successors to the donors. the charter, in other words, was not simply a grant--rather it was the documentary record of a still existent agreement between still existent parties.[ ] taking this view, which he developed with great ingenuity and persuasiveness, marshall was able to appeal to the obligation of contracts clause directly, and without further use of his fiction in fletcher _v._ peck of an executory contract accompanying the grant. a difficulty still remained, however, in the requirement that a contract must, before it can have obligation, import consideration, that is to say, must be shown not to have been entirely gratuitous on either side. nor was the consideration which induced the crown to grant a charter to dartmouth college a merely speculative one. it consisted of the donations of the donors to the important public interest of education. fortunately or unfortunately, in dealing with this phase of the case, marshall used more sweeping terms than were needful. "the objects for which a corporation is created," he wrote, "are universally such as the government wishes to promote. they are deemed beneficial to the country; and this benefit constitutes the consideration, and in most cases, the sole consideration of the grant." in other words, the simple fact of the charter having been granted imports consideration from the point of view of the state.[ ] with this doctrine before it, the court in providence bank _v._ billings,[ ] and again in charles river bridge company _v._ warren bridge company,[ ] admitted, without discussion of the point, the applicability of the dartmouth college decision to purely business concerns. classes of cases under the clause the cases just reviewed produce two principal lines of decisions stemming from the obligation of contracts clause: first, public grants; second, private executory contracts. the chief category of the first line of cases consists, in turn, of those involving corporate privileges, both those granted directly by the states and those granted by municipalities by virtue of authority conferred upon them by the state;[ ] while private debts, inclusive of municipal debts, exhaust for the most part the second line. public grants municipal corporations.--not all grants by a state constitute "contracts" within the sense of article i, section . in his dartmouth college decision chief justice marshall conceded that "if the act of incorporation be a grant of political power, if it creates a civil institution, to be employed in the administration of the government, * * *, the subject is one in which the legislature of the state may act according to its own justment," unrestrained by the constitution[ ]--thereby drawing a line between "public" and "private" corporations which remained undisturbed for more than half a century.[ ] it has been subsequently held many times that municipal corporations are mere instrumentalities of the state for the more convenient administration of local governments, whose powers may be enlarged, abridged, or entirely withdrawn at the pleasure of the legislature.[ ] the same principle applies, moreover, to the property rights which the municipality derives either directly or indirectly from the state. this was first held as to the grant of a franchise to a municipality to operate a ferry, and has since then been recognized as the universal rule.[ ] as was stated in a case decided in : "the distinction between the municipality as an agent of the state for governmental purposes and as an organization to care for local needs in a private or proprietary capacity," while it limits the legal liability of municipalities for the negligent acts or omissions of its officers or agents, does not, on the other hand, furnish ground for the application of constitutional restraints against the state in favor of its own municipalities.[ ] thus no contract rights are impaired by a statute removing a county seat, even though the former location was by law to be "permanent" when the citizens of the community had donated land and furnished bonds for the erection of public buildings.[ ] likewise a statute changing the boundaries of a school district, giving to the new district the property within its limits which had belonged to the former district, and requiring the new district to assume the debts of the old district, does not impair the obligation of contracts.[ ] nor was the contracts clause violated by state legislation authorizing state control over insolvent communities through a municipal finance commission.[ ] public offices.--on the same ground of public agency, neither appointment nor election to public office creates a contract in the sense of article i, section , whether as to tenure, or salary, or duties, all of which remain, so far as the constitution of the united states is concerned, subject to legislative modification or outright repeal.[ ] indeed there can be no such thing in this country as property in office, although the common law sustained a different view which sometimes found reflection in early cases.[ ] when, however, services have once been rendered, there arises an implied contract that they shall be compensated at the rate which was in force at the time they were rendered.[ ] also, an express contract between the state and an individual for the performance of specific services falls within the protection of the constitution. thus a contract made by the governor pursuant to a statute authorizing the appointment of a commissioner to conduct, over a period of years, a geological, mineralogical, and agricultural survey of the state, for which a definite sum had been authorized, was held to have been impaired by repeal of the statute.[ ] but a resolution of a new jersey local board of education reducing teachers' salaries for the school year - , pursuant to an act of the legislature authorizing such action, was held not to impair the contract of a teacher who, having served three years, was by earlier legislation exempt from having his salary reduced except for inefficiency or misconduct.[ ] similarly, it was held that an illinois statute which reduced the annuity payable to retire teachers under an earlier act did not violate the contracts clause, since it had not been the intention of the earlier act to propose a contract but only to put into effect a general policy.[ ] on the other hand, the right of one, who had become a "permanent teacher" under the indiana teachers tenure act of , to continued employment was held to be contractual and to have been impaired by the repeal in of the earlier act.[ ] revocable privileges versus "contracts": tax exemptions.--from a different point of view, the court has sought to distinguish between grants of privileges, whether to individuals or to corporations, which are contracts and those which are mere revocable licenses, although on account of the doctrine of presumed consideration mentioned earlier, this has not always been easy to do. in pursuance of the precedent set in new jersey _v._ wilson,[ ] the legislature of a state "may exempt particular parcels of property or the property of particular persons or corporations from taxation, either for a specified period or perpetually, or may limit the amount or rate of taxation, to which such property shall be subjected," and such an exemption is frequently a contract within the sense of the constitution. indeed this is always so when the immunity is conferred upon a corporation by the clear terms of its charter.[ ] when, on the other hand, an immunity of this sort springs from general law, its precise nature is more open to doubt, as a comparison of decisions will serve to illustrate. in piqua branch of the state bank _v._ knoop,[ ] a closely divided court held that a general banking law of the state of ohio which provided that companies complying therewith and their stockholders should be exempt from all but certain taxes, was, as to a bank organized under it and its stockholders, a contract within the meaning of article i, section . "the provision was not," the court said, "a legislative command nor a rule of taxation until changed, but a contract stipulating against any change, from the nature of the language used and the circumstances under which it was adopted."[ ] when, however, the state of michigan pledged itself, by a general legislative act, not to tax any corporation, company, or individual undertaking to manufacture salt in the state from water there obtained by boring on property used for this purpose and, furthermore, to pay a bounty on the salt so manufactured, it was held not to have engaged itself within the constitutional sense. "general encouragements," said the court, "held out to all persons indiscriminately, to engage in a particular trade or manufacture, whether such encouragement be in the shape of bounties or drawbacks, or other advantage, are always under the legislative control, and may be discontinued at any time."[ ] so far as exemption from taxation is concerned the difference between these two cases is obviously slight; but the later one is unquestionable authority for the proposition that legislative bounties are repealable at will. furthermore, exemptions from taxation have in certain cases been treated as gratuities repealable at will, even when conferred by specific legislative enactments. this would seem always to be the case when the beneficiaries were already in existence when the exemption was created and did nothing of a more positive nature to qualify for it than to continue in existence.[ ] yet the cases are not always easy to explain in relation to each other, except in light of the fact that the court's wider point of view has altered from time to time.[ ] vested rights.--lastly, the term "contracts" is used in the contracts clause in its popular sense of an agreement of minds. the clause therefore does not protect vested rights that are not referable to such an agreement between the state and an individual, such as the right to recovery under a judgment. the individual in question may have a case under the fourteenth amendment, but not one under article i, section .[ ] reservation of the right to alter and repeal so much for the meaning of the word "contract" when public grants are meant. it is next in order to consider four principles or doctrines whereby the court has itself broken down the force of the dartmouth college decision in great measure in favor of state legislative power. by the logic of the dartmouth college decision itself the state may reserve in a corporate charter the right to "amend, alter, and repeal" the same, and such reservation becomes a part of the contract between the state and the incorporators, the obligation of which is accordingly not impaired by the exercise of the right.[ ] later decisions recognize that the state may reserve the right to amend, alter, and repeal by general law, with the result of incorporating the reservation in all charters of subsequent date.[ ] there is, however, a difference between a reservation by a statute and one by constitutional provision. while the former may be repealed as to a subsequent charter by the specific terms thereof, the latter may not.[ ] the right to reserve: when limited.--is the right which is reserved by a state to "amend" or "alter" a charter without restriction? when it is accompanied, as it generally is, by the right to "repeal," one would suppose that the answer to this question was self-evident. none the less, there are a number of judicial dicta to the effect that this power is not without limit, that it must be exercised reasonably and in good faith, and that the alterations made must be consistent with the scope and object of the grant, etc.[ ] such utterances amount, apparently, to little more than an anchor to windward, for while some of the state courts have applied tests of this nature to the disallowance of legislation, it does not appear that the supreme court of the united states has ever done so.[ ] quite different is it with the distinction pointed out in the cases between the franchises and privileges which a corporation derives from its charter and the rights of property and contract which accrue to it in the course of its existence. even the outright repeal of the former does not wipe out the latter or cause them to escheat to the state. the primary heirs of the defunct organization are its creditors; but whatever of value remains after their valid claims are met goes to the former shareholders.[ ] by the earlier weight of authority, on the other hand, persons who contract with companies whose charters are subject to legislative amendment or repeal do so at their own risk: any "such contracts made between individuals and the corporation do not vary or in any manner change or modify the relation between the state and the corporation in respect to the right of the state to alter, modify, or amend such a charter, * * *"[ ] but later holdings becloud this rule.[ ] corporations as persons subject to the law.--but suppose the state neglects to reserve the right to amend, alter, or repeal--is it, then, without power to control its corporate creatures? by no means. private corporations, like other private persons, are always presumed to be subject to the legislative power of the state; from which it follows that immunities conferred by charter are to be treated as exceptions to an otherwise controlling rule. this principle was recognized by chief justice marshall in the case of providence bank _v._ billings,[ ] in which he held that in the absence of express stipulation or reasonable implication to the contrary in its charter, the bank was subject to the taxing power of the state, notwithstanding that the power to tax is the power to destroy. corporations and the police power.--and of course the same principle is equally applicable to the exercise by the state of its police powers. thus, in what was perhaps the leading case before the civil war, the supreme court of vermont held that the legislature of that state had the right, in furtherance of the public safety, to require chartered companies operating railways to fence in their tracks and provide cattle yards. in a matter of this nature, said the court, corporations are on a level with individuals engaged in the same business, unless, from their charter, they can prove the contrary.[ ] since then the rule has been applied many times in justification of state regulation of railroads,[ ] and even of the application of a state prohibition law to a company which had been chartered expressly to manufacture beer.[ ] the strict construction of public grants long, however, before the cases last cited were decided, the principle which they illustrate had come to be powerfully reinforced by two others, the first of which is that all charter privileges and immunities are to be strictly construed as against the claims of the state; or as it is otherwise often phrased, "nothing passes by implication in a public grant." the charles river bridge case.--the leading case is that of the charles river bridge company _v._ warren bridge company,[ ] which was decided shortly after chief justice marshall's death by a substantially new court. the question at issue was whether the charter of the complaining company, which authorized it to operate a toll bridge, stood in the way of the state's permitting another company of later date to operate a free bridge in the immediate vicinity. inasmuch as the first company could point to no clause in its charter which specifically vested it with an exclusive right, the court held the charter of the second company to be valid on the principle just stated. justice story, who remained from the old bench, presented a vigorous dissent, in which he argued cogently, but unavailingly, that the monopoly claimed by the charles river bridge company was fully as reasonable an implication from the terms of its charter and the circumstances surrounding its concession as perpetuity had been from the terms of the dartmouth college charter and the environing transaction. the court was in fact making new law, because it was looking at things from a new point of view. this was the period when judicial recognition of the police power began to take on a doctrinal character. it was also the period when the railroad business was just beginning. chief justice taney's opinion evinces the influence of both these developments. the power of the state to provide for its own internal happiness and prosperity was not, he asserted, to be pared away by mere legal intendments; nor was its ability to avail itself of the lights of modern science to be frustrated by obsolete interests such as those of the old turnpike companies, the charter privileges of which, he apprehended, might easily become a bar to the development of transportation along new lines.[ ] applications of the strict construction rule.--the rule of strict construction has been reiterated by the court many times. a good illustration is afforded by the following passage from its opinion in blair _v._ chicago,[ ] decided nearly seventy years after the charles river bridge case: "legislative grants of this character should be in such unequivocal form of expression that the legislative mind may be distinctly impressed with their character and import, in order that the privileges may be intelligently granted or purposely withheld. it is a matter of common knowledge that grants of this character are usually prepared by those interested in them, and submitted to the legislature with a view to obtain from such bodies the most liberal grant of privileges which they are willing to give. this is one among many reasons why they are to be strictly construed. * * * 'the principle is this, that all rights which are asserted against the state must be clearly defined, and not raised by inference or presumption; and if the charter is silent about a power, it does not exist. if, on a fair reading of the instrument, reasonable doubts arise as to the proper interpretation to be given to it, those doubts are to be solved in favor of the state; and where it is susceptible of two meanings, the one restricting and the other extending the powers of the corporation, that construction is to be adopted which works the least harm to the state.'"[ ] strict construction of tax exemptions.--an excellent illustration of the operation of the rule in relation to tax exemptions is furnished by the derivative doctrine that an immunity of this character must be deemed as intended solely for the benefit of the corporation receiving it and hence may not, in the absence of express permission by the state, be passed on to a successor.[ ] thus, where two companies, each exempt from taxation, were permitted by the legislature to consolidate the new corporation was held to be subject to taxation.[ ] again, a statute which granted a corporation all "the rights and privileges" of an earlier corporation was held not to confer the latter's "immunity" from taxation.[ ] yet again, a legislative authorization of the transfer by one corporation to another of the former's "estate, property, right, privileges, and franchises" was held not to clothe the later company with the earlier one's exemption from taxation.[ ] furthermore, an exemption from taxation is to be strictly construed even in the hands of one clearly entitled to it. so the exemption conferred by its charter on a railway company was held not to extend to branch roads constructed by it under a later statute.[ ] also, a general exemption of the property of a corporation from taxation was held to refer only to the property actually employed in its business.[ ] also, the charter exemption of the capital stock of a railroad from taxation "for ten years after completion of the said road" was held not to become operative until the completion of the road.[ ] so also the exemption of the campus and endowment fund of a college was held to leave other lands of the college, though a part of its endowment, subject to taxation.[ ] likewise, provisions in a statute that bonds of the state and its political subdivisions are not to be taxed and shall not be taxed were held not to exempt interest on them from taxation as income of the owners.[ ] strict construction and the police power.--the police power, too, has frequently benefited from the doctrine of strict construction, although, for a reason pointed out below, this recourse is today seldom, if ever, necessary in this connection. some of the more striking cases may be briefly summarized. the provision in the charter of a railway company permitting it to set reasonable charges still left the legislature free to determine what charges were reasonable.[ ] on the other hand, when a railway agreed to accept certain rates for a specified period, it thereby foreclosed the question of the reasonableness of such rates.[ ] the grant to a company of the right to supply a city with water for twenty-five years was held not to prevent a similar concession to another company by the same city.[ ] the promise by a city in the charter of a water company not to make a similar grant to any other person or corporation was held not to prevent the city itself from engaging in the business.[ ] a municipal concession to a water company which was to run for thirty years and which was accompanied by the provision that the "said company shall charge the following rates," was held not to prevent the city from reducing such rates.[ ] but more broadly, the grant to a municipality of the power to regulate the charges of public service companies was held not to bestow the right to contract away this power.[ ] indeed, any claim by a private corporation that it received the rate-making power from a municipality must survive a two-fold challenge: first, as to the right of the municipality under its charter to make such a grant; secondly, as to whether it has actually done so; and in both respects an affirmative answer must be based on express words and not on implication.[ ] the doctrine of inalienable state powers the second of the doctrines mentioned above whereby the principle of the subordination of all persons, corporate and individual alike, to the legislative power of the state has been fortified, is the doctrine that certain of the state's powers are inalienable, and that any attempt by a state to alienate them, upon any consideration whatsoever, is _ipso facto_ void, and hence incapable of producing a "contract" within the meaning of article i, section . one of the earliest cases to assert this principle occurred in new york in . the corporation of the city of new york, having conveyed certain lands for the purposes of a church and cemetery together with a covenant for quiet enjoyment, later passed a by-law forbidding their use as a cemetery. in denying an action against the city for breach of covenant, the state court said the defendants "had no power as a party, [to the covenant] to make a contract which should control or embarrass their legislative powers and duties."[ ] the eminent domain power inalienable.--the supreme court first applied similar doctrine in in a case involving a grant of exclusive right to construct a bridge at a specified locality. sustaining the right of the state of vermont to make a new grant to a competing company, the court held that the obligation of the earlier exclusive grant was sufficiently recognized in making just compensation for it; and that corporate franchises, like all other forms of property, are subject to the overruling power of eminent domain.[ ] this reasoning was reinforced by an appeal to the theory of state sovereignty, which was held to involve the corollary of the inalienability of all the principal powers of a state. the subordination of all charter rights and privileges to the power of eminent domain has been maintained by the court ever since; not even an explicit agreement by the state to forego the exercise of the power will avail against it.[ ] conversely, the state may revoke an improvident grant of the public petitionary without recourse to the power of eminent domain, such a grant being inherently beyond the power of the state to make. so when the legislature of illinois in devised to the illinois central railroad company, its successors and assigns, the state's right and title to nearly a thousand acres of submerged land under lake michigan along the harbor front of chicago, and four years later sought to repeal the grant, the court, in a four-to-three decision, sustained an action by the state to recover the lands in question. said justice field, speaking for the majority: "such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of public. the trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. * * * any grant of the kind is necessarily revocable, and the exercise of the trust by which the property was held by the state can be resumed at any time."[ ] the case affords an interesting commentary on fletcher _v._ peck.[ ] the taxing power not inalienable.--on the other hand, repeated endeavors to subject tax exemptions to the doctrine of inalienability though at times supported by powerful minorities on the bench, have always failed.[ ] as recently as january, , the court ruled that the georgia railway company was entitled to seek an injunction in the federal courts against an attempt by georgia's revenue commission to compel it to pay _ad valorem_ taxes contrary to the terms of its special charter issued in . to the argument that this was a suit contrary to the eleventh amendment it returned the answer that the immunity from federal jurisdiction created by the amendment "does not extend to individuals who act as officers without constitutional authority."[ ] the police power; when inalienable.--the leading case involving the police power is stone _v._ mississippi, u.s. , decided in . in the legislature of mississippi chartered a company to which it expressly granted the power to conduct a lottery. two years later the state adopted a new constitution which contained a provision forbidding lotteries; and a year later the legislature passed an act to put this provision into effect. in upholding this act and the constitutional provision on which it was based, the court said: "the power of governing is a trust committed by the people to the government, no part of which can be granted away. the people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights," and these agencies can neither give away nor sell their discretion. all that one can get by a charter permitting the business of conducting a lottery "is suspension of certain governmental rights in his favor, subject to withdrawal at will."[ ] the court shortly afterward applied the same reasoning in a case in which was challenged the right of louisiana to invade the exclusive privilege of a corporation engaged in the slaughter of cattle in new orleans by granting another company the right to engage in the same business. although the state did not offer to compensate the older company for the lost monopoly, its action was sustained on the ground that it had been taken in the interest of the public health.[ ] when, however, the city of new orleans, in reliance on this precedent, sought to repeal an exclusive franchise which it had granted a company for fifty years to supply gas to its inhabitants, the court interposed its veto, explaining that in this instance neither the public health, the public morals, nor the public safety was involved.[ ] later decisions, nonetheless, apply the principle of inalienability broadly. to quote from one: "it is settled that neither the 'contract' clause nor the 'due process' clause has the effect of overriding the power to the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and all contract and property rights are held subject to its fair exercise."[ ] today, indeed, it scarcely pays a company to rely upon its charter privileges or upon special concessions from a state in resisting the application to it of measures claiming to have been enacted by the police power thereof. for if this claim is sustained by the court, the obligation of the contract clause will not avail; while if it is not, the due process of law clause of the fourteenth amendment will furnish a sufficient reliance. that is to say, the discrepancy which once existed between the court's theory of an overriding police power in these two adjoining fields of constitutional law is today apparently at an end. indeed, there is usually no sound reason why rights based on public grant should be regarded as more sacrosanct than rights which involve the same subject matter but are of different provenience. private contracts scope of the term.--the term "private contracts" is, naturally, not all-inclusive. a judgment, though granted in favor of a creditor, is not a contract in the sense of the constitution;[ ] nor is marriage.[ ] and whether a particular agreement is a valid contract is a question for the courts, and finally for the supreme court, when the protection of the contract clause is invoked.[ ] source of the obligation.--the question of the nature and source of the obligation of a contract, which went by default in fletcher _v._ peck and the dartmouth college case, with such vastly important consequences, had eventually to be met and answered by the court in connection with private contracts. the first case involving such a contract to reach the supreme court was sturges _v._ crowninshield[ ] in which a debtor sought escape behind a state insolvency act of later date than his note. the act was held inoperative; but whether this was because of its retroaction in this particular case or for the broader reason that it assumed to excuse debtors from their promises, was not at the time made clear. as noted earlier, chief justice marshall's definition on this occasion of the obligation of a contract as the law which binds the parties to perform their undertakings was not free from ambiguity, owing to the uncertain connotation of the term _law_. ogden _v._ saunders.--these obscurities were finally cleared up for most cases in ogden _v._ saunders,[ ] in which the temporal relation of the statute and the contract involved was exactly reversed--the former antedating the latter. marshall contended, but unsuccessfully, that the statute was void, inasmuch as it purported to release the debtor from that original, intrinsic obligation which always attaches under natural law to the acts of free agents. "when," he wrote, "we advert to the course of reading generally pursued by american statesmen in early life, we must suppose that the framers of our constitution were intimately acquainted with the writings of those wise and learned men whose treatises on the laws of nature and nations have guided public opinion on the subjects of obligation and contract," and that they took their views on these subjects from those sources. he also posed the question of what would happen to the obligation of contracts clause if states might pass acts declaring that all contracts made subsequently thereto should be subject to legislative control.[ ] for the first and only time majority of the court abandoned the chief justice's leadership. speaking by justice washington it held that the obligation of private contracts is derived from the municipal law--state statutes and judicial decisions--and that the inhibition of article i, section , is confined to legislative acts made after the contracts affected by them, with one exception. for by a curiously complicated line of reasoning it was also held in this same case that when the creditor is a nonresident, then a state may not by an insolvent law rights under a contract, albeit one of later date. with the proposition established that the obligation of a private contract comes from the _municipal_ law in existence when the contract is made, a further question presents itself, namely, what part of the municipal law is referred to? no doubt, the law which determines the validity of the contract itself is a part of such law. also, the law which interprets the terms used in the contract, or which supplies certain terms when others are used; as for instance, constitutional provisions or statutes which determine what is "legal tender" for the payment of debts; or judicial decisions which construe the term "for value received" as used in a promissory note, and so on. in short, any law which at the time of the making of a contract goes to measure the rights and duties of the parties to it in relation to each other enters into its obligation. remedy a part of the obligation suppose, however, that one of the parties to a contract fails to live up to his obligation as thus determined. the contract itself may now be regarded as at an end; but the injured party, nevertheless, has a new set of rights in its stead, those which are furnished him by the remedial law, including the law of procedure. in the case of a mortgage, he may foreclose; in the case of a promissory note, he may sue; in certain cases, he may demand specific performance. hence the further question arises, whether this remedial law is to be considered a part of the law supplying the obligation of contracts. originally, the predominating opinion was negative, since as we have just seen, this law does not really come into operation until the contract has been broken. yet it is obvious that the sanction which this law lends to contracts is extremely important--indeed, indispensable. in due course it became the accepted doctrine that that part of the law which supplies one party to a contract with a remedy if the other party does not live up to his agreement, as authoritatively interpreted, entered into the "obligation of contracts" in the constitutional sense of this term, and so might not be altered to the material weakening of existing contracts. in the court's own words, "nothing can be more material to the obligation than the means of enforcement. without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. the ideas of validity and remedy are inseparable, * * *"[ ] establishment of the rules.--this rule was first definitely announced in in the case of bronson _v._ kinzie.[ ] here an illinois mortgage giving the mortgagee an unrestricted power of sale in case of the mortgagor's fault was involved, along with a later act of the legislature which required mortgaged premises to be sold for not less than two-thirds of the appraised value, and allowed the mortgagor a year after the sale to redeem them. it was held that the statute, in altering the preexisting remedies to such an extent, violated the constitutional prohibition, and hence was void. the year following a like ruling was made in the case of mccracken _v._ hayward[ ] as to a statutory provision that personal property should not be sold under execution for less than two-thirds of its appraised value. qualifications of the rule.--but the rule illustrated by these cases does not signify that a state may make no changes in its remedial or procedural law which affect existing contracts. "provided," the court has said, "a substantial or efficacious remedy remains or is given, by means of which a party can enforce his rights under the contract, the legislature may modify or change existing remedies or prescribe new modes of procedure."[ ] thus states are constantly remodelling their judicial systems and modes of practice unembarrassed by the obligation of contracts clause.[ ] the right of a state to abolish imprisonment for debt was early asserted.[ ] again the right of a state to shorten the time for the bringing of actions has been affirmed even as to existing causes of action, but with the proviso added that a reasonable time must be left for the bringing of such actions.[ ] on the other hand, a statute which withdrew the judicial power to enforce satisfaction of a certain class of judgments by mandamus was held invalid.[ ] in the words of the court: "every case must be determined upon its own circumstances;"[ ] and it later added: "in all such cases the question becomes, * * *, one of reasonableness, and of that the legislature is primarily the judge."[ ] the municipal bond cases.--there is one class of cases resulting from the doctrine that the law of remedy constitutes a part of the obligation of a contract to which a special word is due. this comprises cases in which the contracts involved were municipal bonds. while a city is from one point of view but an emanation from the government's sovereignty and an agent thereof, when it borrows money it is held to be acting in a corporate or private capacity, and so to be suable on its contracts. furthermore, as was held in the leading case of von hoffman _v._ quincy,[ ] "where a state has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied." in this case the court issued a mandamus compelling the city officials to levy taxes for the satisfaction of a judgment on its bonds in accordance with the law as it stood when the bonds were issued.[ ] nor may a state by dividing an indebted municipality among others enable it to escape its obligations. in such a case the debt follows the territory, and the duty of assessing and collecting taxes to satisfy it devolves upon the succeeding corporations and their officers.[ ] but where a municipal organization has ceased practically to exist through the vacation of its offices, and the government's function is exercised once more by the state directly, the court has thus far found itself powerless to frustrate a program of repudiation.[ ] however, there is no reason why the state should enact the role of _particeps criminis_ in an attempt to relieve its municipalities of the obligation to meet their honest debts. thus in , during the great depression, new jersey created a municipal finance commission with power to assume control over its insolvent municipalities. to the complaint of certain bondholders that this legislation impaired the contract obligations of their debtors, the court, speaking by justice frankfurter, pointed out that the practical value of an unsecured claim against a city is "the effectiveness of the city's taxing power," which the legislation under review was designed to conserve.[ ] private contracts and the police power the increasing subjection of public grants to the state's police power has been previously pointed out. that purely private contracts should be in any stronger situation in this respect would obviously be anomalous in the extreme. in point of fact, the ability of private parties to curtail governmental authority by the easy devise of contracting with one another is, with an exception to be noted, even less than that of the state to tie its own hands by contracting away its own powers. so, when it was contended in an early pennsylvania case, than an act prohibiting the issuance of notes by unincorporated banking associations was violative of the obligation of contracts clause because of its effect upon certain existing contracts of members of such associations, the state supreme court answered: "but it is said, that the members had formed a contract _between themselves_, which would be dissolved by the stoppage of their business; and what then? is that such a violation of contracts as is prohibited by the constitution of the united states? consider to what such a construction would lead. let us suppose, that in one of the states there is no law against gaming, cock-fighting, horse-racing or public masquerades, and that companies should be formed for the purpose of carrying on these practices; * * *" would the legislature then be powerless to prohibit them? the answer returned, of course, was no.[ ] the prevailing doctrine is stated by the supreme court of the united states in the following words: "it is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the state from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. * * * in other words, that parties by entering into contracts may not estop the legislature from enacting laws intended for the public good."[ ] so, in an early case we find a state recording act upheld as applying to deeds dated before the passage of the act.[ ] later cases have brought the police power in its more customary phases into contact with private, as well as with public contracts. lottery tickets, valid when issued, were necessarily invalidated by legislation prohibiting the lottery business;[ ] contracts for the sale of beer, valid when entered into, were similarly nullified by a state prohibition law;[ ] and contracts of employment were modified by later laws regarding the liability of employers and workmen's compensation.[ ] likewise a contract between plaintiff and defendant did not prevent the state from making the latter a concession which rendered the contract worthless;[ ] nor did a contract as to rates between two railway companies prevent the state from imposing different rates;[ ] nor did a contract between a public utility company and a customer protect the rates agreed upon from being superseded by those fixed by the state.[ ] similarly, a contract for the conveyance of water beyond the limits of a state did not prevent the state from prohibiting such conveyance.[ ] emergency legislation.--but the most striking exertions of the police power touching private contracts, as well as other private interests, within recent years have been evoked by war and economic depression. thus in world war i the state of new york enacted a statute which, declaring that a public emergency existed, forbade the enforcement of covenants for the surrender of the possession of premises on the expiration of leases, and wholly deprived for a period owners of dwellings, including apartment and tenement houses, within the city of new york and contiguous counties of possessory remedies for the eviction from their premises of tenants in possession when the law took effect, providing the latter were able and willing to pay a reasonable rent. in answer to objections leveled against this legislation on the basis of the obligation of contracts clause, the court said: "but contracts are made subject to this exercise of the power of the state when otherwise justified, as we have held this to be."[ ] in a subsequent case, however, the court added that, while the declaration by the legislature of a justifying emergency was entitled to great respect, it was not conclusive; that a law "depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change," and that whether they have changed was always open to judicial inquiry.[ ] individual rights versus public welfare.--summing up the result of the cases above referred to, chief justice hughes, speaking for the court in home building and loan association _v._ blaisdell,[ ] remarked in : "it is manifest from this review of our decisions that there has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. the settlement and consequent contraction of the public domain, the pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity. where, in earlier days, it was thought that only the concerns of individuals or of classes were involved, and that those of the state itself were touched only remotely, it has later been found that the fundamental interests of the state are directly affected; and that the question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all depends. * * * the principle of this development is, * * * [he added] that the reservation of the reasonable exercise of the protective power of the states is read into all contracts * * *."[ ] evaluation of the clause today yet it should not be inferred that the obligation of contracts clause is today totally moribund even in times of stress. as we have just seen it still furnishes the basis for some degree of judicial review as to the substantiality of the factual justification of a professed exercise by a state legislature of its police power; and in the case of legislation affecting the remedial rights of creditors, it still affords a solid and palpable barrier against legislative erosion. nor is this surprising in view of the fact that, as we have seen, such rights were foremost in the minds of the framers of the clause. the court's attitude toward insolvency laws, redemption laws, exemption laws, appraisement laws and the like has always been that they may not be given retroactive operation;[ ] and the general lesson of these earlier cases is confirmed by the court's decisions between and in certain cases involving state moratorium statutes. in home building and loan association _v._ blaisdell,[ ] the leading case, a closely divided court sustained the minnesota moratorium act of april , , which, reciting the existence of a severe financial and economic depression for several years and the frequent occurrence of mortgage foreclosure sales for inadequate prices, and asserting that these conditions had created an economic emergency calling for the exercise of the state's police power, authorized its courts to extend the period for redemption from foreclosure sales for such additional time as they might deem just and equitable, although in no event beyond may , . the act also left the mortgagor in possession during the period of extension, subject to the requirement that he pay a reasonable rental for the property as fixed by the court, at such time and in such manner as should be determined by the court. contemporaneously, however, less carefully drawn statutes from missouri and arkansas, acts which were less considerate of creditor's rights, were set aside as violative of the contracts clause.[ ] "a state is free to regulate the procedure in its courts even with reference to contracts already made," said justice cardozo for the court, "and moderate extensions of the time for pleading or for trial will ordinarily fall within the power so reserved. a different situation is presented when extensions are so piled up as to make the remedy a shadow. * * * what controls our judgment at such times is the underlying reality rather than the form or label. the changes of remedy now challenged as invalid are to be viewed in combination, with the cumulative significance that each imparts to all. so viewed they are seen to be an oppressive and unnecessary destruction of nearly all the incidents that give attractiveness and value to collateral security."[ ] on the other hand, in the most recent of this category of cases, the court gave its approval to an extension by the state of new york of its moratorium legislation. while recognizing that business conditions had improved, the court was of the opinion that there was reason to believe that "'the sudden termination of the legislation which has damned up normal liquidation of these mortgages for more than eight years might well result in an emergency more acute than that which the original legislation was intended to alleviate.'"[ ] and meantime the court had sustained legislation of the state of new york under which a mortgagee of real property was denied a deficiency judgment in a foreclosure suit where the state court found that the value of the property purchased by the mortgagee at the foreclosure sale was equal to the debt secured by the mortgage.[ ] "mortgagees," the court said, "are constitutionally entitled to no more than payment in full. * * * to hold that mortgagees are entitled under the contract clause to retain the advantages of a forced sale would be to dignify into a constitutionally protected property right their chance to get more than the amount of their contracts. * * * the contract clause does not protect such a strategical, procedural advantage."[ ] statistical data pertinent to the clause the obligation of contracts clause attained the high point of its importance in our constitutional law in the years immediately following the civil war.[ ] between and there were twenty cases in which state acts were held invalid under the clause, of which twelve involved public contracts. during the next fifteen years, which was the period of waite's chief justiceship, twenty-nine cases reached the court in which state legislation was set aside under the clause. twenty-four of these involved public contracts. the decline of the importance of the clause as a title in constitutional law began under chief justice fuller ( to ). during this period less than % of the cases involving the validity of state legislation involved this rubric. in twenty-eight of these cases, of which only two involved private contracts, the statute involved was set aside. during chief justice white's term ( to ) the proportion of contract cases shrank to %, and in that of chief justice taft, to %.[ ] in recent years the clause has appeared to undergo something of a revival, not however as a protection of public grants, but as a protection of private credits. during the depression, which began in and deepened in , state legislatures enacted numerous moratorium statutes, and beginning with home loan association _v._ blaisdell, which was decided in , the court was required to pass upon several of these. at the same time the clause was, in effect, treated by the court in two important cases as interpretive of the due process clause, amendment v, and thus applied indirectly as a restriction on the power of congress.[ ] but this emergence of the clause into prominence was a flash in the pan. during the last decade hardly a case a term involving the clause has reached the court, counting even those in which it is treated as a tail to the due process of law kite.[ ] the reason for this declension has been twofold: first, the subordination of public grants to the police power; secondly, the expansion of the due process clause, which has largely rendered it a fifth wheel to the constitutional law coach. clause . no state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the united states; and all such laws shall be subject to the revision and controul of the congress. duties on exports and imports scope only articles imported from or exported to a foreign country, or "a place over which the constitution has not extended its commands with respect to imports and their taxation," e.g., the philippine islands, are comprehended by the terms "imports" and "exports,"[ ] goods brought from another state are not affected by this section.[ ] to determine how long imported wares remain under the protection of this clause, the supreme court enunciated the original package doctrine in the leading case of brown _v._ maryland.[ ] "when the importer has so acted upon the thing imported," wrote chief justice marshall, "that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports, to escape the prohibition in the constitution."[ ] a box, case or bale in which separate parcels of goods have been placed by the foreign seller is regarded as the original package, and upon the opening of such container for the purpose of using the separate parcels, or of exposing them for sale, each parcel loses its character as an import and becomes subject to taxation as a part of the general mass of property in the state.[ ] imports for manufacture cease to be such when the intended processing takes place,[ ] or when the original packages are broken.[ ] where a manufacturer imports merchandise and stores it in his warehouse in the original packages, that merchandise does not lose its quality as an import, at least so long as it is not required to meet such immediate needs.[ ] the purchaser of imported goods is deemed to be the importer if he was the efficient cause of the importation, whether the title to the goods vested in him at the time of shipment, or after its arrival in this country.[ ] a state franchise tax measured by properly apportioned gross receipts may be imposed upon a railroad company in respect of the company's receipts for services in handling imports and exports at its marine terminal.[ ] privilege taxes a state law requiring importers to take out a license to sell imported goods amounts to an indirect tax on imports and hence is unconstitutional.[ ] likewise, a franchise tax upon foreign corporations engaged in importing nitrate and selling it in the original packages,[ ] a tax on sales by brokers[ ] and auctioneers[ ] of imported merchandise in original packages, and a tax on the sale of goods in foreign commerce consisting of an annual license fee plus a percentage of gross sales,[ ] have been held invalid. on the other hand, pilotage fees,[ ] a tax upon the gross sales of a purchaser from the importer,[ ] a license tax upon dealing in fish which, through processing, handling, and sale, have lost their distinctive character as imports,[ ] an annual license fee imposed on persons engaged in buying and selling foreign bills of exchange,[ ] and a tax upon the right of an alien to receive property as heir, legatee, or donee of a deceased person[ ] have been held not to be duties on imports or exports. property taxes property brought into the united states from without is immune from _ad valorem_ taxation so long as it retains its character as an import,[ ] but the proceeds of the sale of imports, whether in the form of money or notes, may be taxed by a state.[ ] a property tax levied on warehouse receipts for whiskey exported to germany was held unconstitutional as a tax on exports.[ ] inspection laws inspection laws "are confined to such particulars as, in the estimation of the legislature and according to the customs of trade, are deemed necessary to fit the inspected article for the market, by giving the purchaser public assurance that the article is in that condition, and of that quality, which makes it merchantable and fit for use or consumption."[ ] in turner _v._ maryland[ ] the supreme court listed as recognized elements of inspection laws, the "quality of the article, form, capacity, dimensions, and weight of package, mode of putting up, and marking and branding of various kinds, * * *" .[ ] it sustained as an inspection law a charge for storage and inspection imposed upon every hogshead of tobacco grown in the state and intended for export, which the law required to be brought to a state warehouse to be inspected and branded. the court has cited this section as a recognition of a general right of the states to pass inspection laws, and to bring, within their reach articles of interstate, as well as of foreign, commerce.[ ] but on the ground that, "it has never been regarded as within the legitimate scope of inspection laws to forbid trade in respect to any known article of commerce, irrespective of its condition and quality, merely on account of its intrinsic nature and the injurious consequences of its use or abuse," it held that a state law forbidding the importation of intoxicating liquors into the state could not be sustained as an inspection law.[ ] since the adoption of the twenty-first amendment, such state legislation is valid whether classified as an inspection law or not. clause . no state shall, without the consent of congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. tonnage duties the prohibition against tonnage duties embraces all taxes and duties, regardless of their name or form, whether measured by the tonnage of the vessel or not, which are in effect charges for the privilege of entering, trading in, or lying in a port.[ ] but it does not extend to charges made by state authority, even if graduated according to tonnage,[ ] for services rendered to the vessel, such as pilotage, towage, charges for loading and unloading cargoes, wharfage, or storage.[ ] for the purpose of determining wharfage charges, it is immaterial whether the wharf was built by the state, a municipal corporation or an individual; where the wharf is owned by a city, the fact that the city realized a profit beyond the amount expended does not render the toll objectionable.[ ] the services of harbor masters for which fees are allowed must be actually rendered, and a law permitting harbor masters or port wardens to impose a fee in all cases is void.[ ] a state may not levy a tonnage duty to defray the expenses of its quarantine system,[ ] but it may exact a fixed fee for examination of all vessels passing quarantine.[ ] a state license fee for ferrying on a navigable river is not a tonnage tax, but rather is a proper exercise of the police power, and the fact that a vessel is enrolled under federal law does not exempt it.[ ] in the state tonnage tax cases,[ ] an annual tax on steamboats measured by their registered tonnage was held invalid despite the contention that it was a valid tax on the steamboat as property. keeping troops this provision contemplates the use of the state's military power to put down an armed insurrection too strong to be controlled by civil authority;[ ] and the organization and maintenance of an active state militia is not a keeping of troops in time of peace within the prohibition of this clause.[ ] interstate compacts background of clause except for the single limitation that the consent of congress must be obtained, the original inherent sovereign rights of the states to make compacts with each other was not surrendered under the constitution.[ ] "the compact," as the supreme court has put it, "adapts to our union of sovereign states the age-old treaty-making power of independent sovereign nations."[ ] in american history the compact technique can be traced back to the numerous controversies which arose over the ill-defined boundaries of the original colonies. these disputes were usually resolved by negotiation, with the resulting agreement subject to approval by the crown.[ ] when the political ties with britain were broken the articles of confederation provided for appeal to congress in all disputes between two or more states over boundaries or "any cause whatever"[ ] and required the approval of congress for any "treaty confederation or alliance" to which a state should be a party.[ ] the framers of the constitution went further. by the first clause of this section they laid down an unqualified prohibition against "any treaty, alliance or confederation"; and by the third clause they required the consent of congress for "any agreement or compact." the significance of this distinction was pointed out by chief justice taney in holmes _v._ jennison.[ ] "as these words ('agreement or compact') could not have been idly or superfluously used by the framers of the constitution, they cannot be construed to mean the same thing with the word treaty. they evidently mean something more, and were designed to make the prohibition more comprehensive. * * * the word 'agreement,' does not necessarily import and direct any express stipulation; nor is it necessary that it should be in writing. if there is a verbal understanding, to which both parties have assented, and upon which both are acting, it is an 'agreement.' and the use of all of these terms, 'treaty,' 'agreement,' 'compact,' show that it was the intention of the framers of the constitution to use the broadest and most comprehensive terms; and that they anxiously desired to cut off all connection or communication between a state and a foreign power; and we shall fail to execute that evident intention, unless we give to the word 'agreement' its most extended signification; and so apply it as to prohibit every agreement, written or verbal, formal or informal, positive or implied, by the mutual understanding of the parties."[ ] but in virginia _v._ tennessee,[ ] decided more than a half century later, the court shifted position, holding that the unqualified prohibition of compacts and agreements between states without the consent of congress did not apply to agreements concerning such minor matters as adjustments of boundaries, which have no tendency to increase the political powers of the contractant states or to encroach upon the just supremacy of the united states. this divergence of doctrine may conceivably have interesting consequences.[ ] subject matter of interstate compacts for many years after the constitution was adopted, boundary disputes continued to predominate as the subject matter of agreements among the states. since the turn of the twentieth century, however, the interstate compact has been used to an increasing extent as an instrument for state cooperation in carrying out affirmative programs for solving common problems. the execution of vast public undertakings, such as the development of the port of new york by the port authority created by compact between new york and new jersey, flood control, the prevention of pollution, and the conservation and allocation of water supplied by interstate streams, are among the objectives accomplished by this means.[ ] another important use of this device was recognized by congress in the act of june , ,[ ] whereby it consented in advance to agreements for the control of crime. the first response to this stimulus was the crime compact of , providing for the supervision of parolees and probationers, to which forty-five states had given adherence by .[ ] subsequently congress has authorized, on varying conditions, compacts touching the production of tobacco, the conservation of natural gas, the regulation of fishing in inland waters, the furtherance of flood and pollution control, and other matters. moreover, since at least thirty-six states, beginning with new jersey, have set up permanent commissions for interstate cooperation, which have led to the formation of a council of state governments ("cosgo" for short), the creation of special commissions for the study of the crime problem, the problem of highway safety, the trailer problem, problems created by social security legislation, etc., and the framing of uniform state legislation for dealing with some of these.[ ] consent of congress the constitution makes no provision as to the time when the consent of congress shall be given or the mode or form by which it shall be signified.[ ] while the consent will usually precede the compact or agreement, it may be given subsequently where the agreement relates to a matter which could not be well considered until its nature is fully developed.[ ] the required consent is not necessarily an expressed consent; it may be inferred from circumstances.[ ] it is sufficiently indicated, when not necessary to be made in advance, by the approval of proceedings taken under it.[ ] the consent of congress may be granted conditionally "upon terms appropriate to the subject and transgressing no constitutional limitations."[ ] and in a recent instance it has not been forthcoming at all. in sipuel _v._ board of regents,[ ] decided in , the supreme court ruled that the equal protection clause of amendment xiv requires a state maintaining a law school for white students to provide legal education for a negro applicant, and to do so as soon as it does for applicants of any other group. shortly thereafter the governors of southern states convened to canvass methods for meeting the demands of the court. there resulted a compact to which state legislatures have consented and by which a board of control for southern regional education is set up. although some early steps were taken toward obtaining congress's consent to the agreement, the effort was soon abandoned, but without affecting the cooperative educational program, which to date has not been extended to the question of racial segregation.[ ] finally, congress does not, by giving its consent to a compact, relinquish or restrict its own powers, as for example, its power to regulate interstate commerce.[ ] grants of franchise to corporation by two states it is competent for a railroad corporation organized under the laws of one state, when authorized so to do by the consent of the state which created it, to accept authority from another state to extend its railroad into such state and to receive a grant of powers to own and control, by lease or purchase, railroads therein, and to subject itself to such rules and regulations as may be prescribed by the second state. such legislation on the part of two or more states is not, in the absence of inhibitory legislation by congress, regarded as within the constitutional prohibition of agreements or compacts between states.[ ] legal effect of interstate compacts whenever, by the agreement of the states concerned and the consent of congress, an interstate compact comes into operation, it has the same effect as a treaty between sovereign powers. boundaries established by such compacts become binding upon all citizens of the signatory states and are conclusive as to their rights.[ ] private rights may be affected by agreements for the equitable apportionment of the water of an interstate stream, without a judicial determination of existing rights.[ ] valid interstate compacts are within the protection of the obligation of contracts clause and specific enforcement of them is within the original jurisdiction of the supreme court.[ ] congress also has authority to compel compliance with such a compact.[ ] addendum nor may a state read herself out of a compact which she has ratified and to which congress has consented by pleading that under the state's constitution as interpreted by the highest state court she had lacked power to enter into such an agreement and was without power to meet certain obligations thereunder. the final construction of the state constitution in such a case rests with the supreme court.[ ] notes [ ] wheat. , ( ). [ ] _see_ pp. - . [ ] u.s. , ( ). [ ] wheat. at . [ ] ibid. . [ ] ibid. . [ ] story, commentaries, § . _see also_ ibid. §§ and . [ ] pet. ( ). [ ] ibid. at . [ ] ibid. . [ ] prigg _v._ pennsylvania, pet. , , - ( ). [ ] juilliard _v._ greenman, u.s. , - ( ). _see also_ justice bradley's concurring opinion in knox _v._ lee, wall. , ( ). [ ] united states _v._ jones, u.s. ( ). [ ] united states _v._ kagama, u.s. ( ). [ ] fong yue ting _v._ united states, u.s. ( ). [ ] hines _v._ davidowitz et al., u.s. ( ). [ ] u.s. ( ). [ ] ibid. , - , _passim_. for anticipations of this conception of the powers of the national government in the field of foreign relations, _see_ penhallow _v._ doane, dall. , , ( ); _also_ ibid. and (argument of counsel); _also_ chief justice taney's opinion in holmes _v._ jennison, pet. , - ( ). [ ] locke, second treatise on government, chapter xi § ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] wayman _v._ southard, wheat. ( ). [ ] the brig aurora, cr. ( ). [ ] wayman _v._ southard, wheat. , ( ). [ ] sunshine anthracite coal co. _v._ adkins, u.s. , ( ); united states _v._ rock royal co-operative, u.s. , ( ). [ ] united states _v._ rock royal co-operative, u.s. , ( ). [ ] schechter poultry corp. _v._ united states, u.s. , ( ); opp cotton mills _v._ administrator, u.s. , ( ); american power & light co. _v._ securities & exchange comm., u.s. , , ( ). _cf._ wichita r. & l. co. _v._ public utilities comm., u.s. , ( ). [ ] new york cent. securities corp. _v._ united states, u.s. , ( ). [ ] federal radio commission _v._ nelson bros. bond & mortgage co., u.s. , ( ); national broadcasting co. _v._ united states, u.s. , ( ); federal communications commission _v._ pottsville broadcasting co., u.s. , ( ). [ ] lichter _v._ united states, u.s. , ( ). [ ] panama refining co. _v._ ryan, u.s. ( ); schechter poultry corp. _v._ united states, u.s. ( ). [ ] united states _v._ rock royal co-operative, u.s. ( ); sunshine anthracite coal co. _v._ adkins, u.s. ( ); bowles _v._ willingham, u.s. , ( ); yakus _v._ united states, u.s. , ( ). [ ] fahey _v._ mallonee, u.s. ( ). [ ] ibid. . [ ] ex parte kollock, u.s. ( ). [ ] buttfield _v._ stranahan, u.s. ( ). [ ] united states _v._ grimaud, u.s. ( ). [ ] united states _v._ shreveport grain & elevator co., u.s. , ( ). [ ] currin _v._ wallace, u.s. ( ). [ ] avent _v._ united states, u.s. ( ). [ ] united states _v._ rock royal co-operative, u.s. ( ). [ ] yakus _v._ united states, u.s. ( ). [ ] bowles _v._ willingham, u.s. ( ). [ ] sunshine anthracite coal co. _v._ adkins, u.s. , ( ). [ ] hirabayashi _v._ united states, u.s. , ( ); korematsu _v._ united states, u.s. ( ). [ ] fahey _v._ mallonee, u.s. ( ). [ ] mulford _v._ smith, u.s. ( ). [ ] interstate commerce comm'n. _v._ goodrich transit co., u.s. , ( ). [ ] although reversing the decision of the state supreme court that rates fixed by the commission were not subject to judicial review, the supreme court implicitly sanctioned the exercise of rate-making power by such bodies. chicago, m. & st. p.r. co. _v._ minnesota, u.s. ( ). [ ] hampton & co. _v._ united states, u.s. , ( ). [ ] state of minnesota _v._ chicago, m. & st. p.r. co. minn. , ( ). [ ] interstate commerce commission _v._ louisville & n.r. co., u.s. ( ); new york _v._ united states, u.s. , - ( ) and cases cited therein. _see also_ new york et al. _v._ united states, u.s. ( ). [ ] union bridge co. _v._ united states, u.s. ( ). [ ] first nat. bank _v._ fellows, ex rel. union trust co., u.s. ( ). [ ] mahler _v._ eby, u.s. ( ); united states ex rel. tisi _v._ tod, u.s. ( ). [ ] new york central securities corp. _v._ united states, u.s. , ( ). [ ] federal radio comm'n. _v._ nelson bros. bond & mortgage co., u.s. ( ). [ ] national broadcasting co. _v._ united states, u.s. ( ). [ ] stat. , as amended, u.s.c. § _et seq._ [ ] brannan _v._ stark, u.s. ( ). justice black, with whom justices reed and douglas concurred, dissented, saying: "in striking down these provisions of the secretary's order, the court has departed from many principles it has previously announced in connection with its supervision over administrative agents. under these principles, the court would refrain from setting aside administrative findings of fact when supported by substantial evidence; we would give weight to the interpretation of a statute by its administrators; when, administrators have interpreted broad statutory terms, such, as here involved, we would recognize that it is our duty to accept this interpretation even though it was not 'the only reasonable one' or the one 'we would have reached had the question arisen in the first instance in judicial proceedings.' unemployment comm'n _v._ aragon, u.s. , ( )." ibid. . [ ] jackson _v._ roby, u.s. ( ); erhardt _v._ boaro, u.s. ( ); butte city water co. _v._ baker, u.s. ( ). [ ] st. louis, i.m. & s.r. co. _v._ taylor, u.s. , ( ). [ ] u.s. , ( ). [ ] u.s. , ( ). [ ] currin _v._ wallace, u.s. ( ); united states _v._ rock royal co-operative, u.s. , ( ). [ ] currin _v._ wallace, u.s. , , ( ). [ ] cr. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . [ ] ibid. , . [ ] hampton jr. & co. _v._ united states, u.s. ( ). [ ] u.s. , ( ). [ ] ibid. - .--united states _v._ chemical foundation, u.s. ( ) presented the anomalous situation of the united states suing to set aside a sale of alien property sold by one of its agents, the alien property custodian, by authority of the president. the government contended that statute under which the sale was made was unconstitutional because, in giving the president full power of disposition of the property, it delegated legislative power to the president. declaring that "it was peculiarly within the province of the commander-in-chief to know the facts and to determine what disposition should be made of enemy properties in order effectively to carry on the war," the court affirmed a decree dismissing the suit. ibid. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] white house digest of provisions of law which would become operative upon proclamation of a national emergency by the president. the digest is dated december , . it was released to the press on december th. f.r. . [ ] united states _v._ grimaud, u.s. ( ). [ ] steuart & bros. inc. _v._ bowles, u.s. , ( ). [ ] united states _v._ eaton, u.s. ( ). [ ] steuart & bros. inc. _v._ bowles, u.s. ( ). [ ] kraus & bros. _v._ united states, u.s. ( ). [ ] landis, constitutional limitations on the congressional power of investigation, harvard law review, , - ( ). [ ] annals of congress, ( ). [ ] in , secretary of the treasury, oliver wolcott, jr., addressed a letter to the house of representatives advising them of his resignation from office and inviting an investigation of his office. such an inquiry was made. annals of congress - ( ). [ ] cong. deb. ( ). [ ] cong. deb. ( ). [ ] h.r. rep. no. , th cong., d sess., ser. no. , , , ( ). [ ] cong. globe, th cong. st sess. - ( ). [ ] u.s. ( ). [ ] u.s. , , ( ). [ ] cong. deb. , , , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . _see also_ harriman _v._ interstate commerce commission, u.s. ( ); smith _v._ interstate commerce commission, u.s. ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] u.s. , - ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] in re chapman, u.s. ( ). [ ] u.s. ( ). [ ] wheat. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. , . [ ] wheat. , ( ). [ ] in re chapman, u.s. , - ( ). [ ] united states _v._ bryan, u.s. , ( ); united states _v._ fleischman, u.s. ( ). [ ] christoffel _v._ united states, u.s. , , ( ). [ ] minor _v._ happersett, wall. , ( ); breedlove _v._ suttles, u.s. ( ). [ ] ex parte yarbrough, u.s. ( ); wiley _v._ sinkler, u.s. , ( ); swafford _v._ templeton, u.s. ( ); united states _v._ classic, u.s. ( ). [ ] united states _v._ classic, u.s. , ( ). [ ] united states _v._ mosley, u.s. ( ); united states _v._ saylor, u.s. , ( ). [ ] united states _v._ classic, u.s. ( ). [ ] united states _v._ mosley, u.s. ( ). [ ] stat. ( ); u.s.c. § ( ), superseded by stat. ( ); u.s.c. § (supp. ii, ed.). [ ] united states _v._ mosley, u.s. ( ). [ ] united states _v._ saylor, u.s. ( ). [ ] united states _v._ bathgate, u.s. ( ). _see also_ united states _v._ gradwell, u.s. ( ). [ ] sen. rep. , th cong., st sess. ( ); cong. rec. - ( ). [ ] no. lx. [ ] hinds' precedents of the house of representatives, i: §§ , - ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] hinds' precedents of the house of representatives, i: §§ - ( ). [ ] cong. rec. ( ). [ ] hinds' precedents of the house of representatives, i: § ( ). [ ] ibid. §§ - . [ ] the part of this clause relating to the mode of apportionment of representative among the several states, was changed by the fourteenth amendment, § (p. ) and as to taxes on incomes without apportionment, by the sixteenth amendment (p. ). [ ] legal tender cases, wall. , ( ). [ ] stat. ( ). this same act penalizes refusal to cooperate properly with the census taker by answering his questions and in other ways. u.s.c. . [ ] the senate is a "continuing body"--mcgrain _v._ daugherty, u.s. , - ( ). [ ] stat. ( ). this requirement was dropped in ( stat. , - ) but was renewed in ( stat. ). _see also_ joel francis paschal, the house of representatives "grand depository of the democratic principle", spring issue of law and contemporary problems (duke university school of law), - . [ ] stat. ( ). [ ] stat. ( ); stat. ( ); stat. - ( ). [ ] stat. ( ). [ ] united states _v._ reese, u.s. ( ). [ ] ex parte siebold, u.s. ( ); ex parte clarke, u.s. ( ); united states _v._ gale, u.s. ( ). [ ] u.s. ( ). [ ] smiley _v._ holm, u.s. ( ); koenig _v._ flynn, u.s. ( ); carroll _v._ becker, u.s. ( ). [ ] stat. ( ). [ ] stat. , ( ). [ ] wood _v._ broom, u.s. ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] ibid. - . [ ] ex parte yarbrough, u.s. , ( ); united states _v._ mosley, u.s. ( ); united states _v._ saylor, u.s. ( ). [ ] in re coy, u.s. , ( ). [ ] ex parte siebold, u.s. ( ); ex parte clarke, u.s. ( ); united states _v._ gale, u.s. ( ). [ ] united states _v._ wurzbach, u.s. ( ). [ ] newberry _v._ united states, u.s. ( ). [ ] united states _v._ classic, u.s. , ( ). [ ] barry _v._ united states ex rel. cunningham, u.s. , ( ). [ ] in re loney, u.s. ( ). [ ] cannon's precedents of the house of representatives, vi: §§ - , ( ). _cf._ newberry _v._ united states, u.s. , ( ). [ ] barry _v._ united states ex rel. cunningham, u.s. , ( ). [ ] ibid. . [ ] hinds' precedents of the house of representatives, iv: § - ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] rule v. [ ] hinds' precedents of the house of representatives, iv: § - ( ); cannon's precedents of the house of representatives, vi: §§ , ( ). [ ] united states _v._ ballin, u.s. , ( ). it is, of course, by virtue of its power to determine "rules of its proceedings" that the senate enables its members to prevent the transaction of business by what are termed "filibusters". the question has been raised whether the rules which support a filibuster are constitutionally compatible with the clause in the preceding section: "a majority of each [house] shall constitute a quorum to do business". _see_ franklin burdette, filibustering in the senate (princeton university press, ), , , - , - , - , - . the senate is "a continuing body". mcgrain _v._ daugherty, u.s. , - ( ). hence its rules remain in force from congress to congress except as they are changed from time to time, whereas those of the house are readopted at the outset of each new congress. [ ] u.s. ( ). [ ] u.s. ( ). [ ] title , § . [ ] u.s. at - , citing field _v._ clark, u.s. , - ( ); united states _v._ ballin, u.s. , ( ); and other cases. [ ] burton _v._ united states, u.s. , ( ). [ ] in re chapman, u.s. , , ( ). [ ] i story, constitution, § , quoted with approval in field _v._ clark, u.s. , ( ). [ ] united states _v._ ballin, u.s. , ( ). [ ] field _v._ clark, u.s. ( ); flint _v._ stone tracy co., u.s. , ( ). a parallel rule holds in the case of a duly authenticated official notice to the secretary of state that a state legislature has ratified a proposed amendment to the constitution. leser _v._ garnett, u.s. , ( ); _see also_ coleman _v._ miller, u.s. ( ). in christoffel _v._ united states, u.s. ( ), a sharply divided court ruled that, in a case brought under the perjury statute of the district of columbia (§ - of the d.c. code) for alleged perjurious testimony before a committee of the house of representatives, the trial court erred in charging the jury that it was free to ignore testimony that less than a quorum of the committee was in attendance when the alleged perjury was committed. four justices dissented; and curiously enough only four of the majority were present when the opinion was delivered, the fifth being indisposed. remarks justice jackson in his concurring opinion in united states _v._ bryan ( u.s. ( )), in which the ruling in christoffel was held to be inapplicable: "it is ironic that this interference with legislative procedures was promulgated by exercise within the court of the very right of absentee participation denied to congressmen." ibid. . it seems unlikely that the christoffel decision seriously undermines field _v._ clark. [ ] page _v._ united states, u.s. ( ). [ ] long _v._ ansell, u.s. ( ). [ ] ibid. . [ ] united states _v._ cooper, dall. ( ). [ ] williamson _v._ united states, u.s. , ( ). [ ] kilbourn _v._ thompson, u.s. ( ). [ ] ibid. [ ] mass. ( ). [ ] kilbourn _v._ thompson, u.s. , , ( ). [ ] ibid. . [ ] justice frankfurter for the court in tenney _v._ brandhove, u.s. , ( ). justice douglas dissented: "* * * i do not agree that all abuses of legislative committees are solely for the legislative body to police. we are dealing here with a right protected by the constitution--the right of free speech. the charge * * * is that a legislative committee brought the weight of its authority down on respondent for exercising his right of free speech. reprisal for speaking is as much an abridgment as a prior restraint. if a committee departs so far from its domain [as?] to deprive a citizen of a right protected by the constitution, i can think of no reason why it should be immune". ibid. . _see also_ barsky _v._ united states, f. ( d) ( ); certiorari denied, u.s. ( ). [ ] hinds' precedents of the house of representatives, i: § ( ); cannon's precedents of the house of representatives, vi: §§ , ( ). [ ] hinds' precedents of the house of representatives, i: §§ - ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] the situation gave rise to the case of ex parte albert levitt, petitioner, u.s. ( ). this was the case in which the court declined to pass upon the validity of justice black's appointment. it seems curious that the court, in rejecting petitioner's application, did not point out that it was being asked to assume original jurisdiction contrary to the decision in marbury _v._ madison, cr. ( ). [ ] i story, constitution, § . [ ] twin city nat. bank _v._ nebeker, u.s. ( ). [ ] millard _v._ roberts, u.s. ( ). [ ] flint _v._ stone tracy co., u.s. , ( ). [ ] rainey _v._ united states, u.s. ( ). [ ] la abra silver mining co. _v._ united states, u.s. , ( ). [ ] edwards _v._ united states, u.s. ( ). on one occasion in , delay in presentation of a bill enabled the president to sign it days after the adjournment of congress. schmeckebier, approval of bills after adjournment of congress, american political science review ( ). [ ] gardner _v._ collector, wall. ( ). [ ] ibid. . _see also_ burgess _v._ salmon, u.s. , ( ). [ ] matthews _v._ zane, wheat. , ( ). [ ] lapeyre _v._ united states, wall. , ( ). [ ] okanogan indians _v._ united states, u.s. ( ). [ ] wright _v._ united states, u.s. ( ). [ ] missouri p.r. co. _v._ kansas, u.s. ( ). [ ] wall. , , ( ). [ ] stat. ( ). [ ] th cong., d sess., s. doc. ; hinds' precedents of the house of representatives, iv: § ( ). [ ] _see e.g._, lend lease act of march , ( stat. ); first war powers act of december , ( stat. ); emergency price control act of january , ( stat. ); stabilization act of october , ( stat. ); war labor disputes act of june , ( stat. ). [ ] reorganization act of june , ( stat. ). [ ] reorganization act of april , ( stat. ). [ ] hollingsworth _v._ virginia, dall. ( ). [ ] license tax cases, wall. , ( ). [ ] brushaber _v._ union pac. r.r., u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] wall. ( ). [ ] graves _v._ o'keefe, u.s. ( ). [ ] u.s. , ( ). [ ] veazie bank _v._ fenno, wall. ( ). [ ] united states _v._ baltimore & o.r. co., wall. ( ). [ ] u.s. ( ). [ ] wheat. ( ). [ ] indian motorcycle co. _v._ united states, u.s. ( ). [ ] wheat. , ( ). [ ] snyder _v._ bettman, u.s. , ( ). [ ] south carolina _v._ united states, u.s. ( ). _see also_ ohio _v._ helvering, u.s. ( ). [ ] u.s. ( ). [ ] greiner _v._ lewellyn, u.s. ( ). [ ] wheeler lumber bridge & supply co. _v._ united states, u.s. ( ). [ ] university of illinois _v._ united states, u.s. ( ). [ ] allen _v._ regents, u.s. ( ). [ ] wilmette park district _v._ campbell, u.s. ( ). [ ] metcalf _v._ mitchell, u.s. ( ). [ ] helvering _v._ powers, u.s. ( ). [ ] willcutts _v._ bunn, u.s. ( ). [ ] helvering _v._ mountain producers corp., u.s. ( ), overruling burnet _v._ coronado oil & gas co., u.s. ( ). [ ] new york _v._ united states, u.s. , ( ), (concurring opinion of justice rutledge). [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] ibid. . [ ] ibid. - . [ ] ibid. . [ ] wilmette park district _v._ campbell, u.s. ( ). [ ] _see also_ article i, section , clause . [ ] labelle iron works _v._ united states, u.s. ( ); brushaber _v._ union p.r. co., u.s. ( ); head money cases, u.s. ( ). [ ] knowlton _v._ moore, u.s. ( ). [ ] fernandez _v._ wiener, u.s. ( ); riggs _v._ del drago, u.s. ( ); phillips _v._ commissioner of internal revenue, u.s. ( ); poe _v._ seaborn, u.s. , ( ). [ ] florida _v._ mellon, u.s. ( ). [ ] downes _v._ bidwell, u.s. ( ). [ ] u.s. ( ). the court recognized that alaska was an incorporated territory but took the position that the situation in substance was the same as if the taxes had been directly imposed by a territorial legislature for the support of the local government. [ ] license tax cases, wall. , ( ). [ ] united states _v._ yuginovich, u.s. ( ). [ ] united states _v._ constantine, u.s. , ( ). [ ] license tax cases, wall. , ( ). [ ] felsenheld _v._ united states, u.s. ( ). [ ] in re kollock, u.s. ( ). [ ] united states _v._ doremus, u.s. ( ). _cf._ nigro _v._ united states, u.s. ( ). [ ] sonzinsky _v._ united states, u.s. ( ). [ ] mccray _v._ united states, u.s. ( ). [ ] justice clark speaking for the court in united states _v._ sanchez, u.s. , ( ). _see also_ sonzinsky _v._ united states, u.s. , - ( ). [ ] sunshine anthracite coal co. _v._ adkins, u.s. , ( ). _see also_ head money cases, u.s. , ( ). [ ] bailey _v._ drexel furniture co., u.s. ( ); hill _v._ wallace, u.s. ( ); helwig _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] stat. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] iii writings of thomas jefferson, - (library edition, ). [ ] james francis lawson, the general welfare clause ( ). [ ] the federalist nos. and . [ ] ibid. no. . [ ] stat. ( ). [ ] stat. ( ). [ ] in an advisory opinion which it rendered for president monroe at his request on the power of congress to appropriate funds for public improvements, the court answered that such appropriations might be properly made under the war and postal powers. _see_ e.f. albertsworth, "advisory functions in the supreme court," georgetown l.j. , - ( ). monroe himself ultimately adopted the broadest view of the spending power, from which, however, he carefully excluded any element of regulatory or police power. _see_ his "views of the president of the united states on the subject of internal improvements," of may , , richardson, messages and papers of the presidents, - . [ ] the council of state governments, federal grants-in-aid, - ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). _see also_ alabama power co. _v._ ickes, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). _see also_ cleveland _v._ united states, u.s. ( ). [ ] u.s. , , ( ). [ ] justice stone, speaking for himself and two other justices, dissented on the ground that congress was entitled when spending the national revenues for the "general welfare" to see to it that the country got its money's worth thereof, and that the condemned provisions were "necessary and proper" to that end. united states _v._ butler, u.s. , - ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . [ ] cincinnati soap co. _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] u.s. , , ( ). [ ] u.s. ( ). [ ] stat. ( ). [ ] u.s. , . [ ] united states _v._ realty co., u.s. ( ); pope _v._ united states, u.s. , ( ). [ ] cincinnati soap co. _v._ united states, u.s. ( ). [ ] cr. ( ). [ ] ibid. . [ ] madison, notes on the constitutional convention, (hunt's ed. ). [ ] ibid. . [ ] legal tender cases, wall. ( ), overruling hepburn _v._ griswold, wall. ( ). [ ] perry _v._ united states, u.s. , ( ). _see also_ lynch _v._ united states, u.s. ( ). [ ] prentice and egan, the commerce clause of the federal constitution ( ) . the balance began inclining the other way with the enactment of the interstate commerce act in . [ ] wheat. , - ( ). _cf._ webster for the appellant: "nothing was more complex than commerce; and in such an age as this, no words embraced a wider field than _commercial_ regulation. almost all the business and intercourse of life may be connected, incidently, more or less, with commercial regulations." (ibid. - ); also justice johnson, in his concurring opinion: "commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation. shipbuilding, the carrying trade, and propagation of seamen, are such vital agents of commercial prosperity, that the nation which could not legislate over these subjects, would not possess power to regulate commerce." (ibid. - ). "it is all but impossible in our own age to sense fully its eighteenth-century meaning (i.e., the meaning of commerce). the eighteenth century did not separate by artificial lines aspects of a culture which are inseparable. it had no lexicon of legalisms extracted from the law reports in which judicial usage lies in a world apart from the ordinary affairs of life. commerce was then more than we imply now by business or industry. it was a name for the economic order, the domain of political economy, the realm of a comprehensive public policy. it is a word which makes trades, activities and interests an instrument in the culture of a people. if trust was to be reposed in parchment, it was the only word which could catch up into a single comprehensive term all activities directly affecting the wealth of the nation," walton h. hamilton and douglass adair, the power to govern, - (new york: ). [ ] ibid. . [ ] wheat. , ( ). [ ] _see_ pennsylvania _v._ wheeling & belmont bridge co., how. ( ); mobile _v._ kimball, u.s. ( ); covington bridge co. _v._ kentucky, u.s. ( ); kelley _v._ rhoads, u.s. ( ); united states _v._ hill, u.s. ( ); edwards _v._ california, u.s. ( ). [ ] pensacola tel. co. _v._ western union tel. co., u.s. , ( ); international text book co. _v._ pigg, u.s. , - ( ); western union tel. co. _v._ foster, u.s. ( ); federal radio com. _v._ nelson bros., u.s. ( ). [ ] swift & co. _v._ united states, u.s. , - ( ); dahnke-walker milling co. _v._ bondurant, u.s. , - ( ); stafford _v._ wallace, u.s. ( ); federal trade com. _v._ pacific states paper trade assoc., u.s. , - ( ). [ ] kidd _v._ pearson, u.s. ( ); oliver iron co. _v._ lord, u.s. ( ). [ ] paul _v._ virginia, wall. ( ). _see also_ new york l. ins. co. _v._ deer lodge county, u.s. ( ); new york l. ins. co. _v._ cravens, u.s. , ( ); fire assoc. of philadelphia _v._ new york, u.s. ( ); bothwell _v._ buckbee-mears co., u.s. ( ); metropolitan casualty ins. co. _v._ brownell, u.s. ( ). [ ] federal baseball club _v._ national league, u.s. ( ). [ ] blumenstock bros. _v._ curtis pub. co., u.s. ( ). [ ] williams _v._ fears, u.s. ( ). a contract entered into for the erection of a factory which was to be supervised and operated by the officers of a foreign corporation was held not a transaction of interstate commerce in the constitutional sense merely because of the fact that the products of the factory are largely to be sold and shipped to other factories. diamond glue co. _v._ united states glue co., u.s. , ( ). in browning _v._ waycross, u.s. ( ), it was held that the installation of lightning rods sold by a foreign corporation was not interstate commerce, although provided for in the contract of purchase. similarly in general railway signal co. _v._ virginia, u.s. ( ), where a foreign corporation installed signals in virginia, bringing in materials, supplies, and machinery from without the state, the court held that local business was involved, separate and distinct from interstate commerce, and subject to the licensing power of the state. however, in an interstate contract for the sale of a complicated ice-making plant, where it was stipulated that the parts should be shipped into the purchaser's state and the plant there assembled and tested under the supervision of an expert to be sent by the seller, it was held that services of the expert did not constitute the doing of a local business subjecting the seller to regulations of texas concerning foreign corporations. york mfg. co. _v._ colley, u.s. ( ). _see also_ kansas city structural steel co. _v._ arkansas, u.s. ( ). [ ] associated press _v._ united states, u.s. ( ). [ ] american medical association _v._ united states, u.s. ( ). _cf._ united states _v._ oregon state medical society, u.s. ( ). [ ] united states _v._ south-eastern underwriters assoc, u.s. ( ). the interstate character of the insurance business as today organized and carried on is stressed, although its intrastate elements are not overlooked. the court's business is to determine in each case whether "the competing * * * state and national interests * * * can be accommodated." ibid. and . [ ] article i, § , cl. . [ ] _see infra_ congressional regulations of production and industrial relations. [ ] wheat. , ( ). [ ] wheat. , ( ). [ ] new york _v._ miln, pet. ( ), overturned in henderson _v._ new york, u.s. ( ); license cases, how. , - , , ( ); passenger cases, how. , - , - ( ); the passaic bridges, wall. (appendix), ( ); united states _v._ dewitt, wall. , ( ); patterson _v._ kentucky, u.s. , ( ); trade-mark cases, u.s. ( ); kidd _v._ pearson, u.s. ( ); illinois central r. co. _v._ mckendree, u.s. ( ); keller _v._ united states, u.s. , - ( ); hammer _v._ dagenhart, u.s. ( ). _see also infra._ [ ] united states _v._ wrightwood dairy co., u.s. , ( ). [ ] gibbons _v._ ogden, wheat. , . commerce "among the several states" does not comprise commerce of the district of columbia nor the territories of the united states. congress's power over their commerce is an incident of its general power over them. stoutenburgh _v._ hennick, u.s. ( ); atlantic cleaners and dyers, inc. _v._ united states, u.s. ( ); in re bryant, fed. cas. no. ( ). transportation between two points in the same state, when a large part of the route is a loop outside the state, is "commerce among the several states." hanley _v._ kansas city southern r. co., u.s. ( ); followed in western union telegraph co. _v._ speight, u.s. ( ), as to a message sent from one point to another in north carolina via a point in virginia. [ ] wheat. , - . [ ] champion _v._ ames (lottery case), u.s. , - . [ ] brolan _v._ united states, u.s. , ( ). [ ] thurlow _v._ massachusetts (license cases), how. , ( ). [ ] pittsburgh & s. coal co. _v._ bates, u.s. , ( ). [ ] united states _v._ carolene products co., u.s. , - ( ). _see also infra._ [ ] the "daniel ball," wall. , ( ). [ ] mobile county _v._ kimball, u.s. , , ( ). [ ] second employers' liability cases, u.s. , , - ( ). [ ] the above case. and _see infra_. [ ] wheat. , , ( ). [ ] pensacola teleg. co. _v._ western union teleg. co., u.s. ( ). _see also_ western union teleg. co. _v._ texas, u.s. ( ). [ ] ibid. . "commerce embraces appliances necessarily employed in carrying on transportation by land and water."--chicago & n.w.r. co. _v._ fuller, wall. , ( ). [ ] "no question is presented as to the power of the congress, in its regulation of interstate commerce, to regulate radio communications." chief justice hughes speaking for the court in federal radio com _v._ nelson bros. b. & m. co., u.s. , ( ). _said_ justice stone, speaking for the court in : "appellant is thus engaged in the business of transmitting advertising programs from its stations in washington to those persons in other states who 'listen in' through the use of receiving sets. in all essentials its procedure does not differ from that employed in sending telegraph or telephone messages across state lines, which is interstate commerce. western union teleg. co. _v._ speight, u.s. ( ); new jersey bell teleph. co. _v._ state bd. of taxes & assessments, u.s. ( ); cooney _v._ mountain states teleph. & teleg. co., u.s. ( ); pacific teleph. & teleg. co. _v._ tax commission, u.s. ( ). in each, transmission is effected by means of energy manifestations produced at the point of reception in one state which are generated and controlled at the sending point in another. whether the transmission is effected by the aid of wires, or through a perhaps less well understood medium, 'the ether,' is immaterial, in the light of those practical considerations which have dictated the conclusion that the transmission of information interstate is a form of 'intercourse,' which is commerce. _see_ gibbons _v._ ogden, wheat. , ." fisher's blend station _v._ tax commission, u.s. , - ( ). [ ] how. . [ ] stat. ( ). [ ] pennsylvania _v._ wheeling & belmont bridge co., how. , ( ). "it is congress, and not the judicial department, to which the constitution has given the power to regulate commerce with foreign nations and among the several states. the courts can never take the initiative on this subject." parkersburg & o. river transportation co. _v._ parkersburg, u.s. , ( ). _see also_ prudential insurance co. _v._ benjamin, u.s. ( ); and robertson _v._ california, u.s. ( ). [ ] wall. . [ ] ibid. - . [ ] union bridge co. _v._ united states, u.s. ( ). _see also_ monongahela bridge co. _v._ united states, u.s. ( ); and wisconsin _v._ illinois, u.s. ( ). of collateral interest are the following: south carolina _v._ georgia, u.s. , ( ); bedford _v._ united states, u.s. ( ); jackson _v._ united states, u.s. ( ); united states _v._ arizona, u.s. ( ). [ ] gibson _v._ united states, u.s. ( ). _see also_ newport & cincinnati bridge co. _v._ united states, u.s. ( ); united states _v._ rio grande dam & irrig. co., u.s. ( ); united states _v._ chandler-dunbar water power co., u.s. ( ); seattle _v._ oregon & w.r. co., u.s. , ( ); economy light & power co. _v._ united states, u.s. ( ); united states _v._ river rouge improv. co., u.s. , ( ); henry ford & son _v._ little falls fibre co., u.s. ( ); united states _v._ commodore park, u.s. ( ). [ ] united states _v._ cress, u.s. ( ). [ ] united states _v._ chicago, m., st. p. & p.r. co., u.s. , ( ); united states _v._ willow river power co., u.s. ( ). [ ] united states _v._ rio grande dam & irrig. co., u.s. ( ); and _cf._ below the discussion of united states _v._ appalachian electric p. co., u.s. ( ). [ ] the "daniel ball" _v._ united states, wall. ( ). [ ] ibid. . [ ] ibid. . [ ] ibid. . "the regulation of commerce implies as much control, as far-reaching power, over an artificial as over a natural highway." justice brewer for the court in monongahela navigation co. _v._ united states, u.s. , ( ). [ ] congress had the right to confer upon the interstate commerce commission the power to regulate interstate ferry rates. (new york c. & h.r.r. co. _v._ board of chosen freeholders, u.s. ( )); and to authorize the commission to govern the towing of vessels between points in the same state but partly through waters of an adjoining state (cornell steamboat co. _v._ united states, u.s. ( )). _also_ congress's power over navigation extends to persons furnishing wharfage, dock, warehouse, and other terminal facilities to a common carrier by water. hence an order of the united states maritime commission banning certain allegedly "unreasonable practices" by terminals in the port of san francisco, and prescribing schedules of maximum free time periods and of minimum charges was constitutional. (california _v._ united states, u.s. ( )). the same power also comprises regulation of the registry, enrollment, license, and nationality of ships and vessels; the method of recording bills of sale and mortgages thereon; the rights and duties of seamen; the limitations of the responsibility of shipowners for the negligence and misconduct of their captains and crews; and many other things of a character truly maritime. _see_ rodd _v._ heartt (the "lottawanna"), wall. , ( ); providence & n.y.s.s. co. _v._ hill mfg. co., u.s. , ( ); old dominion s.s. co. _v._ gilmore, u.s. ( ); o'donnell _v._ great lakes dredge & dock co., u.s. ( ). _see also_ below article iii, § , (admiralty and maritime clause). [ ] pollard _v._ hagan, how. ( ); shively _v._ bowlby, u.s. ( ). "the shores of navigable waters, and the soils under them, were not granted by the constitution to the united states, but were reserved to the states respectively; and the new states have the same rights, sovereignty, and jurisdiction over this subject as the original states." how. , headnote . [ ] green bay & m. canal co. _v._ patten paper co., u.s. , ( ). [ ] u.s. ( ). [ ] ibid. - , citing kaukauna water power co. _v._ green bay & m. canal co., u.s. ( ). [ ] u.s. . [ ] u.s. . [ ] u.s. at , . [ ] u.s. at , - . [ ] u.s. at . [ ] oklahoma ex rel. phillips _v._ atkinson co., u.s. , - _passim_ ( ). [ ] ashwander _v._ tennessee valley authority, u.s. ( ). _see infra._ [ ] stat. ( ). [ ] thomson _v._ pacific railroad, wall. , ( ); california _v._ central pacific railroad, u.s. , ( ); cherokee nation _v._ southern kansas r. co., u.s. ( ); luxton _v._ north river bridge co., u.s. , ( ). [ ] stat. ( ). in his first annual message (december , ), president johnson had asked congress "to prevent any selfish impediment [by the states] to the free circulation of men and merchandise." richardson, messages and papers of the presidents, . [ ] stat. ; pensacola teleg. co. _v._ western union teleg. co., u.s. , - , ( ). [ ] r.s. secs. - ; replaced today by the live stock transportation act of ( stat. ). [ ] u.s. ( ). [ ] u.s. . [ ] stat. ( ). [ ] u.s. . [ ] interstate commerce com. _v._ alabama midland r. co., u.s. , ( ). _see also_ cincinnati, n.o. & t.p.r. co. _v._ interstate commerce commission, u.s. ( ). [ ] stat. . [ ] stat. ( ). [ ] by the federal communications act of ( stat. ), this jurisdiction was handed over to the federal communications commission, created by the act. [ ] stat. § ; § . the act must today be read in conjunction with the transportation act of ( stat. ), which "was intended, together with the old law, to provide a completely integrated interstate regulatory system over motor, railroad, and water carriers." united states _v._ pennsylvania r. co., u.s. , - ( ). [ ] houston e. & w.t.r. co. _v._ united states (shreveport case), u.s. ( ). forty states, through their attorneys general, intervened in the case against the commission's order. [ ] ibid. - . [ ] ibid. . _see_ to the same effect american express co. _v._ caldwell, u.s. , ( ); pacific teleph. & teleg. co. _v._ tax commission (washington), u.s. ( ); weiss _v._ united states, u.s. ( ); bethlehem steel co. _v._ new york labor relations bd., u.s. , ( ); and united states _v._ walsh, u.s. , ( ). [ ] u.s. ( ). [ ] in north carolina _v._ united states, u.s. ( ), the court disallowed as _ultra vires_ an order of the interstate commerce commission, setting aside state-prescribed intrastate passenger rates, on the ground that it was unsupported by clear findings and evidence sufficient to show its necessity. among the various provisions of the interstate commerce commission act that have been sustained in specific decisions are the following: a provision penalizing shippers for obtaining transportation at less than published rates, armour packing co. _v._ united states, u.s. ( ); the so-called "commodities clause" of the hepburn act of june , , construed as prohibiting the hauling of commodities in which the carrier had at the _time of haul_ a proprietary interest, united states _v._ delaware & h. co., u.s. ( ); a provision of the same act abrogating life passes, louisville & n.r. co. _v._ mottley, u.s. ( ); a provision of the same act authorizing the commission to regulate the entire system of bookkeeping of interstate carriers, including intrastate accounts, interstate commerce commission _v._ goodrich transit co., u.s. ( ); the "long and short haul" clause of the interstate commerce act, united states _v._ atchison, t. & s.f.r. co. (intermountain rate cases), u.s. ( ); an order of the commission establishing the so-called uniform zone or block system of express rates, american express co. _v._ south dakota ex rel. caldwell, u.s. ( ); an order of the commission directing the abandonment of an intrastate branch of an interstate railroad, colorado _v._ united states, u.s. ( ); an order of the commission fixing rates of a transportation company operating solely in the district of columbia, on the ground that its carriage of passengers constituted part of an interstate movement, united states _v._ capital transit co., u.s. ( ). [ ] united states _v._ ohio oil co. (pipe line cases), u.s. ( ). [ ] _see also_ state corp. commission _v._ wichita gas co., u.s. ( ); eureka pipe line co. _v._ hallanan, u.s. ( ); united fuel gas co. _v._ hallanan, u.s. ( ); pennsylvania _v._ west virginia, u.s. ( ); missouri ex rel. barrett _v._ kansas natural gas co., u.s. ( ). [ ] public utilities com. _v._ attleboro steam and electric co., u.s. ( ). _see also_ utah power & light co. _v._ pfost, u.s. ( ). [ ] stat. . [ ] the natural gas act of , stat. . [ ] u.s. ( ). [ ] ibid. . sales to distributors by a wholesaler of natural gas which is delivered to it from an out-of-state source are subject to the rate-making powers of the federal power commission. colorado-wyoming co. _v._ comm'n., u.s. ( ). _see also_ illinois natural gas co. _v._ central illinois pub. serv. co., u.s. ( ); _also_ federal power commission _v._ east ohio gas co., u.s. , decided january , , where it was held that a natural gas company which, while operating exclusively in one state, sold there directly to consumers gas transported into the state through the interstate lines of other companies, "a natural gas company" within the meaning of the act of , and so could be required by the commission to keep uniform accounts and submit reports. [ ] stat. . [ ] stat. ; since amended in some respects in ( stat. ) and ( stat. ). [ ] stat. . [ ] stat. . as early as laws were passed requiring the installation of safety devices on steam vessels. stat. and . along with the safety appliance acts mention should also be made of acts requiring the use of ashpans on locomotives ( stat. ( )); the inspection of boilers ( stat. ( ) and stat. ( )); the use of ladders, drawbars, etc., on cars ( stat. ( )); etc. [ ] stat. . [ ] u.s. ( ). [ ] ibid. - . _see also_ texas & p.r. co. _v._ rigsby, u.s. ( ); and united states _v._ california, u.s. ( ). in the latter case the intrastate railway involved was property of the state. [ ] stat. . [ ] baltimore & o.r. co. _v._ interstate commerce com., u.s. , - ( ). [ ] stat. , disallowed in part in howard _v._ illinois central r. co., u.s. ( ); stat. , sustained in the second employers' liability cases (mondou _v._ new york, n.h. & h.r. co.), u.s. ( ). [ ] _see_ u.s. at - . [ ] ibid. . because the injured employee must, in order to benefit from the act, be employed at the time of his injury "in interstate commerce," the court's application of it has given rise to some narrow distinctions. _see_ illinois central r. co. _v._ peery, u.s. ( ); new york central r. co. _v._ white, u.s. ( ); chicago, b. & q.r. co. _v._ harrington, u.s. ( ); louisville & n.r. co. _v._ parker, u.s. ( ); illinois central r. co. _v._ behrens, u.s. ( ); st. louis, s.f. & t.r. co. _v._ seale, u.s. ( ); pedersen _v._ delaware, l. & w.r. co., u.s. ( ); shanks _v._ delaware, l. & w.r. co., u.s. ( ); lehigh valley r. co. _v._ barlow, u.s. ( ); southern r. co. _v._ puckett, u.s. ( ); reed _v._ director general of railroads, u.s. ( ). that congress might "legislate as to the qualifications, duties, and liabilities of employes and others on railway trains engaged in that [interstate] commerce," was stated by the court in nashville, c. & st. l.r. co. _v._ alabama, u.s. , ( ). [ ] u.s. ( ). [ ] stat. . [ ] . stat. . [ ] texas & n.o.r. co. _v._ brotherhood of r. & s.s. clerks, u.s. ( ). the provision of railway labor act of ( stat. ), preventing interference by either party with organization or designation of representatives by the other, is within the constitutional authority of congress. similarly, "back shop" employees of an interstate carrier, who engaged in making heavy repairs on locomotives and cars withdrawn from service for that purpose for long periods (an average of days for locomotives and days for cars), were held to be within the terms of the act as amended in ( stat. ). "the activities in which these employees are engaged have such a relation to the other confessedly interstate activities of the * * * [carrier] that they are to be regarded as a part of them. all taken together fall within the power of congress over interstate commerce." virginian r. co. _v._ system federation no. , u.s. , ( ). by the adamson act of a temporary increase in wages was imposed upon the railways of the country in order to meet a sudden threat to strike by important groups of their employees. the act was assailed on the dual ground that it was not a regulation of commerce among the states and that it was violative of the carriers' rights under the fifth amendment. a closely divided court, speaking through chief justice white, answered both objections by pointing to the magnitude of the emergency which had threatened the country with commercial paralysis and grave loss and suffering. to the familiar argument that "emergency may not create power" (ex parte milligan, wall. ( )), the chief justice answered that "it may afford a reason for exerting a power already enjoyed." a further answer to objections based on the rights of carriers under the fifth amendment, particularly the right of "freedom of contract," was that the situation met by the statute had arisen in consequence of a failure to exercise these rights--a far from satisfactory answer, as the dissent pointed out, since one element of a right is freedom of choice regarding its use or nonuse. wilson _v._ new, u.s. , ( ). [ ] stat. . [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . [ ] u.s. ( ). indeed, in a case decided in june, , justice rutledge, speaking for a majority of the court, listed the alton case as one "foredoomed to reversal," though the formal reversal has never taken place. _see_ mandeville is. farms _v._ american c.s. co., u.s. , ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] stat. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. , - ( ). "slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate result may effect external commerce, comparatively little of business operations and affairs would be left for state control." [ ] ibid. . the doctrine of the case simmered down to the proposition that commerce was transportation only; a doctrine which justice harlan undertook to refute in his notable dissenting opinion: "interstate commerce does not, therefore, consist in transportation simply. it includes the purchase and sale of articles that are intended to be transported from one state to another--every species of commercial intercourse among the states and with foreign nations." (p. ). "any combination, therefore, that disturbs or unreasonably obstructs freedom in buying and selling articles manufactured to be sold to persons in other states or to be carried to other states--a freedom that cannot exist if the right to buy and sell is fettered by unlawful restraints that crush out competition--affects, not incidentally, but directly, the people of all the states; and the remedy for such an evil is found only in the exercise of powers confided to a government which, this court has said, was the government of all, exercising powers delegated by all, representing all, acting for all. mcculloch _v._ maryland, wheat. , ." (p. ). "it is said that manufacture precedes commerce and is not a part of it. but it is equally true that when manufacture ends, that which has been manufactured becomes a subject of commerce; that buying and selling succeed manufacture, come into existence after the process of manufacture is completed, precede transportation, and are as much commercial intercourse, where articles are bought _to be_ carried from one state to another, as is the manual transportation of such articles after they have been so purchased. the distinction was recognized by this court in gibbons _v._ ogden, where the principal question was whether commerce included navigation. both the court and counsel recognized buying and selling or barter _as included in commerce_. * * * the power of congress covers and protects the absolute freedom of such intercourse and trade among the states as may or must succeed manufacture and precede transportation from the place of purchase." (p. - ). "when i speak of trade i mean the buying and selling of articles of every kind that are recognized articles of interstate commerce. whatever improperly obstructs the free course of interstate intercourse and trade, as involved in the buying and selling of articles to be carried from one state to another, may be reached by congress, under its authority to regulate commerce among the states." (p. ). "if the national power is competent to repress _state_ action in restraint of interstate trade as it may be involved in purchases of refined sugar to be transported from one state to another state, surely it ought to be deemed sufficient to prevent unlawful restraints attempted to be imposed by combinations of corporations or individuals upon those identical purchases; otherwise, illegal combinations of corporations or individuals may--so far as national power and interstate commerce are concerned--do, with impunity, what no state can do." (p. ). "whatever a state may do to protect its completely interior traffic or trade against unlawful restraints, the general government is empowered to do for the protection of the people of all the states--for this purpose one people--against unlawful restraints imposed upon interstate traffic or trade in articles that are to enter into commerce among the several states." (p. ). [ ] u.s. ( ). [ ] u.s. .--the sherman act was applied to break up combinations of interstate carriers in united states _v._ trans-missouri freight asso., u.s. ( ); united states _v._ joint-traffic asso., u.s. ( ); and northern securities co. _v._ united states, u.s. ( ). in the first of these cases the court was confronted with the contention that the act had been intended only for the industrial combinations, and hence was not designed to apply to the railroads, for whose governance the interstate commerce act had been enacted three years prior. justice peckham answered the argument by saying that "to exclude agreements as to rates by competing railroads * * * would leave [very] little for the act to take effect upon," referring in this connection to the decision in the sugar trust case, u.s. at . alluding in his opinion for the court in mandeville island farms _v._ american c.s. co., u.s. ( ) to the sugar trust case, justice rutledge said: "like this one, that case involved the refining and interstate distribution of sugar. but because the refining was done wholly within a single state, the case was held to be one involving 'primarily' only 'production' or 'manufacturing,' although the vast part of the sugar produced was sold and shipped interstate, and this was the main end of the enterprise. the interstate distributing phase, however, was regarded as being only 'incidentally,' 'indirectly,' or 'remotely' involved; and to be 'incidental,' 'indirect,' or 'remote' was to be, under the prevailing climate, beyond congress' power to regulate, and hence outside the scope of the sherman act. _see_ wickard _v._ filburn, u.s. at et seq. ( ). "the _knight_ decision made the statute a dead letter for more than a decade and, had its full force remained unmodified, the act today would be a weak instrument, as would also the power of congress, to reach evils in all the vast operations of our gigantic national industrial system antecedent to interstate sale and transportation of manufactured products. indeed, it and succeeding decisions, embracing the same artificially drawn lines, produced a series of consequences for the exercise of national power over industry conducted on a national scale which the evolving nature of our industrialism foredoomed to reversal." ibid. - . [ ] swift & co. _v._ united states, u.s. , ( ). [ ] u.s. at - . [ ] ibid. - . [ ] ibid. . [ ] loewe _v._ lawlor, u.s. ( ); duplex printing press co. _v._ deering, u.s. ( ); coronado coal co. _v._ united mine workers of america, u.s. ( ); united states _v._ brime, u.s. ( ); bedford co. _v._ stone cutters assn., u.s. ( ); local _v._ united states, u.s. ( ); allen bradley co. _v._ union, u.s. ( ). [ ] stat. . [ ] ibid. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ibid. - . _see also_ lemke _v._ farmers' grain co., u.s. ( ); minnesota _v._ blasius, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . [ ] u.s. at ; u.s. at . [ ] stat. . [ ] stat. . [ ] electric bond co. _v._ comm'n., u.s. ( ); north american co. _v._ s.e.c., u.s. ( ); american power & light co. _v._ s.e.c., u.s. ( ). [ ] "the bond and share system, including american and electric, possesses an undeniable interstate character which makes it properly subject, from the statutory standpoint, to the provisions of § (b) ( ). this vast system embraces utility properties in no fewer than states, from new jersey to oregon and from minnesota to florida, as well as in foreign countries. bond and share dominates and controls this system from its headquarters in new york city. * * * the proper control and functioning of such an extensive multi-state network of corporations necessitates continuous and substantial use of the mails and the instrumentalities of interstate commerce. only in that way can bond and share, or its subholding companies or service subsidiary, market and distribute securities, control and influence the various operating companies, negotiate inter-system loans, acquire or exchange property, perform service contracts, or reap the benefits of stock ownership. * * * moreover, many of the operating companies on the lower echelon sell and transmit electric energy or gas in interstate commerce to an extent that cannot be described as spasmodic or insignificant. * * * congress, of course, has undoubted power under the commerce clause to impose relevant conditions and requirements on those who use the channels of interstate commerce so that those channels will not be conduits for promoting or perpetuating economic evils. * * * thus to the extent that corporate business is transacted through such channels, affecting commerce in more states than one, congress may act directly with respect to that business to protect what it conceives to be the national welfare. * * * it may compel changes in the voting rights and other privileges of stockholders. it may order the divestment or rearrangement of properties. it may order the reorganization or dissolution of corporations. in short, congress is completely uninhibited by the commerce clause in selecting the means considered necessary for bringing about the desired conditions in the channels of interstate commerce. any limitations are to be found in other sections of the constitution. gibbons _v._ ogden, wheat. , ." american power & light co. _v._ s.e.c., u.s. , - ( ). [ ] appalachian coals, inc. _v._ united states, u.s. , ( ). [ ] stat. . [ ] u.s. ( ). [ ] ibid. . _see also_ ibid. . [ ] in united states _v._ sullivan, u.s. ( ), the court interpreted the federal food, drug, and cosmetics act of as applying to the sale by a retailer of drugs purchased from his wholesaler within the state nine months after their interstate shipment had been completed. the court, speaking by justice black, cited united states _v._ walsh, u.s. ( ); wickard _v._ filburn, u.s. ( ); united states _v._ wrightwood dairy co., u.s. ( ); united states _v._ darby, u.s. ( ). the last three of these cases are discussed below. _see_ pp. , . justice frankfurter dissented on the basis of federal trade commission _v._ bunte bros., u.s. ( ). it is apparent that the schechter case has been thoroughly repudiated so far as the distinction "direct" and "indirect" effects is concerned. _see also_ mcdermott _v._ wisconsin, u.s. ( ), which preceded the schechter decision by more than two decades. the n.i.r.a., however, was found to have several other constitutional infirmities besides its disregard, as illustrated by the live poultry code, of the "fundamental" distinction between "direct" and "indirect" effects, namely, the delegation of uncanalized legislative power; the absence of any administrative procedural safeguards; the absence of judicial review; and the dominant role played by private groups in the general scheme of regulation. these objections are dealt with elsewhere in this volume. _supra_, pp. , , . [ ] stat ( ). [ ] united states _v._ butler, u.s. , - , ( ). [ ] stat. . [ ] carter _v._ carter coal co., u.s. ( ). [ ] ibid. - . [ ] united states _v._ e.c. knight co., u.s. ( ). [ ] u.s. ( ). [ ] stat. . [ ] u.s. at , - ( ). [ ] national labor relations board _v._ fruehauf trailer co., u.s. ( ); national labor relations board _v._ friedman-harry marks clothing co., u.s. ( ). [ ] national labor relations board _v._ fainblatt, u.s. , ( ). [ ] _see_ santa cruz fruit packing co. _v._ national labor relations board, u.s. , ( ). [ ] stat. . [ ] united states _v._ darby, u.s. , ( ). [ ] _see_ ibid. , , . [ ] ibid. - . [ ] owen j. roberts, the court and the constitution, the oliver wendell holmes lectures , (harvard university press ), . [ ] the act provided originally that "for the purposes of this act an employee shall be deemed to have been engaged in the production of goods if such employee was employed * * * in any process or occupation necessary to the production thereof, in any state." by stat. ( ), "necessary to the production thereof" becomes "directly essential to the production thereof." the effect of this change, which has not yet registered itself in judicial decision, seems likely to be slight, in view of the power, which the act gives the administrator to lay down "such terms and conditions" as he "finds necessary to carry out the purposes of" his orders to prevent their evasion or circumvention. _see_ gemsco, inc. _v._ walling, u.s. ( ). the employees involved in the following cases have been held to be covered by the act: ( ) operating and maintenance employees of the owner of a loft building, space in which is rented to persons producing goods principally for interstate commerce (kirschbaum _v._ walling, u.s. ( )); ( ) an employee of an interstate motor transportation company, who acted as rate clerk and performed other incidental duties (overnight motor co. _v._ missel, u.s. ( )); ( ) members of a rotary drilling crew, engaged within a state, as employees of an independent contractor, in partially drilling oil wells, a portion of the products from which later moved in interstate commerce (warren-bradshaw co. _v._ hall, u.s. ( )); ( ) employees of a wholesale paper company who are engaged in the delivery, from company warehouse within a state to customers within that state, after a temporary pause at such warehouses, of goods procured outside of the state upon prior orders from, or pursuant to contracts with, such customers (walling _v._ jacksonville paper co., u.s. ( )); ( ) employees of a private corporation who are engaged in the operation and maintenance of a drawbridge which is part of a toll road used extensively by persons and vehicles traveling in interstate commerce, and which spans an intercoastal waterway used in interstate commerce (overstreet _v._ north shore corp., u.s. ( )); ( ) a night watchman employed in a plant in which veneer was manufactured from logs and from which a substantial portion of the manufactured product was shipped in interstate commerce (walton _v._ southern package corp., u.s. ( )); ( ) employees putting in stand-by time in the auxiliary fire-fighting service of an employer engaged in interstate commerce (armour & co. _v._ wantock, u.s. ( )); ( ) warehouse and central office employees of an interstate retail chain store system (phillips co. _v._ walling, u.s. ( )); ( ) employees of an independent contractor engaged in repairing abutments and substructures of bridges which were part of the line of an interstate railroad (fitzgerald co. _v._ pedersen, u.s. ( )); ( ) maintenance employees of an office building which was owned and operated by a manufacturing corporation and in which per cent of the rental space was used for its central offices, where its production of goods for interstate commerce was administered, managed and controlled, although the goods were actually produced at plants located elsewhere (borden company _v._ borella, u.s. ( )); ( ) the employees of an electrical contractor, locally engaged in commercial and industrial wiring and dealing in electrical motors and generators for commercial and industrial uses, whose customers are engaged in the production of goods for interstate commerce (roland co. _v._ walling, u.s. - ( )); ( ) employees of a window-cleaning company, the greater part of whose work is done on the windows of industrial plants of producers of goods for interstate commerce (martino _v._ michigan window cleaning company, u.s. - ( )); ( ) mechanics engaged in servicing and maintaining equipment of a motor transportation company which is engaged in interstate commerce (boutell _v._ walling, u.s. ( )). nor does the maxim "_de minimis_" apply to the act. hence the publishers of a daily newspaper only about one half of one per cent of whose circulation is outside the state of publication are not by that fact excluded from the operation of the act. (mabee _v._ white plains publishing co., u.s. ( )). on the other hand, an employee whose work it is to prepare meals and serve them to maintenance-of-way employees of an interstate railroad in pursuance of a contract between his employer and the railroad company is not "engaged in commerce" within the meaning of §§ and of the fair labor standards act (mcleod _v._ threlkeld, u.s. ( )); nor are maintenance employees of a typical metropolitan office building operated as an independent enterprise, which is used and is to be used for offices by every variety of tenants, including some producers of goods for commerce ( east th st. _v._ callus, u.s. ( )); nor are maintenance employees of a building corporation which furnishes loft space to tenants engaged in production for interstate commerce "unless an adequate proportion of such tenants are so engaged." (schulte _v._ gangi, u.s. ( )). _also_ section (a) of the fair labor standards act, which provides that "no producer, * * * shall ship or deliver for shipment in commerce any goods produced in an establishment * * * in or about which * * * any oppressive child labor has been employed * * *" was held inapplicable to a company engaged in the transmission in interstate commerce of telegraph messages, (western union _v._ lenroot, u.s. ( )). the decision was a five-to-four one. it should be added that the court has not always been unanimous in favoring coverage by the act. in the borden case above, chief justice stone, speaking for himself and justice roberts, protested, as follows: "no doubt there are philosophers who would argue, what is implicit in the decision now rendered, that in a complex modern society there is such interdependence of its members that the activities of most of them are necessary to the activities of most others. but i think that congress did not make that philosophy the basis of the coverage of the fair labor standards act. it did not, by a 'house-that-jack-built' chain of causation, bring within the sweep of the statute the ultimate _causa causarum_ which result in the production of goods for commerce. instead it defined production as a physical process. it said in § (j) 'produced means produced, manufactured, mined, handled, or in any other manner worked on' and declared that those who participate in any of these processes 'or in any process or occupation necessary to' them are engaged in production and subject to the act." u.s. , . on the other hand, the holding in east th st., above, was a five-to-four decision, and justice frankfurter, speaking for the court took pains to explain that congress in enacting the fair labor standards act, "did not see fit, * * *, to exhaust its constitutional power over commerce." u.s. - . _see_ law ed. pp. - for a note reviewing both supreme court, lower federal court, and state court cases defining "engaged in commerce" as that term is used in the fair labor standards act. [ ] stat. . [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] stat. . [ ] u.s. at - . [ ] ibid. - _passim_. in united states _v._ rock royal co-operative, u.s. ( ), the court sustained an order under the agricultural marketing agreement act of ( stat. ) regulating the price of milk in certain instances. said justice reed for the majority of the court: "the challenge is to the regulation 'of the price to be paid upon the sale by a dairy farmer who delivers his milk to some country plant.' it is urged that the sale, a local transaction, is fully completed before any interstate commerce begins and that the attempt to fix the price or other elements of that incident violates the tenth amendment. but where commodities are bought for use beyond state lines, the sale is a part of interstate commerce. we have likewise held that where sales for interstate transportation were commingled with intrastate transactions, the existence of the local activity did not interfere with the federal power to regulate inspection of the whole. activities conducted within the state lines do not by this fact alone escape the sweep of the commerce clause. interstate commerce may be dependent upon them. power to establish quotas for interstate marketing gives power to name quotas for that which is to be left within the state of production. where local and foreign milk alike are drawn into a general plan for protecting the interstate commerce in the commodity from the interferences, burdens and obstructions, arising from excessive surplus and the social and sanitary evils of low values, the power of the congress extends also to the local sales."' ibid. - . _see also_ h.p. hood & sons _v._ united states, u.s. ( ), another milk case; and mulford _v._ smith, u.s. ( ), in which certain restrictions on the sale of tobacco, under the agricultural adjustment act of ( stat. ), were sustained in an opinion by justice roberts, who spoke for the court in the latter case. [ ] united states _v._ the william, fed. cas. no. , , , - _passim_ ( ). other parts of this opinion are considered below in connection with the prohibiting of interstate commerce. _see also_ gibbons _v._ ogden, wheat. , ( ); united states _v._ marigold, how. ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] stat. § . [ ] stat. ( ). [ ] stat. . [ ] stat. ; stat. . [ ] stat. . [ ] u.s. ( ). [ ] u.s. ( ); _cf._ united states _v._ california, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . _see also_ robert b. cushman, national police power under the commerce clause, selected essays on constitutional law, - . [ ] groves _v._ slaughter, pet. , - ( ). the issue a little reflection will suffice to show that, as a matter of fact, any regulation at all of commerce implies some measure of power to prohibit it, since it is the very nature of regulation to lay down terms on which the activity regulated will be permitted and for noncompliance with which it will not be permitted. it is also evident that when occasion does arise for an outright prohibition of an activity, the power to enact the required prohibition ordinarily must belong to the body which is vested with authority to regulate it, which in this instance is congress. what, then, are the outstanding differences between such conditional prohibitions of commerce and that with which this résumé deals? there seem to be three such differences. first, there is often a difference of _modus operandi_ between the statutes already considered and those about to be considered. the former impinge upon persons or agencies engaged in interstate commerce and their activities in connection therewith, whereas the latter look primarily to things, or the subject matter, of the trade or commerce prohibited. secondly, there is a difference in purpose between the two categories of congressional statutes. the purpose of the acts already treated is to lay down the conditions on which a designated branch of commerce among the states may be carried on; that of the acts now to be treated is to eliminate outright a designated branch of trade among the states. in other words, whereas the former acts were, in general, preservative of the commerce which they regulated because of its value to society, the latter regard the commerce which they reach as detrimental to society. the third, and most important difference from the point of view of constitutional law, is the difference in relation of the two categories of acts respectively to the reserved powers of the states. the enactments of congress already dealt with frequently intrude upon the ordinary field of jurisdiction of the states; but when they do so, it is because the acts or things which they thus bring under national control are regarded as "local incidents" of interstate commerce itself. the relation of the enactments about to be considered to the reserved powers of the states is precisely the inverse of this. their very purpose is to reach and control matters ordinarily governed by the state's police power, sometimes in order to make state policy more effective, sometimes in order to supply a corrective to it. the argument denying congress' power to prohibit interstate commerce the principal argument against the constitutionality of prohibitory congressional legislation pivoted on the dual conception of the federal system "the federal equilibrium". the constitution, the argument ran, clearly contemplates two spheres of governmental activity, that of the states, that of the united states; and while the latter government is generally supreme when the two collide with one another in the exercise of their respective powers, yet collision is not contemplated as the rule of life of the system, but the contrary. and since there are these two spheres, the line to be drawn between them, in order to secure harmony instead of collision, should recognize that the objects which the national government was established to promote are relatively few, while those which the states were retained to advance comprise the principal objectives of government, the protection of the public health, safety, morals, and welfare. the power to promote these ends is, indeed, the very definition of the police power of the states--that power for which all other powers of the states exist. seriously to impair the police power of the states, or to diminish their autonomy in its employment, would be, in fact to remove their reason for being, and so the reason for the federal system itself. so while the power of congress to regulate commerce among the states and with foreign nations is in terms a single power, in the intention of the framers it comprised two very different powers. in the field of foreign relations, the national government is completely sovereign, and the power to regulate commerce with foreign nations is but a branch of this sovereign power. the power to regulate commerce among the states is, on the other hand, not a sovereign power except for purposes of commercial advantage; in other respects it is confronted at every turn by the police power of the states, and hence requires to be defined in relation to the known and frequently reiterated objectives of that power. indeed, it was urged on the authority of madison that the power to regulate commerce among the states was not bestowed upon the national government "to be used for * * * positive purposes," but merely as "a negative and preventive provision against injustice among the states themselves." madison iv, letters and other writings, (philadelphia, ). furthermore, it is a power which was designed for the _promotion_ and _advancement_ of commerce, not a power to strike commerce down in order to advance other purposes and programs. grant that the power to regulate commerce among the states is the power to prohibit it at the discretion of congress, and you at once endow congress with power which it may use as a weapon to consolidate substantially all power in the hands of the national government. thus, if congress may prohibit _ad libitum_ the carrying on of interstate commerce, it may make deprivation of the right to engage in interstate commerce in any of its phases, even the right to move from one state to another, a sanction of ever-increasing efficacy for whatever standards of conduct it may choose to lay down in any field of human action; and since laws passed by congress in pursuance of its powers are generally supreme over conflicting state laws, these standards would supersede the conflicting standards imposed under the police powers of the states. henceforth, in effect, the police power would exist solely by "leave and license" of congress--as "the power to govern men and things" it would be at an end; and by the same token the federal system, which is the outstanding feature of government under the constitution, would be at an end. in the first employers' liability cases, (howard _v._ illinois central r. co., u.s. ( )), the majority of the court, speaking through justice white, gave special attention to the government's argument that though the act, in terms, governed the liability of "every" interstate carrier to "any" of its employees, whether engaged in interstate commerce or not when the liability fell, it was none the less constitutional "because one who engaged in interstate commerce thereby submits all his business concerns to the regulating power of congress." justice white answered: "to state the proposition is to refute it. it assumes that because one engages in interstate commerce he thereby endows congress with power not delegated to it by the constitution; in other words, with the right to legislate concerning matters of purely state concern. it rests upon the conception that the constitution destroyed that freedom of commerce which it was its purpose to preserve, since it treats the right to engage in interstate commerce as a privilege which cannot be availed of except upon such conditions as congress may prescribe, even although the conditions would be otherwise beyond the power of congress. it is apparent that if the contention were well founded it would extend the power of congress to every conceivable subject, however inherently local, would obliterate all the limitations of power imposed by the constitution, and would destroy the authority of the states as to all conceivable matters which from the beginning have been, and must continue to be, under their control so long as the constitution endures." ibid. - . _see also_ justice white's dissenting opinion, for himself, chief justice fuller, and justices peckham and holmes, in northern securities co. _v._ united states, u.s. , - ( ). the argument asserting the power the thesis that the power to regulate commerce among the states comprises in general the power to prohibit it turns on the proposition stated by marshall in his opinion in gibbons _v._ ogden, that this power is vested "in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the united states. the wisdom and discretion of congress," marshall continued, "their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse." wheat. , - ( ). that the national government is a government of limited powers, the advocates of this view conceded; but the powers which it uncontrovertibly possesses, they urged, may be utilized to promote all good causes, of which fact, it was asserted, the preamble of the constitution itself was proof. there the objectives of the constitution and so, presumably, of the government created by it, are stated to be "more perfect union," "justice," "domestic tranquillity," "the common defense," "the general welfare," and "liberty." it was to forward these broad general purposes, then, that the commercial power, like its other powers, was bestowed upon the national government. no doubt it was expected that the states, too, would use the powers still left them to assist the same purposes, which indeed are those of good government always. yet that circumstance should not operate to withdraw the powers delegated to the national government from the service of these same ends. the fact, in other words, that the power to govern commerce among the states was bestowed by the constitution on the national government should not imply that it thereby became available merely for the purpose of fostering such commerce. it ought, on the contrary, to be applicable, as would be the equivalent power in england or france for instance, to aid and support all recognized objectives of government. _see_ juilliard _v._ greenman (legal tender case), u.s. , - ( ). as originally possessed by the several states, the power to regulate commerce with one another included the power to prohibit it at discretion; on what principle, then, it was asked, can it be contended that the power delegated to congress is not as exhaustive and complete as the power it was designed to supersede? _see_ especially justice holmes' dissenting opinion in hammer _v._ dagenhart, u.s. , - ( ). and, the protagonists of this view continued, if the public health, safety, morals, and general welfare must depend solely upon the police powers of the states, they must in modern conditions, often fail of realization in this country. with goods flowing over state lines in ever-increasing quantities, and people in ever-increasing numbers, how was it possible to regard the states as watertight compartments? at least, then, when local legislative programs break down on account of the division of the country into states, it becomes the clear duty of congress to adopt supplementary legislation to remedy the situation. in doing so, it is not undermining the federal system; it is supporting it, by making it viable in modern conditions. the assemblage of the states in one union was never intended to put one state at the mercy of another. if, however, well considered programs of legislation are rendered abortive in a state in consequence of the flow of commerce into it from other states, then it becomes the duty--certainly it is within the discretion of congress--which alone can govern commerce among the states, to supply the required relief. _see_ especially assistant attorney general maury's argument. in re rapier, u.s. , - ( ). in this connection the advocates of this view cited discussion contemporaneous with jefferson's embargo, and under the embargo itself, as supporting their position. in the case of the brigantine william the validity of the embargo was challenged before the united states district court of massachusetts on the ground that the power to regulate commerce did not embrace the power to prohibit it. judge davis answered: "it will be admitted that partial prohibitions are authorized by this expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the national government, to whom the subject appears to have been committed? * * * the power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. * * * the national right, or power, under the constitution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to be unquestionable. * * * the situation of the united states, in ordinary times, might render legislative interferences, relative to commerce, less necessary; but the capacity and power of managing and directing it, for the advancement of great national purposes, seems an important ingredient of sovereignty." and in confirmation of this argument judge davis cited the clause of § of article i of the constitution interdicting a prohibition of the slave trade till . this clause clearly proves that those who framed the constitution perceived that "under the power of regulating commerce, congress would be authorized to abridge it, in favour of the great principles of humanity and justice." fed. cas. no. , , , ( ). the embargo, to be sure, operated on foreign commerce; but that there is any difference between congress's power in relation to foreign and to interstate commerce the advocates of the view under consideration denied. the power to "regulate" is the power which belongs to congress as to the one as well as to the other; and if this comprehends the power to prohibit in the one case, it must equally, by acknowledged principles of statutory construction, comprehend it in the other case as well. nor in fact, the argument continued, does it make any difference, by approved principles of statutory construction, what purposes the framers of the constitution may have immediately in mind when they gave congress power to regulate commerce among the states; the governing consideration is that they gave congress the power, to be exercised in accordance with its judgment of what are proper occasions for its use. "the reasons which may have caused the framers of the constitution to repose the power to regulate interstate commerce in congress do not, however, affect or limit the extent of the power itself." justice peckham for the court in addyston pipe & steel co. _v._ united states, u.s. , ( ). references _see_ especially the arguments of counsel in re rapier, u.s. ( ); champion _v._ ames (lottery case), u.s. ( ); hammer _v._ dagenhart, u.s. ( ); selected essays on constitutional law, , , , , , . indeed, regulation of interstate commerce by congress may take the form of a positive adoption by it of a regime of state regulation in the form of statutes (e.g., pilotage) or of administrative regulations in some degree (as in the motor carrier act of ); or congress may "regulate" through the device of divestment of a subject matter of its interstate character, thus indirectly causing state laws to apply, as was done by the wilson act of in respect to intoxicating liquors, or by the mccarran act of following the united states _v._ south-eastern underwriters association, u.s. ( ), in respect to the insurance business. in a sense, congress may delegate to the states its power to regulate interstate commerce. [ ] stat. . [ ] stat. . [ ] stat. . [ ] stat. . [ ] stat. . [ ] stat. . [ ] illinois central r. co. _v._ mckendree, u.s. ( ). _see also_ united states _v._ dewitt, wall. ( ). of the nature of a quarantine act is the federal firearms act of ( stat ). [ ] champion _v._ ames (the lottery case), u.s. ( ). [ ] stat . [ ] u.s. ( ). [ ] champion _v._ ames (the lottery case), u.s. ( ). [ ] wheat. , ( ). [ ] u.s. , ( ). [ ] stat. ( ); stat. ( ), "the webb-kenyon act." [ ] stat. ( ). [ ] stat. ( ), "the hawes-cooper act." [ ] stat. ( ), "the mann act." [ ] stat. ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] hoke _v._ united states, u.s. , ( ). in caminetti _v._ united states, u.s. ( ) the act was held to apply to the case of transportation of a woman for immoral purposes, although no commercial motive was present; and in cleveland _v._ united states, u.s. ( ), to the transportation of a plural wife by the member of a religious sect a tenet of which is polygamy. [ ] united states _v._ hill, u.s. , ( ). [ ] u.s. ( ). [ ] stat. ( ). [ ] u.s. at . [ ] ibid. - . [ ] u.s. ( ). [ ] stat. ( ). [ ] u.s. at - . _see also_ kentucky whip & collar co. _v._ illinois c.r. co., u.s. ( ). [ ] united states _v._ darby, u.s. , - ( ). [ ] roland co. _v._ walling, u.s. , ( ). [ ] polish alliance _v._ labor board, u.s. , ( ). _cf._ the opinion of chief justice vinson for the court in bus employees _v._ wisconsin board, u.s. ( ). [ ] federalist no. . [ ] wheat. , , ( ). [ ] madison, iv, letters and other writings, - (philadelphia, ). [ ] wheat. , . [ ] wheat. at - . [ ] wheat. at - ; _also_ ibid. . [ ] wheat. - , . [ ] wheat. ( ). [ ] how. ( ). [ ] congressional regulation of commerce, however, does not have to be uniform. the uniformity rule is a test of the invalidity of state legislation affecting commerce, not the validity of congressional legislation regulating commerce. clark distilling co. _v._ w.m.r. co., u.s. , ( ); currin _v._ wallace, u.s. , ( ); prudential ins. co. _v._ benjamin, u.s. ( ). [ ] simpson _v._ shepard, u.s. ( ). [ ] ibid. - . [ ] mccarroll _v._ dixie greyhound lines, u.s. , - ( ). f.d.g. ribble's _state and national power over commerce_ (columbia university press, ) is an excellent study both of the court's formulas and of the arbitral character of its task in this field of constitutional law. on the latter point, see especially chapters x and xii. the late chief justice stone took repeated occasion to stress the "balancing" and "adjusting" role of the court when applying the commerce clause in relation to state power. _see_ his words in south carolina state highway dept. _v._ barnwell bros., u.s. , - ( ); california _v._ thompson, u.s. , - ( ); parker _v._ brown, u.s. , - ( ); and southern pacific _v._ arizona, . u.s. , - ( ). _see also_ justice black for the court in united states _v._ south-eastern underwriters assoc., u.s. , - ( ). [ ] wheat. ( ). [ ] compare, for example, may _v._ new orleans, u.s. ( ); and the recent case of hooven & allison co. _v._ evatt, u.s. ( ). in the latter case the benefits of the original package doctrine were extended to imports from the philippine islands title to which did not vest in the importer until their arrival in the united states. [ ] freeman _v._ hewit, u.s. , ( ). [ ] philadelphia & r.r. co. _v._ pennsylvania (state freight tax case), wall. ( ). [ ] headnotes. said the court: "the rule has been asserted with great clearness, that whenever the subjects over which a power to regulate commerce is asserted are in their nature national, or admit of one uniform system or plan of regulation, they may justly be said to be of such a nature as to require exclusive legislation by congress. surely transportation of passengers or merchandise through a state, or from one state to another, is of this nature. it is of national importance that over that subject there should be but one regulating power, for if one state can directly tax persons or property passing through it, or tax them indirectly by levying a tax upon their transportation, every other may, and thus commercial intercourse between states remote from each other may be destroyed." wall. at - , citing cooley _v._ port wardens, how. ( ); gilman. _v._ philadelphia, wall. ( ); crandall _v._ nevada, wall. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] heisler _v._ thomas colliery co., u.s. ( ). [ ] u.s. ( ). [ ] ibid. . _see also_ diamond match co. _v._ ontonagon u.s. ( ). [ ] hope natural gas co. _v._ hall, u.s. ( ). _see also_ american manufacturing co. _v._ st. louis, u.s. ( ) in which there was imposed a license tax on manufacture of goods computed upon the amount of sales of the goods. [ ] u.s. ( ). [ ] coverdale _v._ arkansas-louisiana pipe line co., u.s. ( ). [ ] toomer _v._ witsell, u.s. ( ). [ ] dahnke-walker milling co. _v._ bondurant, u.s. ( ). here a tennessee corporation, in pursuance of its practice of purchasing grain in kentucky to be transported to and used in its tennessee mill, made a contract for the purchase of wheat, to be delivered in kentucky on the cars of a public carrier, intending to forward it as soon as delivery was made. it was held that the transaction was in interstate commerce, notwithstanding the contract was made and to be performed in kentucky; and that the possibility that the purchaser might change its mind after delivery and sell the grains in kentucky or consign it to some other place in that state did not affect the essential character of the transaction. interstate commerce, said the court, "is not confined to transportation from one state to another, but comprehends all commercial intercourse between different states and all the component parts of that intercourse." ibid. . followed in lemke _v._ farmers grain co., u.s. ( ); and flanagan _v._ federal coal co., u.s. ( ). [ ] eureka pipe line co. _v._ hallanan, u.s. ( ). [ ] united fuel gas co. _v._ hallanan, u.s. ( ). [ ] ibid. . _see also_ state tax commission _v._ interstate natural gas co., u.s. ( ) holding invalid a state privilege tax imposed on a foreign corporation selling to distributors in the state natural gas piped in from another state, whose only activity was the use of a thermometer and meter and reduction of pressure to permit vendee to draw off the gas. "the work done by the plaintiff is done upon the flowing gas to help the delivery and seems to us plainly to be an incident to the interstate commerce between louisiana and mississippi." ibid. . [ ] wheat. ( ). [ ] ibid. . [ ] wall. ( ). [ ] ibid. . [ ] u.s. ( ). _see also_ pittsburgh & s. coal co. _v._ bates, u.s. ( ). [ ] u.s. at - . [ ] ibid. . [ ] _see_ wagner _v._ covington, u.s. ( ). [ ] brimmer _v._ rebman, u.s. ( ); patapsco guano co. _v._ board of agriculture, u.s. ( ); red "c" oil mfg. co. _v._ board of agriculture, u.s. ( ); savage _v._ jones, u.s. ( ); foote & co. _v._ stanley, u.s. ( ). [ ] standard oil co. _v._ graves, u.s. ( ); askren _v._ continental oil co., u.s. ( ); bowman _v._ continental oil co., u.s. ( ); texas co. _v._ brown, u.s. ( ). [ ] sonneborn bros. _v._ cureton, u.s. ( ). reviewing cases. _cf._ phipps _v._ cleveland refining co., u.s. ( ). [ ] _see_ pp. , - . [ ] eastern air transport, inc. _v._ south carolina tax comm'n., u.s. , ( ). [ ] rast _v._ van deman and lewis, u.s. ( ). _see also_ tanner _v._ little, u.s. ( ), and pitney _v._ washington, u.s. ( ) upholding a washington statute imposing a prohibitive license tax upon merchants using trading stamps or coupons redeemable in merchandise. [ ] howe machine co. _v._ gage, u.s. ( ); emert _v._ missouri, u.s. ( ); singer sewing machine co. _v._ brickell, u.s. ( ); wagner _v._ city of covington, u.s. ( ); caskey baking co. _v._ virginia, u.s. ( ). [ ] u.s. ( ). _see also_ armour packing co. _v._ lacy, u.s. ( ). [ ] u.s. ( ); _see also_ ward _v._ maryland, wall. ( ). [ ] _see_ cook _v._ pennsylvania, u.s. ( ); guy _v._ baltimore, u.s. ( ); tiernan _v._ rinker, u.s. ( ); howe machine co. _v._ gage, u.s. ( ); webber _v._ virginia, u.s. ( ); walling _v._ michigan, u.s. ( ); darnell & son co. _v._ memphis, u.s. ( ), where was held void a property tax on lumber which discriminated in favor of the local product: bethlehem motor corp. _v._ flynt, u.s. ( ), where a license tax on distributors was held to be invalidated by the provision made for a rebate under conditions that could be met only by manufacturers within the taxing state. [ ] coe _v._ errol, u.s. ( ). [ ] ibid. . [ ] general oil co. _v._ crain, u.s. ( ). [ ] american steel & wire co. _v._ speed, u.s. ( ); bacon _v._ illinois, u.s. ( ); susquehanna coal co. _v._ south amboy, u.s. ( ); minnesota _v._ blasius, u.s. ( ); independent warehouses _v._ scheele, u.s. ( ). [ ] nashville, c. & st. l.r. co. _v._ wallace, u.s. ( ). [ ] edelman _v._ boeing air transport, inc., u.s. ( ). the court also upheld a tax on the sale of gasoline for use by an air transport line in conducting interstate transportation across the state in eastern air transport, inc. _v._ south carolina tax comm., u.s. ( ). [ ] southern pacific co. _v._ gallagher, u.s. ( ). [ ] pacific telephone & telegraph co. _v._ gallagher, u.s. ( ). [ ] southern pacific co. _v._ gallagher, u.s. ( ), as formulated in the headnotes; _see also_ monamotor oil co. _v._ johnson, u.s. ( ). [ ] bingaman _v._ golden eagle western lines, u.s. ( ); mccarroll _v._ dixie greyhound lines, u.s. ( ). in helson _v._ kentucky, u.s. ( ), the court held that gasoline purchased in illinois and used in an illinois-kentucky ferry could not be taxed by kentucky, being, as it were, a part of the ferry, an instrument of commerce between the two states. _see also_ kelley _v._ rhoads, u.s. ( ); champlain realty co. _v._ brattleboro, u.s. ( ); hughes bros. timber co. _v._ minnesota, u.s. ( ); carson petroleum co. _v._ vial, u.s. ( ). [ ] u.s. ( ). [ ] corson _v._ maryland, u.s. ( ); asher _v._ texas, u.s. ( ); stoutenburgh _v._ hennick, u.s. ( ); brennan _v._ titusville, u.s. ( ); stockard _v._ morgan, u.s. ( ); crenshaw _v._ arkansas, u.s. ( ); rogers _v._ arkansas, u.s. ( ); stewart _v._ michigan, u.s. ( ); western oil refining co. _v._ lipscomb, u.s. ( ); cheney bros. _v._ massachusetts, u.s. ( ). [ ] caldwell _v._ north carolina, u.s. ( ). [ ] norfolk & w.r. co. _v._ sims, u.s. ( ). [ ] rearick _v._ pennsylvania, u.s. ( ); dozier _v._ alabama, u.s. ( ); davis _v._ virginia, u.s. ( ). [ ] u.s. at . [ ] real silk hosiery mills _v._ portland, u.s. ( ). [ ] heyman _v._ hays, u.s. ( ). _see also_ hump hairpin co. _v._ emmerson, u.s. ( ), holding that business done by a corporation through orders which were approved in a state where its tangible property and offices were located, but which were first taken by its salesmen in other states, was interstate, although the tax involved was sustained. [ ] ficklen _v._ shelby county taxing district, u.s. , ( ). [ ] new york ex rel. hatch _v._ reardon, u.s. ( ); _cf._ nathan _v._ louisiana, how. ( ). [ ] ware _v._ mobile county, u.s. ( ). _see also_ brodnax _v._ missouri, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . _see also_ superior oil _v._ mississippi ex rel. knox, u.s. ( ). [ ] chassaniol _v._ greenwood, u.s. ( ). [ ] wiloil corp. _v._ pennsylvania, u.s. , ( ); _see also_ minnesota _v._ blasius, u.s. ( ). [ ] u.s. ( ). [ ] best & co. _v._ maxwell. u.s. , ( ). [ ] u.s. ( ). _cf._ hinson _v._ lott, wall. ( ). here was involved a tax of fifty cents per gallon on all spiritous liquors brought into the state. comparing the tax with a similar one imposed upon liquors manufactured in the state, the court upheld the statute. "the taxes were complementary and were intended to effect equality." [ ] u.s. at - . some subsequent use tax cases in the henneford pattern are the following: bacon & sons _v._ martin was decided in a unanimous _per curiam_ opinion. it involved a kentucky statute which imposed a tax "on the 'receipt' of cosmetics in the state by any kentucky retailer" equal to twenty per cent of the invoice price plus transportation cost, if any to the kentucky dealer. the kentucky court held that "the imposition of the tax against the retailer is not on the act of receiving the cosmetics, but on the sale and use thereof, after the retailer has received them." on this interpretation the supreme court sustained the tax. obviously, other things being equal, there is little difference between a tax on receiving and a tax on possession a moment later. u.s. ( ). in felt & tarrant manufacturing co. _v._ gallagher, u.s. ( ), a california use tax was upheld applicable to a nonresident corporation which solicited orders from california purchasers through agents for whom it hired offices in the state and took orders subject to the vendor's approval. in nelson _v._ sears, roebuck & company and nelson _v._ montgomery ward & company, u.s. and ( ) it was held that a foreign corporation which maintained retail stores in iowa could be validly required to collect an iowa use tax in respect of mail orders sent by iowa purchasers to out-of-state branches of the corporation and filled by direct shipment by mail or common carrier from those branches to the purchasers. in general trading company _v._ state tax commission, u.s. ( ), also involving the iowa tax, it was held that a company carrying on no operations in iowa other than the solicitation of orders by traveling salesmen was liable for collection of the tax on goods sold to iowa residents, even though the corporation was not licensed to do business in the state and the orders were forwarded for acceptance to minnesota where they were filled by direct shipment to iowa customers. [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. , citing ficklen _v._ shelby county taxing district, u.s. ( ); howe machine co. _v._ gage, u.s. ( ); and wagner _v._ covington, u.s. ( ). in the first it was held that the robbins case did not apply to a firm of agents and brokers maintaining an office and samples throughout the year in the taxing district. the other two cases were totally irrelevant. [ ] u.s. and . [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. . [ ] memphis steam laundry _v._ stone, u.s. ( ). [ ] norton co. _v._ dept. of revenue, u.s. ( ), although decided by a closely divided court, further confirms this impression. [ ] wheat. , - ( ). [ ] smith _v._ turner (passenger cases), how. ( ). [ ] henderson _v._ mayor of new york, u.s. ( ); new york _v._ compagnie générale transatlantique, u.s. ( ). [ ] wall. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . [ ] _see_ covington & c. bridge co. _v._ kentucky, u.s. ( ); _also_ edwards _v._ california, u.s. ( ), the decision in which represents the exact inverse of that in the crandall case, being based by the majority on the commerce clause, while several of the justices preferred to put it on the broader grounds invoked by justice miller in the crandall case. [ ] western union telegraph company _v._ texas, u.s. ( ) state freight tax case, wall. ( ) and pensacola telegraph co. _v._ western union telegraph co., u.s. ( ) were the precedents principally relied on. [ ] wall. ( ). [ ] ibid. . [ ] ibid. . [ ] wall. , - , - ( ). [ ] u.s. ( ). [ ] ibid. . [ ] crutcher _v._ kentucky, u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] u.s. ( ); followed in cudahy packing co. _v._ hinkle, u.s. ( ). _cf._, however, western live stock _v._ bureau of revenue, u.s. , ( ). [ ] anglo-chilean nitrate sales corp. _v._ alabama, u.s. ( ). [ ] cooney _v._ mountain states telephone & telegraph co., u.s. ( ). [ ] fisher's blend station _v._ state tax commission, u.s. , ( ). [ ] puget sound stevedoring co. _v._ tax commission of washington, u.s. ( ). [ ] adams mfg. co. _v._ storen, u.s. ( ). [ ] mccarroll _v._ dixie greyhound lines, u.s. ( ). _see also_ the following cases in which the court found a tax to be an unconstitutional interference with the interstate commerce privilege: tax on maintenance of office in pennsylvania for use of stockholders, officers, employees, and agents of railroad not operating in pennsylvania but a link in a line operating therein, norfolk & w.r. co. _v._ pennsylvania, u.s. ( ); license tax on sale of liquor as applied to a sale out of state by mail, heyman _v._ hays, u.s. ( ); tax on pipe lines transporting oil or gas produced in state but which might pass out of state, eureka pipe line co. _v._ hallanan, u.s. ( ); united fuel gas co. _v._ hallanan, u.s. ( ); kentucky tax on gasoline purchased in illinois and used in an illinois-kentucky ferry, helson & randolph _v._ kentucky, u.s. ( ); tax laid on privilege of operating a bus in interstate commerce because not imposed solely as compensation for use of highways or to defray expenses of regulating motor traffic, interstate transit, inc. _v._ lindsey, u.s. ( ); tax on gas pipe line whose only activity in state was the use of a thermometer and reduction of pressure to permit a vendee to draw off gas, state tax commission _v._ interstate natural gas co., u.s. ( )--but see east ohio gas co. _v._ tax commission, u.s. ( ); gasoline tax imposed per gallon of gasoline imported by interstate carriers as fuel for use in their vehicles within the state as well as in their interstate travel, bingaman _v._ golden eagle western lines, u.s. ( ). _see also_, for reiteration of the basic rule that the commerce clause forbids states to tax the privilege of engaging in interstate commerce, gwin, white & prince _v._ henneford, u.s. , - ( ). in california _v._ thompson, u.s. ( ), the court, overruling di santo _v._ pennsylvania, u.s. ( ), sustained, as not a "revenue measure," but "a measure to safeguard the traveling public by motor vehicle," who are "particularly unable" to protect themselves against overreaching by those "engaged in a business notoriously subject to abuses," a california statute requiring that agents for this type of transportation take out a license for both their interstate and their intrastate business. [ ] u.s. ( ). _cf._ osborne _v._ florida, u.s. ( ), involving an express business; in pullman company _v._ adams, u.s. ( ); and in allen _v._ pullman's palace car co., u.s. ( ). here state taxes levied on the local business of companies engaged also in interstate commerce were sustained "on the assumption" that the companies in question were free to abandon their local business. [ ] _see also_ pullman co. _v._ kansas ex rel. coleman, u.s. ( ); ludwig _v._ western union teleg. co., u.s. ( ); atchison, t. & s.f.r. co. _v._ o'connor, u.s. , ( ). [ ] u.s. ( ). _cf._ baltic mining co. _v._ massachusetts, u.s. ( ); kansas city ry. _v._ kansas, u.s. ( ); and kansas city, m. & b.r. co. _v._ stiles, u.s. ( ). in each of these a tax like that involved in looney _v._ crane was sustained, in the first two because the statute set a maximum limit to the tax; in the third because the amount collected under the act was held to be "reasonable." the ideology of these decisions is clearly opposed to that of the cases treated in the text. the rule in looney _v._ crane co. was held not applicable in the case of a west virginia corporation doing business in illinois and owning practically all of its property there. an illinois tax on the local business, which was measured by the total capitalization of the company was sustained, it being shown further that the tax was little more than it would have been if levied at the same rate directly on the property of the company that was in illinois. hump hairpin mfg. co. _v._ emmerson, u.s. ( ). [ ] u.s. ( ). _see also_ locomobile co. of america _v._ massachusetts, u.s. ( ); cheney brothers co. _v._ massachusetts, u.s. ( ); union pacific r.r. co. _v._ pub. service comm., u.s. ( ). [ ] u.s. at . [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . headnote . [ ] wall. , ( ). _see also_ bank of augusta _v._ earle, pet. ( ); and security mut. l. ins. co. _v._ prewitt, u.s. ( ). [ ] _see_ atlantic lumber co. _v._ commissioner, u.s. ( ); southern natural gas corp. _v._ alabama, u.s. ( ); atlantic refining co. _v._ virginia, u.s. ( ); coverdale _v._ arkansas-louisiana pipe line co., u.s. ( ); ford motor co. _v._ beauchamp, u.s. ( ); treasury of indiana _v._ wood corp., u.s. ( ); wheeling steel corp. _v._ glander, u.s. , ( ); _cf._ however, james _v._ dravo contracting co., u.s. ( ); memphis natural gas co. _v._ stone, u.s. , - ( ). [ ] philadelphia & r.r. co. _v._ pennsylvania (state freight tax case), wall. ( ). [ ] prudential ins. co. _v._ benjamin, u.s. , ( ). [ ] wheat. ( ). [ ] philadelphia & r.r. co. _v._ pennsylvania, wall. ( ). [ ] philadelphia & s. mail s.s. co. _v._ pennsylvania, u.s. ( ). [ ] western union tel. co. _v._ massachusetts, u.s. ( ). [ ] ibid. . [ ] _see_ railroad co. _v._ peniston, wall. , - ( ). [ ] pullman's palace car co. _v._ pennsylvania, u.s. ( ). [ ] ibid. . [ ] u.s. ; upon rehearing u.s. ( ). [ ] u.s. at . [ ] _see_ justice holmes' language in galveston, harrisburg, & s.a. ry. co. _v._ texas, u.s. , , ( ). _see also_ cudahy packing co. _v._ minnesota u.s. ( ); and pullman co. _v._ richardson, u.s. ( ); and virginia _v._ imperial coal sales co., u.s. ( ). [ ] pullman's palace car co. _v._ pennsylvania, u.s. ( ). [ ] pittsburgh, c.c. & st. l.r. co. _v._ backus, u.s. ( ); cleveland, c.c. & st. l.r. co. _v._ backus, u.s. ( ). [ ] western union teleg. co. _v._ taggart, u.s. ( ). _see also_ western union teleg. co. _v._ massachusetts, u.s. ( ). [ ] adams express co. _v._ ohio, u.s. ( ), upon rehearing u.s. ( ). [ ] great northern railway co. _v._ minnesota, u.s. ( ). [ ] nashville, c. & st. l. railway _v._ browning, u.s. ( ). [ ] ibid. , citing union tank line co. _v._ wright, u.s. ( ); wallace _v._ hines, u.s. ( ); southern r. co. _v._ kentucky, u.s. ( ). [ ] atlantic lumber co. _v._ commissioner, u.s. ( ). _cf._ alpha portland cement co. _v._ massachusetts, u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] citing pickard _v._ pullman southern car co., u.s. ( ); leloup _v._ port of mobile, u.s. ( ); crutcher _v._ kentucky, u.s. ( ); philadelphia & s. mail steamship co. _v._ pennsylvania, u.s. ( ). [ ] galveston, harrisburg & s.a.r. co. _v._ texas, u.s. ( ). [ ] ibid. . [ ] postal telegraph cable co. _v._ adams, u.s. , ( ). _see also_ illinois central r. co. _v._ minnesota, u.s. ( ), in which was sustained a five percent gross earnings tax on all railroads operating in the state, payable in lieu of all other taxes and found to have "a fair relation to the property employed in the state." [ ] new jersey bell telephone co. _v._ state bd. of taxes & assessments, u.s. ( ). [ ] bass, ratcliff & gretton _v._ state tax com., u.s. ( ). [ ] matson navigation co. _v._ state board, u.s. ( ). _see also_ international shoe co. _v._ shartel, u.s. ( ). [ ] ford motor co. _v._ beauchamp, u.s. ( ). [ ] international harvester co. _v._ evatt, u.s. ( ). [ ] galveston, harrisburg & san antonio r. co. _v._ texas, u.s. ( ). [ ] wallace _v._ hines, u.s. ( ). [ ] _see_ pp. , . _see also_ interstate oil pipe line co. _v._ stone, u.s. ( ) for an extensive review and evaluation of cases. [ ] illinois central r. co. _v._ minnesota, u.s. ( ). _see also_ wisconsin and michigan ry. _v._ powers, u.s. ( ); united states express co. _v._ minnesota, u.s. ( ). _see_ note to justice rutledge's opinion in freeman _v._ hewit, u.s. at pp. - . [ ] western live stock _v._ bureau of revenue, u.s. ( ). _see also_ united states express co. _v._ minnesota, u.s. ( ); dept. of treasury of indiana _v._ wood corp., u.s. ( ); dept. of treasury of indiana _v._ mfg. co., u.s. ( ); harvester co. _v._ dept. of treasury, u.s. ( ). [ ] western live stock _v._ bureau of revenue, u.s. ( ). [ ] meyer _v._ wells, fargo & co., u.s. ( ); _also_ the following note. [ ] philadelphia & s. mail s.s. co. _v._ pennsylvania, u.s. ( ); ratterman _v._ western union teleg. co., u.s. ( ); western union teleg. co. _v._ alabama board of assessment (seay), u.s. ( ); adams mfg. co. _v._ storen, u.s. ( ); gwin, white & prince _v._ henneford, u.s. ( ). _cf._ fargo _v._ michigan (fargo _v._ stevens), u.s. ( ), as explained in western live stock _v._ bureau of revenue, u.s. ( ). [ ] lockhart, gross receipts taxes on interstate transportation and communication, harvard l. rev. , , ( ); galveston, h. & s.a.r. co. _v._ texas, u.s. ( ); new jersey bell teleph. co. _v._ state bd. of taxes and assessments, u.s. ( ). but _cf._ nashville, c. and st. l. ry. _v._ browning, u.s. ( ). in both the galveston and new jersey telephone company cases, although the taxable events all occurred within the taxing state, the possibility of multiple taxation was nevertheless present. _see also_ puget sound stevedoring co. _v._ state tax commission, u.s. ( ), the decision in which might have been rested upon the clause of the constitution forbidding the states to tax exports. _see also_ richfield oil corp. _v._ state board of equalization, u.s. ( ). [ ] fisher's blend station _v._ state tax comm., u.s. ( ); western live stock _v._ bureau of revenue, u.s. ( ). [ ] _see_ p. . [ ] _see_ pp. - . [ ] _see_ p. . [ ] u.s. ( ). [ ] ibid. . [ ] ibid. - . [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. at ( ). [ ] _see_ mccarroll _v._ dixie greyhound lines, inc., u.s. , - ( ). [ ] freeman _v._ hewit, u.s. ( ). [ ] u.s. . [ ] the court relied particularly on adams mfg. co. _v._ storen, u.s. ( ) in which the multiple taxation test had been used. [ ] justice black dissented without opinion. justice douglas, speaking also for justice murphy, contended that the sale had been local, and that the only interstate agency employed had been the mails, an argument which squares badly with the attitude of the same justices in united states _v._ south-eastern underwriters assoc., u.s. ( ). [ ] u.s. ( ), reaffirming puget sound stevedoring co. _v._ tax comm., u.s. ( ). [ ] u.s. at . [ ] justices murphy, douglas, and rutledge thought the decision correct as to receipts from foreign commerce. speaking for them, justice douglas made an effort to resurrect maine _v._ grand trunk r. co., u.s. ( ). justice black dissented without opinion. [ ] u.s. . [ ] ibid. , citing western live stock _v._ bureau of revenue, u.s. ( ); and ratterman _v._ western union teleg. co., u.s. ( ). [ ] u.s. . [ ] u.s. , , - , . [ ] _see supra_, pp. , - . [ ] u.s. ( ). [ ] ibid. - . [ ] shaffer _v._ carter, u.s. ( ). [ ] underwood typewriter co. _v._ chamberlain, u.s. ( ); bass, ratcliff & gretton _v._ state tax commission, u.s. ( ). [ ] hans rees' sons _v._ north carolina, u.s. , , ( ). in this case a north carolina tax was assessed on the income of a new york corporation, which bought leather, manufactured it in north carolina, and sold its products at wholesale and retail in new york. the court observed: "the difficulty of making an exact apportionment is apparent and hence, when the state has adopted a method not intrinsically arbitrary, it will be sustained until proof is offered of an unreasonable and arbitrary application in particular cases." the decisions in the underwood and bass cases, _supra_, "are not authority for the conclusion that where a corporation manufactures in one state and sells in another, the net profits of the entire transaction, as a unitary enterprise, may be attributed, regardless of evidence, to either state." [ ] atlantic coast line _v._ daughton, u.s. ( ). [ ] matson nav. co. _v._ state board, u.s. ( ). _see also_ butler bros. _v._ mccolgan, u.s. ( ), where the tax was sustained under the fourteenth amendment. [ ] memphis gas co. _v._ beeler, u.s. ( ). [ ] ibid. - [ ] spector motor service _v._ o'connor, u.s. ( ). [ ] u.s. ( ). [ ] hays _v._ pacific mail s.s. co., how. ( ). [ ] packet co. _v._ keokuk, u.s. ( ); _see also_ transportation co. _v._ parkersburg, u.s. ( ). [ ] ayer & l. tie co. _v._ kentucky, u.s. ( ). for a résumé of the rules for taxing vessels _see_ northwest airlines _v._ minnesota, u.s. , - ( ), note . [ ] old dominion s.s. co. _v._ virginia, u.s. ( ): a vessel enrolled in new york at domicile of owner, but operating wholly in virginia, was held taxable in virginia. [ ] u.s. ( ). [ ] northwest airlines _v._ minnesota, u.s. ( ). [ ] he also invoked new york central and h.r.r. co. _v._ miller, u.s. ( ), where although to per cent of the rolling stock of the railroad was outside of new york throughout the tax year, new york was nevertheless allowed to tax it all because no part was in any other state throughout the year. the case is atypical, a constitutional sport; _cf._ union refrigerator transit co. _v._ kentucky, u.s. ( ). [ ] u.s. at - . [ ] "the apportionment theory is a mongrel one, a cross between desire not to interfere with state taxation and desire at the same time not utterly to crush out interstate commerce. it is a practical, but rather illogical, device to prevent duplication of tax burdens on vehicles in transit. it is established in our decisions and has been found more or less workable with more or less arbitrary formulae of apportionment. nothing either in theory or in practice commends it for transfer to air commerce."--ibid. . [ ] ibid. . [ ] pullman's palace car co. _v._ pennsylvania, u.s. ( ). [ ] u.s. . [ ] u.s. ( ). [ ] ibid. . [ ] hendrick _v._ maryland, u.s. ( ). [ ] kane _v._ new jersey, u.s. ( ). [ ] morf _v._ bingaman, u.s. ( ). [ ] ingels _v._ morf, u.s. ( ). [ ] clark _v._ poor, u.s. ( ); hicklin _v._ coney, u.s. ( ). [ ] interstate busses corp. _v._ blodgett, u.s. ( ); continental baking co. _v._ woodring, u.s. ( ). [ ] aero mayflower transit co. _v._ georgia pub. serv. commission, u.s. ( ). [ ] interstate transit _v._ lindsey, u.s. ( ). _cf._ sprout _v._ south bend, u.s. ( ). [ ] _see_ dixie ohio express co. _v._ state rev. comm., u.s. ( ); _also_ clark _v._ paul gray, inc., u.s. ( ); aero mayflower transit co. _v._ board of r.r. commrs., u.s. , - ( ). here was sustained a state statute imposing a flat tax of $ annually upon each vehicle operated by a motor carrier over the state's highways, and a fee of one half of one per cent of the carrier's gross operating revenue from its operations within the state, with an annual minimum of $ per vehicle, in consideration of the use of the highways and in addition to all other motor vehicle license fees and taxes. this was held, as applied to a carrier engaged solely in interstate commerce, not to burden such commerce unconstitutionally, although the proceeds went into the state's general fund subject to appropriation for other than highway purposes. (opinion by rutledge, j., all concurring.) while a "state may not discriminate against or exclude such interstate traffic generally in the use of its highways, * * * [it is not] required to furnish those facilities to it free of charge or indeed on equal terms with other traffic not inflicting similar destructive effects. * * * interstate traffic equally with intrastate may be required to pay a fair share of the cost and maintenance reasonably related to the use made of the highways." ibid., headnote . [ ] u.s. ( ). [ ] ibid. . [ ] justice roberts for the court in great northern r. co. _v._ washington, u.s. , - ( ). [ ] charlotte, c. & a.r. co. _v._ gibbes, u.s. ( ); new york ex rel. new york electric lines co. _v._ squire, u.s. , ( ). [ ] atlantic & p. teleg. co. _v._ philadelphia, u.s. ( ); mackay teleg. & cable co. _v._ little rock, u.s. , ( ). [ ] western u. teleg. co. _v._ new hope, u.s. , ( ); pure oil co. _v._ minnesota, u.s. , ( ). [ ] new mexico ex rel. mclean _v._ denver & r.g.r. co., u.s. , ( ). _cf._ red "c" oil mfg. co. _v._ board of agriculture, u.s. , ( ); western u. teleg. co. _v._ new hope, u.s. ( ). [ ] brimmer _v._ rebman, u.s. , ( ); postal teleg. & cable co. _v._ taylor, u.s. ( ); pure oil co. _v._ minnesota, u.s. , ( ). [ ] atlantic & p. teleg. co. _v._ philadelphia, u.s. , ( ); postal teleg. cable co. _v._ taylor, u.s. , ( ); foote & co. _v._ stanley, u.s. , , ( ). [ ] foote & co. _v._ stanley, u.s. , ( ); lugo _v._ suazo, f. ( d) ( ). [ ] western u. teleg. co. _v._ new hope, u.s. , ( ); foote & co. _v._ stanley, u.s. , ( ). [ ] postal teleg. cable co. _v._ new hope, u.s. ( ); foote & co. _v._ stanley, u.s. , ( ). [ ] stat. . sustained in pennsylvania _v._ wheeling & belmont bridge co., how. ( ). [ ] pennsylvania _v._ wheeling & belmont bridge co., how. ( ). [ ] transportation co. _v._ parkersburg, u.s. , ( ). [ ] u.s. ( ). [ ] stat. ( ). [ ] u.s. ( ). [ ] ibid. - , - . [ ] _see_ pp. - . [ ] wheat. ( ). [ ] ibid. . [ ] wheat. ( ). [ ] ibid. - . [ ] _cf._ wheat. at - . [ ] pet. ( ). [ ] smith _v._ turner (passenger cases), how. ( ). [ ] henderson _v._ new york, u.s. ( ). [ ] ibid. . [ ] chy lung _v._ freeman, u.s. ( ). [ ] compagnie francaise de navigation _v._ bd. of health, u.s. , , ( ). _see also_ morgan's l. & t.r.s.s. co. _v._ bd. of health, u.s. ( ); louisiana _v._ texas, u.s. , ( ). [ ] u.s. , - ( ). [ ] as to concessions by the court to the practical necessities of enforcement, _see also_ bayside fish flour co. _v._ gentry, u.s. ( ); and whitfield _v._ ohio, u.s. ( ). [ ] u.s. , - . [ ] ibid. ; citing: minnesota rate cases, u.s. , , ( ); south carolina highway dept. _v._ barnwell bros., u.s. , ( ), et seq.; california _v._ thompson, u.s. , , ( ) and cases cited; parker _v._ brown, u.s. , , ( ). [ ] u.s. at ; citing: cooley _v._ board of wardens, how. at ( ); south carolina highway dept. _v._ barnwell bros., u.s. at ; california _v._ thompson, u.s. at ; duckworth _v._ arkansas, u.s. , ( ); parker _v._ brown, u.s. at , . [ ] u.s. at ; citing: south carolina highway dept. _v._ barnwell bros., u.s. at and cases cited; lone star gas co. _v._ texas, u.s. , ( ); milk board _v._ eisenberg co., u.s. , ( ); maurer _v._ hamilton, u.s. , ( ); california _v._ thompson, u.s. , and cases cited. [ ] u.s. at , ; citing: cooley _v._ board of wardens, how. at ( ); leisy _v._ hardin, u.s. , , ( ); minnesota rate cases, u.s. at , ( ); edwards _v._ california, u.s. , ( ). [ ] u.s. at ; citing: brown _v._ maryland, wheat. , ( ); minnesota rate cases, u.s. at , ; pennsylvania _v._ west virginia, u.s. , ( ); baldwin _v._ seelig, u.s. , ( ); south carolina highway dept. _v._ barnwell bros., u.s. at ( ). [ ] u.s. at ; citing: welton _v._ missouri, u.s. , ( ); hall _v._ decuir, u.s. , ( ); brown _v._ houston, u.s. , ( ); bowman _v._ chicago & n.w.r. co., u.s. , , ( ); leisy _v._ hardin, u.s. at ; in re rahrer, u.s. , , ( ); brennan _v._ titusville, u.s. , ( ); covington & c. bridge co. _v._ kentucky, u.s. , ( ); graves _v._ new york ex rel. o'keefe, u.s. , ( ); dowling, interstate commerce and state power, va. law rev. ( ). [ ] u.s. at ; citing: parker _v._ brown. u.s. at ( ); terminal railroad assn. _v._ brotherhood, u.s. , ( ); _see_ di santo _v._ pennsylvania, u.s. , ( ) (and compare california _v._ thompson, u.s. ( )); illinois gas co. _v._ public service co., u.s. , , ( ). [ ] u.s. at ; citing: cooley _v._ board of wardens, how. ( ); kansas city southern r. co. _v._ kaw valley district, u.s. , ( ); south covington r. co. _v._ covington, u.s. , ( ); missouri, k. & t.r. co. _v._ texas, u.s. , ( ); st. louis & s.f.r. co. _v._ public service comm'n., u.s. , ( ): foster-fountain packing co. _v._ haydel, u.s. , ( ); gwin, white & prince _v._ henneford, u.s. , ( ); mccarroll _v._ dixie lines, u.s. ( ). [ ] u.s. at ; citing: in re rahrer, u.s. at , ( ); adams express co. _v._ kentucky, u.s. , ( ); rosenberger _v._ pacific express co., u.s. , , ( ); clark distilling co. _v._ western maryland r. co., u.s. , , ( ); whitfield _v._ ohio, u.s. , - ( ); kentucky whip & collar co. _v._ illinois central r. co., u.s. , , ( ); hooven & allison co. _v._ evatt, u.s. , ( ). [ ] u.s. at , ; citing: addyston pipe & steel co. _v._ united states, u.s. , ( ); louisville & nashville r. co. _v._ mottley, u.s. ( ); houston, e. & w.t.r. co. _v._ united states, u.s. ( ); american express co. _v._ caldwell, u.s. , ( ); illinois central r. co. _v._ public utilities comm'n., u.s. , ( ); new york _v._ united states, u.s. , ( ); louisiana public service comm'n. _v._ texas & n.o.r. co., u.s. , ( ); pennsylvania r. co. _v._ illinois brick co., u.s. , , ( ). [ ] u.s. at ; citing: gwin, white & prince _v._ henneford, u.s. , ( ). [ ] u.s. at ; citing: terminal railroad assn. _v._ brotherhood, u.s. , ( ); southern r. co. _v._ king, u.s. ( ). [ ] peik _v._ chicago & n.w.r. co., u.s. ( ). [ ] wabash, st. l. & p.r. co. _v._ illinois, u.s. ( ). [ ] stat. ( ). [ ] wisconsin railroad com. _v._ chicago, b. & q.r.r. co., u.s. ( ). [ ] gladson _v._ minnesota, u.s. ( ); followed in lake shore & m.s.r. co. _v._ ohio ex rel. lawrence, u.s. ( ), in which an ohio statute requiring that "each company shall cause three, each way, of its regular trains carrying passengers, * * * sundays excepted, to stop at a station, city or village, containing three thousand inhabitants, for a time sufficient to receive and let off passengers; * * *" was sustained. [ ] illinois central r.r. co. _v._ illinois, u.s. , ( ). [ ] chicago, burlington & quincy r.r. co. _v._ wisconsin r.r. com., u.s. , ( ); st. louis & san francisco r. co. _v._ public service com., u.s. , - ( ). [ ] st. louis & san francisco r. co. _v._ public service com., u.s. , ( ). [ ] wisconsin, minnesota & pacific r.r. _v._ jacobson, u.s. ( ). [ ] missouri p.r. co. _v._ larabee flour mills co., u.s. ( ). [ ] mcneill _v._ southern r. co., u.s. ( ). [ ] st. louis s.w.r. co. _v._ arkansas, u.s. ( ). [ ] _see e.g._ the court's language in hannibal & st. l.r. co. _v._ husen, u.s. , ( ); new york, n.h. & h.r. co. _v._ new york, u.s. , ( ); lake shore & m.s.r. co. _v._ ohio ex rel. lawrence, u.s. , ( ); hennington _v._ georgia, u.s. ( ); simpson _v._ shepard (minnesota rate cases), u.s. , - ( ). [ ] smith _v._ alabama, u.s. ( ); _see also_ nashville, c. & st. l.r. co. _v._ alabama, u.s. ( ); mccall _v._ california, u.s. ( ); missouri, k. & t.r. co. _v._ haber, u.s. , ( ). [ ] new york, n.h. & h.r. co. _v._ new york, u.s. ( ). _see also_ chicago, m. & st. p.r. co. _v._ solan, u.s. , ( ). [ ] erb _v._ morasch, u.s. ( ). [ ] erie r.r. co. _v._ public utility commrs., u.s. ( ). [ ] atchison, t. & s.f.r. co. _v._ r.r. comm., u.s. ( ). [ ] chicago, r.i. & p.r. co. _v._ arkansas, u.s. ( ). [ ] ibid, , . _see also_ st. louis, i.m. & s. co. _v._ arkansas, u.s. ( ); missouri p.r. co. _v._ norwood, u.s. ( ). [ ] terminal railroad assn. _v._ brotherhood, u.s. ( ). [ ] u.s. ( ). in south covington r. co. _v._ covington, u.s. ( ), the court sustained a municipal ordinance which prohibits the company from allowing passengers to ride on the rear or front platforms without suitable barriers, and requires that the cars be kept clean and ventilated and fumigated. however, provisions of the ordinance that cars shall never be permitted to fall below a certain temperature and regulating the number of passengers to be carried in the cars were held to be unreasonable and violative of the commerce clause. there was no unconstitutional interference with interstate commerce by a municipal ordinance which directed a railway company to remove its tracks from a busy street intersection. denver & r.g.r. co. _v._ denver, u.s. ( ). [ ] chicago, m. & st. p.r. co. _v._ solan, u.s. ( ); richmond & a.r. co. _v._ patterson tobacco co., u.s. ( ). [ ] u.s. , - ( ). [ ] kansas city southern r. co. _v._ kaw valley drainage dist., u.s. , ( ). [ ] u.s. ( ). [ ] _cf._ southern r. co. _v._ king, u.s. ( ), where the crossings were fewer and the burden to interstate commerce was shown not to be unduly heavy. [ ] u.s. , ( ). [ ] u.s. , - . [ ] u.s. , , ( ). [ ] hendrick _v._ maryland, u.s. ( ); kane _v._ new jersey, u.s. ( ). [ ] sproles _v._ binford, u.s. ( ). _see also_ morris _v._ duby, u.s. ( ). [ ] south carolina state highway dept. _v._ barnwell bros. inc., u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] eichholz _v._ public service com. of missouri, u.s. ( ), citing cooley _v._ board of wardens, how. ( ). [ ] railway express agency _v._ new york, u.s. ( ). [ ] ibid. . for a more extreme application of this idea by a narrowly divided court, in a quite special situation, _see_ buck et al. _v._ california, u.s. ( ). [ ] continental baking co. _v._ woodring, u.s. ( ); stephenson _v._ binford, u.s. ( ); hicklin _v._ coney, u.s. ( ). [ ] michigan pub. utilities com. _v._ duke, u.s. ( ). _see also_ smith _v._ cahoon, u.s. ( ); and continental baking co. _v._ woodring, u.s. ( ). [ ] buck _v._ kuykendall, u.s. ( ). _see also_, bush & sons co. _v._ maloy, u.s. ( ); interstate busses corp. _v._ holyoke street r. co., u.s. ( ). [ ] u.s. ( ). _see also_ mccall _v._ california, u.s. ( ). in the former case, agents soliciting patronage for steamship lines were involved; in the latter, an agent soliciting patronage for a particular railway line. [ ] california _v._ thompson, u.s. , - ( ). [ ] wheat. ( ). [ ] pet. , ( ). [ ] how. ( ). [ ] foster _v._ davenport, how. ( ); sinnot _v._ davenport, how. ( ). _see also_ lord _v._ steamship co., u.s. ( ). [ ] foster _v._ master & wardens of port of new orleans, u.s. ( ). [ ] ibid. . [ ] northern transp. co. _v._ chicago, u.s. , ( ); willamette iron bridge co. _v._ hatch, u.s. ( ); illinois _v._ economy power light co., u.s. ( ). [ ] economy light and power co. _v._ united states, u.s. ( ). [ ] harman _v._ chicago, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] hall _v._ de cuir, u.s. ( ). [ ] pet. ( ). [ ] pound _v._ turck, u.s. ( ); lindsay & phelps co. _v._ mullen, u.s. ( ). [ ] wall. ( ). [ ] ibid. . _see also_, escanaba & l.m. transp. co. _v._ chicago, u.s. ( ); and cardwell _v._ american river bridge co., u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] packet co. _v._ keokuk, u.s. ( ); ouachita packet co. _v._ aiken, u.s. ( ). [ ] prosser _v._ northern p.r. co., u.s. ( ). _see also_ sands _v._ manistee r. imp. co., u.s. ( ); gring _v._ ives, u.s. ( ). [ ] cases cited in note above;[transcriber's note: reference is to footnote , above.] parkersburg & o. transp. co. _v._ parkersburg, u.s. ( ). [ ] gloucester ferry co. _v._ pennsylvania, u.s. , ( ); conway _v._ taylor, black ( ); wiggins ferry co. _v._ east st. louis, u.s. ( ). [ ] mayor and board of aldermen of vidalia _v._ mcneely, u.s. ( ). _see also_ helson _v._ kentucky, u.s. , ( ). [ ] covington & c. bridge co. _v._ kentucky, u.s. ( ). [ ] port richmond and bergen point ferry co. _v._ bd. of chosen freeholders, u.s. ( ). [ ] new york central & h.r.r. co. _v._ bd. of chosen freeholders, u.s. ( ). [ ] wilmington transp. co. _v._ r.r. com., u.s. ( ). [ ] western u. teleg. co. _v._ pendleton, u.s. ( ). [ ] western u. teleg. co. _v._ foster, u.s. ( ). [ ] western u. teleg. co. _v._ crovo, u.s. ( ). [ ] western u. teleg. co. _v._ commercial milling co., u.s. ( ). [ ] western u. teleg. co. _v._ brown, u.s. ( ). [ ] essex _v._ new england teleg. co., u.s. ( ). [ ] pensacola teleg. co. _v._ western u. teleg. co., u.s. ( ). [ ] western union teleg. co. _v._ richmond, u.s. ( ). _see also_ postal teleg. cable co. _v._ richmond, u.s. ( ). [ ] northwestern bell teleph. co. _v._ nebraska state r. com., u.s. ( ). [ ] bell tel. co. _v._ pennsylvania public util. com., u.s. ( ). [ ] missouri ex rel. barrett _v._ kansas natural gas co., u.s. ( ). [ ] public utilities com. _v._ attleboro steam & electric co., u.s. ( ). [ ] pennsylvania natural gas co. _v._ public serv. com., u.s. ( ); public utilities com. _v._ landon, u.s. ( ). [ ] panhandle eastern pipe lines co. _v._ public serv. com., u.s. ( ). [ ] panhandle co. _v._ michigan comm'n., u.s. ( ). [ ] peoples natural gas co. _v._ public serv. com., u.s. ( ). [ ] east ohio gas co. _v._ tax com. of ohio, u.s. ( ). [ ] western distributing co. _v._ public serv. com. of kansas, u.s. ( ). [ ] arkansas louisiana gas co. _v._ dept. of public utilities, u.s. ( ). [ ] lone star gas co. _v._ texas, u.s. ( ). [ ] cities service co. _v._ peerless co., u.s. ( ). [ ] union brokerage co. _v._ jensen, u.s. ( ). _see also_ international harvester co. _v._ kentucky, u.s. ( ); sioux remedy co. _v._ cope, u.s. ( ); interstate amusement co. _v._ albert, u.s. ( ). [ ] u.s. at - . [ ] sioux remedy co. _v._ cope, u.s. ( ). [ ] international milling co. _v._ columbia t. co., u.s. ( ). [ ] natural gas pipeline co. _v._ slattery, u.s. ( ). [ ] engel _v._ o'malley, u.s. ( ). [ ] merrick _v._ halsey & co., u.s. ( ). _see also_ hall _v._ geiger-jones co., u.s. ( ); caldwell _v._ sioux falls stock yards co., u.s. ( ). [ ] hartford accident & indemnity co. _v._ illinois ex rel. mclaughlin, u.s. ( ), citing cargill co. _v._ minnesota, u.s. , ( ); simpson _v._ shepard (minnesota rate case), u.s. , ( ); hall _v._ geiger-jones co., u.s. , ( ); federal compress & warehouse co. _v._ mclean, u.s. ( ). [ ] davis _v._ cleveland, c.c. & st. l. co., u.s. ( ). [ ] martin _v._ west, u.s. ( ). [ ] the "winnebago," u.s. , ( ). [ ] justice hughes for the court in minnesota rate cases (simpson _v._ shepard), u.s. , ( ). [ ] ibid. . [ ] railroad co. _v._ husen, u.s. ( ). [ ] kimmish _v._ ball, u.s. ( ). [ ] smith _v._ st. louis & s.w.r. co., u.s. ( ). [ ] ibid. . morgan's s.s. co. _v._ louisiana bd. of health, u.s. ( ) is cited. [ ] hebe co. _v._ shaw, u.s. ( ). [ ] hygrade provision co. _v._ sherman, u.s. ( ). [ ] mintz _v._ baldwin, u.s. ( ). [ ] pacific states box & basket co. _v._ white, u.s. ( ). [ ] bayside fish flour co. _v._ gentry, u.s. ( ). [ ] highland farms dairy, inc. _v._ agnew, u.s. ( ). [ ] bourjois, inc. _v._ chapman, u.s. ( ). [ ] clason _v._ indiana, u.s. ( ). [ ] milk control bd. _v._ eisenberg farm products, u.s. ( ). [ ] patapsco guano co. _v._ north carolina, u.s. ( ). [ ] savage _v._ jones, u.s. ( ); followed in corn products refining co. _v._ eddy, u.s. ( ). [ ] pure oil co. _v._ minnesota, u.s. ( ). [ ] mutual film corp. _v._ hodges, u.s. ( ). [ ] minnesota _v._ barber, u.s. ( ); _see also_ brimmer _v._ rebman, u.s. ( ). [ ] u.s. at . _see also_ pp. - . [ ] voight _v._ wright, u.s. ( ). [ ] hale _v._ bimco trading co., u.s. ( ). [ ] dean milk co. _v._ madison, u.s. ( ). [ ] wheat. ( ). [ ] ibid. . [ ] woodruff _v._ parham, wall. ( ). there were later some departures from the rule, apparently due to inattention, in cases involving oil. _see_ standard oil _v._ graves, u.s. ( ); askren _v._ continental oil co., u.s. ( ); bowman _v._ continental oil co., u.s. ( ) and texas co. _v._ brown, u.s. ( ). these cases were "qualified," and in fact disavowed in sonneborn bros. _v._ cureton, u.s. , ( ). _cf._ the contemporary case of wagner _v._ covington, u.s. ( ) where the true rule is followed. [ ] mugler _v._ kansas, u.s. ( ). [ ] kidd _v._ pearson, u.s. ( ). [ ] u.s. ( ). [ ] leisy & co. _v._ hardin, u.s. ( ). [ ] stat. ( ); sustained in in re rahrer, u.s. ( ). [ ] rhodes _v._ iowa, u.s. ( ). [ ] stat. ( ); sustained in clark distilling co. _v._ western md. ry. co., u.s. ( ). [ ] austin _v._ tennessee, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. at . [ ] schollenberger _v._ pennsylvania, u.s. ( ). [ ] collins _v._ new hampshire, u.s. ( ). [ ] _see_ note above. [transcriber's note: reference is to footnote , above.] [ ] state board _v._ young's market co., u.s. ( ); finch & co. _v._ mckittrick, u.s. ( ); brewing co. _v._ liquor comm'n., u.s. ( ); ziffrin, inc. _v._ reeves, u.s. ( ). [ ] duckworth _v._ arkansas, u.s. ( ); followed in carter _v._ virginia, u.s. ( ). justice jackson would have preferred to rest the decision on the twenty-first amendment instead of "what i regard as an unwise extension of state power over interstate commerce," u.s. at ; and appears to have converted justice frankfurter. _see_ latter's opinion in u.s. at - . [ ] u.s. ( ). [ ] stat ( ). [ ] u.s. at . _see also_ justice cardozo's remarks in baldwin _v._ seelig, u.s. , - ( ). [ ] _cf._ plumley _v._ massachusetts, u.s. ( ); savage _v._ jones, u.s. ( ); corn products refining co. _v._ eddy, u.s. ( ). [ ] elkison _v._ deliesseline, fed. cas. no. ( ). [ ] for interesting particulars _see_ charles warren, the supreme court in united states history, - . [ ] op. atty. gen. . [ ] op. atty. gen. . [ ] pet. ( ). [ ] smith _v._ turner (passenger cases), how. ( ). [ ] crandall _v._ nevada, wall. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . justice cardozo's words, quoted by justice byrnes, occur in baldwin _v._ seelig, u.s. , ( ). justice byrnes' answer to another argument of the state, based on historical conceptions of the word "indigent," was, "poverty and immorality are not synonymous." [ ] _see_ especially justice douglas' forceful opinion. u.s. - . [ ] u.s. ( ). [ ] hudson county water co. _v._ mccarter, u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. , ( ). [ ] u.s. ( ); l. ed. , hd. . [ ] _see_ pp. - . [ ] u.s. ( ); followed in hegeman farms corp. _v._ baldwin, u.s. ( ). [ ] u.s. ( ). [ ] milk control bd. _v._ eisenberg farm products, u.s. ( ). [ ] ibid. . [ ] hood _v._ du mond, u.s. , ( ). [ ] foster-fountain packing co. _v._ haydel, u.s. ( ). [ ] ibid. . [ ] toomer _v._ witsell, u.s. ( ). other features of the south carolina act were found to violate article iv, section . _see_ p. . [ ] bayside fish flour co. _v._ gentry, u.s. ( ). [ ] ibid. , citing silz _v._ hesterberg, u.s. , ( ). [ ] stat. ( ). [ ] chicago, i. & l.r. co. _v._ united states, u.s. ( ). [ ] southern r. co. _v._ reid, u.s. ( ); southern r. co. _v._ burlington lumber co., u.s. ( ). [ ] chicago, r.i. & p.r. co. _v._ hardwick farmers elevator co., u.s. ( ). [ ] st. louis, i.m. & s.r. co. _v._ edwards, u.s. ( ). [ ] yazoo & m.v.r. co. _v._ greenwood grocery co., u.s. ( ). in this case the severity of the regulation furnished additional reason for its disallowance. [ ] u.s. ( ). for the court's reiteration of the formula governing such cases, _see_ ibid. - . _see also_ barrett _v._ new york, u.s. ( ); chicago, r.i. & p.r. co. _v._ cramer, u.s. ( ); atchison, t. & s.f.r. co. _v._ harold, u.s. ( ); missouri p.r. co. _v._ porter, u.s. ( ). a year before the enactment of the carmack amendment the court had held that the imposition by a state upon the initial or any connecting carrier of the duty of tracing the freight and informing the shipper in writing when, where, how, and by which carrier the freight was lost, damaged, or destroyed, and of giving the names of the parties and their official position, by whom the truth of the facts set out in the information could be established, was, when applied to interstate commerce, a violation of the commerce clause. central of georgia r. co. _v._ murphey, u.s. , ( ). the court's opinion definitely invited congress to deal with the subject, as it does in the carmack amendment. [ ] stat. ( ); stat. ( ). [ ] stat. ( ). [ ] stat. ( ); stat. ( ). [ ] mondou _v._ new york, n.h. & h.r. co. (second employers' liability cases), u.s. ( ); southern r. co. _v._ railroad com., u.s. ( ). [ ] erie r. co. _v._ new york, u.s. ( ). [ ] stat. ( ). [ ] crossman _v._ lurman, u.s. ( ). [ ] stat. ( ); savage _v._ jones, u.s. ( ), citing missouri, kansas & texas ry. co. _v._ haber, u.s. ( ); reid _v._ colorado, u.s. ( ); asbell _v._ kansas, u.s. ( ); southern ry. co. _v._ reid, u.s. , ( ). [ ] mcdermott _v._ wisconsin, u.s. ( ). [ ] ibid. . [ ] armour & co. _v._ north dakota, u.s. ( ). [ ] stat. ( ); stat. ( ). [ ] oregon-washington r. & nav. co. _v._ washington, u.s. ( ). [ ] stat. ( ). [ ] mintz _v._ baldwin, u.s. ( ). [ ] stat. ( ); stat. ( ). [ ] townsend _v._ yeomans, u.s. ( ). [ ] stat. ( ). [ ] allen-bradley local _v._ employment relations board, u.s. ( ). [ ] stat. ( ). [ ] quoting napier _v._ atlantic coast line r. co., u.s. , ( ). [ ] parker _v._ brown, u.s. ( ). [ ] stat. ( ). [ ] u.s. at . [ ] ibid. . [ ] union brokerage co. _v._ jensen, u.s. ( ). [ ] ibid. . [ ] panhandle eastern pipe line co. _v._ public serv. com. of indiana, u.s. ( ); rice _v._ chicago board of trade, u.s. ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] stat. ( ); stat. - ( ). [ ] california _v._ zook, u.s. ( ). [ ] stat. ( ). [ ] illinois gas co. _v._ public service co., u.s. ( ). [ ] u.s.c.a. § - . [ ] cloverleaf co. _v._ patterson, u.s. ( ). four justices, speaking by chief justice stone dissented, on the basis of mintz _v._ baldwin, u.s. ( ); kelly _v._ washington ex rel. foss co., u.s. ( ); and welch co. _v._ new hampshire, u.s. ( ). [ ] stat. ( ); amended by stat. ( ). [ ] rice _v._ santa fe elevator corp., u.s. ( ). [ ] _see_ note above. [transcriber's note: reference is to footnote , above.] [ ] interstate natural gas co. _v._ federal power com., u.s. ( ). [ ] u.s.c.a. . [ ] schwabacher _v._ united states, u.s. ( ). [ ] seaboard air line r. co. _v._ daniel, u.s. ( ). [ ] hill _v._ florida, u.s. ( ). [ ] stat. ( ). [ ] u.s. at . [ ] auto workers _v._ wisconsin board, u.s. ( ). [ ] stat. ( ); stat. ( ). [ ] algoma plywood & veneer co. _v._ wisconsin bd., u.s. ( ). [ ] automobile workers _v._ o'brien, u.s. ( ); bus employees _v._ wisconsin board, u.s. ( ). [ ] united states _v._ kagama, u.s. , ( ); _cf._ united states _v._ holliday, wall. ( ). [ ] stat. , ; r.s. . [ ] _see_ united states _v._ sandoval, u.s. ( ). [ ] _see_ perrin _v._ united states, u.s. ( ); johnson _v._ gearlds, u.s. ( ); dick _v._ united states, u.s. ( ). [ ] united states _v._ nice, u.s. ( ), overruling re heff, u.s. , ( ). [ ] united states _v._ sandoval, u.s. ( ). [ ] united states _v._ holliday, wall. , ( ). [ ] ex parte webb, u.s. ( ). [ ] boyd _v._ nebraska, u.s. , ( ). [ ] how. ( ). [ ] ibid. , . [ ] mackenzie _v._ hare, u.s. , ( ). [ ] stat. ; public law , d cong., d sess. ( ). [ ] ibid. tit. iii, § . the first category comprises, it should be noted, those who are citizens by the opening clause of amendment xiv, which embodies chief justice marshall's holding in gassies _v._ ballon, that a citizen of the united states, residing in any state of the union, is a citizen of that state. pet. , ( ). [ ] stat. ; tit. iii, §§ - . these categories illustrate collective naturalization. "instances of collective naturalization by treaty or by statute are numerous." boyd _v._ nebraska, u.s. , ( ). _see also_ elk _v._ wilkins, u.s. ( ). [ ] stat. . [ ] stat. , tit. iii, § . [ ] ibid. § (a) ( - ). [ ] ibid. § (c). [ ] stat. , § (a). in united states _v._ schwimmer, u.s. ( ); and united states _v._ macintosh, u.s. ( ) it was held, by a divided court, that clauses ( ) and ( ) of the oath, as previously prescribed, required the candidate for naturalization to be ready and willing to bear arms for the united states, but these holdings were overruled in girouard _v._ united states, u.s. ( ). [ ] stat. , § (a); _see also_ johannessen _v._ united states, u.s. ( ). [ ] ibid. § (c). for cancellation proceedings under the nationality act of ( stat. , § ); _see_ schneiderman _v._ united states, u.s. ( ); baumgartner _v._ united states u.s. ( ), where district court decisions ordering cancellation were reversed on the ground that the government had not discharged the burden of proof resting upon it. knauer _v._ united states, u.s. ( ) represents a less rigid view. [ ] osborn _v._ bank of the united states, wheat. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] johannessen _v._ united states, u.s. ( ) and knauer _v._ united states, u.s. , ( ). [ ] stat. , tit. iii, § (a). [ ] perkins _v._ elg, u.s. , , ( ). naturalization has a retroactive effect and removes all liability to forfeiture of land held while an alien (osterman _v._ baldwin, wall. , ( )); the subsequent naturalization of an alien who takes land by grant or by location on public land relates back and obviates every consequence of his alien disability (manuel _v._ wulff, u.s. , ( ); doe ex dem. governeur's heirs _v._ robertson, wheat. , ( )). a certificate of naturalization, while conclusive as a judgment of citizenship, cannot be introduced in a distinct proceeding as evidence of residence, age or good character of the person naturalized (mutual ben. l. ins. co. _v._ tisdale, u.s. ( )). [ ] chirac _v._ chirac, wheat. , ( ). [ ] holmgren _v._ united states, u.s. ( ), where it was also held that congress may provide for the punishment of false swearing in such proceedings in state court. ibid. . [ ] spragins _v._ houghton, ill. ( ); stewart _v._ foster, binney's (pa.) ( ). [ ] shanks _v._ dupont, pet. , ( ). [ ] stat. ; u.s.c.a. § . [ ] mackenzie _v._ hare, u.s. , , - ( ). in this case, a now obsolete statute ( stat. ), known as the citizenship act of , which divested the citizenship of a woman marrying an alien, was upheld as constitutional. under the act of june , , these conditions comprise the following: ( ) obtaining naturalization in a foreign state; ( ) taking an oath of allegiance to a foreign state; ( ) serving in the armed forces of a foreign state without authorization and with consequent acquisition of foreign nationality; ( ) assuming public office under the government of a foreign state, for which only nationals of that state are eligible; ( ) voting in an election or participating in a plebiscite in a foreign state; ( ) formal renunciation of citizenship before an american foreign service officer abroad; ( ) conviction and discharge from the armed services for desertion in time of war; ( ) conviction of treason or an attempt at forceful overthrow of the united states; ( ) formal renunciation of citizenship within the united states in time of war, subject to approval by the attorney general; ( ) fleeing or remaining outside the united states in time of war or proclaimed emergency in order to evade military training; ( ) residence by a naturalized citizen, subject to certain exceptions, for two to three years in the country of his birth or in which he formerly was a national or for five years in any other foreign state, and ( ) minor children, of naturalized citizens losing citizenship by such foreign residence, also lose their united states citizenship if they acquire the nationality of a foreign state; but not until they attain the age of without having acquired permanent residence in the united states. stat. ; tit. iii §§ - . [ ] chinese exclusion case, u.s. , , ( ); _see also_ fong yue ting _v._ united states, u.s. , ( ); japanese immigrant case, u.s. ( ); turner _v._ williams, u.s. ( ); bugajewitz _v._ adams, u.s. ( ); hines _v._ davidowitz, u.s. ( ). [ ] stat. ; tit. ii, § . [ ] ibid. § (a) ( ) (f). [ ] stat. . [ ] hines _v._ davidowitz, u.s. , - . [ ] stat. ; tit. ii, §§ - . [ ] u.s. ( ). [ ] stat. . [ ] u.s. at . [ ] carlson _v._ landon, u.s. ( ). [ ] stat. . [ ] harisiades _v._ shaughnessy, u.s. , ( ). [ ] u.s.c, § c was the provision in question. [ ] united states _v._ spector, u.s. ( ). [ ] keller _v._ united states, u.s. ( ). [ ] ibid. - . for the requirements of due process of law in the deportation of alien, _see_ p. (amendment v). [ ] adams _v._ storey, fed. cas. no. ( ). [ ] stat. ( ). [ ] story's commentaries, ii, (cooley's ed. ). [ ] u.s. ( ). [ ] continental illinois nat. bank & trust co. _v._ chicago, r.i. & p.r. co., u.s. , ( ). [ ] united states _v._ bekins, u.s. ( ), distinguishing ashton _v._ cameron county water improv. dist., u.s. ( ). [ ] in re reiman, fed. cas. no. , ( ), cited with approval in continental illinois nat. bank & trust co. _v._ chicago, r.i. & p.r. co., u.s. , ( ). [ ] continental illinois nat. bank & trust co. _v._ chicago, r.i. & p.r. co., u.s. ( ). [ ] wright _v._ mountain trust bank, u.s. ( ); adair _v._ bank of america assn., u.s. ( ). [ ] wright _v._ union central insurance co., u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] louisville joint stock land bank _v._ radford, u.s. , , ( ). [ ] ashton _v._ cameron county water improvement district, u.s. ( ). _but see_ united states _v._ bekins, u.s. ( ). [ ] chicago title & trust co. _v._ wilcox bldg. corp., u.s. ( ). [ ] re klein, how. ( ); hanover nat. bank _v._ moyses, u.s. ( ). [ ] united states _v._ bekins, u.s. ( ). [ ] stellwagen _v._ clum, u.s. ( ); hanover nat. bank _v._ moyses, u.s. , ( ). [ ] hanover nat. bank _v._ moyses, u.s. , ( ). [ ] sturges _v._ crowninshield, wheat. , ( ); ogden _v._ saunders, wheat. , ( ). [ ] tua _v._ carriere, u.s. ( ); butler _v._ goreley, u.s. , ( ). [ ] sturges _v._ crowninshield, wheat. ( ). [ ] ogden _v._ saunders, wheat. , ( ); denny _v._ bennett, u.s. , ( ); brown _v._ smart, u.s. ( ). [ ] re watts, u.s. , ( ); international shoe co. _v._ pinkus, u.s. , ( ). [ ] international shoe co. _v._ pinkus, u.s. , ( ). [ ] kalb _v._ feuerstein, u.s. ( ). [ ] stellwagen _v._ clum, u.s. , ( ). [ ] reitz _v._ mealey, u.s. ( ). [ ] new york _v._ irving trust co., u.s. ( ). [ ] mcculloch _v._ maryland, wheat. ( ). [ ] veazie bank _v._ fenno, wall. ( ). [ ] ibid. . [ ] merchants nat. bank _v._ united states, u.s. ( ). [ ] nortz _v._ united states, u.s. ( ). [ ] legal tender cases, wall. , ( ); juilliard _v._ greenman, u.s. , ( ). [ ] legal tender cases, wall. ( ). [ ] norman _v._ baltimore & o.r. co., u.s. ( ). [ ] ling su fan _v._ united states, u.s. ( ). [ ] united states _v._ marigold, how. , ( ). [ ] fox _v._ ohio, how. ( ). [ ] united states _v._ marigold, how. , ( ). [ ] ibid. [ ] baender _v._ barnett, u.s. ( ). [ ] knox _v._ lee (legal tender cases), wall. , ( ). [ ] mcculloch _v._ maryland, wheat. , ( ); osborn _v._ bank of united states, wheat. , ( ); farmers' & mechanics' nat. bank _v._ dearing, u.s.c. , ( ); smith _v._ kansas city title & trust co., u.s. , ( ). [ ] legal tender cases, wall. , - ( ). [ ] perry _v._ united states, u.s. , ( ). [ ] ibid. . [ ] united states _v._ railroad bridge co., fed. cas. no. , ( ). [ ] searight _v._ stokes, how. , ( ). [ ] u.s. ( ). [ ] ex parte jackson, u.s. , ( ). [ ] searight _v._ stokes, how. , ( ). [ ] re debs, u.s. , ( ). [ ] cong. globe , ( ). [ ] ibid. . on this point his reasoning would appear to be vindicated by such decisions, as bowman _v._ chicago & n.w.r. co., u.s. ( ) and leisy _v._ hardin, u.s. ( ) denying the right of the states to prevent the importation of alcoholic beverages from other states. [ ] u.s. ( ). [ ] ibid. . [ ] public clearing house _v._ coyne, u.s. ( ), followed in donaldson _v._ read magazine, u.s. ( ). [ ] u.s. at . [ ] lewis publishing co. _v._ morgan, u.s. , ( ). [ ] u.s. ( ). [ ] hannegan _v._ esquire, inc., u.s. , ( ). [ ] stat. , , ( ), u.s.c. d, e ( ). [ ] electric bond & share co. _v._ securities and exchange comm'n., u.s. ( ). [ ] ibid. . [ ] pensacola teleg. co. _v._ western u. teleg. co., u.s. ( ). [ ] illinois c.r. co. _v._ illinois ex rel. butler, u.s. ( ). [ ] gladson _v._ minnesota, u.s. ( ). [ ] price _v._ pennsylvania r. co., u.s. ( ); martin _v._ pittsburgh & l.e.r. co., u.s. ( ). [ ] railway mail assn. _v._ corsi, u.s. ( ). [ ] united states _v._ kirby, wall. ( ). [ ] johnson _v._ maryland, u.s. ( ). [ ] pennock _v._ dialogue, pet. , , ( ). [ ] wheaton _v._ peters, pet. , , ( ). [ ] kendall _v._ winsor, how. , ( ); great atlantic & pacific tea co. _v._ supermarket equipment corp., u.s. ( ). [ ] evans _v._ jordan, cr. ( ); bloomer _v._ mcquewan, how. , ( ); bloomer _v._ millinger, wall. , ( ); eunson _v._ dodge, wall. , ( ). [ ] brown _v._ duchesne, how. , ( ). [ ] seymour _v._ osborne, wall. , ( ). _cf._ union paper collar co. _v._ van dusen, wall. , ( ); reckendorfer _v._ faber, u.s. , ( ). [ ] smith _v._ nichols, wall. , ( ). [ ] rubber-tip pencil co. _v._ howard, wall. , ( ); clark thread co. _v._ willimantic linen co., u.s. , ( ). [ ] funk bros. seed co. _v._ kalo co., u.s. , ( ). _cf._ dow chemical co. _v._ halliburton co., u.s. ( ); cuno corp. _v._ automatic devices corp., u.s. , ( ). [ ] sinclair & carroll co. _v._ interchemical corp., u.s. ( ); marconi wireless teleg. co. _v._ united states, u.s. ( ). [ ] keystone mfg. co. _v._ adams, u.s. ( ); diamond rubber co. _v._ consolidated tire co., u.s. ( ). [ ] great atlantic & pacific tea co. _v._ supermarket equipment corp., u.s. ( ). an interesting concurring opinion was filed by justice douglas for himself and justice black: "it is not enough," says justice douglas, "that an article is new and useful. the constitution never sanctioned the patenting of gadgets. patents serve a higher end--the advancement of science. an invention need not be as startling as an atomic bomb to be patentable. but it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance." ibid. - . he then quotes the following from an opinion of justice bradley's given years ago: "it was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. it creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. it embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith. (atlantic works _v._ brady, u.s. , ( ))." ibid. . the opinion concludes: "the attempts through the years to get a broader, looser conception of patents than the constitution contemplates have been persistent. the patent office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. and so it has placed a host of gadgets under the armour of patents--gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge. a few that have reached this court show the pressure to extend monopoly to the simplest of devices: "hotchkiss _v._ greenwood, how. ( ): doorknob made of clay rather than metal or wood, where different shaped doorknobs had previously been made of clay. "rubber-tip pencil co. _v._ howard, wall. ( ): rubber caps put on wood pencils to serve as erasers. "union paper collar co. _v._ van dusen, wall. ( ): making collars of parchment paper where linen paper and linen had previously been used. "brown _v._ piper, u.s. ( ): a method for preserving fish by freezing them in a container operating in the same manner as an ice cream freezer. "reckendorfer _v._ faber, u.s. ( ): inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser. "dalton _v._ jennings, u.s. ( ): fine thread placed across open squares in a regular hairnet to keep hair in place more effectively. "double-pointed tack co. _v._ two rivers mfg. co., u.s. ( ): putting a metal washer on a wire staple. "miller _v._ foree, u.s. ( ): a stamp for impressing initials in the side of a plug of tobacco. "preston _v._ manard, u.s. ( ): a hose reel of large diameter so that water may flow through hose while it is wound on the reel. "hendy _v._ miners' iron works, u.s. ( ): putting rollers on a machine to make it moveable. "st. germain _v._ brunswick, u.s. ( ): revolving cue rack. "shenfield _v._ nashawannuck mfg. co., u.s. ( ): using flat cord instead of round cord for the loop at the end of suspenders. "florsheim _v._ schilling, u.s. ( ): putting elastic gussets in corsets. "cluett _v._ claflin, u.s. ( ): a shirt bosom or dickie sewn onto the front of a shirt. "adams _v._ bellaire stamping co., u.s. ( ): a lantern lid fastened to the lantern by a hinge on one side and a catch on the other. "patent clothing co. _v._ glover, u.s. ( ): bridging a strip of cloth across the fly of pantaloons to reinforce them against tearing. "pope mfg. co. _v._ gormully mfg. co., u.s. ( ): placing rubber hand grips on bicycle handlebars. "knapp _v._ morss, u.s. ( ): applying the principle of the umbrella to a skirt form. "morgan envelope co. _v._ albany perforated wrapping paper co., u.s. ( ): an oval rather than cylindrical toilet paper roll, to facilitate tearing off strips. "dunham _v._ dennison mfg. co., u.s. ( ): an envelope flap which could be fastened to the envelope in such a fashion that the envelope could be opened without tearing. "the patent involved in the present case belongs to this list of incredible patents which the patent office has spawned. the fact that a patent as flimsy and as spurious as this one has to be brought all the way to this court to be declared invalid dramatically illustrates how far our patent system frequently departs from the constitutional standards which are supposed to govern." ibid. - . [ ] "inventive genius"--justice hunt in reckendorfer _v._ faber, u.s. , ( ); "genius or invention"--chief justice fuller in smith _v._ whitman saddle co., u.s. , ( ); "intuitive genius"--justice brown in potts _v._ creager, u.s. , ( ); "inventive genius"--justice stone in concrete appliances co. _v._ gomery, u.s. , ( ); "inventive genius"--justice roberts in mantle lamp co. _v._ aluminum co., u.s. , ( ); justice douglas in cuno corp. _v._ automatic devices corp., u.s. , ( ); "the flash of creative genius, not merely the skill of the calling." _see also_ note above. [transcriber's note: reference is to footnote , above.] [ ] _see_ note above. [transcriber's note: reference is to footnote , above.] [ ] great atlantic & pacific tea co. _v._ supermarket equipment corp., u.s. ( ); mahn _v._ harwood, u.s. , ( ). [ ] evans _v._ eaton, wheat. , ( ). [ ] united states _v._ duell, u.s. , - ( ). _see also_ butterworth _v._ hoe, u.s. ( ). [ ] wheaton _v._ peters, pet. , ( ); holmes _v._ hurst, u.s. ( ). _cf._ e. burke inlow, the patent clause ( ) chaps. iii and iv, for evidence of a judicial recognition of an inventor's inchoate right to have his invention patented. [ ] wheaton _v._ peters, pet. , ( ); evans _v._ jordan, cr. ( ). [ ] kalem co. _v._ harper bros. u.s. ( ). [ ] baker _v._ selden, u.s. , ( ). [ ] stevens _v._ gladding, how. ( ). [ ] ager _v._ murray, u.s. ( ). [ ] james _v._ campbell, u.s. , ( ). _see also_ united states _v._ burns, wall. , ( ); cammeyer _v._ newton, u.s. , ( ); hollister _v._ benedict manufacturing co., u.s. , ( ); united states _v._ palmer, u.s. , ( ); belknap _v._ schild, u.s. , ( ). [ ] mcclurg _v._ kingsland, how. , ( ). [ ] bloomer _v._ mcquewan, how. , ( ). [ ] _see_ motion picture co. _v._ universal film co., u.s. ( ); morton salt co. _v._ suppiger co., u.s. ( ); united states _v._ masonite corp., u.s. ( ); and united states _v._ new wrinkle, inc., u.s. ( ), where the justices divide to as to the significance for the case of certain leading precedents. _see also_ inlow, the patent clause, chap. v. [ ] patterson _v._ kentucky, u.s. ( ). [ ] allen _v._ riley, u.s. ( ): woods & sons _v._ carl, u.s. ( ); ozan lumber co. _v._ union county bank, u.s. ( ). [ ] fox film corp. _v._ doyal, u.s. ( )--overruling long _v._ rockwood, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] burrow-giles lithographic co. _v._ sarony, u.s. ( ). [ ] bleistein _v._ donaldson lithographing co., u.s. , ( ). [ ] kent, commentaries, - , ( th ed. ). [ ] xix journals of the continental congress , ( ). xx id. , xxi id. - , . [ ] article ix. [ ] madison, journal of the constitutional convention, ii, (hunt's ed. ). [ ] ibid. - , . [ ] united states _v._ smith, wheat. , , ( ). _see also_ the marianna flora, wheat. , - ( ); united states _v._ brig malek abhel, how. , ( ). [ ] u.s. , ( ). [ ] ibid. . [ ] united states _v._ arjona, u.s. , , ( ). [ ] united states _v._ flores, f. supp. ( ). [ ] u.s. , - ( ). [ ] united states _v._ furlong, wheat. , ( ). [ ] the federalist no. . [ ] penhallow _v._ doane, dall. ( ). [ ] wheat. ( ). [ ] ibid. . emphasis supplied. [ ] ex parte milligan, wall. , ( ) (dissenting opinion); _see also_ miller _v._ united states, wall. , ( ); and united states _v._ macintosh, u.s. , ( ). [ ] cong. globe, th cong., st sess., app. ( ). [ ] hamilton _v._ dillin, wall. , ( ). [ ] northern p.r. co. _v._ north dakota, u.s. , ( ). [ ] home bldg. & loan assoc. _v._ blaisdell, u.s. ( ). [ ] northern p.r. co. _v._ north dakota, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. . [ ] ii madison journal of the constitutional convention (hunt's ed. ). [ ] ibid. . [ ] annals of congress ( ). [ ] works of alexander hamilton, vii, (hamilton's ed. ). _cf._ bas _v._ tingy, dall. ( ). [ ] stat. , ( ). emphasis supplied. [ ] the prize cases, bl. , ( ). [ ] ibid. , . [ ] wall. ( ). [ ] ibid. . [ ] i blackstone, commentaries , (wendell's ed. ). [ ] ii story, commentaries, § ( th ed. ). [ ] op. atty. gen. , ( ). [ ] op. atty. gen. ( ). [ ] stat. ( ). [ ] h.j. res. , th cong., d sess. ( ). [ ] selective draft law cases, u.s. , ( ); cox _v._ wood, u.s. ( ). [ ] u.s. at . [ ] ibid. - . the measure was upheld by a state court, kneedler _v._ lane, pa. ( ). [ ] selective draft law cases, u.s. , , ( ) [ ] butler _v._ perry, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] united states _v._ williams, u.s. ( ). _see also_ in re grimley, u.s. , ( ); in re morrissey, u.s. ( ). [ ] wissner _v._ wissner, u.s. , ( ). [ ] mckinley _v._ united states, u.s. ( ). [ ] dynes _v._ hoover, how. , ( ). [ ] ex parte milligan, wall. , , - ( ). ex parte quirin, u.s. , ( ). [ ] wade _v._ hunter, u.s. , ( ). [ ] dynes _v._ hoover, how. , ( ). [ ] swaim _v._ united states, u.s. ( ); carter _v._ roberts, u.s. ( ); hiatt _v._ brown, u.s. ( ). [ ] mullan _v._ united states, u.s. ( ); smith _v._ whitney, u.s. , ( ); hiatt _v._ brown, u.s. ( ). [ ] clark, emergency legislation passed prior to december , ( ). [ ] ibid. [ ] ibid. , , , , . [ ] ibid. , , , , , . many of these were soon suspended or repealed. ibid. , , , . [ ] ibid. , , , . [ ] ibid. . [ ] ibid. . [ ] hepburn _v._ griswold, wall. , ( ). [ ] ibid. . [ ] knox _v._ lee (legal tender cases), wall. , ( ). [ ] stat. ( ). [ ] ibid. . [ ] ibid. . [ ] ibid. ( ). [ ] ibid. . [ ] stat. ( ). [ ] stat. ( ). [ ] ibid. . [ ] stat. ( ). [ ] lichter _v._ united states, u.s. , - , , ( ). _see also_ united states _v._ bethlehem steel corp., u.s. , ( ); clallam county _v._ united states, u.s. ( ); sloan shipyards _v._ united states fleet corp., u.s. ( ). [ ] lichter _v._ united states, u.s. , ( ). [ ] u.s. , ( ). [ ] yakus _v._ united states, u.s. , ( ). [ ] wall. ( ). [ ] ibid. - . _cf._ united states _v._ chemical foundation, u.s. ( ). [ ] u.s. ( ). [ ] ibid. - , . [ ] ibid. . [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. - . [ ] story commentaries on the constitution, ii, § ( th ed., ). [ ] u.s. ( ). [ ] stat. ( ). [ ] u.s. , - ( ). [ ] stat. ( ). [ ] stewart _v._ kahn, wall. , ( ). _see also_ mayfield _v._ richards, u.s. ( ). [ ] u.s. , ( ). _see also_ ruppert _v._ caffey, u.s. ( ). [ ] block _v._ hirsh, u.s. ( ). [ ] chastleton corp. _v._ sinclair, u.s. ( ). [ ] u.s. ( ). _see also_ fleming _v._ mohawk wrecking & lumber co., u.s. ( ). [ ] u.s. , - ( ). [ ] ludecke _v._ watkins, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] wall. ( ). [ ] ibid. . [ ] ibid. , . [ ] u.s. ( ). [ ] cr. ( ). _see also_ conrad _v._ waples, u.s. , ( ). [ ] miller _v._ united states, wall. ( ). [ ] stoehr _v._ wallace, u.s. ( ); central union trust co. _v._ garvan, u.s. ( ); united states _v._ chemical foundation, u.s. ( ); silesian-american corp. _v._ clark, u.s. ( ); cities service co. _v._ mcgrath, u.s. ( ). [ ] the "siren," wall. ( ). [ ] the "hampton," wall. , ( ). [ ] the "paquete habana," u.s. , , ( ). [ ] block _v._ hirsh, u.s. , , ( ). [ ] bowles _v._ willingham, u.s. , ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . [ ] schenck _v._ united states, u.s. ( ); debs _v._ united states, u.s. ( ); sugarman _v._ united states, u.s. ( ); frohwerk _v._ united states, u.s. ( ); abrams _v._ united states, u.s. ( ). [ ] stat. ( ); amended by stat. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] gilbert _v._ minnesota, u.s. ( ). [ ] hirabayashi _v._ united states, u.s. ( ). [ ] korematsu _v._ united states, u.s. ( ). [ ] ex parte endo, u.s. ( ). [ ] stat. ( ). [ ] writings of james madison, vi, - (hunt's ed., ). [ ] stat. ( ). [ ] u.s. ( ). [ ] mitchell _v._ harmony, how. , ( ). [ ] wall. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] h.r. rep. no. , d cong., st sess., - ( ). [ ] united states _v._ commodities trading corp., u.s. ( ); united states _v._ toronto nav. co., u.s. ( ); kimball laundry co. _v._ united states, u.s. ( ); united states _v._ cors, u.s. ( ); united states _v._ john j. felin & co., u.s. ( ); united states _v._ petty motor co., u.s. ( ); united states _v._ general motors corp., u.s. ( ). [ ] moore _v._ houston, s. & r. (pa.) ( ), affirmed in houston _v._ moore, wheat. ( ). [ ] texas _v._ white, wall. ( ); tyler _v._ defrees, wall. ( ). [ ] stat. ( ). [ ] martin _v._ mott, wheat. , ( ). [ ] houston _v._ moore, wheat. ( ); martin _v._ mott, wheat. ( ). [ ] houston _v._ moore, wheat. , ( ). [ ] stat. , ( ).--by the act of june , ( stat. , ) the age of enlistment in the national guard was lowered to years. [ ] united states _v._ hammond, cr. c.c. ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] metropolitan r. co. _v._ district of columbia, u.s. , ( ). [ ] district of columbia _v._ bailey, u.s. ( ). [ ] shoemaker _v._ united states, u.s. , ( ). [ ] morris _v._ united states, u.s. ( ). [ ] united states ex rel. greathouse _v._ dern, u.s. , ( ); smoot sand & gravel corp. _v._ washington airport, u.s. ( ); maryland _v._ west virginia, u.s. ( ); marine r. & coal co. _v._ united states, u.s. ( ); morris _v._ united states, u.s. ( ). [ ] phillips _v._ payne, u.s. ( ). [ ] stat. ( ). [ ] united states _v._ simms, cr. , ( ). [ ] stat. , ( ). _see_ tayloe _v._ thomson, pet. , ( ); ex parte watkins, pet. ( ); stelle _v._ carroll, pet. , ( ); van ness _v._ bank of united states, pet. ( ); united states _v._ eliason, pet. , ( ). [ ] reily _v._ lamar, cr. , ( ). [ ] korn _v._ mutual assur. soc., cr. , ( ). [ ] mutual assur. soc. _v._ watts, wheat. ( ). [ ] hepburn _v._ ellzey, cr. , ( ); _see also_ serè _v._ pitot, cr. , ( ); new orleans _v._ winter, wheat. , ( ). the district has been held to be a "state" within the terms of a treaty regulating the inheritance of property within the "states of the union." de geofroy _v._ riggs, u.s. ( ). [ ] barney _v._ baltimore, wall. ( ); hooe _v._ jamieson, u.s. ( ); hooe _v._ werner, u.s. ( ). [ ] national mut. ins. co. _v._ tidewater transfer co., inc., u.s. ( ). [ ] ibid. - (opinion of justice jackson, with whom justices black and burton concurred). [ ] ibid. (opinion of justice rutledge, with whom justice murphy concurred). [ ] callan _v._ wilson, u.s. ( ); capital traction co. _v._ hof, u.s. ( ). [ ] united states _v._ moreland, u.s. ( ). [ ] wight _v._ davidson, u.s. , ( ); _cf._ adkins _v._ children's hospital, u.s. ( ) overruled by west coast hotel co. _v._ parrish, u.s. ( ). [ ] kendall _v._ united states ex rel. stokes, pet. , ( ); shoemaker _v._ united states, u.s. , ( ); atlantic cleaners & dyers _v._ united states, u.s. , ( ); o'donoghue _v._ united states u.s. , ( ). [ ] wheat. ( ). [ ] ibid. . [ ] loughborough _v._ blake, wheat. ( ). [ ] gibbons _v._ district of columbia, u.s. , ( ); welch _v._ cook, u.s. ( ). [ ] loughborough _v._ blake, wheat. , ( ); heald _v._ district of columbia, u.s. ( ). [ ] thompson _v._ roe ex dem. carroll, how. , ( ); stoutenburgh _v._ hennick, u.s. , ( ). [ ] willard _v._ presbury, wall. , ( ); briscoe _v._ rudolph, u.s. ( ). [ ] washington market co. _v._ district of columbia, u.s. , ( ). [ ] mattingly _v._ district of columbia, u.s. , ( ). [ ] u.s. , ( ). [ ] keller _v._ potomac electric power co., u.s. ( ). [ ] o'donoghue _v._ united states, u.s. ( ). [ ] embry _v._ palmer, u.s. ( ). [ ] james _v._ dravo contracting co., u.s. , ( ). [ ] battle _v._ united states, u.s. ( ). [ ] arlington hotel co. _v._ fant, u.s. ( ). [ ] james _v._ dravo contracting co, u.s. , ( ). [ ] collins _v._ yosemite park co., u.s. , ( ). [ ] ibid. . [ ] battle _v._ united states, u.s. ( ); johnson _v._ yellow cab co., u.s. ( ); bowen _v._ johnston, u.s. ( ). [ ] surplus trading co. _v._ cook, u.s. ( ). [ ] western union teleg. co. _v._ chiles, u.s. ( ); arlington hotel co. _v._ fant, u.s. ( ); pacific coast dairy _v._ dept. of agri., u.s. ( ). [ ] chicago, r.i. & p.r. co. _v._ mcglinn, u.s. , ( ); james stewart & co. _v._ sadrakula, u.s. ( ). [ ] palmer _v._ barrett, u.s. ( ). [ ] united states _v._ unzeuta, u.s. ( ). [ ] benson _v._ united states, u.s. , ( ). [ ] palmer _v._ barrett, u.s. ( ). [ ] s.r.a., inc. _v._ minnesota, u.s. , ( ). [ ] ibid. , . [ ] fort leavenworth r. co. _v._ lowe, u.s. , ( ); united states _v._ unzeuta, u.s. , ( ); surplus trading co. _v._ cook, u.s. , ( ). [ ] united states _v._ cornell, fed. cas. no. , ( ). [ ] james _v._ dravo contracting co., u.s. , ( ). [ ] silas mason co. _v._ tax commission of washington, u.s. ( ). _see also_ atkinson _v._ state tax commission, u.s. ( ). [ ] wheat. ( ). [ ] ibid. . this decision had been clearly foreshadowed fourteen years earlier by marshall's opinion in united states _v._ fisher, cr. , ( ). upholding an act which gave priority to claims of the united states against the estate of a bankrupt he wrote: "the government is to pay the debt of the union, and must be authorized to use the means which appear to itself most eligible to effect that object. it has, consequently, a right to make remittances, by bills or otherwise, and to take those precautions which will render the transaction safe." [ ] _see_ pp. - , _supra_. [ ] neely _v._ henkel, u.s. , ( ). _see also_ missouri _v._ holland, u.s. ( ). [ ] _see_ p. , _supra_. [ ] den ex dem. murray _v._ hoboken land & improvement co., how. , ( ). [ ] kohl _v._ united states, u.s. , ( ); united slates _v._ fox, u.s. , ( ). [ ] _see_ pp. - , - . [ ] united states _v._ fox, u.s. , ( ); united states _v._ hall, u.s. , ( ); united states _v._ worrall, dall. , ( ); mcculloch _v._ maryland, wheat. ( ). that this power has been freely exercised is attested by the pages of the united states code ( ed.) devoted to title , entitled "criminal code and criminal procedure." in addition numerous regulatory measures prescribe criminal penalties for infractions thereof. [ ] ex parte carll, u.s. ( ). [ ] united states _v._ marigold, how. , ( ). [ ] logan _v._ united states, u.s. ( ). [ ] united states _v._ barnow, u.s. ( ). [ ] ex parte yarbrough, u.s. ( ); united states _v._ waddell, u.s. ( ); in re quarles, u.s. , ( ); motes _v._ united states, u.s. ( ); united states _v._ mosley, u.s. ( ). _see also_ rakes _v._ united states, u.s. ( ). [ ] ex parte curtis, u.s. ( ). [ ] the alien registration act of , stat. , u.s.c.a. § . [ ] mcculloch _v._ maryland, wheat. , ( ). [ ] osborn _v._ bank of the united states, wheat. , ( ). _see also_ pittman _v._ home owners' loan corp., u.s. ( ). [ ] first nat. bank _v._ fellows ex rel. union trust co., u.s. ( ); burnes nat. bank _v._ duncan, u.s. ( ). [ ] smith _v._ kansas city title and trust co., u.s. ( ). [ ] juilliard _v._ greenman, u.s. , ( ). [ ] veazie bank _v._ fenno, wall. ( ). [ ] juilliard _v._ greenman, u.s. ( ). _see also_ legal tender cases, wall. ( ). [ ] norman _v._ baltimore & o.r. co., u.s. , ( ). [ ] pacific railroad removal cases (union p.r. co. _v._ myers), u.s. , ( ); california _v._ central p.r. co., u.s. , ( ). [ ] luxton _v._ north river bridge co., u.s. ( ). [ ] clallam county _v._ united states, u.s. ( ). [ ] sloan shipyards _v._ united states fleet corp., u.s. ( ). in , the congressional joint committee on nonessential federal expenditures reported that there were then in existence one hundred government corporations, including subsidiaries and quasi-private corporations in which the government had some special contractual or proprietary interest. s. doc. no. , th cong., d sess. ( ). [ ] rhode island _v._ massachusetts, pet. , ( ). [ ] tennessee _v._ davis, u.s. , ( ). [ ] chicago & northwestern r. co. _v._ whitton, wall. , ( ). [ ] embry _v._ palmer, u.s. ( ). [ ] bank of united states _v._ halstead, wheat. , ( ). [ ] united states exp. co. _v._ kountze bros., wall. , ( ). [ ] ex parte bakelite corp., u.s. , ( ). [ ] stat. ( ). _see_ sinclair _v._ united states, u.s. ( ). [ ] paramino lumber co. _v._ marshall, u.s. ( ). [ ] pope _v._ united states, u.s. ( ). [ ] detroit trust company _v._ the "thomas barium," u.s. ( ). [ ] knickerbocker ice co. _v._ stewart, u.s. ( ); washington _v._ dawson & co., u.s. ( ). [ ] barron _v._ baltimore, pet. ( ); morgan's l. & t.r. & s.s. co. _v._ louisiana board of health, u.s. , ( ). [ ] munn _v._ illinois, u.s. , ( ); johnson _v._ chicago & p. elevator co., u.s. , ( ). [ ] how. , ( ). [ ] gasquet _v._ lapeyre, u.s. ( ). [ ] stat. , ( ). [ ] ex parte watkins, pet. , ( ). [ ] ex parte bollman, cr. , ( ). [ ] price _v._ johnston, u.s. , ( ). [ ] united states _v._ smith, u.s. , ( ). [ ] gusik _v._ schilder, u.s. ( ). [ ] frank _v._ mangum, u.s. , ( ). [ ] stat. , ( ). [ ] ex parte watkins, pet. , ( ); ex parte kearney, wheat. ( ). [ ] stat. ( ). [ ] frank _v._ mangum, u.s. , ( ). [ ] ex parte bollman, cr. ( ). [ ] adams _v._ united states ex rel. mccann, u.s. , ( ); glasgow _v._ moyer, u.s. , ( ); matter of gregory, u.s. , ( ). [ ] adams _v._ united states ex rel. mccann, u.s. , ( ). [ ] walker _v._ johnston, u.s. ( ); waley _v._ johnston, u.s. ( ). [ ] ex parte milligan, wall. , ( ). [ ] mcnally _v._ hill, u.s. ( ). [ ] goto _v._ lane, u.s. ( ). [ ] salinger _v._ loisel, u.s. ( ). [ ] wong doo _v._ united states, u.s. ( ). [ ] price _v._ johnston, u.s. , ( ). [ ] corwin, the president, office and powers, ( d ed., ). [ ] ex parte bollman, cr. , ( ). [ ] messages and papers of the presidents, vii, ( ). [ ] fed. cas. no. , ( ). [ ] op. atty. gen. , ( - ). [ ] stat. ( ). [ ] wall. ( ). [ ] ibid. . [ ] story, commentaries on the constitution, ii, § ( th ed., ). [ ] cummings _v._ missouri, wall. , ( ). [ ] united states _v._ lovett, u.s. , ( ). [ ] ex parte garland, wall. , ( ). [ ] united states _v._ lovett, u.s. ( ). [ ] story, commentaries on the constitution, ii, § . [ ] dall. , ( ). [ ] bankers trust co. _v._ blodgett, u.s. , ( ). [ ] burgess _v._ salmon, u.s. ( ). [ ] calder _v._ bull, dall. , ( ); ex parte garland, wall. , ( ); burgess _v._ salmon, u.s. , ( ). [ ] united states _v._ powers, u.s. ( ). [ ] neely _v._ henkel, u.s. , ( ). _cf._ in re yamashita, u.s. , ( ) (dissenting opinion of justice murphy); hirota _v._ macarthur, u.s. , ( ) (concurring opinion of justice douglas). [ ] ex parte garland, wall. ( ). [ ] murphy _v._ ramsey, u.s. ( ). [ ] mahler _v._ eby, u.s. ( ); bugajewitz _v._ adams, u.s. ( ). [ ] johannessen _v._ united states, u.s. ( ). [ ] cook _v._ united states, u.s. , ( ). [ ] calder _v._ bull, dall. , ( ). [ ] hopt _v._ utah, u.s. , ( ). [ ] u.s. , ( ). [ ] madison, the constitutional convention, (hunt's ed., ). [ ] dall. ( ). [ ] hamilton's works, , (hamilton's ed., ). "if the meaning of the word _excise_ is to be sought in the british statutes, it will be found to include the duty on carriages, which is there considered as an _excise_, and then must necessarily be uniform and liable to apportionment; consequently, not a direct tax." ibid. [ ] annals of congress, ( ); madison's writings, , (library of congress ed., ) (letter to thomas jefferson, may , ). [ ] dall. , ( ). [ ] pacific ins. co. _v._ soule, wall. ( ). [ ] veazie bank _v._ fenno, wall. ( ). [ ] scholey _v._ rew, wall. ( ). [ ] springer _v._ united states, u.s. ( ). [ ] ibid. . [ ] u.s. ( ); u.s. ( ). [ ] stat. ( ). [ ] stanton _v._ baltic mining co., u.s. ( ); knowlton _v._ moore, u.s. , ( ). [ ] nicol _v._ ames, u.s. ( ). [ ] knowlton _v._ moore, u.s. ( ). [ ] patton _v._ brady, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] new york trust co. _v._ eisner, u.s. , ( ). [ ] phillips _v._ dime trust & safe deposit co., u.s. ( ). [ ] tyler _v._ united states, u.s. ( ). [ ] fernandez _v._ wiener, u.s. ( ). [ ] chase national bank _v._ united states, u.s. ( ). [ ] bromley _v._ mccaughn, u.s. , ( ). _see also_ helvering _v._ bullard, u.s. ( ). [ ] bromley _v._ mccaughn, u.s. , ( ). [ ] loughborough _v._ blake, wheat. ( ). [ ] de treville _v._ smalls, u.s. , ( ). [ ] turpin & bro. _v._ burgess, u.s. , ( ). _cf._ almy _v._ california, how. , ( ). [ ] dooley _v._ united states, u.s. , ( ). [ ] cornell _v._ coyne, u.s. , ( ); turpin & bro. _v._ burgess, u.s. , ( ). [ ] spalding & bros. _v._ edwards, u.s. ( ). [ ] thompson _v._ united states, u.s. ( ). [ ] peck & co. _v._ lowe, u.s. ( ); national paper & type co. _v._ bowers, u.s. ( ). [ ] fairbank _v._ united states, u.s. ( ). [ ] united states _v._ hvoslef, u.s. ( ). [ ] thames & mersey ins. co. _v._ united states, u.s. ( ). [ ] pace _v._ burgess, u.s. ( ); turpin & bro. _v._ burgess, u.s. , ( ). [ ] louisiana public service comm'n. _v._ texas & n.o.r. co., u.s. , ( ); pennsylvania _v._ wheeling & belmont bridge co., how. , ( ); south carolina _v._ georgia, u.s. ( ). in williams _v._ united states, u.s. ( ) the argument that an act of congress which prohibited interstate transportation of liquor into states whose laws prohibited manufacture or sale of liquor for beverage purposes was repugnant to this clause was rejected as plainly wanting in merit. [ ] louisiana public service comm'n. _v._ texas & n.o.r. co., u.s. , ( ). [ ] smith _v._ turner (passenger cases), how. , ( ) (opinion of justice wayne); _cf._ cooley _v._ board of port wardens, how. , ( ). [ ] morgan's l. & t.r. & s.s. co. _v._ louisiana bd. of health, u.s. , ( ). _see also_ munn _v._ illinois, u.s. , ( ); johnson _v._ chicago & p. elevator co., u.s. , ( ). [ ] stat. , ( ). [ ] thompson _v._ darden, u.s. ( ). [ ] alaska _v._ troy, u.s. ( ). [ ] cincinnati soap co. _v._ united states, u.s. , ( ); knote _v._ united states, u.s. , ( ). [ ] united states _v._ price, u.s. ( ); united states _v._ realty co., u.s. , ( ); allen _v._ smith, u.s. , ( ). [ ] hart _v._ united states, u.s. , ( ). [ ] stat. ( ). [ ] cincinnati soap co. _v._ united states, u.s. , ( ). [ ] reeside _v._ walker, how. ( ). [ ] united states _v._ klein, wall. ( ). [ ] knote _v._ united states, u.s. , ( ); austin _v._ united states, u.s. , ( ). [ ] hart _v._ united states, u.s. , ( ). [ ] op. atty. gen. ( ). [ ] williams _v._ bruffy, u.s. , ( ). [ ] pet. ( ). [ ] united states _v._ california, u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] craig _v._ missouri, pet. , ( ); byrne _v._ missouri, pet. ( ). [ ] poindexter _v._ greenhow, u.s. ( ); chaffin _v._ taylor, u.s. ( ). [ ] houston & t.c.r. co. _v._ texas, u.s. ( ). [ ] briscoe _v._ bank of kentucky, pet. ( ). [ ] darrington _v._ bank of alabama, how. , ( ); curran _v._ arkansas, how. , ( ). [ ] briscoe _v._ bank of kentucky, pet. ( ). [ ] woodruff _v._ trapnall, how. , ( ). [ ] legal tender cases, u.s. , ( ). [ ] gwin _v._ breedlove, how. , ( ). _see also_ griffin _v._ thompson, how. ( ). [ ] farmers & merchants bank _v._ federal reserve bank, u.s. , ( ). [ ] cummings _v._ missouri, wall. , ( ); klinger _v._ missouri, wall. ( ); pierce _v._ carskadon, wall. , ( ). _see_ p. , _supra_, and p. , _post_. [ ] calder _v._ bull, dall. , ( ); watson _v._ mercer, pet. , ( ); baltimore & s.r. co. _v._ nesbit, how. , ( ); carpenter _v._ pennsylvania, how. , ( ); loche _v._ new orleans, wall. ( ); orr _v._ gilman, u.s. , ( ); kentucky union co. _v._ kentucky, u.s. ( ). [ ] frank _v._ mangum, u.s. , ( ); ross _v._ oregon, u.s. , ( ). [ ] jaehne _v._ new york, u.s. , ( ). [ ] rooney _v._ north dakota, u.s. , ( ). [ ] chicago & a.r. co. _v._ tranbarger, u.s. ( ). [ ] samuels _v._ mccurdy, u.s. ( ). [ ] hawker _v._ new york, u.s. , ( ). _see also_ reetz _v._ michigan, u.s. , ( ); lehmann _v._ state board of public accountancy, u.s. ( ). [ ] cummings _v._ missouri, wall. , ( ). [ ] pierce _v._ carskadon, wall. ( ). [ ] lindsey _v._ washington, u.s. ( ). [ ] kring _v._ missouri, u.s. ( ). [ ] holden _v._ minnesota, u.s. , ( ). [ ] ex parte medley, u.s. , ( ). [ ] gryger _v._ burke, u.s. ( ); mcdonald _v._ massachusetts, u.s. ( ); graham _v._ west virginia, u.s. ( ). [ ] malloy _v._ south carolina, u.s. ( ). [ ] rooney _v._ north dakota, u.s. , ( ). [ ] gibson _v._ mississippi, u.s. , ( ). [ ] duncan _v._ missouri, u.s. , ( ). [ ] gut _v._ minnesota, wall. , ( ). [ ] duncan _v._ missouri, u.s. ( ). [ ] mallett _v._ north carolina, u.s. , ( ). [ ] gibson _v._ mississippi, u.s. , ( ). [ ] beazell _v._ ohio, u.s. ( ). [ ] thompson _v._ missouri, u.s. , ( ). [ ] thompson _v._ utah, u.s. ( ). [ ] dodge _v._ woolsey, how. ( ); railroad co. _v._ mcclure, wall. ( ); new orleans gaslight co. _v._ louisiana light & heat producing & mfg. co., u.s. ( ); bier _v._ mcgehee, u.s. , ( ). [ ] new orleans waterworks co. _v._ rivers, u.s. ( ); walla walla _v._ walla walla water co., u.s. ( ); vicksburg _v._ vicksburg waterworks co., u.s. ( ); atlantic coast line r. co. _v._ goldsboro, u.s. ( ); cuyahoga river power co. _v._ akron, u.s. ( ). [ ] the above; _also_ grand trunk western r. co. _v._ railroad commission, u.s. ( ); louisville & n.r. co. _v._ garrett, u.s. ( ); appleby _v._ delaney, u.s. ( ). [ ] central land co. _v._ laidley, u.s. ( ). _see also_ new orleans waterworks co. _v._ louisiana sugar ref. co., u.s. ( ); hanford _v._ davies, u.s. ( ); ross _v._ oregon, u.s. ( ); detroit united r. co. _v._ michigan, u.s. ( ); long sault development co. _v._ call, u.s. ( ); mccoy _v._ union elev. co., u.s. ( ); columbia r. gas & e. co. _v._ south carolina, u.s. ( ); tidal oil co. _v._ flanagan, u.s. ( ). [ ] jefferson branch bank _v._ skelly, bl. , ( ); bridge proprietors _v._ hoboken co., wall. , ( ); wright _v._ nagle, u.s. , ( ); and mcgahey _v._ virginia, u.s. , ( ); scott _v._ mcneal, u.s. , ( ); stearns _v._ minnesota, u.s. , - ( ); coombes _v._ getz, u.s. , ( ); atlantic c.l.r. co. _v._ phillips, u.s. , ( ). [ ] mccullough _v._ virginia, u.s. ( ); houston & texas central r.r. co. _v._ texas, u.s. , , ( ); hubert _v._ new orleans, u.s. , ( ); carondelet canal co. _v._ louisiana, u.s. , ( ); louisiana ry. & nav. co. _v._ new orleans, u.s. , ( ). [ ] state bank of ohio _v._ knoop, how. ( ), and ohio life insurance & trust co. _v._ debolt, how. ( ) are the leading cases. _see also_ jefferson branch bank _v._ skelly, bl. ( ); louisiana _v._ pilsbury, u.s. ( ); mcgahey _v._ virginia, u.s. ( ); mobile & ohio r.r. co. _v._ tennessee, u.s. ( ); bacon _v._ texas, u.s. ( ); mccullough _v._ virginia, u.s. ( ). [ ] gelpcke _v._ dubuque, wall. , ( ); havemeyer _v._ iowa county, wall. ( ); thompson _v._ lee county, wall. ( ); kenosha _v._ lamson, wall. ( ); olcott _v._ fond du lac county, wall. ( ); taylor _v._ ypsilanti, u.s. ( ); anderson _v._ santa anna, u.s. ( ); wilkes county _v._ coler, u.s. ( ). [ ] great southern fire proof hotel co. _v._ jones, u.s. , ( ). [ ] sauer _v._ new york, u.s. ( ); muhlker _v._ new york & h.r. co., u.s. , ( ). [ ] tidal oil company _v._ flanagan, u.s. , , - ( ). [ ] walker _v._ whitehead, wall. ( ); wood _v._ lovett, u.s. , ( ). [ ] wheat. , ( ); _see also_ curran _v._ arkansas, how. ( ). [ ] wheat. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . [ ] "the _blaisdell_ decision represented a realistic appreciation of the fact that ours is an evolving society and that the general words of the contract clause were not intended to reduce the legislative branch of government to helpless impotency." justice black, in wood _v._ lovett, u.s. , ( ). [ ] wright, the contract clause of the constitution, (cambridge, ). [ ] farrand, records, iii, . [ ] the federalist, no. . [ ] works of james wilson, i, , (andrews, ed., ). [ ] dall. ( ). [ ] ogden _v._ saunders, wheat. , ( ). [ ] cr. ( ). [ ] in ware _v._ hylton, dall. ( ) the court had earlier set aside an act of virginia as being in conflict with the treaty of peace, of , with great britain. [ ] as given by professor wright in his treatise, the contract clause of the constitution, . professor wright dates hamilton's pamphlet, . [ ] cr. , ( ). justice johnson, in his concurring opinion, relied exclusively on general principles. "i do not hesitate to declare, that a state does not possess the power of revoking its own grants. but i do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the deity." ibid. . _see also_ his words in satterlee _v._ matthewson, pet. , ( ); and those of the north carolina supreme court in barnes _v._ barnes, jones l. (n.c.) ( ), quoted in thomas henry calvert. the constitution and the courts, i, (northport, l.i., ). in both these opinions it is asseverated that the contracts clause has been made to do the work of "fundamental principles." [ ] cr. ( ). the exemption from taxation which was involved in this case was held in to have lapsed through the acquiescence for sixty years of the owners of the lands in the imposition of taxes upon these. given _v._ wright, u.s. ( ). [ ] dartmouth college _v._ woodward, wheat. ( ). [ ] it was not until well along in the eighteenth century that the first american business corporation was created: "this was the new london society united for trade and commerce, which was chartered in connecticut in . it had, however, an early demise. following this was a second connecticut charter, namely, for building 'union wharf,' on 'long wharf,' at new haven. a similar company, 'the proprietors of boston pier,' or 'the long wharf in the town of boston in new england,' was chartered by the massachusetts general court in . in the pennsylvania assembly incorporated 'the philadelphia contributionship for the insuring of houses from loss by fire.' alone of the colonial business corporations it has had a continuous existence to the present day. "apparently the only other business corporations of the colonies were companies for supplying water. one was incorporated in massachusetts in , and three in rhode island in and . alongside of these corporations, and, indeed, preceding them, were a large number of unincorporated associations, partnerships, societies, groups of 'undertakers,' 'companies,' formed for a great variety of business purposes. in the eye of the law all of them were probably mere partnerships or tenancies in common. whaling and fishing companies, so-called, were numerous. there were a number of mining companies, chiefly for producing iron or copper. there were some manufacturing companies, but they were not numerous. banking institutions were represented notably by the 'bank of credit lumbard,' promoted in boston by john blackwell and authorized by the general court in , and by the 'land bank or manufacturing scheme' in the same colony in - . "in addition to these there were a few insurance companies, a number of companies formed for the indian trade, numerous land companies, large and small, a number of associations for erecting bridges, building or repairing roads, and improving navigation of small streams or rivers. besides these there were a few colonial corporations not easily classed, such as libraries, chambers of commerce, etc. "during the revolution few corporations of any sort were chartered. after the conclusion of peace the situation was materially altered. capital had accumulated during the war. the disbanding of the army set free a labor supply, which was rapidly increased by throngs of immigrants. the day was one of bold experimentation, enthusiastic exploitation of new methods, eager exploration of new paths, confident undertaking of new enterprises. everything conspired to bring about a considerable extension of corporate enterprise in the field of business before the end of the eighteenth century, notably after the critical period of disunion and constitution-making has passed. prior to over three hundred charters were granted for business corporations; per cent. of them after . judged by twentieth-century standards these seem few, indeed, but neither in the colonies nor in the mother country was there precedent for such a development." the nation (new york, nov. , ), reviewing joseph stancliffe davis, essays in the earlier history of american corporations ( vols., harvard university press, ). [ ] in chief justice parsons of the supreme judicial court of massachusetts, without mentioning the contracts clause, declared that rights legally vested in a corporation cannot be "controuled or destroyed by a subsequent statute, unless a power be reserved to the legislature in the act of incorporation," wales _v._ stetson, mass. ( ). _see also_ stoughton _v._ baker et al., mass. ( ) to like effect; _cf._ locke _v._ dane, mass. ( ) in which it is said that the purpose of the contracts clause was to "provide against paper money and insolvent laws." together these holdings add up to the conclusion that the reliance of the massachusetts court was on "fundamental principles," rather than the contracts clause. [ ] wheat., especially at - (webster's argument); ibid. (story's opinion). _see also_ story's opinion for the court in terrett _v._ taylor, cr. ( ). [ ] wheat. ( ). [ ] ibid. . [ ] wheat. at ; _see also_ home of the friendless _v._ rouse, wall. , ( ). [ ] pet. ( ). [ ] pet. ( ). [ ] note the various cases to which municipalities are parties. [ ] wheat. at . [ ] in munn _v._ illinois, u.s. ( ) a category of "business affected with a public interest" and whose property is "impressed with a public use" was recognized. a corporation engaged in such a business becomes a "quasi-public" corporation, the power of the state to regulate which is larger than in the case of a purely private corporation. inasmuch as most corporations receiving public franchises are of this character, the final result of munn _v._ illinois was to enlarge the police power of the state in the case of the most important beneficiaries of the dartmouth college decision. [ ] meriwether _v._ garrett, u.s. ( ); covington _v._ kentucky, u.s. ( ); hunter _v._ pittsburgh, u.s. ( ). [ ] east hartford _v._ hartford bridge co., how. ( ); hunter _v._ pittsburgh, u.s. ( ). [ ] trenton _v._ new jersey, u.s. , ( ). [ ] newton _v._ mahoning county, u.s. ( ). [ ] attorney general ex rel. kies _v._ lowrey, u.s. ( ). [ ] faitoute iron & steel co. _v._ asbury park, u.s. ( ). in this case the contracts involved were municipal bonds, and hence "private" contracts; but the overruling power of the state in relation to its municipalities was one of the grounds invoked by the court in sustaining the legislation. _see_ ibid. . "'a municipal corporation * * * is a representative not only of the state, but is a portion of its governmental power. * * * the state may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the state at large. it may enlarge or contract its powers or destroy its existence.'" united states _v._ baltimore & o.r. co., wall. , ( ); and _see_ hunter _v._ pittsburgh, u.s. ( ). [ ] butler _v._ pennsylvania, how. ( ); fisk _v._ police jury, u.s. ( ); dodge _v._ board of education, u.s. ( ); mississippi use of robertson _v._ miller, u.s. ( ). [ ] butler _v._ pennsylvania, how. ( ). _cf._ marbury _v._ madison, cr. ( ); hoke _v._ henderson, n.c., ( dev.) ( ). _see also_ united states _v._ fisher, u.s. ( ); united states _v._ mitchell, u.s. ( ); crenshaw _v._ united states, u.s. ( ). [ ] fisk _v._ police jury, u.s. ( ); mississippi use of robertson _v._ miller, u.s. ( ). [ ] hall _v._ wisconsin, u.s. ( ). _cf._ higginbotham _v._ baton rouge, u.s. ( ). [ ] phelps _v._ board of education, u.s. ( ). [ ] dodge _v._ board of education, u.s. ( ). [ ] indiana ex rel. anderson _v._ brand u.s. ( ). [ ] cr. ( ). [ ] delaware railroad tax, wall. , ( ); pacific r. co. _v._ maguire, wall. , ( ); humphrey _v._ pegues, wall. , ( ); home of friendless _v._ rouse, wall. , ( ). [ ] how. ( ). [ ] ibid. - . [ ] salt co. _v._ east saginaw, wall. , ( ). _see also_ welch _v._ cook, u.s. ( ); grand lodge, f. & a.m. _v._ new orleans, u.s. ( ); wisconsin & m.r. co. _v._ powers, u.s. ( ). _cf._ ettor _v._ tacoma, u.s. ( ), in which it was held that the repeal of a statute providing for consequential damages caused by changes of grades of streets could not constitutionally affect an already accrued right to compensation. [ ] _see_ christ church _v._ philadelphia county, how. , ( ); seton hall college _v._ south orange, u.s. ( ). [ ] compare the above case with home of friendless _v._ rouse, wall. , ( ); _also_ illinois central r. co. _v._ decatur, u.s. ( ) with wisconsin & m.r. co. _v._ powers, u.s. ( ). [ ] crane _v._ hahlo, u.s. , - ( ); louisiana ex rel. folsom _v._ new orleans, u.s. , ( ); morley _v._ lakeshore & m.s.r. co., u.s. , ( ). that the obligation of contracts clause did not protect vested rights merely as such was stated by the court as early as satterlee _v._ matthewson, pet. , ( ); and again in the charles river bridge co. _v._ warren bridge co., pet. , - ( ). [ ] _see_ story's opinion. wheat. at . [ ] home of friendless _v._ rouse, wall. , ( ); pennsylvania college cases, wall. , ( ); miller _v._ new york, wall. ( ); murray _v._ charleston, u.s. ( ); greenwood _v._ union freight r. co., u.s. ( ); chesapeake & o.r. co. _v._ miller, u.s. ( ); louisville water co. _v._ clark, u.s. ( ). [ ] new jersey _v._ yard, u.s. , ( ). [ ] _see_ holyoke water power co. _v._ lyman, wall. , ( ), following fisheries _v._ holyoke water power co., mass. , ( ); _also_ shields _v._ ohio, u.s. ( ); fair haven & w.r. co. _v._ new haven, u.s. ( ); berea college _v._ kentucky, u.s. ( ). _see also_ lothrop _v._ stedman, fed. cas. no. , ( ), where the principles of natural justice are thought to set a limit to the power. earlier is zabriskie _v._ hackensack & n.y.r. co., n.j. eq. ( ) where it is said that a new charter may not be substituted; _also_ allen _v._ mckean, fed. cas. no. ( ) in which a federal court set aside a maine statute somewhat like the one involved in the dartmouth college case, on the ground that it went beyond the power of mere alteration. in this case, however, only the right to alter had been reserved, in the charter itself, and not the right to repeal. [ ] _see_ in this connection the cases cited by justice sutherland in his opinion for the court in phillips petroleum co. _v._ jenkins, u.s. ( ). [ ] curran _v._ arkansas, how. ( ); shields _v._ ohio, u.s. ( ); greenwood _v._ union freight r. co., u.s. ( ); adirondack r. co. _v._ new york, u.s. ( ); stearns _v._ minnesota, u.s. ( ); chicago, m. & st. p.r. co. _v._ wisconsin, u.s. ( ); coombes _v._ getz, u.s. ( ). [ ] pennsylvania college cases, wall. , ( ). _see also_ calder _v._ michigan, u.s. ( ). [ ] lakeshore & m.s.r. co. _v._ smith, u.s. , ( ); coombes _v._ getz, u.s. ( ). both these decisions cite greenwood _v._ union freight r. co., u.s. , ( ), but without apparent justification. [ ] pet. ( ). [ ] thorpe _v._ rutland & burlington railroad co., vt. ( ). [ ] thus a railroad may be required, at its own expense and irrespective of benefits to itself, to eliminate grade crossings in the interest of public safety, (new york & n.e.r. co. _v._ bristol, u.s. ( )); to make highway crossings reasonably safe and convenient for public use, (great northern r. co. _v._ minnesota, u.s. ( )); to repair viaducts, (northern pac. r. co. _v._ minnesota, u.s. ( )); and to fence its right of way, (minneapolis & st. l.r. co. _v._ emmons, u.s. ( )). though a railroad company owns the right of way along a street, the city may require it to lay tracks to conform to the established grade; to fill in tracks at street intersections; and to remove tracks from a busy street intersection, when the attendant disadvantages and expense are small and the safety of the public appreciably enhanced, (denver & r.g.r. co. _v._ denver, u.s. ( )). likewise the state, in the public interest, may require a railroad to reestablish an abandoned station, even though the railroad commission had previously authorized its abandonment on condition that another station be established elsewhere, a condition which had been complied with, (new haven & n. co. _v._ hamersley, u.s. ( )). it may impose upon a railroad liability for fire communicated by its locomotives, even though the state had previously authorized the company to use said type of locomotive power, (st. louis & s.f.r. co. _v._ mathews, u.s. , ( )); and it may penalize the failure to cut drains through embankments so as to prevent flooding of adjacent lands, (chicago & a.r. co. _v._ tranbarger, u.s. ( )). [ ] boston beer co. _v._ massachusetts, u.s. ( ). _see also_ fertilizing co. _v._ hyde park, u.s. ( ); and hammond packing _v._ arkansas, u.s. , ( ). [ ] pet. ( ). [ ] pet. at - . [ ] u.s. ( ). [ ] ibid. - , citing the binghamton bridge, wall. , ( ). [ ] memphis & l.r.r. co. _v._ berry, u.s. , ( ). _see also_ picard _v._ east tennessee, virginia & georgia r. co., u.s. , ( ); louisville & n.r. co. _v._ palmes, u.s. , ( ); morgan _v._ louisiana, u.s. ( ); wilson _v._ gaines, u.s. ( ); norfolk & w.r. co. _v._ pendleton, u.s. , ( ). [ ] railroad co. _v._ georgia, u.s. , ( ). [ ] phoenix f. & m. insurance co. _v._ tennessee, u.s. ( ). [ ] rochester r. co. _v._ rochester, u.s. ( ); followed in wright _v._ georgia r. & bkg. co., u.s. ( ); and new york rapid transit co. _v._ city of new york, u.s. ( ). _cf._ tennessee _v._ whitworth, u.s. ( ) the authority of which is respected in the preceding case. [ ] chicago, b. & k.c.r. co. _v._ missouri ex rel. guffey, u.s. ( ). [ ] ford _v._ delta & pine land co., u.s. ( ). [ ] vicksburg, s. & p.r. co. _v._ dennis, u.s. ( ). [ ] millsaps college _v._ jackson, u.s. ( ). [ ] hale _v._ iowa state board of assessment, u.s. ( ). [ ] stone _v._ farmers' loan & trust co. (railroad commission cases), u.s. , ( ) extended in southern pacific co. _v._ campbell, u.s. ( ) to cases in which the word "reasonable" does not appear to qualify the company's right to prescribe tolls. _see also_ american toll bridge co. _v._ railroad com. of california et al., u.s. ( ). [ ] georgia r. & power co. _v._ decatur, u.s. ( ). _see also_ southern iowa electric co. _v._ chariton, u.s. ( ). [ ] walla walla _v._ walla walla water co., u.s. , ( ). [ ] skaneateles water works co. _v._ skaneateles, u.s. ( ); knoxville water co. _v._ knoxville, u.s. ( ); madera water works _v._ madera, u.s. ( ). [ ] rogers park water co. _v._ fergus, u.s. ( ). [ ] home telephone co. _v._ los angeles, u.s. ( ); wyandotte gas co. _v._ kansas, u.s. ( ). [ ] _see also_ puget sound traction, light & p. co. _v._ reynolds, u.s. ( ). "before we can find impairment of a contract we must find an obligation of the contract which has been impaired. since the contract here relied upon is one between a political subdivision of a state and private individuals, settled principles of construction require that the obligation alleged to have been impaired be clearly and unequivocally expressed." justice black for the court in keefe _v._ clark, u.s. , - ( ). [ ] corporation of brick church _v._ mayor et al., cowen (n.y.) , ( ). [ ] west river bridge co. _v._ dix, how. ( ). _see also_ backus _v._ lebanon, n.h. ( ); white river turnpike co. _v._ vermont cent. r. co., vt. ( ); and bonaparte _v._ camden & a.r. co., fed. cas. no. , ( ); cited in calvert i, - . [ ] pennsylvania hospital _v._ philadelphia, u.s. ( ). [ ] illinois central railroad _v._ illinois, u.s. , , ( ). [ ] _see_ pp. - . [ ] _see_ especially home of the friendless _v._ rouse, wall. ( ), and washington university _v._ rouse, wall. ( ). [ ] georgia railway co. _v._ redwine, u.s. , - ( ). the court distinguishes in re ayers, u.s. ( ) on the ground that the action there was barred "as one in substance directed against the state to obtain specific performance of a contract with the state". u.s. . [ ] stone _v._ mississippi, u.s. , ( ). [ ] butcher's union co. _v._ crescent city co., u.s. ( ). [ ] new orleans gas co. _v._ louisiana light co., u.s. ( ). [ ] atlantic coast line r. co. _v._ goldsboro, u.s. , ( ). _see also_ chicago & a.r. co. _v._ tranbarger, u.s. ( ); _also_ pennsylvania hospital _v._ philadelphia, u.s. ( ), where the police power and eminent domain are treated on the same basis in respect of inalienability; also wabash r. co. _v._ defiance, u.s. , ( ); home telephone co. _v._ los angeles, u.s. ( ); and calvert i, . [ ] morley _v._ lake shore & m.s.r. co., u.s. ( ); new orleans _v._ new orleans waterworks co., u.s. ( ); missouri & a. lumber & min. co. _v._ greenwood dist, u.s. ( ). but _cf._ livingston _v._ moore, pet. , ( ); and garrison _v._ new york, wall. , ( ), suggesting that a different view was earlier entertained in the case of judgments in actions of debt. [ ] maynard _v._ hill, u.s. ( ); dartmouth college _v._ woodward, wheat. , ( ). _cf._ andrews _v._ andrews, u.s. ( ). the question whether a wife's rights in the community property under the laws of california were of a contractual nature was raised but not determined in moffitt _v._ kelly, u.s. ( ). [ ] new orleans _v._ new orleans waterworks co., u.s. ( ); zane _v._ hamilton county, u.s. , ( ). [ ] wheat. ( ). for the first such case in a federal circuit court, _see_ charles warren, the supreme court in united states history, i, (boston, ). [ ] wheat. ( ). [ ] ibid. - . [ ] von hoffman _v._ quincy, wall. , ( ). [ ] how. ( ). [ ] how. ( ). [ ] oshkosh waterworks co. _v._ oshkosh, u.s. , ( ); new orleans & l.r. co. _v._ louisiana, u.s. ( ). [ ] antoni _v._ greenhow, u.s. ( ). [ ] the right was unheld in mason _v._ haile, wheat. ( ); and again in vial _v._ penniman (penniman's case), u.s. ( ). on early english and colonial law touching the subject, _see_ argument of counsel in sturges _v._ crowninshield, wheat. , - ( ). [ ] mcgahey _v._ virginia, u.s. ( ). [ ] louisiana ex rel. ranger _v._ new orleans, u.s. ( ). [ ] von hoffman _v._ quincy, wall. , ( ). [ ] antoni _v._ greenhow, u.s. , .--illustrations of changes in remedies, which have been sustained, may be seen in the following cases: jackson ex dem. hart _v._ lamphire, pet. ( ); hawkins _v._ barney, pet. ( ); crawford _v._ branch bank of alabama, how. ( ); curtis _v._ whitney, wall. ( ); cairo & f.r. co. _v._ hecht, u.s. ( ); terry _v._ anderson, u.s. ( ); tennessee _v._ sneed, u.s. ( ); south carolina _v._ gaillard, u.s. ( ); louisiana _v._ new orleans, u.s. ( ); connecticut mut. l. ins. co. _v._ cushman, u.s. ( ); vance _v._ vance, u.s. ( ); gilfillan _v._ union canal co., u.s. ( ); hill _v._ merchants' mut. ins. co., u.s. ( ); new orleans city & lake r. co. _v._ louisiana, u.s. ( ); red river valley nat. bank _v._ craig, u.s. ( ); wilson _v._ standefer, u.s. ( ); oshkosh waterworks co. _v._ oshkosh, u.s. ( ); waggoner _v._ flack, u.s. ( ); bernheimer _v._ converse, u.s. ( ); henley _v._ myers, u.s. ( ); selig _v._ hamilton, u.s. ( ); security sav. bank _v._ california, u.s. ( ); united states mortgage co. _v._ matthews, u.s. ( ). compare the following cases, where changes in remedies were deemed to be of such a character as to interfere with substantial rights: wilmington & w.r. co. _v._ king, u.s. ( ); memphis _v._ united states, u.s. ( ); poindexter _v._ greenhow, u.s. , , , ( ); effinger _v._ kenney, u.s. ( ); fisk _v._ jefferson police jury, u.s. ( ); bradley _v._ lightcap, u.s. ( ); bank of minden _v._ clement, u.s. ( ). [ ] von hoffman _v._ quincy, wall. , - ( ). [ ] _see also_ louisiana ex rel. nelson _v._ st. martin's parish, u.s. ( ). [ ] mobile _v._ watson, u.s. ( ); graham _v._ folsom, u.s. ( ). [ ] heine _v._ levee commissioners, wall. ( ). _cf._ virginia _v._ west virginia, u.s. ( ). [ ] faitoute iron & steel co. _v._ asbury park, u.s. , ( ). alluding to the ineffectiveness of purely judicial remedies against defaulting municipalities, justice frankfurter says: "for there is no remedy when resort is had to 'devices and contrivances' to nullify the taxing power which can be carried out only through authorized officials. _see_ rees _v._ city of watertown, wall. , ( ). and so we have had the spectacle of taxing officials resigning from office in order to frustrate tax levies through mandamus, and officials running on a platform of willingness to go to jail rather than to enforce a tax levy (_see_ raymond, state and municipal bonds, - ), and evasion of service by tax collectors, thus making impotent a court's mandate. yost _v._ dallas county, u.s. , ( )." u.s. at . [ ] myers _v._ irwin, sergeant and rawle's (pa.), , ( ); _also_, to same effect, lindenmuller _v._ the people, barbour (n.y.), ( ). _see also_ brown _v._ penobscot bank, mass. ( ). [ ] manigault _v._ springs, u.s. , ( ). [ ] jackson _v._ lamphire, pet. ( ). _see also_ phalen _v._ virginia, how. ( ). [ ] stone _v._ mississippi, u.s. ( ). [ ] boston beer co. _v._ massachusetts, u.s. ( ). [ ] new york c.r. co. _v._ white, u.s. ( ). in this and the preceding two cases the legislative act involved did not except from its operation existing contracts. [ ] manigault _v._ springs, u.s. ( ). [ ] portland railway, light & power co. _v._ railroad comm. of oregon, u.s. ( ). [ ] midland realty co. _v._ kansas city power & light co., u.s. ( ). [ ] hudson county water co. _v._ mccarter, u.s. ( ). [ ] brown (marcus) holding co. _v._ feldman, u.s. , ( ); followed in levy leasing co. _v._ siegel, u.s. ( ). [ ] chastleton corp. _v._ sinclair, u.s. , - ( ). [ ] u.s. ( ). [ ] ibid. , . _see also_ veix _v._ sixth ward building and loan assn. of newark, u.s. ( ) in which was sustained a new jersey statute, amending, in view of the depression, the law governing building and loan associations. the authority of the state to safeguard the vital interests of the people, said justice reed, "is not limited to health, morals and safety. it extends to economic needs as well." ibid. - . [ ] _see_ especially edwards _v._ kearzey, u.s. ( ); and barnitz _v._ beverly, u.s. ( ). [ ] u.s. ( ). as to conditions surrounding the enactment of moratorium statutes in , _see_ new york times of january , , sec. ii, pp. - . [ ] worthen co. _v._ thomas, u.s. ( ); worthen co. _v._ kavanaugh, u.s. ( ). [ ] u.s. at . [ ] east new york savings bank _v._ hahn, u.s. , ( ). [ ] honeyman _v._ jacobs, u.s. ( ). _see also_ gelfert _v._ national city bank, u.s. ( ). [ ] u.s. at - . [ ] one reason for this is indicated in the following passage from justice field's opinion for the court in paul _v._ virginia, decided in : "at the present day corporations are multiplied to an almost indefinite extent. there is scarcely a business pursued requiring the expenditure of large capital, or the union of large numbers, that is not carried on by corporations. it is not too much to say that the wealth and business of the country are to a great extent controlled by them." wall. , - . [ ] wright, the contract clause, - . [ ] perry _v._ united states, u.s. ( ); louisville joint stock bank _v._ radford, u.s. ( ). the court has pointed out, what of course, is evident on a reading of the constitution, that the contract clause is a limitation on the powers of the states and not of the united states. central p.r. co. _v._ gallatin (sinking fund cases), u.s. , ( ). _see also_ mitchell _v._ clark, u.s. , ( ); legal tender cases, wall. , ( ); continental ill. nat. bank & trust co. _v._ chicago, r.i. & p.r. co., u.s. ( ); st. anthony falls water power co. _v._ board of water commissioners, u.s. , ( ); dubuque, s.c.r. co. _v._ richmond, wall. ( ); new york _v._ united states, u.s. ( ). _cf._ however, hepburn _v._ griswold, wall. , ( ); and central pacific r.r. co. _v._ gallatin (sinking fund cases), u.s. , ( ). [ ] _see_, e.g., neblett et al. _v._ carpenter, et al., u.s. ( ); asbury hospital _v._ cass county, u.s. ( ); connecticut mutual l. ins. co. _v._ moore, u.s. ( ). for a notable case in which the obligations clause was mustered into service, by rather heroic logic, to do work that was afterwards put upon the due process clause, _see_ state tax on foreign-held bonds, wall. ( ). [ ] hooven & allison co. _v._ evatt, u.s. , ( ). [ ] woodruff _v._ parham, wall. ( ). [ ] wheat. ( ). [ ] ibid. . [ ] may & co. _v._ new orleans, u.s. , ( ). [ ] ibid. ; gulf fisheries co. _v._ macinerney, u.s. ( ); mcgoldrick _v._ gulf oil corp., u.s. ( ). [ ] low _v._ austin, wall. ( ); may & co. _v._ new orleans, u.s. ( ). [ ] hooven & allison co. _v._ evatt, u.s. , ( ). [ ] ibid. . [ ] canton r. co. _v._ rogan, u.s. ( ). [ ] brown _v._ maryland, wheat. , ( ). [ ] anglo-chilean nitrate sales corp. _v._ alabama, u.s. ( ). [ ] low _v._ austin, wall. , ( ). [ ] cook _v._ pennsylvania, u.s. , , ( ). [ ] crew levick co. _v._ pennsylvania, u.s. ( ). [ ] cooley _v._ board of port wardens, how. , ( ). [ ] waring _v._ mobile, wall. , ( ). _see also_ pervear _v._ massachusetts, wall. , ( ); schollenberger _v._ pennsylvania, u.s. , ( ). [ ] gulf fisheries co. _v._ macinerney, u.s. ( ). [ ] nathan _v._ louisiana, how. , ( ). [ ] mager _v._ grima, how. ( ). [ ] brown _v._ maryland, wheat. , ( ); hooven & allison co. _v._ evatt, u.s. ( ). [ ] new york ex rel. burke _v._ wells, u.s. ( ). [ ] selliger _v._ kentucky, u.s. ( ); _cf._ almy _v._ california, how. , ( ). [ ] bowman _v._ chicago & n.w.r. co., u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] patapsco guano co. _v._ north carolina bd. of agriculture, u.s. , ( ). for a discussion of the limitations on state power to pass inspection laws resulting from the commerce clause, _see_ pp. , . [ ] bowman _v._ chicago & n.w.r. co., u.s. , - ( ). [ ] clyde mallory lines _v._ alabama ex rel. state docks commission, u.s. , ( ); cannon _v._ new orleans, wall. , ( ); wheeling, p. & c. transportation co. _v._ wheeling, u.s. , ( ). [ ] keokuk northern line packet co. _v._ keokuk, u.s. ( ); parkersburg & ohio river transportation co. _v._ parkersburg, u.s. ( ); ouachita packet co. _v._ aiken, u.s. ( ). [ ] cooley _v._ board of port wardens, how. , ( ); ex parte mcniel, wall. ( ); inman steamship co. _v._ tinker, u.s. , ( ); northwestern union packet co. _v._ st. louis, u.s. ( ); vicksburg _v._ tobin, u.s. ( ); cincinnati, p.b.s. & p. packet co. _v._ catlettsburg, u.s. ( ). [ ] huse _v._ glover, u.s. , ( ). [ ] southern s.s. co. _v._ portwardens, wall. ( ). [ ] peete _v._ morgan, wall. ( ). [ ] morgan's l. & t.r. & s.s. co. _v._ board of health, u.s. , ( ). [ ] wiggins ferry co. _v._ east st. louis, u.s. ( ). _see also_ gloucester ferry co. _v._ pennsylvania, u.s. , ( ); philadelphia & s. mail steamship co. _v._ pennsylvania, u.s. , ( ); osborne _v._ mobile, wall. , ( ). [ ] cox _v._ lott (state tonnage tax cases), wall. , ( ). [ ] luther _v._ borden, how. , ( ). [ ] presser _v._ illinois, u.s. ( ). [ ] poole _v._ fleeger, pet , ( ). [ ] hinderlider _v._ la plata co., u.s. , ( ). [ ] frankfurter and landis, the compact clause of the constitution--a study in interstate adjustments, yale law journal, , ( ). [ ] article ix. [ ] article vi. [ ] pet. ( ). [ ] ibid. , , . [ ] u.s. , ( ). _see also_ stearns _v._ minnesota, u.s. , ( ); _also_ reference in next note, at pp. - . [ ] _see_ leslie w. dunbar, interstate compacts and congressional consent, virginia law review, (october, ). [ ] frankfurter and landis, the compact clause of the constitution--a study in interstate adjustments, yale law journal, , ( ); frederick l. zimmerman and mitchell wendell, interstate compacts since ( ), book of states, ( - ). [ ] stat. ( ). [ ] book of the states, ( - ). [ ] u.s.c. § ; u.s.c. § j; u.s.c. §§ , a; u.s.c. §§ , - b. [ ] green _v._ biddle, wheat. , ( ). [ ] virginia _v._ tennessee, u.s. ( ). [ ] virginia _v._ west virginia, wall. ( ). [ ] wharton _v._ wise, u.s. , ( ). [ ] james _v._ dravo contracting co., u.s. ( ). _see also_ arizona _v._ california, u.s. , ( ). [ ] u.s. ( ). [ ] on the activities of the board, in which representatives of both races participate and from which both races have benefited, _see_ remarks of hon. spessard l. holland of florida. cong. rec., st cong., d sess., v. , p. - . [ ] pennsylvania _v._ wheeling & belmont bridge co., how. , ( ). [ ] st. louis & s.f.r. co. _v._ james, u.s. , ( ). [ ] poole _v._ fleeger, pet. , ( ); rhode island _v._ massachusetts, pet. , ( ). [ ] hinderlider _v._ la plata co., u.s. , , ( ). [ ] green _v._ biddle, wheat. , ( ); virginia _v._ west virginia, u.s. ( ). _see also_ pennsylvania _v._ wheeling & belmont bridge co., how. , ( ); olin _v._ kitzmiller, u.s. ( ). [ ] virginia _v._ west virginia, u.s. , ( ). [ ] dyer _v._ sims, u.s. ( ). the case stemmed from mandamus proceedings brought to compel the auditor of west virginia to pay out money to a commission which had been created by a compact between west virginia and other states to control pollution of the ohio river. the decision of the supreme court of appeals of west virginia denying mandamus was reversed by the supreme court, and the case remanded. the opinion of the court, by justice frankfurter, reviews and revises the west virginia court's interpretation of the state constitution, thereby opening up, temporarily at least, a new field of power for judicial review. justice reed, challenging this extension of judicial review, thought the issue determined by the supremacy clause. justice jackson urged that the compact power was "inherent in sovereignty" and hence was limited only by the requirement of congressional consent. justice black concurred in the result without opinion. article ii executive department section . the president: page clause . powers and term of the president nature and scope of presidential power contemporary source of the presidency presidency in the federal convention executive power; hamilton's contribution myers case curtiss-wright case theory of the presidential office term of four years anti-third term tradition clauses , , , , , , and . election, qualifications, succession, compensation, and oath of the president maintenance of the office of president "electoral college" constitutional status of electors "natural-born citizen" presidential succession act of acts of and compensation and emoluments oath of office effect of the oath section . powers and duties of the president clause . commander in chiefship; opinions from heads of departments; pardons commander in chiefship historical prize cases impact of the prize cases on world wars i and ii presidential theory of the commander in chiefship in world war ii presidential war agencies constitutional status of presidential agencies west coast japanese act of march , presidential government of labor relations "sanctions" constitutional basis of sanctions martial law and constitutional limitations martial law in hawaii case of the nazi saboteurs war crimes cases president as commander of the forces commander in chief a civilian officer presidential advisers the cabinet pardons and reprieves legal nature of a pardon qualification of above theory scope of the power "offenses against the united states"; contempt of court effects of a pardon: ex parte garland limits to the efficacy of a pardon congress and amnesty clauses and . treaties and appointment of officers treaty-making power president and senate negotiation a presidential monopoly treaties as law of the land origin of the conception treaty rights versus state power recent cases when is a treaty self-executing; when not constitutional freedom of congress with respect to treaties treaty-making power and revenue laws congressional repeal of treaties treaties versus prior acts of congress interpretation and termination of treaties as international compacts termination of treaties by notice determination whether a treaty has lapsed status of a treaty a political question treaties and the "necessary and proper" clause constitutional limits of the treaty-making power: missouri _v._ holland indian treaties present status of indian treaties international agreements without senate approval routine executive agreements law-making executive agreements president mckinley's contribution executive agreements affecting far eastern relations international obligation of executive agreements litvinov agreement of united states _v._ belmont united states _v._ pink; national supremacy hull-lothian agreement, war-time agreements executive agreements by authorization of congress reciprocal trade agreements constitutionality of trade agreements lend-lease act president plus congress versus senate arbitration agreements agreements under the united nations charter united nations participation act executive establishment "office" "ambassadors and other public ministers" presidential diplomatic agents congressional regulation of offices conduct in office the loyalty issue legislation increasing duties of an officer "inferior officers"; "employees" stages of appointment process nomination senate approval when senate consent is complete commissioning the officer recess appointments ad interim designations removal power; myers case "nature of the office" concept humphrey case other phases of the removal power presidential aegis section . legislative, diplomatic, and law enforcement duties of the president legislative role of the president right of reception scope of the power a presidential monopoly "the logan act" a formal or a formative power president's diplomatic role jefferson's real position power of recognition the case of cuba power of nonrecognition president and congress congressional implementation of presidential policies doctrine of political questions recent statements of the doctrine the president as law enforcer types of executive power how the president's own powers are exercised power and duty of the president in relation to subordinate executive officers administrative decentralization _v._ jacksonian centralism congressional power _v._ presidential duty to the law myers case _v._ humphrey case power of the president to guide enforcement of the penal law president as law interpreter military power in law enforcement: the posse comitatus suspension of habeas corpus by president preventive martial law debs case status of the debs case, today president's duty in cases of domestic violence president as executive of the law of nations protection of american rights of person and property abroad presidential world policing the atlantic pact presidential action in the domain of congress: steel seizure case presidential immunity from judicial direction president's subordinates and the courts section . impeachment impeachment "civil" officer "high crimes and misdemeanors" chase impeachment johnson impeachment later impeachments executive department article ii section : the executive power shall be vested in a president of the united states of america. he shall hold his office during the term of four years, and, together with the vice president, chosen for the same term, be elected, as follows: the nature and scope of presidential power contemporary source of the presidency the immediate source of article ii was the new york constitution of ,[ ] of which the relevant provisions are the following: "art. xviii. * * * the governor * * * shall by virtue of his office, be general and commander in chief of all the militia, and admiral of the navy of this state; * * * he shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them from time to time, provided such prorogations shall not exceed sixty days in the space of any one year; and, at his discretion, to grant reprieves and pardons to persons convicted of crimes, other than treason and murder, in which he may suspend the execution of the sentence, until it shall be reported to the legislature at their subsequent meeting; and they shall either pardon or direct the execution of the criminal, or grant a further reprieve. "art. xix. * * * it shall be the duty of the governor to inform the legislature at every session of the condition of the state so far as may concern his department; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare, and prosperity; to correspond with the continental congress and other states; to transact all necessary business with the officers of government, civil and military; to take care that the laws are executed to the best of his ability; and to expedite all such measures as may be resolved upon by the legislature. "to these, of course, are to be added the important powers of qualified appointment and qualified veto. it is to be observed also that there is no question of the interposition of the law of the land to regulate these powers. they are the governor's, by direct grant of the people, and his alone. another distinguishing characteristic, equally important, is the fact that the governor was to be chosen by a constitutionally defined electorate, not by the legislature. he was also to have a three-year term, and there were to be no limitations on his re-eligibility to office. in short, all the isolated principles of executive strength in other constitutions were here brought into a new whole. alone they were of slight importance; gathered together they gain new meaning. and, in addition, we have new elements of strength utilized for the first time on the american continent."[ ] the appellation "president" appears to have been suggested to the federal convention by charles pinckney,[ ] to whom it may have been suggested by the title at that date of the chief magistrate of delaware. the presidency in the federal convention the relevant clause in the report from the committee of detail of august , to the federal convention read as follows: "the executive power of the united states shall be vested in a single person. his stile shall be 'the president of the united states of america'; and his title shall be 'his excellency.'"[ ] this language recorded the decision of the convention, sitting in committee of the whole, that the national executive power should be vested in a single person, not a body. for the rest, it is a simple designation of office. the final form of the clause came from the committee of style,[ ] and was never separately acted on by the convention. "executive power"; hamilton's contribution is this term a summary description merely of the powers which are granted in more specific terms in succeeding provisions of article ii, or is it also a grant of powers; and if the latter, what powers specifically does it comprise? in the debate on the location of the removal power in the house of representatives in [ ] madison and others urged that this was "in its nature" an "executive power";[ ] and their view prevailed so far as executive officers appointed without stated term by the president, with the advice and consent of the senate, were concerned. four years later hamilton, in defending president washington's course in issuing a proclamation of impartiality upon the outbreak of war between france and great britain, developed the following argument: "the second article of the constitution of the united states, section first, establishes this general proposition, that 'the executive power shall be vested in a president of the united states of america.' the same article, in a succeeding section, proceeds to delineate particular cases of executive power. it declares, among other things, that the president shall be commander in chief of the army and navy of the united states, and of the militia of the several states, when called into the actual service of the united states; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, _and to take care that the laws be faithfully executed._ it would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. the difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. the different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. in the article which gives the legislative powers of the government, the expressions are, 'all legislative powers herein granted shall be vested in a congress of the united states.' in that which grants the executive power, the expressions are, 'the _executive power_ shall be vested in a president of the united states.' the enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the constitution, and with the principles of free government. the general doctrine of our constitution then is, that the _executive power_ of the nation is vested in the president; subject only to the _exceptions_ and _qualifications_, which are expressed in the instrument."[ ] the myers case these enlarged conceptions of the executive power clause have been ratified by the supreme court within recent times. in the myers case,[ ] decided in , not only was madison's contention as to the location of the removal power adopted, and indeed extended, but hamilton's general theory as to the proper mode of construing the clause was unqualifiedly endorsed. said chief justice taft, speaking for the court: "the executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, * * *"[ ] the curtiss-wright case ten years later justice sutherland, speaking for the court in united states _v._ curtiss-wright corporation,[ ] joined hamilton's conception of the president's role in the foreign relations field to the conception that in this field the national government is not one of enumerated but of inherent powers;[ ] and the practical conclusion he drew was that the constitutional objection to delegation of legislative power does not apply to a delegation by congress to the president of its "cognate" powers in this field; that, in short, the merged powers of the two departments may be put at the president's disposal whenever congress so desires.[ ] nor is it alone in the field of foreign relations that the opening clause of article ii has promoted latitudinarian conceptions of presidential power. especially has his role as "commander in chief in wartime" drawn nourishment from the same source, in recent years. the matter is treated in later pages.[ ] theory of the presidential office the looseness of the grants of power to the president has been more than once the subject of animadversion.[ ] this and the unity of the office furnished a text for opponents of the constitution while its ratification was pending. "here," according to hamilton, writing in the federalist, "the writers against the constitution, seem to have taken pains to signalize their talent of misrepresentation."[ ] once the constitution was adopted, however, the tables were turned, and some members of the first congress, including certain former members of the federal convention, sought to elaborate the monarchical aspects of the office. they would fain give him a title, _his excellency_ (already applied in several states to the governors thereof), _highness_, _elective majesty_, being suggestions. ellsworth of connecticut wished to see his _name or place_ inserted in the enacting clause of statutes. they contrived to make a ceremony of the president's appearances before congress, his annual address to which, given in person, was answered by a reply equally formal.[ ] they sought to enact that "all writs and processes, issuing out of the supreme or circuit courts shall be in the name of the president of the united states." although the attempt failed, owing to opposition in the house, the idea was adopted by the supreme court itself in its first term, that of february , when it "_ordered_, that (unless, and until, it shall be otherwise provided by law) all process of this court shall be in the name of 'the president of the united states,'"[ ] and it has never been otherwise provided by law. meantime, on october , , president washington had, at the request of a joint committee of "both houses of congress," issued the first thanksgiving proclamation.[ ] the "revolution of " was, in the opinion of its principal author, a revolution against monarchical tendencies, and making a virtue of the fact that he was a bad public speaker, jefferson, in a symbolic gesture, substituted the written message for the presidential address. but the claims of the presidential office to power jefferson in no wise abated,[ ] although marshall had predicted that he would;[ ] to the contrary he in some respects enlarged upon them. after his day, however, the office passed into temporary eclipse behind its own creature, the cabinet,[ ] an ignominy from which andrew jackson rescued it. as "the people's choice," as all by himself "one of the three _equal_ departments of government,"[ ] as the leader of his party, as the embodiment of the unity of the country,[ ] jackson stamped upon the presidency the outstanding features of its final character, thereby reviving, in the opinion of henry jones ford, "the oldest political institution of the race, the elective kingship."[ ] the modern theory of presidential power was the contribution primarily of alexander hamilton; the modern conception of the presidential office was the contribution primarily of andrew jackson and his times. "the term of four years" formerly the term of four years during which the president "shall hold office" was reckoned from march of the alternate odd years beginning with . this came about from the circumstance that under the act of september , , of "the old congress," the first wednesday in march, which was march , , was fixed as the time for commencing proceedings under the said constitution. although as a matter of fact washington was not inaugurated until april of that year, by an act approved march , , it was provided that the presidential term should be reckoned from the fourth day of march next succeeding the date of election. and so things stood until the adoption of the twentieth amendment by which the terms of the president and vice president end at noon on the th of january.[ ] the anti-third term tradition the prevailing sentiment of the philadelphia convention favored the indefinite eligibility of the president. it was jefferson who raised the objection that indefinite eligibility would in fact be for life and degenerate into an inheritance. prior to the idea that no president should hold for more than two terms was generally thought to be a fixed tradition, although some quibbles had been raised as to the meaning of the word "term". president franklin d. roosevelt's violation of the tradition led to the proposal by congress on march , , of an amendment to the constitution to rescue the tradition by embodying it in the constitutional document. the proposal became a part of the constitution on february , , in consequence of its adoption by the necessary thirty-sixth state, which was minnesota. _see_ pp. , .[transcriber's note: page is blank.][ ] clause . each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the congress; but no senator or representative, or person holding an office of trust or profit under the united states, shall be appointed an elector. clause . the electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. and they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of government of the united states, directed to the president of the senate. the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. the person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately chuse by ballot one of them for president; and if no person have a majority, then from the five highest on the list the said house shall in like manner chuse the president. but in chusing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. in every case, after the choice of the president, the person having the greatest number of votes of the electors shall be the vice president. but if there should remain two or more who have equal votes, the senate shall chuse from them by ballot the vice president. clause . the congress may determine the time of chusing the electors, and the day on which they shall give their votes; which day shall be the same throughout the united states. clause . no person except a natural born citizen, or a citizen of the united states, at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen years a resident within the united states. clause . in case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected. clause . the president shall, at stated times, receive for his services, a compensation, which shall neither be encreased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the united states, or any of them. clause . before he enter on the execution of his office, he shall take the following oath or affirmation:--"i do solemnly swear (or affirm) that i will faithfully execute the office of president of the united states, and will to the best of my ability, preserve, protect and defend the constitution of the united states." maintenance of the office of president "the electoral college" the word "appoint" is used in clause "as conveying the broadest power of determination."[ ] this power has been used. "therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by north carolina in , and tennessee in and . no question was raised as to the power of the state to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the constitution. the district system was largely considered the most equitable, and madison wrote that it was that system which was contemplated by the framers of the constitution, although it was soon seen that its adoption by some states might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable."[ ] in the federal convention james wilson had proposed that the electors be "taken by lot from the national legislature," but the suggestion failed to come to a vote.[ ] constitutional status of electors dealing with the question of the constitutional status of the electors, the court said in : "the sole function of the presidential electors is to cast, certify and transmit the vote of the state for president and vice president of the nation. although the electors are appointed and act under and pursuant to the constitution of the united states, they are no more officers or agents of the united states than are the members of the state legislatures when acting as electors of federal senators, or the people of the states when acting as electors of representatives in congress. * * * in accord with the provisions of the constitution, congress has determined the time as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the states, and on which their votes shall be counted in congress; has provided for the filling by each state, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them."[ ] the truth of the matter is that the electors are not "officers" at all, by the usual tests of office.[ ] they have neither tenure nor salary, and having performed their single function they cease to exist as electors. this function is, moreover, "a federal function,"[ ] their capacity to perform which results from no power which was originally resident in the states, but springs directly from the constitution of the united states.[ ] in the face, therefore, of the proposition that electors are state officers, the court has upheld the power of congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector;[ ] and more recently its power to protect the choice of electors from fraud or corruption.[ ] "'if this government,' said the court, 'is anything more than a mere aggregation of delegated agents of other states and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. if it has not this power it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.'"[ ] the conception of electors as state officers is still, nevertheless, of some importance, as was shown in the recent case of ray _v._ blair,[ ] which is dealt with in connection with amendment xii.[ ] "natural-born" citizen clause of this section, while requiring that the electors each vote for two persons, did not require them to distinguish their choices for president and vice president, the assumption being that the vice president would be the runner-up of the successful candidate for president. as a result of this arrangement the election of produced a dangerous tie between jefferson and burr, the candidates of the republican-democrat party for president and vice president respectively. amendment xii, which was adopted in and replaces clause , makes a recurrence of the contretemps impossible. _see_ pp. - . clause testifies still further to the national character of presidential electors. clause is today chiefly of historical interest, all presidents since, and including martin van buren, except his immediate successor, william henry harrison, having been born in the united states subsequently to the declaration of independence. the question, however, has been frequently mooted, whether a child born abroad of american parents is "a natural-born citizen" in the sense of this clause. the answer depends upon whether the definition of "citizens of the united states" in section i of amendment xiv is to be given an exclusive or inclusive interpretation. _see_ pp. - . presidential succession was it the thought of the constitution that a vice president, in succeeding to "the powers and duties" of the office of president, should succeed also to the title? in answering this question in the affirmative in , john tyler established a precedent which has been followed ever since; but inasmuch as all successions have taken place in consequence of the death in office of a president, the precedent would not necessarily hold in the case of a succession on account of the temporary inability of the incumbent president. nor has any procedure been established for determining the question of inability, with the result that in the two instances of disability which have occurred, those of presidents garfield and wilson, the former continued in office until his death and the other, after his partial recovery, till the end of his term. the act of in pursuance of its power to provide for the disappearance, whether permanently or temporarily, from the scene of both president and vice president, congress has passed three presidential succession acts. a law enacted march , [ ] provided for the succession first of the president _pro tempore_ of the senate and then of the speaker; but in the event that both of these offices were vacant, then the secretary of state was to inform the executive of each state of the fact and at the same time give public notice that electors will be appointed in each state to elect a president and vice president, unless the regular time of such election was so near at hand as to render the step unnecessary. it is unlikely that congress ever passed a more ill-considered law. as madison pointed out at the time, it violated the principle of the separation of powers and flouted the probability that neither the president _pro tempore_ nor the speaker is an "officer" in the sense of this paragraph of the constitution. it thus contemplated the possibility of there being nobody to exercise the powers of the president for an indefinite period, and at the same time set at naught, by the provision made for an interim presidential election, the synchrony evidently contemplated by the constitution in the choice of a president with a new house of representatives and a new one-third of the senate. yet this inadequate enactment remained on the statute book for nearly one hundred years, becoming all the time more and more unworkable from obsolescence. one provision of it, moreover, still survives, that which ordains that the only evidence of refusal to accept, or of resignation from the office of president or vice president, shall be an instrument in writing declaring the same and subscribed by the person refusing to accept, or resigning, as the case may be, and delivered into the office of the secretary of state.[ ] the acts of and by the presidential succession act of january , ,[ ] recently repealed, congress provided that, in case of the disqualification of both president and vice president, the secretary of state should act as president provided he possessed the qualifications laid down in clause , above; if not, then the secretary of the treasury, etc. the act apparently assumed that while a member of the cabinet acted as president he would retain his cabinet post. the succession act now in force was urged by president truman, who argued that it was "undemocratic" for a vice president who had succeeded to the presidency to be able to appoint his own successor. by the act of july , [ ] the speaker of the house and the president _pro tempore_ of the senate are put ahead of the members of the cabinet in the order of succession, but when either succeeds he must resign both his post and his seat in congress; and a member of the cabinet must in the like situation resign his cabinet post. the new act also implements amendment xx by providing for vacancies due to failure to qualify of both a newly elected president and vice president. compensation and emoluments clause may be advantageously considered in the light of what has been determined as to the application of the parallel provision regarding judicial salaries. _see_ pp. - .[ ] oath of office what is the time relationship between a president's assumption of office and his taking the oath? apparently the former comes first. this answer seems to be required by the language of the clause itself, and is further supported by the fact that, while the act of march , assumes that washington became president march , , he did not take the oath till april th. also, in the parallel case of the coronation oath of the british monarch, its taking has been at times postponed for years after the heir's succession. effect of the oath does the oath add anything to the president's powers? again to judge from its english-british antecedent, its informing purpose is to restrain rather than to aggrandize power. jackson, it is true, appealed to the oath in his bank veto message of july , ; and lincoln did so in his message of july , ; as did johnson's counsel in his impeachment trial; but in each of these instances the presidential exercise of power involved rested primarily on other grounds. section . clause . the president shall be commander in chief of the army and navy of the united states, and of the militia of the several states, when called into the actual service of the united states; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the united states, except in cases of impeachment. the commander in chiefship historical the purely military aspects of the commander in chiefship were those which were originally stressed. hamilton said the office "would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy."[ ] story wrote in his commentaries: "the propriety of admitting the president to be commander in chief, so far as to give orders, and have a general superintendency, was admitted. but it was urged, that it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. the consent of both houses of congress ought, therefore, to be required, before he should take the actual command. the answer then given was, that though the president might, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents."[ ] in chief justice taney, for the court, said: "his [the president's] duty and his power are purely military. as commander in chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. he may invade the hostile country, and subject it to the sovereignty and authority of the united states. but his conquests do not enlarge the boundaries of this union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. * * * but in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the president of the united states, and the authority and sovereignty which belong to the english crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question."[ ] even after the civil war a powerful minority of the court described the role of president as commander in chief simply as "the command of the forces and the conduct of campaigns."[ ] the prize cases the basis for a broader conception was laid in certain early acts of congress authorizing the president to employ military force in the execution of the laws.[ ] in his famous message to congress of july , ,[ ] lincoln advanced the claim that the "war power" was his for the purpose of suppressing rebellion; and in the prize cases[ ] of , a sharply divided court sustained this theory. the immediate issue of the case was the validity of the blockade which the president, following the attack on fort sumter, had proclaimed of the southern ports.[ ] the argument was advanced that a blockade to be valid must be an incident of a "public war" validly declared, and that only congress could, by virtue of its power "to declare war," constitutionally impart to a military situation this character and scope. speaking for the majority of the court, justice grier answered: "if a war be made by invasion of a foreign nation, the president is not only authorized but bound to resist force by force. he does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. and whether the hostile party be a foreign invader, or states organized in rebellion, it is none the less a war, although the declaration of it be '_unilateral_.' lord stowell ( dodson, ) observes, 'it is not the less a war on _that account_, for war may exist without a declaration on either side. it is so laid down by the best writers on the law of nations. a declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.' the battles of palo alto and resaca de la palma had been fought before the passage of the act of congress of may , , which recognized '_a state of war as existing by the act of the republic of mexico_.' this act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the act of the president in accepting the challenge without a previous formal declaration of war by congress. this greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. however long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a minerva in the full panoply of _war_. the president was bound to meet it in the shape it presented itself, without waiting for congress to baptize it with a name; and no name given to it by him or them could change the fact. * * * whether the president in fulfilling his duties, as commander in chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided _by him_, and this court must be governed by the decisions and acts of the political department of the government to which this power was entrusted. 'he must determine what degree of force the crisis demands.' the proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case."[ ] impact of the prize cases on world wars i and ii in brief, the powers claimable for the president under the commander in chief clause at a time of wide-spread insurrection were equated with his powers under the clause at a time when the united states is engaged in a formally declared foreign war; and--impliedly--vice versa. and since lincoln performed various acts especially in the early months of the civil war which, like increasing the army and navy, admittedly fell within the constitutional province of congress, it seems to have been assumed during world war i and world war ii that the commander in chiefship carries with it the power to exercise like powers practically at discretion; and not merely in wartime but even at a time when war becomes a strong possibility. nor was any attention given the fact that lincoln had asked congress to ratify and confirm his acts, which congress promptly did,[ ] with the exception of his suspension of the _habeas corpus_ privilege which was regarded by many as attributable to the president in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.[ ] nor is this the only respect in which war or the approach of war operates to enlarge the scope of power which is claimable by the president as commander in chief in wartime.[ ] for at such time the maxim that congress may not delegate its powers is, by the doctrine of the curtiss-wright case,[ ] in a state of suspended animation.[ ] presidential theory of the commander in chiefship in world war ii in his message of september , to congress, in which he demanded that congress forthwith repeal certain provisions of the emergency price control act of the previous january th,[ ] the late president roosevelt formulated his conception of his powers as "commander in chief in wartime" as follows: "i ask the congress to take this action by the first of october. inaction on your part by that date will leave me with an inescapable responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos. "in the event that the congress should fail to act, and act adequately, i shall accept the responsibility, and i will act. "at the same time that farm prices are stabilized, wages can and will be stabilized also. this i will do. "the president has the powers, under the constitution and under congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war. "i have given the most thoughtful consideration to meeting this issue without further reference to the congress. i have determined, however, on this vital matter to consult with the congress. * * * "the american people can be sure that i will use my powers with a full sense of my responsibility to the constitution and to my country. the american people can also be sure that i shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat. "when the war is won, the powers under which i act automatically revert to the people--to whom they belong."[ ] presidential war agencies while congressional compliance with the president's demand rendered unnecessary an effort on his part to amend the price control act, there were other matters as to which he repeatedly took action within the normal field of congressional powers, not only during the war, but in some instances prior to it. thus in exercising both the powers which he claimed as commander in chief and those which congress conferred upon him to meet the emergency, mr. roosevelt employed new emergency agencies, created by himself and responsible directly to him, rather than the established departments or existing independent regulatory agencies. oldest of all these presidential agencies was the office for emergency management (oem), which was created by an executive order dated may , . others were the board of economic warfare (bew), the national housing agency (nha), the national war labor board (nwlb), or more shortly (wlb), the office of censorship (oc), the office of civilian defense (ocd), the office of defense transportation (odt), the office of facts and figures (off), presently absorbed into the office of war information (owi), the war production board (wpb), which superseded the earlier office of production management (opm), the war manpower commission (wmc), etc. earlier there had been the office of price administration and civilian supply (opacs), but was replaced under the emergency price control act of january , , by opa. later owi was created by executive order, as was also the office of economic stabilization (oes). the office of war mobilization and reconversion (owmr), one of the last of the war agencies to appear, was established by the war mobilization and reconversion act of october , .[ ] constitutional status of presidential agencies the question of the legal status of the presidential agencies was dealt with judicially but once. this was in the decision, in june , of the united states court of appeals of the district of columbia in a case styled employers group of motor freight carriers _v._ national war labor board,[ ] which was a suit to annul and enjoin a "directive order" of the war labor board. the court refused the injunction on the ground that at the time when the directive was issued any action of the board was "informatory," "at most advisory." in support of this view the court quoted approvingly a statement by the chairman of the board itself: "these orders are in reality mere declarations of the equities of each industrial dispute, as determined by a tripartite body in which industry, labor, and the public share equal responsibility; and the appeal of the board is to the moral obligation of employers and workers to abide by the nonstrike, no-lock-out agreement and * * * to carry out the directives of the tribunal created under that agreement by the commander in chief." nor, the court continued, had the later war labor disputes act vested war labor board's orders with any greater authority, with the result that they were still judicially unenforceable and unreviewable. following this theory, war labor board was not an office wielding power, but a purely advisory body, such as presidents have frequently created in the past without the aid or consent of congress. congress itself, nevertheless, both in its appropriation acts and in other legislation, treated the presidential agencies as in all respects offices.[ ] the west coast japanese on february , the president issued an executive order the essential paragraphs of which read as follows: "whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities * * * "now, therefore, by virtue of the authority vested in me as president of the united states, and commander in chief of the army and navy, i hereby authorize and direct the secretary of war, and the military commanders whom he may from time to time designate, whenever he or any designated commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate military commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the secretary of war or the appropriate military commander may impose in his discretion. the secretary of war is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the secretary of war or the said military commander, and until other arrangements are made, to accomplish the purpose of this order. * * * "i hereby further authorize and direct all executive departments, independent establishments and other federal agencies, to assist the secretary of war or the said military commanders in carrying out this executive order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities and services."[ ] in pursuance of this order more than , japanese residents of western states, of whom nearly two out of every three were natural-born citizens of the united states, were eventually removed from their farms and homes and herded, first in temporary camps, later in ten so-called "relocation centers," situated in the desert country of california, arizona, idaho, utah, colorado, and wyoming and in the delta areas of arkansas. the act of march , it was apparently the original intention of the administration to rest its measures concerning this matter on the general principle of military necessity and the power of the commander in chief in wartime. but before any action of importance was taken under executive order , congress ratified and adopted it by the act of march , ,[ ] by which it was made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the secretary of war or of the commanding officer of the area. the cases which subsequently arose in consequence of the order were decided under the order plus the act. the question at issue, said chief justice stone for the court, "is not one of congressional power to delegate to the president the promulgation of the executive order, but whether, acting in cooperation, congress and the executive have constitutional * * * [power] to impose the curfew restriction here complained of."[ ] this question was answered in the affirmative, as was the similar question later raised by an exclusion order.[ ] presidential government of labor relations the most important segment of the home front regulated by what were in effect presidential edicts was the field of labor relations. exactly six months before pearl harbor, on june , , mr. roosevelt, citing his proclamation thirteen days earlier of an unlimited national emergency, issued an executive order seizing the north american aviation plant at inglewood, california, where, on account of a strike, production was at a standstill. attorney general jackson justified the seizure as growing out of the "'duty constitutionally and inherently rested upon the president to exert his civil and military as well as his moral authority to keep the defense efforts of the united states a going concern,'" as well as "to obtain supplies for which congress has appropriated the money, and which it has directed the president to obtain."[ ] other seizures followed, and on january , , mr. roosevelt, by executive order , created the national war labor board. "whereas," the order read in part, "by reason of the state of war declared to exist by joint resolutions of congress, * * *, the national interest demands that there shall be no interruption of any work which contributes to the effective prosecution of the war; and whereas as a result of a conference of representatives of labor and industry which met at the call of the president on december , , it has been agreed that for the duration of the war there shall be no strikes or lockouts, and that all labor disputes shall be settled by peaceful means, and that a national war labor board be established for a peaceful adjustment of such disputes. now, therefore, by virtue of the authority vested in me by the constitution and the statutes of the united states, it is hereby ordered: . there is hereby created in the office for emergency management a national war labor board, * * *"[ ] in this field, too, congress intervened by means of the war labor disputes act of june , ,[ ] which however still left ample basis for presidential activity of a legislative character.[ ] "sanctions" to implement his directives as commander in chief in wartime, and especially those which he issued in governing labor relations, mr. roosevelt often resorted to "sanctions," which may be described as penalties lacking statutory authorization. ultimately, the president sought, by executive order of august , , to put sanctions in this field on a systematic basis. this order read: "(a) to other departments or agencies of the government directing the taking of appropriate action relating to withholding or withdrawing from a noncomplying employer any priorities, benefits or privileges extended, or contracts entered into, by executive action of the government, until the national war labor board has reported that compliance has been effectuated; "(b) to any government agency operating a plant, mine or facility, possession of which has been taken by the president under section of the war labor disputes act, directing such agency to apply to the national war labor board, under section of said act, for an order withholding or withdrawing from a noncomplying labor union any benefits, privileges or rights accruing to it under the terms of conditions of employment in effect (whether by agreement between the parties or by order of the national war labor board, or both) when possession was taken, until such time as the noncomplying labor union has demonstrated to the satisfaction of the national war labor board its willingness and capacity to comply; but, when the check-off is denied, dues received from the check-off shall be held in escrow for the benefit of the union to be delivered to it upon compliance by it. "(c) to the war manpower commission, in the case of noncomplying individuals, directing the entry of appropriate orders relating to the modification or cancellation of draft deferments or employment privileges, or both. "franklin d. roosevelt. "the white house, _aug. , ._"[ ] constitutional basis of sanctions sanctions were also occasionally employed by statutory agencies, as by opa, to supplement the penal provisions of the emergency price control act of january , ;[ ] and in the case of steuart and bro., inc. _v._ bowles,[ ] the supreme court had the opportunity to attempt to regularize this type of executive emergency legislation. here a retail dealer in fuel oil in the district of columbia was charged with having violated a rationing order of opa by obtaining large quantities of oil from its supplier without surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and was prohibited by the agency from receiving oil for resale or transfer for the ensuing year. the offender conceded the validity of the rationing order in support of which the suspension order was issued, but challenged the validity of the latter as imposing a penalty that congress has not enacted, and asked the district court to enjoin it. the court refused to do so and was sustained by the supreme court in its position. said justice douglas, speaking for the court: "without rationing, the fuel tanks of a few would be full; the fuel tanks of many would be empty. some localities would have plenty; communities less favorably situated would suffer. allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. * * * but middlemen--wholesalers and retailers--bent on defying the rationing system could raise havoc with it. * * * these middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. from the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduct. * * * certainly we could not say that the president would lack the power under this act to take away from a wasteful factory and route to an efficient one a previous supply of material needed for the manufacture of articles of war. * * * from the point of view of the factory owner from whom the materials were diverted the action would be harsh. * * * but in times of war the national interest cannot wait on individual claims to preference. * * * yet if the president has the power to channel raw materials into the most efficient industrial units and thus save scarce materials from wastage it is difficult to see why the same principle is not applicable to the distribution of fuel oil."[ ] sanctions were, therefore, constitutional when the deprivations they wrought were a reasonably implied amplification of the substantive power which they supported and were directly conservative of the interests which this power was created to protect and advance. it is certain, however, that sanctions not uncommonly exceeded this pattern.[ ] martial law and constitutional limitations two theories of martial law are reflected in decisions of the supreme court. by one, which stems from the petition of right, , the common law knows no such thing as martial law;[ ] at any rate martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, of which necessity the civil courts are the final judges.[ ] by the other theory, martial law can be validly and constitutionally established by supreme political authority in wartime. the latter theory is recognized by the court in luther _v._ borden,[ ] where it was held that the rhode island legislature had been within its rights in in resorting to the rights and usages of war in combating insurrection in that state. the decision in the prize cases,[ ] while not dealing directly with the subject of martial law, gave national scope to the same general principle in . the civil war being safely over, however, a sharply divided court, in the elaborately argued milligan case,[ ] reverting to the older doctrine, pronounced void president lincoln's action, following his suspension of the writ of _habeas corpus_ in september, , in ordering the trial by military commission of persons held in custody as "spies" and "abettors of the enemy." the salient passage of the court's opinion bearing on this point is the following: "if, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, _then_, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. as necessity creates the rule, so it limits its duration; for, if this government is continued _after_ the courts are reinstated, it is a gross usurpation of power. martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. it is also confined to the locality of actual war."[ ] four justices, speaking by chief justice chase, while holding milligan's trial to have been void because violative of the act of march , governing the custody and trial of persons who had been deprived of the _habeas corpus_ privilege, declared their belief that congress could have authorized milligan's trial. said the chief justice: "congress has the power not only to raise and support and govern armies but to declare war. it has, therefore, the power to provide by law for carrying on war. this power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. that power and duty belong to the president as commander in chief. both these powers are derived from the constitution, but neither is defined by that instrument. their extent must be determined by their nature, and by the principles of our institutions. * * * we by no means assert that congress can establish and apply the laws of war where no war has been declared or exists. where peace exists the laws of peace must prevail. what we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of congress to determine in what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety."[ ] in short, only congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and congress can do so only in wartime. martial law in hawaii the question of the constitutional status of martial law was raised in world war ii by the proclamation of governor poindexter of hawaii, on december , , suspending the writ of _habeas corpus_ and conferring on the local commanding general of the army all his own powers as governor and also "all of the powers normally exercised by the judicial officers * * * of this territory * * * during the present emergency and until the danger of invasion is removed." two days later the governor's action was approved by president roosevelt. the regime which the proclamation set up continued with certain abatements until october , . by section of the organic act of april , ,[ ] the territorial governor is authorized "in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege of the writ of _habeas corpus_, or place the territory, or any part thereof, under martial law until communication can be had with the president and his decision thereon made known." by section of the organic act, "the constitution, * * *, shall have the same force and effect within the said territory as elsewhere in the united states." in a brace of cases which reached it in february but which it contrived to postpone deciding till february ,[ ] the court, speaking by justice black, held that the term "martial law" as employed in the organic act, "while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals."[ ] the court relied on the majority opinion in ex parte milligan. chief justice stone concurred in the result. "i assume also," said he, "that there could be circumstances in which the public safety requires, and the constitution permits, substitution of trials by military tribunals for trials in the civil courts";[ ] but added that the military authorities themselves had failed to show justifying facts in this instance. justice burton, speaking for himself and justice frankfurter, dissented. he stressed the importance of hawaii as a military outpost and its constant exposure to the danger of fresh invasion. he warned that "courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight."[ ] the case of the nazi saboteurs[ ] the saboteurs were eight youths, seven germans and one an american, who, following a course of training in sabotage in berlin, were brought to this country in june aboard two german submarines and put ashore, one group on the florida coast, the other on long island, with the idea that they would proceed forthwith to practice their art on american factories, military equipment, and installations. making their way inland, the saboteurs were soon picked up by the fbi, some in new york, others in chicago, and turned over to the provost marshal of the district of columbia. on july , the president appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. in the midst of the trial, the accused petitioned the supreme court and the united states district court for the district of columbia for leave to bring _habeas corpus_ proceedings. their argument embraced the contentions: ( ) that the offense charged against them was not known to the laws of the united states; ( ) that it was not one arising in the land and naval forces; and ( ) that the tribunal trying them had not been constituted in accordance with the requirements of the articles of war. the first argument the court met as follows: the act of congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. "* * * those who during time of war pass surreptitiously from enemy territory into * * * [that of the united states], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission."[ ] the second argument it disposed of by showing that petitioners' case was of a kind that was never deemed to be within the terms of amendments v and vi, citing in confirmation of this position the trial of major andre.[ ] the third contention the court overruled by declining to draw the line between the powers of congress and the president in the premises,[ ] thereby, in effect, attributing to the latter the right to amend the articles of war in a case of the kind before the court _ad libitum_. the decision might well have rested on the ground that the constitution is without restrictive force in wartime in a situation of this sort. the saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation. punishment of the saboteurs was therefore within the president's purely martial powers as commander in chief. moreover, seven of the petitioners were enemy aliens, and so, strictly speaking, without constitutional status. even had they been civilians properly domiciled in the united states at the outbreak of the war they would have been subject under the statutes to restraint and other disciplinary action by the president without appeal to the courts.[ ] the war crimes cases as a matter of fact, in general yamashita's case,[ ] which was brought after the termination of hostilities for alleged "war crimes," the court abandoned its restrictive conception altogether. in the words of justice rutledge's dissenting opinion in this case: "the difference between the court's view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the articles of war, of the geneva convention and the fifth amendment apply."[ ] and the adherence of the united states to the charter of london in august , under which the nazi leaders were brought to trial, is explicable by the same theory. these individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under international law or under the laws of the prosecuting governments. it must be presumed that the president is not in his capacity as supreme commander bound by the prohibition in the constitution of _ex post facto_ laws; nor does international law forbid _ex post facto_ laws.[ ] the president as commander of the forces while the president customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so; and he has been known to resolve personally important questions of military policy. lincoln early in issued orders for a general advance in the hope of stimulating mcclellan to action; wilson in settled the question of an independent american command on the western front; truman in ordered that the bomb be dropped on hiroshima and nagasaki. as against an enemy in the field the president possesses all the powers which are accorded by international law to any supreme commander. "he may invade the hostile country, and subject it to the sovereignty and authority of the united states."[ ] in the absence of attempts by congress to limit his power, he may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by armed forces of the united states, and his authority to do this sometimes survives cessation of hostilities.[ ] he may employ secret agents to enter the enemy's lines and obtain information as to its strength, resources, and movements.[ ] he may, at least with the assent of congress, authorize intercourse with the enemy.[ ] he may also requisition property and compel services from american citizens and friendly aliens who are situated within the theatre of military operations when necessity requires, thereby incurring for the united states the obligation to render "just compensation."[ ] by the same warrant he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions which may determine to a great extent the ensuing peace.[ ] he may not, however, effect a permanent acquisition of territory;[ ] though he may govern recently acquired territory until congress sets up a more permanent regime.[ ] he is the ultimate tribunal for the enforcement of the rules and regulations which congress adopts for the government of the forces, and which are enforced through courts-martial.[ ] indeed, until , courts-martial were convened solely on his authority as commander in chief.[ ] such rules and regulations are, moreover, it would seem, subject in wartime to his amendment at discretion.[ ] similarly, the power of congress to "make rules for the government and regulation of the law and naval forces" (art. i, § , cl. ) did not prevent president lincoln from promulgating in april, a code of rules to govern the conduct in the field of the armies of the united states which was prepared at his instance by a commission headed by francis lieber and which later became the basis of all similar codifications both here and abroad.[ ] one important power he lacks, that of choosing his subordinates, whose grades and qualifications are determined by congress and whose appointment is ordinarily made by and with the advice and consent of the senate, though undoubtedly congress could if it wished vest their appointment in "the president alone."[ ] also, the president's power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal "in pursuance of the sentence of a general court-martial or in mitigation thereof."[ ] but the provision is not regarded by the court as preventing the president from displacing an officer of the army or navy by appointing with the advice and consent of the senate another person in his place.[ ] the president's power of dismissal in time of war congress has never attempted to limit. the commander in chief a civilian officer is the commander in chiefship a military or civilian office in the contemplation of the constitution? unquestionably the latter. a recent opinion by a new york surrogate deals adequately, though not authoritatively, with the subject: "the president receives his compensation for his services, rendered as chief executive of the nation, not for the individual parts of his duties. no part of his compensation is paid from sums appropriated for the military or naval forces; and it is equally clear under the constitution that the president's duties as commander in chief represents only a part of duties _ex officio_ as chief executive [article ii, sections and of the constitution] and that the latter's office is a civil office. [article ii, section of the constitution; vol. , cong. rec. - ; beard, the republic ( ) pp. - .] the president does not enlist in, and he is not inducted or drafted into the armed forces. nor, is he subject to court-martial or other military discipline. on the contrary, article ii, section of the constitution provides that 'the president, [vice president] and all civil officers of the united states shall be removed from office on impeachment for, and conviction of treason, bribery or other high crimes and misdemeanors.' * * * the last two war presidents, president wilson and president roosevelt, both clearly recognized the civilian nature of the president's position as commander in chief. president roosevelt, in his navy day campaign speech at shibe park, philadelphia, on october , , pronounced this principle as follows:--'it was due to no accident and no oversight that the framers of our constitution put the command of our armed forces under civilian authority. it is the duty of the commander in chief to appoint the secretaries of war and navy and the chiefs of staff.' it is also to be noted that the secretary of war, who is the regularly constituted organ of the president for the administration of the military establishment of the nation, has been held by the supreme court of the united states to be merely a civilian officer, not in military service. (united states _v._ burns, u.s. ( )). on the general principle of civilian supremacy over the military, by virtue of the constitution, it has recently been said: 'the supremacy of the civil over the military is one of our great heritages.' duncan _v._ kahanamoku, u.s. ( ), l.w. at page ."[ ] presidential advisers the cabinet the above provisions are the meager residue from a persistent effort in the federal convention to impose a council on the president.[ ] the idea ultimately failed, partly because of the diversity of ideas concerning the council's make-up. one member wished it to consist of "members of the two houses," another wished it to comprise two representatives from each of three sections, "with a rotation and duration of office similar to those of the senate." the proposal which had the strongest backing was that it should consist of the heads of departments and the chief justice of the supreme court, who should preside when the president was absent. of this proposal the only part to survive was the above cited provision. the consultative relation here contemplated is an entirely one-sided affair, is to be conducted with each principal officer separately and in writing, and to relate only to the duties of their respective offices.[ ] the _cabinet_, as we know it today, that is to say, the cabinet _meeting_, was brought about solely on the initiative of the first president, and may be dispensed with on presidential initiative at any time, being totally unknown to the constitution. several presidents have in fact reduced the cabinet meeting to little more than a ceremony with social trimmings.[ ] pardons and reprieves the legal nature of a pardon in the first case to be decided concerning the pardoning power, chief justice marshall, speaking for the court, said: "as this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. a pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. it is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. * * * a pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. it may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him." marshall thereupon proceeded to lay down the doctrine, that "a pardon is a deed to the validity of which delivery is essential, and delivery is not complete without acceptance"; and that to be noticed judicially this deed must be pleaded, like any private instrument.[ ] qualification of the above theory in the case of burdick _v._ united states,[ ] decided in , marshall's doctrine was put to a test that seems to have overtaxed it, perhaps fatally. burdick, having declined to testify before a federal grand jury on the ground that his testimony would tend to incriminate him, was proffered by president wilson "a full and unconditional pardon for all offenses against the united states" which he might have committed or participated in in connection with the matter he had been questioned about. burdick, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the supreme court. "the grace of a pardon," remarked justice mckenna sententiously, "may be only a pretense * * * involving consequences of even greater disgrace than those from which it purports to relieve. circumstances may be made to bring innocence under the penalties of the law. if so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, * * *"[ ] nor did the court give any attention to the fact that the president had accompanied his proffer to burdick with a proclamation, although a similar procedure had been held to bring president johnson's amnesties to the court's notice.[ ] in , however, in sustaining the right of the president to commute a sentence of death to one of life imprisonment, against the will of the prisoner, the court abandoned this view. "a pardon in our days," it said, "is not a private act of grace from an individual happening to possess power. it is a part of the constitutional scheme. when granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."[ ] whether these words sound the death knell of the acceptance doctrine is perhaps doubtful.[ ] they seem clearly to indicate that by substantiating a commutation order for a deed of pardon, a president can always have his way in such matters, provided the substituted penalty is authorized by law and does not in common understanding exceed the original penalty.[ ] scope of the power the power embraces all "offences against the united states," except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the treasury or paid an informer;[ ] also the power to pardon absolutely or conditionally; and includes the power to commute sentences, which, as seen above, is effective without the convict's consent.[ ] it has been held, moreover, in face of earlier english practice, that indefinite suspension of sentence by a court of the united states is an invasion of the presidential prerogative, amounting as it does to a condonation of the offense.[ ] it was early assumed that the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. general amnesties were issued by washington in , by adams in , by madison in , by lincoln in , by johnson in , , and , and by the first roosevelt--to aguinaldo's followers--in .[ ] not, however, till after the civil war was the point adjudicated, when it was decided in favor of presidential prerogative.[ ] "offenses against the united states"; contempt of court in the first place, such offenses are not offenses against the states. in the second place, they are completed offenses;[ ] the president cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws, his claim to which was the principal cause of james ii's forced abdication.[ ] lastly, the term has been held to include criminal contempts of court. such was the holding in ex parte grossman,[ ] where chief justice taft, speaking for the court, resorted once more to english conceptions as being authoritative in construing this clause of the constitution. said he: "the king of england before our revolution, in the exercise of his prerogative, had always exercised the power to pardon contempts of court, just as he did ordinary crimes and misdemeanors and as he has done to the present day. in the mind of a common law lawyer of the eighteenth century the word pardon included within its scope the ending by the king's grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both forms of trial for contempts were had. [citing cases.] these cases also show that, long before our constitution, a distinction had been recognized at common law between the effect of the king's pardon to wipe out the effect of a sentence for contempt in so far as it had been imposed to punish the contemnor for violating the dignity of the court and the king, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court's order necessary to secure the rights of the injured suitor. blackstone iv, , , ; hawkins pleas of the crown, th ed. ( ), vol. , . the same distinction, nowadays referred to as the difference between civil and criminal contempts, is still maintained in english law[ ]." nor was any new or special danger to be apprehended from this view of the pardoning power. "if," says the chief justice, "we could conjure up in our minds a president willing to paralyze courts by pardoning all criminal contempts, why not a president ordering a general jail delivery?" indeed, he queries further, in view of the peculiarities of procedure in contempt cases, "may it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial[ ]?" effects of a pardon; ex parte garland the great leading case is ex parte garland[ ] which was decided shortly after the civil war. by an act passed in congress had prescribed that before any person should be permitted to practice in a federal court he must take oath asserting that he had never voluntarily borne arms against the united states, had never given aid or comfort to enemies of the united states, and so on. garland, who had been a confederate sympathizer and so was unable to take the oath, had however received from president johnson the same year "a full pardon 'for all offences by him committed, arising from participation, direct or implied, in the rebellion,' * * *" the question before the court was whether, armed with this pardon, garland was entitled to practice in the federal courts despite the act of congress just mentioned. said justice field for a sharply divided court: "the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. a pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. if granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; [thereto], if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity."[ ] justice miller speaking for the minority protested that the act of congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice the law. "the man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counsellor at law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar."[ ] justice field's language must today be regarded as much too sweeping in light of a decision rendered in in the case of carlesi _v._ new york.[ ] carlesi had some years before been convicted of committing a federal offense. in the instant case the prisoner was being tried for a subsequent offense committed in new york. he was convicted as a second offender, although the president had pardoned him for the earlier federal offense. in other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent state offense. this conviction and sentence were upheld by the supreme court. while this case involved offenses against different sovereignties, the court declared by way of dictum that its decision "must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the united states in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted."[ ] limits to the efficacy of a pardon but justice field's latitudinarian view of the effect of a pardon undoubtedly still applies ordinarily where the pardon is issued _before conviction_. he is also correct in saying that a full pardon restores a _convict_ to his "civil rights," and this is so even though simple completion of the convict's sentence would not have had that effect. one such right is the right to testify in court, and in boyd _v._ united states the court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect.[ ] but a pardon cannot "make amends for the past. it affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. the offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. if, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. and if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. the rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. so, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the united states that they can only be secured to the former owner of the property through an act of congress. moneys once in the treasury can only be withdrawn by an appropriation by law."[ ] congress and amnesty congress cannot limit the effects of a presidential amnesty. thus the act of july , , making proof of loyalty necessary to recover property abandoned and sold by the government during the civil war, notwithstanding any executive proclamation, pardon, amnesty, or other act of condonation or oblivion, was pronounced void. said chief justice chase for the majority: "* * * the legislature cannot change the effect of such a pardon any more than the executive can change a law. yet this is attempted by the provision under consideration. the court is required to receive special pardons as evidence of guilt and to treat them as null and void. it is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. this certainly impairs the executive authority and directs the court to be instrumental to that end."[ ] on the other hand, congress may itself, under the necessary and proper clause, enact amnesty laws remitting penalties incurred under the national statutes,[ ] and may stipulate that witnesses before courts or other bodies qualified to take testimony shall not be prosecuted by the national government for any offenses disclosed by their testimony.[ ] clause . he shall have power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states, whose appointments are not herein otherwise provided for, and which shall be established by law: but the congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments. the treaty-making power president and senate the plan which the committee of detail reported to the federal convention on august , provided that "the senate of the united states shall have power to make treaties, and to appoint ambassadors, and judges of the supreme court."[ ] not until september , ten days before the convention's final adjournment, was the president made a participant in these powers.[ ] the constitutional clause evidently assumes that the president and senate will be associated throughout the entire process of making a treaty, although jay, writing in the federalist, foresaw that the initiative must often be seized by the president without benefit of senatorial counsel.[ ] yet so late as rufus king, senator from new york, who had been a member of the convention, declared on the floor of the senate: "in these concerns the senate are the constitutional and the only responsible counsellors of the president. and in this capacity the senate may, and ought to, look into and watch over every branch of the foreign affairs of the nation; they may, therefore, at any time call for full and exact information respecting the foreign affairs, and express their opinion and advice to the president respecting the same, when, and under whatever other circumstances, they may think such advice expedient."[ ] negotiation a presidential monopoly actually, the negotiation of treaties had long since been taken over by the president; the senate's role in relation to treaties is today essentially legislative in character.[ ] "he alone negotiates. into the field of negotiation, the senate cannot intrude; and congress itself is powerless to invade it," declared justice sutherland for the court in .[ ] the senate must, moreover, content itself with such information as the president chooses to furnish it.[ ] in performing the function that remains to it, however, it has several options. it may consent unconditionally to a proposed treaty, or it may refuse its consent, or it may stipulate conditions in the form of amendments to the treaty or of reservations to the act of ratification, the difference between the two being that, whereas amendments, if accepted by the president and the other party or parties to the treaty,[ ] change it for all parties, reservations limit only the obligations of the united states thereunder. the act of ratification for the united states is the president's act, but may not be forthcoming unless the senate has consented to it by the required two-thirds of the senators present, which signifies two-thirds of a quorum, otherwise the consent rendered would not be that of the senate as organized under the constitution to do business.[ ] conversely, the president may, if dissatisfied with amendments which have been affixed by the senate to a proposed treaty or with the conditions stipulated by it to ratification, decide to abandon the negotiation, which he is entirely free to do.[ ] treaties as law of the land treaty commitments of the united states are of two kinds. in the language of chief justice marshall in ; "a treaty is, in its nature, a contract between two nations, not a legislative act. it does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. in the united states, a different principle is established. our constitution declares a treaty to be the law of the land. it is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. but when the terms of the stipulation import a contract--when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court."[ ] to the same effect, but more accurate, is justice miller's language for the court a half century later, in head money cases: "a treaty is primarily a compact between independent nations. it depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. * * * but a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country."[ ] origin of the conception how did this distinctive feature of the constitution come about, by virtue of which the treaty-making authority is enabled to stamp upon its promises the quality of municipal law, thereby rendering them "self-executory," as it is said; in other words, enforceable by the courts? the answer is that article vi, paragraph was, at its inception, an outgrowth of a major weakness of the articles of confederation. although the articles entrusted the treaty-making power to congress, fulfillment of congress' promises was dependent on the state legislatures. the result was that two highly important articles of the treaty of peace of not only went unenforced, but were in some instances directly flouted by the local legislatures. these were articles iv and vi, which contained stipulations in favor, respectively, of british creditors of american citizens and of the former loyalists; in short of _private persons_. confronted with the reiterated protests of the british government, john jay, secretary of the united states for foreign affairs, suggested to congress late in that it request the state legislatures to repeal all legislation repugnant to the treaty of peace, and at the same time authorize their courts in all cases arising from the said treaty to decide and adjudge according to the true intent and meaning of the same, "anything in the said acts * * * to the contrary notwithstanding." on april , congress unanimously voted jay's proposal, which on the eve of the assembling of the federal convention was transmitted to the state legislatures, by seven of which it was promptly adopted.[ ] treaty rights versus state power the first case to arise under article vi, clause , was ware _v._ hylton.[ ] the facts and bearing of the decision are indicated in the syllabus: "a debt, due before the war from an american to a british subject, was during the war, paid into the loan office of virginia, in pursuance of a law of that state of the th of december, , sequestering british property and providing that such payment, and a receipt therefor, should discharge the debt. held: that the legislature of virginia which from the th of july, , and before the confederation of the united states, * * * possessed and exercised all the rights of independent governments, had authority to make such law and that the same was obligatory, since every nation at war with another may confiscate all property of, including private debts due, the enemy. such payment and discharge would therefore be a bar to a subsequent action, unless the creditor's right was revived by the treaty of peace, by which alone the restitution of, or compensation for, british property confiscated during the war by any of the united states could only be provided for. held, that the fourth article of the treaty of peace between great britain and the united states, of september , , nullifies said law of virginia, destroys the payment made under it, and revives the debt, and gives a right of recovery against the principal debtor, notwithstanding such payment thereof, under the authority of state law." in hopkirk _v._ bell[ ] the court further held that this same treaty provision prevented the operation of a virginia statute of limitation to bar collection of antecedent debts. in numerous subsequent cases the court invariably ruled that treaty provisions supersede inconsistent state laws governing the right of aliens to inherit real estate.[ ] such a case was hauenstein _v._ lynham,[ ] in which the court upheld the right of a citizen of the swiss republic, under the treaty of with that country, to recover the estate of a relative dying intestate in virginia, to sell the same and to export the proceeds from the sale.[ ] recent cases certain more recent cases stem from california legislation, most of it directed against japanese immigrants. a statute which excluded aliens ineligible to american citizenship from owning real estate was upheld in on the ground that the treaty in question did not secure the rights claimed.[ ] but in oyama _v._ california,[ ] decided in , a majority of the court indicated a strongly held opinion that this legislation conflicted with the equal protection clause of amendment xiv, a view which has since received the endorsement of the california supreme court by a narrow majority.[ ] meantime, california was informed that the rights of german nationals, under the treaty of december , between the united states and the reich, to whom real property in the united states had descended or been devised, to dispose of it, had survived the recent war and certain war legislation, and accordingly prevailed over conflicting state legislation.[ ] when is a treaty self-executing? what is the scope of the power of american courts under article vi, clause , to lend ear to private claims based on treaty provisions, on the ground that such provisions are self-executing? jay had in mind certain intended victims of state legislation; and in fact the cases reviewed above all arose within the normal field of state legislative power. nevertheless, as early as , in united states _v._ schooner peggy,[ ] the supreme court, speaking by chief justice marshall, took notice of a treaty with france, executed after a court of admiralty had entered a final judgment condemning a captured french vessel, and finding it applicable to the situation before it, set the judgment aside and ordered the vessel restored to her owners. since that time the court has declared repeatedly in cases in which state law was not involved that when a treaty prescribes a rule by which private rights are to be determined, the courts are bound to take judicial notice thereof and to accept it as a rule of decision in any appropriate proceeding to enforce such rights.[ ] in short, whether a given treaty provision is self-executing is a question for the court; although it does not altogether lack guiding principles in deciding it, the most important of which is the doctrine of political questions.[ ] _see_ pp. , - . constitutional freedom of congress with respect to treaties from the foregoing two other questions arise: first, are there types of treaty provisions which only congress can put into effect? second, assuming an affirmative answer to the above question, is congress under constitutional obligation to supply such implementation? for such answer as exists to the first question resort must be had to the record of practice and nonjudicial opinion. the question arose originally in in connection with the jay treaty, certain provisions of which required appropriations to carry them into effect. in view of the third clause of article i, section of the constitution, which says that "no money shall be drawn from the treasury, but in consequence of appropriations made by law; * * *," it was universally agreed that congress must be applied to if the treaty provisions alluded to were to be put into execution. but at this point the second question arose, to the solution of which the court has subsequently contributed indirectly. (_see_ pp. - ). a bill being introduced into the house of representatives to vote the needed funds, supporters of the treaty, hamilton, chief justice ellsworth, and others, argued that the house must make the appropriation willy nilly; that the treaty, having been ratified by and with the advice and consent of the senate, was "supreme law of the land," and that the legislative branch was bound thereby no less than the executive and judicial branches.[ ] madison, a member of the house, opposed this thesis in a series of resolutions, the nub of which is comprised in the following statement: "when a treaty stipulates regulations on any of the subjects submitted by the constitution to the power of congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by congress. and it is the constitutional right and duty of the house of representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good."[ ] the upshot of the matter was that the house adopted madison's resolutions, while at the same time voting the required funds.[ ] the treaty-making power and revenue laws on the whole, madison's position has prospered. discussion whether there are other treaty provisions than those calling for an expenditure of money which require legislation to render them legally operative has centered chiefly on the question whether the treaty-making power can of itself alone modify the revenue laws. from an early date spokesmen for the house have urged that a treaty does not, and cannot, _ex proprio vigore_, become supreme law of the land on this subject; and while the senate has never conceded this claim formally, yet in a number of instances, "the treaty-making power has inserted in treaties negotiated by it and affecting the revenue laws of the united states, a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by congress, and the house has claimed that the insertion of such requirements has been, in substance, a recognition of its claim in the premises,"[ ] although there are judicial dicta which inferentially support the senate's position. latterly the question has become largely academic. commercial agreements nowadays are usually executive agreements contracted by authorization of congress itself. today the vital issue in this area of constitutional law is whether the treaty-making power is competent to assume obligations for the united states in the discharge of which the president can, without violation of his oath to support the constitution, involve the country in large scale military operations abroad without authorization by the war-declaring power, congress to wit. current military operations in korea appear to assume an affirmative answer to this question. congressional repeal of treaties it is in respect to his contention that when it is asked to carry a treaty into effect congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that madison has been most completely vindicated by developments. this is seen in the answer which the court has returned to the question, as to what happens when a treaty provision and an act of congress conflict. the answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail _leges posteriores priores contrarias abrogant_. in short, the treaty commitments of the united states in no wise diminish congress's constitutional powers. to be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. in such case, as the court has said, "its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. it is obvious that with all this the judicial courts have nothing to do and can give no redress."[ ] treaties _versus_ prior acts of congress the cases are numerous in which the court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements. how as to the converse situation? two early cases in which chief justice marshall spoke for the court, stand for the proposition that treaties, so far as self-executing, repeal earlier conflicting acts of congress. in the case of the "_peggy_,"[ ] certain statutory provisions dealing with the trial of prize cases were held to have been modified by a subsequent treaty with france; and in foster _v._. neilson,[ ] while holding--mistakenly as he later admitted[ ]--that the treaty of january , with spain was not self-executing with respect to certain land grants, he went on to say that if it had been it would have repealed acts of congress repugnant to it. with one exception, however, judicial dicta which reiterate this idea are obiter, and are disparaged by willoughby, as follows: "in fact, however, there have been few (the writer is not certain that there have been any) instances in which a treaty inconsistent with a prior act of congress has been given full force and effect as law in this country without the assent of congress. there may indeed have been cases in which, by treaty, certain action has been taken without reference to existing federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject. furthermore, with specific reference to commercial arrangements with foreign powers, congress has explicitly denied that a treaty can operate to modify the arrangements which it, by statute, has provided, and, in actual practice, has in every instance succeeded in maintaining this point."[ ] the single exception just alluded to is cook _v._ united states,[ ] which may be regarded as part of the aftermath of national prohibition. here a divided court, speaking by justice brandeis, ruled that the authority conferred by § of the tariff act of and its reenactment in the tariff act of , upon officers of the coast guard to stop and board any vessel at any place within four leagues ( miles) of the coast of the united states and to seize the vessel, if upon examination it shall appear that any violation of the law has been committed by reason of which the vessel or merchandise therein is liable to forfeiture, is, as respects british vessels suspected of being engaged in attempting to import alcoholic beverages into the united states in violation of its laws, modified by the treaty of may , , between the united states and great britain, so as to allow seizure of such vessels only within the distance from the coast which can be traversed in one hour by the vessel suspected of endeavoring to commit the offense.[ ] only one case is cited in support of the proposition that the treaty, being of later date than the act of congress, superseded it so far as they were in conflict. this is whitney _v._ robertson,[ ] in which an act of congress was held to have superseded conflicting provisions of a prior treaty. moreover, the act of congress involved in the cook case had, as above indicated, been reenacted subsequently to the treaty involved. the decision actually accomplishes the singular result of reversing the maxim _leges posteriores_. it may be suspected that it was devised to avoid a diplomatic controversy which in the low estate of prohibition at that date would not have been worthwhile.[ ] interpretation and termination of treaties as international compacts the repeal by congress of the "self-executing" clauses of a treaty as "law of the land" does not of itself terminate the treaty as an international contract, although it may very well provoke the other party to the treaty to do so. hence the question arises of where the constitution lodges this power; also the closely related question of where it lodges the power to interpret the contractual provisions of treaties. the first case of outright abrogation of a treaty by the united states occurred in , when congress, by the act of july of that year, pronounced the united states freed and exonerated from the stipulations of the treaties of with france.[ ] this act was followed two days later by one authorizing limited hostilities against the same country; and in the case of bas _v._ tingy[ ] the supreme court treated the act of abrogation as simply one of a bundle of acts declaring "public war" upon the french republic. termination of treaties by notice the initial precedent in the matter of termination by notice occurred in , when by the joint resolution of april , congress authorized the president at his discretion to notify the british government of the abrogation of the convention of august , , relative to the joint occupation of the oregon territory. as the president himself had requested the resolution, the episode supports the theory that international conventions to which the united states is party, even those terminable on notice, are terminable only by act of congress.[ ] subsequently congress has often passed resolutions denouncing treaties or treaty provisions which by their own terms were terminable on notice, and presidents have usually carried out such resolutions, though not invariably.[ ] by the la follette-furuseth seamen's act, approved march , ,[ ] president wilson was directed, "within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties," and the required notice was given.[ ] when, however, by section of the jones merchant marine act of the same president was authorized and directed within ninety days to give notice to the other parties to certain treaties, which the act infracted, of the termination thereof, he refused to comply, asserting that he "did not deem the direction contained in section * * * an exercise of any constitutional power possessed by congress."[ ] the same intransigent attitude was continued by presidents harding and coolidge. determination whether a treaty has lapsed at the same time, there is clear judicial recognition that the president may without consulting congress validly determine the question whether specific treaty provisions have lapsed. the following passage from justice lurton's opinion in charlton _v._ kelly[ ] is pertinent: "if the attitude of italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the united states in denouncing the treaty as no longer obligatory, it did not automatically have that effect. if the united states elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. it was only voidable, not void; and if the united states should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach. * * * that the political branch of the government recognizes the treaty obligation as still existing is evidenced by its action in this case. * * * the executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition."[ ] so also it is primarily for the political departments to determine whether certain provisions of a treaty have survived a war in which the other contracting state ceased to exist as a member of the international community.[ ] status of a treaty a political question all in all, it would seem that the vast weight both of legislative practice and of executive opinion supports the proposition that the power of terminating outright international compacts to which the united states is party belongs, as a prerogative of sovereignty, to congress alone, but that the president may, as an incident of his function of interpreting treaties preparatory to enforcing them, sometimes authoritatively find that a treaty contract with another power has or has not been breached by the latter and whether, for that reason, it is or is not longer binding on the united states.[ ] at any rate, it is clear that any such questions which arise concerning a treaty are of a political nature and will not be decided by the courts. in the words of justice curtis in taylor _v._ morton:[ ] it is not "a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise. * * * these powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. they belong to diplomacy and legislation, and not to the administration of existing laws. and it necessarily follows, that if they are denied to congress and the executive, in the exercise of their legislative power, they can be found nowhere, in our system of government." chief justice marshall's language in foster _v._ neilson[ ] is to the same effect. treaties and the necessary and proper clause what power, or powers, does congress exercise when it enacts legislation for the purpose of carrying treaties of the united states into effect? when the subject matter of the treaty falls within the ambit of congress's enumerated powers (those listed in the first clauses of article i, section of the constitution), then it is these powers which it exercises in carrying such treaty into effect. but if the treaty deals with a subject which falls normally to the states to legislate upon, or a subject which falls within the national jurisdiction because of its international character, then recourse is had to the necessary and proper clause. thus, of itself, congress would have no power to confer judicial powers upon foreign consuls in the united states, but the treaty-power can do this and has done it repeatedly and congress has supplemented these treaties by appropriate legislation.[ ] again, congress could not confer judicial power upon american consuls abroad to be there exercised over american citizens, but the treaty-power can and has, and congress has passed legislation perfecting such agreements and such legislation has been upheld.[ ] again, congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and congress has passed legislation carrying our extradition treaties into effect.[ ] again, congress could not ordinarily penalize private acts of violence within a state, but it can punish such acts if they deprive aliens of their rights under a treaty.[ ] referring to such legislation the court has said: "the power of congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section of article i of the constitution, as all others vested in the government of the united states, or in any department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the president by and with the advice and consent of the senate to insert in a treaty with a foreign power."[ ] in a word, the treaty-power cannot purport to amend the constitution by adding to the list of congress's enumerated powers, but having acted, the consequence will often be that it has provided congress with an opportunity to enact measures which independently of a treaty congress could not pass; and the only question that can be raised as to such measures will be whether they are "necessary and proper" measures for the carrying of the treaty in question into operation. the matter is further treated under the next heading. constitutional limits of the treaty-making power; missouri _v._ holland our system being theoretically opposed to the lodgement anywhere in government of unlimited power, the question of the scope of this exclusive power has often been pressed upon the court, which has sometimes used language vaguely suggestive of limitation, as in the following passage from justice field's opinion for the court in geofroy _v._ riggs,[ ] which was decided in : "the treaty power, as expressed in the constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the states. it would not be contended that it extends so far as to authorize what the constitution forbids, or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. * * * but with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."[ ] the fact is none the less, that no treaty of the united states nor any provision thereof has ever been found by the court to be unconstitutional. the most persistently urged proposition in limitation of the treaty-making power has been that it must not invade certain reserved powers of the states. in view of the sweeping language of the supremacy clause, it is hardly surprising that this argument has not prevailed.[ ] nevertheless, the court was forced to answer it as recently as . this was in the case of missouri _v._ holland,[ ] in which the court sustained a treaty between the united states and great britain providing for the reciprocal protection of migratory birds which make seasonal flights from canada into the united states and vice versa, and an act of congress passed in pursuance thereof which authorized the department of agriculture to draw up regulations to govern the hunting of such birds, subject to the penalties specified by the act. to the objection that the treaty and implementing legislation invaded the acknowledged police power of the state in the protection of game within its borders, justice holmes, speaking for the court, answered: "acts of congress are the supreme law of the land only when made in pursuance of the constitution, while treaties are declared to be so when made under the authority of the united states. it is open to question whether the authority of the united states means more than the formal acts prescribed to make the convention. we do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. it is obvious that there may be matters of the sharpest exigency for the national well being that an act of congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found. (andrews _v._ andrews, u.s. , ( )). what was said in that case with regard to the powers of the states applies with equal force to the powers of the nation in cases where the states individually are incompetent to act. * * * the treaty in question does not contravene any prohibitory words to be found in the constitution. the only question is whether it is forbidden by some invisible radiation from the general terms of the tenth amendment. we must consider what this country has become in deciding what that amendment has reserved."[ ] and again: "here a national interest of very nearly the first magnitude is involved. it can be protected only by national action in concert with that of another power. the subject-matter is only transitorily within the state and has no permanent habitat therein. but for the treaty and the statute there soon might be no birds for any powers to deal with. we see nothing in the constitution that compels the government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. it is not sufficient to rely upon the states. the reliance is vain, and were it otherwise, the question is whether the united states is forbidden to act. we are of opinion that the treaty and statute must be upheld."[ ] justice sutherland's later assertion in the curtiss-wright case[ ] that the powers "to declare and wage war, to conclude peace, to make treaties," etc., belong to "the federal government as the necessary concomitants of nationality" leaves even less room for the notion of a limited treaty-making power, as indeed appears from his further statement that "as a member of the family of nations, the right and power of the united states * * * are equal to the right and power of the other members of the international family."[ ] no doubt there are specific limitations in the constitution in favor of private rights which "go to the roots" of all power. but these do not include the reserved powers of the states; nor do they appear to limit the national government in its choice of matters concerning which it may treat with other governments.[ ] indian treaties in the early cases of cherokee nation _v._ georgia[ ] and worcester _v._ georgia[ ] the court, speaking by chief justice marshall, held, first, that the cherokee nation was not a foreign state within the meaning of that clause of the constitution which extends the judicial power of the united states to controversies "between a state or the citizens thereof and foreign states, citizens or subjects"; secondly, that: "the constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, had adopted and sanctioned the previous treaties with the indian nations, and consequently admits their rank among those powers who are capable of making treaties. the words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. we have applied them to indians, as we have applied them to the other nations of the earth. they are applied to all in the same sense."[ ] later cases established that the power to make treaties with the indian tribes was coextensive with the power to make treaties with foreign nations;[ ] that the states were incompetent to interfere with rights created by such treaties;[ ] that as long as the united states recognized the national character of a tribe, its members were under the protection of treaties and of the laws of congress and their property immune from taxation by a state;[ ] that a stipulation in an indian treaty that laws forbidding the introduction of liquors into indian territory was operative without legislation, and binding on the courts although the territory was within an organized county of the states;[ ] that an act of congress contrary to a prior indian treaty repealed it.[ ] present status of indian treaties today indian treaties is a closed account in the constitutional law ledger. by a rider inserted in the indian appropriation act of march , it was provided "that hereafter no indian nation or tribe within the territory of the united states shall be acknowledged or recognized as an independent nation, tribe, or power with whom the united states may contract by treaty: _provided, further_, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such indian nation or tribe."[ ] subsequently, the power of congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld. thus the admission of wyoming as a state was found to abrogate, _pro tanto_, a treaty guaranteeing certain indians the right to hunt on unoccupied lands of the united states so long as game may be found thereon and to bring hunting by the indians within the police power of the state.[ ] similarly, statutes modifying rights of members in tribal lands,[ ] granting a right of way for a railroad through lands ceded by treaty to an indian tribe,[ ] or extending the application of revenue laws respecting liquor and tobacco over indian territories, despite an earlier treaty exemption,[ ] have been sustained. when, on the other hand, definite property rights have been conferred upon individual indians, whether by treaty or under an act of congress, they are protected by the constitution to the same extent and in the same way as the private rights of other residents or citizens of the united states. hence it was held that certain indian allottees under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period, acquired vested rights of exemption from state taxation which were protected by the fifth amendment against abrogation by congress.[ ] international agreements without senate approval the capacity of the united states to enter into agreements with other nations is not exhausted in the treaty-making power. the constitution recognizes a distinction between "treaties" and "agreements" or "compacts," but does not indicate what the difference is; and what difference there once may have been has been seriously blurred in practice within recent decades. the president's power to enter into agreements or compacts with other governments without consulting the senate must be referred to his powers as organ of foreign relations and as commander in chief. from an early date, moreover, congress has authorized executive agreements within the field of its powers, postal agreements, trade-mark and copyright agreements, reciprocal trade agreements. executive agreements may also stem from treaties.[ ] routine executive agreements many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in story's words, "the mere private rights of sovereignty."[ ] crandall lists scores of such agreements entered into with other governments by the authorization of the president.[ ] such agreements are ordinarily directed to particular and comparatively trivial disputes and by the settlement the effect of these cease _ipso facto_ to be operative. also there are such time-honored diplomatic devices as the "protocol" which marks a stage in the negotiation of a treaty, and the _modus vivendi_, which is designed to serve as a temporary substitute for one. executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country's destiny. within recent decades, in consequence particularly of our participation in world war ii and our immersion in the conditions of international tension which have prevailed both before and after this war, presidents have entered into agreements with other governments some of which have approximated temporary alliances. it cannot be justly said, however, that in so doing they have acted without considerable support from precedent. law-making executive agreements an early instance of executive treaty-making was the agreement by which president monroe in brought about a delimitation of armaments on the great lakes. the arrangement was effected by an exchange of notes, which nearly a year later was laid before the senate with a query as to whether it was within the president's power, or whether advice and consent of the senate were required. the senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the president without there having been a formal exchange of ratifications.[ ] of a kindred type, and owing much to the president's capacity as commander in chief, was a series of agreements entered into with mexico between and according each country the right to pursue marauding indians across the common border.[ ] commenting on such an agreement, the court remarked, a bit uncertainly: "while no act of congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the president as commander in chief of the military and naval forces of the united states. it may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect."[ ] justice gray and three other justices were of the opinion that such action by the president must rest upon express treaty or statute.[ ] president mckinley's contribution notable expansion of presidential power in this field first became manifest in the administration of president mckinley. at the outset of war with spain the president proclaimed that the united states would consider itself bound for the duration by the last three principles of the declaration of paris, a course which, as professor wright observes, "would doubtless go far toward establishing these three principles as international law obligatory upon the united states in future wars."[ ] hostilities with spain were brought to an end in august by an armistice the conditions of which largely determined the succeeding treaty of peace,[ ] just as did the armistice of november , , determine in great measure the conditions of the final peace with germany in . it was also president mckinley who in , relying on his own sole authority as commander in chief, contributed a land force of , men and a naval force to cooperate with similar contingents from other powers to rescue the legations in peking from the boxers; and a year later, again without consulting either congress or the senate, accepted for the united states the boxer indemnity protocol between china and the intervening powers.[ ] commenting on the peking protocol willoughby quotes with approval the following remark: "this case is interesting, because it shows how the force of circumstances compelled us to adopt the european practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character. * * *, purely political treaties are, under constitutional practice in europe, usually made by the executive alone. the situation in china, however, abundantly justified president mckinley in not submitting the protocol to the senate. the remoteness of pekin, the jealousies between the allies, and the shifting evasive tactics of the chinese government, would have made impossible anything but an agreement on the spot."[ ] executive agreements affecting far eastern relations it was during this period, too, that john hay, as mckinley's secretary of state, initiated his "open door" policy, by notes to great britain, germany, and russia, which were soon followed by similar notes to france, italy and japan. these in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in china at the expense of any of the others; and all responded favorably.[ ] then in the first roosevelt, seeking to arrive at a diplomatic understanding with japan, instigated an exchange of opinions between secretary of war taft, then in the far east, and count katsura, amounting to a secret treaty, by which the roosevelt administration assented to the establishment by japan of a military protectorate in korea.[ ] three years later secretary of state root and the japanese ambassador at washington entered into the root-takahira agreement to uphold the status quo in the pacific and maintain the principle of equal opportunity for commerce and industry in china.[ ] meantime, in , by a "gentlemen's agreement," the mikado's government had agreed to curb the emigration of japanese subjects to the united states, thereby relieving the washington government from the necessity of taking action that would have cost japan loss of face. the final of this series of executive agreements touching american relations in and with the far east was the product of president wilson's diplomacy. this was the lansing-ishii agreement, embodied in an exchange of letters dated november , , by which the united states recognized japan's "special interests" in china, and japan assented to the principle of the open door in that country.[ ] the international obligation of executive agreements the question naturally suggests itself: what sort of obligation does an agreement of the above description impose upon the united states? the question was put to secretary lansing himself in by a member of the foreign relations committee, as follows: "has the so-called lansing-ishii agreement any binding force on this country?" and replied that it had not; that it was simply a declaration of american policy so long as the president or state department might choose to continue it.[ ] actually, it took the washington conference of , two solemn treaties and an exchange of notes to get rid of it; while the "gentlemen's agreement," first drawn in , was finally put an end to, after seventeen years, only by an act of congress.[ ] that executive agreements are sometimes cognizable by the courts was indicated earlier. the matter is further treated immediately below. the litvinov agreement of the executive agreement attained its fullest development as an instrument of foreign policy under president franklin d. roosevelt, even at times threatening to replace the treaty-making power, if not formally yet actually, as a determinative element in the field of foreign policy. mr. roosevelt's first important utilization of the executive agreement device took the form of an exchange of notes on november , with maxim m. litvinov, people's commissar for foreign affairs, whereby american recognition was extended to the union of soviet socialist republics in consideration of certain pledges, the first of which was the promise to restrain any persons or organizations "under its direct or indirect control, * * *, from any act overt or covert liable in any way whatsoever to injure the tranquillity, prosperity, order, or security of the whole or any part of the united states, * * *"[ ] united states _v._ belmont the litvinov agreement is also noteworthy for giving rise to two cases which afforded the court the opportunity to evaluate the executive agreement in terms of constitutional law. the earlier of these was united states _v._ belmont,[ ] decided in . the point at issue was whether a district court of the united states was free to dismiss an action by the united states, as assignee of the soviet government, for certain moneys which were once the property of a russian metal corporation whose assets had been appropriated by the soviet government. the court, speaking by justice sutherland, said "no." the president's act in recognizing the soviet government, and the accompanying agreements, constituted, said the justice, an international compact which the president, "as the sole organ" of international relations for the united states, was authorized to enter upon without consulting the senate. nor did state laws and policies make any difference in such a situation; for while the supremacy of treaties is established by the constitution in express terms, yet the same rule holds "in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states."[ ] united states _v._ pink; national supremacy in the united states _v._ pink,[ ] decided five years later, the same course of reasoning was reiterated with added emphasis. the question here involved was whether the united states was entitled under the executive agreement of to recover the assets of the new york branch of a russian insurance company. the company argued that the decrees of confiscation of the soviet government did not apply to its property in new york, and could not consistently with the constitution of the united states and that of new york. the court, speaking by justice douglas, brushed these arguments aside. an official declaration of the russian government itself settled the question of the extraterritorial operation of the russian decree of nationalization and was binding on american courts. the power to remove such obstacles to full recognition as settlement of claims of our nationals was "a modest implied power of the president who is the 'sole organ of the federal government in the field of international relations' * * * it was the judgment of the political department that full recognition of the soviet government required the settlement of outstanding problems including the claims of our nationals. * * * we would usurp the executive function if we held that that decision was not final and conclusive on the courts. 'all constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature, * * *'[ ] * * * it is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the states of this nation unless clearly necessary to effectuate the national policy.[ ] but state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement.[ ] then, the power of a state to refuse enforcement of rights based on foreign law which runs counter to the public policy of the form * * * must give way before the superior federal policy evidenced by a treaty or international compact or agreement.[ ] * * * the action of new york in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of soviet russia. such power is not accorded a state in our constitutional system. to permit it would be to sanction a dangerous invasion of federal authority. for it would 'imperil the amicable relations between governments and vex the peace of nations.'[ ] * * * it would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish. * * * no state can rewrite our foreign policy to conform to its own domestic policies. power over external affairs is not shared by the states; it is vested in the national government exclusively. it need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees. and the policies of the states become wholly irrelevant to judicial inquiry when the united states, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts." and while "aliens as well as citizens are entitled to the protection of the fifth amendment," that amendment did not bar the federal government "from securing for itself and our nationals priority [against] creditors who are nationals of foreign countries and whose claims arose abroad."[ ] the hull-lothian agreement, the fall of france in june inspired president roosevelt to enter the following summer into two executive agreements the total effect of which was to transform the role of the united states from one of strict neutrality toward the war then waging in europe to one of semi-belligerency. the first of these agreements was with canada, and provided that a permanent joint board on defense was to be set up at once by the two countries which would "consider in the broad sense the defense of the north half of the western hemisphere."[ ] the second, and more important agreement, was the hull-lothian agreement of september , , under which, in return for the lease to it for ninety-nine years of certain sites for naval bases in the british west atlantic, our government handed over to the british government fifty over-age destroyers which had been recently reconditioned and recommissioned.[ ] the transaction, as justified in an opinion by the attorney general, amounted to a claim for the president, in his capacity as commander in chief and organ of foreign relations, to dispose of property of the united states, although the only power to do this which the constitution mentions is that which it assigns to congress.[ ] on april , , the state department, in consideration of the fact that germany had, on april , , occupied denmark, entered into an executive agreement with the danish minister at washington, whereby the united states acquired the right to occupy greenland for the duration, for purposes of defense.[ ] wartime agreements that the post-war diplomacy of the united states has been greatly influenced by such executive agreements as those which are associated with cairo, teheran, malta, and potsdam, is evident.[ ] the executive agreement thus became, in an era in which the instability of international relations forbade successful efforts at treaty-making, the principal instrument of presidential initiative in the field of foreign relations. whether the united nations charter and the atlantic pact signalize the end of this era will doubtless appear in due course. executive agreements by authorization of congress "the first known use of the executive agreement under the constitution of the united states," writes dr. mcclure, "was for the development of international communication by means of the postal service. the second congress, in establishing the post office, which had theretofore been dealt with through legislation carrying it on from year to year, enacted that 'the postmaster general may make arrangements with the postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post-offices.' it was further provided that this act, of february , , should 'be in force for the term of two years, from the * * * first day of june next, and no longer.'"[ ] reciprocal trade agreements under later legislation executive agreements, or what in effect were such, have been authorized by which american patents, copyrights, and trade-marks have secured protection abroad in return for like protection by the united states of similar rights of foreign origin.[ ] but the most copious source of executive agreements has been legislation which provided basis for reciprocal trade agreements, with other countries.[ ] the culminating act of this species was that of june , , which provided, in part, as follows: "* * *, the president, whenever he finds as a fact that any existing duties or other import restrictions of the united states or any foreign country are unduly burdening and restricting the foreign trade of the united states and that the purpose above declared will be promoted by the means hereinafter specified, is authorized from time to time--'( ) to enter into foreign trade agreements with foreign governments or instrumentalities thereof'; and '( ) to proclaim such modifications of existing duties and other import restrictions, or such additional import restrictions, or such continuance, and for such minimum periods, of existing customs or excise treatment of any article covered by foreign trade agreements, as are required or appropriate to carry out any foreign trade agreement that the president has entered into hereunder. no proclamation shall be made increasing or decreasing by more than per centum any existing rate of duty or transferring any article between the dutiable and free lists.'"[ ] this act, renewed at three-year intervals, is still in effect, and under it many trade agreements were negotiated by former secretary of state hull. the constitutionality of trade agreements in field _v._ clark,[ ] decided in this type of legislation was sustained against the objection that it attempted an unconstitutional delegation "of both legislative and treaty-making powers." the court met the first objection with an extensive review of similar legislation from the inauguration of government under the constitution. the second objection it met with the court statement that, "what has been said is equally applicable to the objection that the third section of the act invests the president with treaty-making power. the court is of opinion that the third section of the act of october , , is not liable to the objection that it transfers legislative and treaty-making power to the president."[ ] although two justices disagreed, the question has never been revived. however, in altman and co. _v._ united states,[ ] decided twenty years later, a collateral question was passed upon. this was whether an act of congress which gave the federal circuit courts of appeal jurisdiction of cases in which "the validity or construction of any treaty, * * *, was drawn in question" embraced a case involving a trade agreement which had been made under the sanction of the tariff act of . said the court: "while it may be true that this commercial agreement, made under authority of the tariff act of , § , was not a treaty possessing the dignity of one requiring ratification by the senate of the united states, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the president. if not technically a treaty requiring ratification, nevertheless it was a compact authorized by the congress of the united states, negotiated and proclaimed under the authority of its president. we think such a compact is a treaty under the circuit court of appeals act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court."[ ] the lend-lease act the most extensive delegation of authority ever made by congress to the president to enter into executive agreements occurred within the field of the cognate powers of the two departments, the field of foreign relations; and took place at a time when war appeared to be in the offing, and was in fact only a few months away. the legislation referred to was the lend-lease act of march , [ ] by which the president was empowered for something over two years--and subsequently for additional periods whenever he deemed it in the interest of the national defense to do so, to authorize "the secretary of war, the secretary of the navy, or the head of any other department or agency of the government," to manufacture in the government arsenals, factories, and shipyards, or "otherwise procure," to the extent that available funds made possible, "defense articles"--later amended to include foodstuffs and industrial products--and "sell, transfer title to, exchange, lease, lend, or otherwise dispose of," the same to the "government of any country whose defense the president deems vital to the defense of the united states," and on any terms that he "deems satisfactory." under this authorization the united states entered into mutual aid agreements whereby the government furnished its allies in the recent war forty billions of dollars worth of munitions of war and other supplies. president plus congress versus senate the partnership which has developed within recent decades between the president and congress within the field of their cognate powers is also illustrated by the act of february , , creating a commission to effect agreements respecting debts owed this country by certain other governments, the resulting agreements to be approved by congress;[ ] by the circumstances attending the drawing up in of the united nations relief and rehabilitation convention;[ ] by the joint resolution of june , , by which the president was authorized to accept membership for the united states in the international labor office.[ ] it is altogether apparent in view of developments like these that the executive agreement power, especially when it is supported by congressional legislation, today overlaps the treaty-making power. arbitration agreements in - secretary of state john hay negotiated a series of treaties providing for the general arbitration of international disputes. article ii of the treaty with great britain, for example, provided as follows: "in each individual case the high contracting parties, before appealing to the permanent court of arbitration, shall conclude a special agreement defining clearly the matter in dispute and the scope of the powers of the arbitrators, and fixing the periods for the formation of the arbitral tribunal and the several stages of the procedure."[ ] the senate approved the british treaty by the constitutional majority having, however, first amended it by substituting the word "treaty" for "agreement." president theodore roosevelt, characterizing the "ratification" as equivalent to rejection, sent the treaties to repose in the archives. "as a matter of historical practice," dr. mcclure comments, "the _compromis_ under which disputes have been arbitrated include both treaties and executive agreements in goodly numbers,"[ ] a statement supported by both willoughby and moore.[ ] agreements under the united nations charter article of the united nations charter provides: " . all members of the united nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the security council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. . such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. . the agreement or agreements shall be negotiated as soon as possible on the initiative of the security council. they shall be concluded between the security council and members or between the security council and groups of members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes."[ ] this time the senate did not boggle over the word "agreement." the united nations participation act the united nations participation act of december , implements these provisions as follows: "the president is authorized to negotiate a special agreement or agreements with the security council which shall be subject to the approval of the congress by appropriate act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the security council on its call for the purpose of maintaining international peace and security in accordance with article of said charter. the president shall not be deemed to require the authorization of the congress to make available to the security council on its call in order to take action under article of said charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: _provided_, that nothing herein contained shall be construed as an authorization to the president by the congress to make available to the security council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements."[ ] the executive establishment "office" "an office is a public station, or employment, conferred by the appointment of government," and "embraces the ideas of tenure duration, emolument, and duties."[ ] "ambassadors and other public ministers" the term "ambassadors and other public ministers," comprehends "all officers having diplomatic functions, whatever their title or designation."[ ] it was originally assumed that such offices were established by the constitution itself, by reference to the law of nations, with the consequence that appointments might be made to them whenever the appointing authority--the president and senate--deemed desirable.[ ] during the first sixty-five years of the government congress passed no act purporting to create any diplomatic rank, the entire question of grades being left with the president. indeed, during the administrations of washington, adams and jefferson, and the first term of madison, no mention occurs in any appropriation act even, of ministers of a specified rank at this or that place, but the provision for the diplomatic corps consisted of so much money "for the expenses of foreign intercourse," to be expended at the discretion of the president. in madison's second term the practice was introduced of allocating special sums to the several foreign missions maintained by the government, but even then the legislative provisions did not purport to curtail the discretion of the president in any way in the choice of diplomatic agents. in , however, when president madison appointed, during a recess of the senate, the commissioners who negotiated the treaty of ghent the theory on which the above legislation was based was drawn into question. inasmuch, it was argued, as these offices had never been established by law, no vacancy existed to which the president could constitutionally make a recess appointment. to this argument it was answered that the constitution recognizes "two descriptions of offices altogether different in their nature, authorized by the constitution--one to be created by law, and the other depending for their existence and continuance upon contingencies. of the first kind, are judicial, revenue, and similar offices. of the second, are ambassadors, other public ministers, and consuls. the first description organize the government and give it efficacy. they form the internal system, and are susceptible of precise enumeration. when and how they are created, and when and how they become vacant, may always be ascertained with perfect precision. not so with the second description. they depend for their original existence upon the law, but are the offspring of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. as an independent power, the united states have relations with all other independent powers; and the management of those relations is vested in the executive."[ ] by the opening section of the act of march , , it was provided that "from and after the thirtieth day of june next, the president of the united states shall, by and with the advice and consent of the senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary," with a specified annual compensation for each, "to the following countries, * * *" in the body of the act was also this provision: "the president shall appoint no other than citizens of the united states, who are residents thereof, or who shall be abroad in the employment of the government at the time of their appointment, * * *."[ ] the question of the interpretation of the act having been referred to attorney general cushing, he ruled that its total effect, aside from its salary provisions, was recommendatory only. it was "to say, that if, and whenever, the president shall, by and with the advice and consent of the senate, appoint an envoy extraordinary and minister plenipotentiary to great britain, or to sweden, the compensation of that minister shall be so much and no more."[ ] this line of reasoning is today only partially descriptive of facts. the act of march , , provides that new ambassadorships may be created only with the consent of congress,[ ] while the foreign service act of [ ] organizes the foreign service, both its diplomatic and its consular divisions, in detail as to grades, salaries, appointments, promotions, and in part as to duties. theoretically the act leaves the power of the president and senate to appoint consular and diplomatic officials intact, but in practice the vast proportion of the selections are made in conformance with the civil service rules. presidential diplomatic agents what the president may have lost in consequence of the intervention of congress in this field, he has made good through his early conceded right to employ, in the discharge of his diplomatic function, so-called "special," "personal," or "secret" agents without consulting the senate. when president jackson's right to resort to this practice was challenged in the senate in , it was defended by edward livingston, senator from louisiana, to such good purpose that jackson made him secretary of state. "the practice of appointing secret agents," said livingston, "is coeval with our existence as a nation, and goes beyond our acknowledgment as such by other powers. all those great men who have figured in the history of our diplomacy, began their career, and performed some of their most important services in the capacity of secret agents, with full powers. franklin, adams, lee, were only commissioners; and in negotiating a treaty with the emperor of morocco, the selection of the secret agent was left to the ministers appointed to make the treaty; and, accordingly, in the year , mr. adams and mr. jefferson appointed thomas barclay, who went to morocco and made a treaty, which was ratified by the ministers at paris. "these instances show that, even prior to the establishment of the federal government, secret plenipotentiaries were known, as well in the practice of our own country as in the general law of nations: and that these secret agents were not on a level with messengers, letter-carriers, or spies, to whom it has been found necessary in argument to assimilate them. on the th march, , in the recess of the senate, by letters patent under the great broad seal of the united states, and the signature of their president, (that president being george washington,) countersigned by the secretary of state, david humphreys was appointed commissioner plenipotentiary for negotiating a treaty of peace with algiers. by instructions from the president, he was afterwards authorized to employ joseph donaldson as agent in that business. in may, of the same year, he did appoint donaldson, who went to algiers, and in september of the same year concluded a treaty with the dey and divan, which was confirmed by humphreys, at lisbon, on the th november in the same year, and afterwards ratified by the senate on the ---- day of ----, , and an act passed both houses on th may, , appropriating a large sum, twenty-five thousand dollars annually, for carrying it into effect."[ ] the precedent afforded by humphrey's appointment without reference to the senate has since been multiplied many times, as witness the mission of a. dudley mann to hanover and other german states in , of the same gentleman to hungary in , of nicholas trist to mexico in , of commodore perry to japan in , of j.h. blount to hawaii in .[ ] the last named case is perhaps the extremest of all. blount, who was appointed while the senate was in session but without its advice and consent, was given "paramount authority" over the american resident minister at hawaii and was further empowered to employ the military and naval forces of the united states, if necessary to protect american lives and interests. his mission raised a vigorous storm of protest in the senate, but the majority report of the committee which was created to investigate the constitutional question vindicated the president in the following terms: "a question has been made as to the right of the president of the united states to dispatch mr. blount to hawaii as his personal representative for the purpose of seeking the further information which the president believed was necessary in order to arrive at a just conclusion regarding the state of affairs in hawaii. many precedents could be quoted to show that such power has been exercised by the president on various occasions, without dissent on the part of congress or the people of the united states. * * * these precedents also show that the senate of the united states, though in session, need not be consulted as to the appointment of such agents, * * *"[ ] for recent decades the continued vitality of the practice is attested by such names as colonel house, late norman h. davis, who filled the role of "ambassador at large" for a succession of administrations of both parties, and professor philip jessup, mr. averell harriman, and other "ambassadors at large" of the truman administration. how is this practice to be squared with the express words of the constitution? apparently, by stressing the fact that such appointments or designations are ordinarily merely temporary and for special tasks, and hence do not fulfill the tests of "office" in the strict sense. (_see_ p. ). in the same way the not infrequent practice of presidents of appointing members of congress as commissioners to negotiate treaties and agreements with foreign governments may be regularized, notwithstanding the provision of article i, section , clause of the constitution, which provides that "no senator or representative shall, * * *, be appointed to any civil office under the authority of the united states, which shall have been created," during his term; and no officer of the united states, "shall be a member of either house during his continuance in office."[ ] the treaty of peace with spain, the treaty to settle the behring sea controversy, the treaty establishing the boundary line between canada and alaska, were negotiated by commissions containing senators and representatives. congressional regulation of offices that the constitution distinguishes between the creation of an office and appointment thereto for the generality of national offices has never been questioned. the former is _by law_, and takes place by virtue of congress's power to pass all laws necessary and proper for carrying into execution the powers which the constitution confers upon the government of the united states and its departments and officers. as incidental to the establishment of an office congress has also the power to determine the qualifications of the officer, and in so-doing necessarily limits the range of choice of the appointing power. first and last, it has laid down a great variety of qualifications, depending on citizenship, residence, professional attainments, occupational experience, age, race, property, sound habits, and so on. it has required that appointees be representative of a political party, of an industry, of a geographic region, or of a particular branch of the government. it has confined the president's selection to a small number of persons to be named by others.[ ] indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power.[ ] conduct in office furthermore, congress has very broad powers in regulating the conduct in office of officers and employees of the united states, especially regarding their political activities. by an act passed in it prohibited "all executive officers or employees of the united states not appointed by the president, with the advice and consent of the senate, * * * from requesting, giving to, or receiving from, any other officer or employee of the government, any money or property or other thing of value for political purposes."[ ] the validity of this measure having been sustained,[ ] the substance of it, with some elaborations, was incorporated in the civil service act of .[ ] by the hatch act[ ] all persons in the executive branch of the government, or any department or agency thereof, except the president and vice president and certain "policy determining" officers, are forbidden to "take an active part in political management or political campaigns," although they are still permitted to "express their opinions on all political subjects and candidates." in the united public workers _v._ mitchell[ ] these provisions were upheld as "reasonable" against objections based on amendments i, v, ix, and x. the loyalty issue by section a of the hatch act of , it is made "* * * unlawful for any person employed in any capacity by any agency of the federal government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any act of congress, to have membership in any political party or organization which advocates the overthrow of our constitutional form of government in the united states."[ ] in support of this provision the th congress in its second session incorporated in its appropriation acts a series of clauses which forbid the use of any of the funds appropriated to pay the salary of any person who advocates, or belongs to an organization which advocates, the overthrow of the government by force; or any person who strikes, or who belongs to an organization of government employees which asserts the right to strike against the government.[ ] the apparent intention of this proviso is to lay down a rule by which the appointing and disbursing authorities will be bound. since congress has the conceded power to lay down the qualifications of officers and employees of the united states; and since few people would contend that officers or employees of the national government have a constitutional right to advocate its overthrow or to strike against it, the above proviso would seem to be entirely constitutional. president truman's "loyalty order"--executive order --of march , [ ] is an outgrowth in part of this legislation. legislation increasing duties of an officer finally, congress may devolve upon one already in office additional duties which are germane to his office without thereby "rendering it necessary that the incumbent should be again nominated and appointed." such legislation does not constitute an attempt by congress to seize the appointing power.[ ] "inferior officers"; "employees" except the president and the vice president all persons in the civil service of the national government are appointive, and fall into one of three categories, those who are appointed by the president, "by and with the advice and consent of the senate"; inferior officers, whose appointment congress has vested by law "in the president alone, in the courts of law, or in the heads of departments"; and employees, a term which is here used in a peculiar sense. ordinarily it denotes one who stands in a contractual relationship to his employer, but here it signifies all subordinate officials of the national government receiving their appointments at the hands of officials who are not specifically recognized by the constitution as capable of being vested by congress with the appointing power.[ ] inferior officers are usually officers intended to be subordinate to those in whom their appointment is vested;[ ] but the requirement is by no means absolute.[ ] stages of appointment process nomination the constitution appears to distinguish three stages in appointments by the president with the advice and consent of the senate. the first is the "nomination" of the candidate by the president alone; the second is the assent of the senate to the candidate's "appointment"; and the third is the final appointment and commissioning of the appointee, by the president.[ ] senate approval the fact that the power of nomination belongs to the president alone prevents the senate from attaching conditions to its approval of an appointment, such as it may do to its approval of a treaty. in the words of an early opinion of the attorney general: "the senate cannot originate an appointment. its constitutional action is confined to the simple affirmation or rejection of the president's nominations, and such nominations fail whenever it rejects them. the senate may suggest conditions and limitations to the president, but it cannot vary those submitted by him, for no appointment can be made except on his nomination, agreed to without qualification or alteration."[ ] this view is borne out by early opinion[ ] as well as by the record of practice under the constitution. when senate consent is complete early in january, the senate requested president hoover to return its resolution notifying him that it advised and consented to certain nominations to the federal power commission. in support of its action the senate invoked a long-standing rule permitting a motion to reconsider a resolution confirming a nomination within "the next two days of actual executive session of the senate" and the recall of the notification to the president of the confirmation. the nominees involved having meantime taken the oath of office and entered upon the discharge of their duties, the president responded with a refusal, saying: "i cannot admit the power in the senate to encroach upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination." the senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third, against whom it instructed the district attorney of the district of columbia to institute _quo warranto_ proceedings in the supreme court of the district. in united states _v._ smith[ ] the supreme court overruled the proceedings on the ground that the senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the senate's initial consent and notification to the president. in the late president roosevelt rejected a similar demand by the senate, action which was not challenged.[ ] section . the president * * * shall commission all the officers of the united states. commissioning the officer this, as applied in practice, does not mean that he is under constitutional obligation to commission those whose appointments have reached that stage, but merely that it is he and no one else who has the power to commission them, which he may do at his discretion. the sealing and delivery of the commission is, on the other hand, by the doctrine of marbury _v._ madison, in the case both of appointees by the president and senate and by the president alone, a purely ministerial act which has been lodged by statute with the secretary of state and the performance of which may be compelled by mandamus unless the appointee has been in the meantime validly removed.[ ] by an opinion of the attorney general many years later, however, the president, even after he has signed a commission, still has a _locus poenitentiae_ and may withhold it; nor is the appointee in office till he has his commission.[ ] this is probably the correct doctrine.[ ] clause . the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. recess appointments setting out from the proposition that the very nature of the executive power requires that it shall always be "in capacity for action," attorneys general early came to interpret "happen" to mean "happen to exist," and long continued practice securely establishes this construction. it results that whenever a vacancy may have occurred in the first instance, or for whatever reason, if it still continues after the senate has ceased to sit and so cannot be consulted, the president may fill it in the way described.[ ] but a senate "recess" does not include holiday or temporary adjournments,[ ] while by an act of congress, if the vacancy existed when the senate was in session, the _ad interim_ appointee may receive no salary until he has been confirmed by the senate.[ ] _ad interim_ designations to be distinguished from the power to make recess appointments is the power of the president to make temporary or _ad interim_ designations of officials to perform the duties of other absent officials. usually such a situation is provided for in advance by a statute which designates the inferior officer who is to act in place of his immediate superior. but in the lack of such provision both theory and practice concede the president the power to make the designation.[ ] the removal power; the myers case save for the provision which it makes for a power of impeachment of "civil officers of the united states," the constitution contains no reference to a power to remove from office; and until its decision in myers _v._ united states,[ ] october , the supreme court had contrived to side-step every occasion for a decisive pronouncement regarding the removal power, its extent, and location. the point immediately at issue in the myers case was the effectiveness of an order of the postmaster general, acting by direction of the president, to remove from office a first class postmaster, in face of the following provision of an act of congress passed in : "postmasters of the first, second, and third classes shall be appointed and may be removed by the president by and with the advice and consent of the senate, and shall hold their offices for four years unless sooner removed or suspended according to law."[ ] a divided court, speaking through chief justice taft, held the order of removal valid, and the statutory provision just quoted void. the chief justice's main reliance was on the so-called "decision of ," the reference being to congress's course that year in inserting in the act establishing the department of state a proviso which was meant to imply recognition that the secretary would be removable by the president at will. the proviso was especially urged by madison, who invoked in support of it the opening words of article ii and the president's duty to "take care that the laws be faithfully executed." succeeding passages of the chief justice's opinion erect on this basis a highly selective account of doctrine and practice regarding the removal power down to the civil war which was held to yield the following results: "that article ii grants to the president the executive power of the government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers--a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article ii excludes the exercise of legislative power by congress to provide for appointments and removals, except only as granted therein to congress in the matter of inferior offices; that congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the president with the senate's consent; that the provisions of the second section of article ii, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the president's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the senate, but that such incident does not by implication extend to removals the senate's power of checking appointments; and finally that to hold otherwise would make it impossible for the president, in case of political or other differences with the senate or congress, to take care that the laws be faithfully executed."[ ] the holding in the myers case boils down to the proposition that the constitution endows the president with an illimitable power to remove all officers in whose appointment he has participated with the exception of judges of the united states. the motivation of the holding was not, it may be assumed, any ambition on the chief justice's part to set history aright--or awry.[ ] rather it was the concern which he voiced in the following passage in his opinion: "there is nothing in the constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the president or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. the imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the constitution as to all appointed by him."[ ] thus spoke the former president taft, and the result of his prepossession was a rule which, as was immediately pointed out, exposed the so-called "independent agencies," the interstate commerce commission, the federal trade commission, and the like, to presidential domination. "the nature of the office" concept unfortunately, the chief justice, while professing to follow madison's leadership had omitted to weigh properly the very important observation which the latter had made at the time regarding the office of comptroller of the treasury. "the committee," said madison, "has gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. i think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. it will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are not purely of an executive nature. it seems to me that they partake of a judiciary quality as well as executive; perhaps the latter obtains in the greatest degree. the principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the united states and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government."[ ] in humphrey _v._ united states,[ ] decided in , the court seized upon "the nature of the office" concept and applied it as a much needed corrective to the myers holding. the humphrey case the material element of this case was that humphrey, a member of the federal trade commission, was on october , , notified by president roosevelt that he was "removed" from office, the reason being their divergent views of public policy. in due course humphrey sued for salary. distinguishing the myers case, justice sutherland, speaking for the unanimous court, said: "a postmaster is an executive officer restricted to the performance of executive functions. he is charged with no duty at all related to either the legislative or judicial power. the actual decision in the _myers_ case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the chief executive, whose subordinate and aid he is. * * * it goes no farther;--much less does it include an officer who occupies no place in the executive department and who exercise no part of the executive power vested by the constitution in the president. "the federal trade commission is an administrative body created by congress to carry into effect legislative policies embodied in the statute * * * such a body cannot in any proper sense be characterized as an arm or eye of the executive. its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. * * * we think it plain under the constitution that illimitable power of removal is not possessed by the president in respect of officers of the character of those just named, [the interstate commerce commission, the federal trade commission, the court of claims]. the authority of congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. for it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will. * * * "the result of what we now have said is this: whether the power of the president to remove an officer shall prevail, over the authority of congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the _myers_ decision, affirming the power of the president alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute."[ ] other phases of presidential removal power congress may "limit and restrict the power of removal as it deems best for the public interests" in the case of inferior officers.[ ] but in the absence of specific legislative provision to the contrary, the president may remove at his discretion an inferior officer whose term is limited by statute,[ ] or one appointed with the consent of the senate.[ ] he may remove an officer of the army or navy at any time by nominating to the senate the officer's successor, provided the senate approves the nomination.[ ] in the president was sustained in removing dr. e.a. morgan from the chairmanship of tva for refusal to produce evidence in substantiation of charges which he had levelled at his fellow directors.[ ] although no such cause of removal by the president is stated in the act creating tva, the president's action, being reasonably required to promote the smooth functioning of tva, was within his duty to "take care that the laws be faithfully executed." so interpreted, it did not violate the principle of administrative independence set forth in humphrey _v._ united states.[ ] the presidential aegis presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in litigation brought against them[ ] or pressing litigation in their behalf,[ ] refusing a call for papers from one of the houses of congress which might be used, in their absence from the seat of government, to their disadvantage,[ ] challenging the constitutional validity of legislation which he deemed detrimental to their interests.[ ] there is one matter, moreover, as to which he is able to spread his own official immunity to them. the courts may not require the divulging of confidential communications from or to the president, that is, communications which they choose to regard as confidential.[ ] whether a congressional committee of inquiry would be similarly powerless is an interesting question which has not been adjudicated.[ ] thus far such issues between the two departments have been adjusted politically. section . he shall from time to time give to the congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and * * * legislative role of the president the above clause, which imposes a duty rather than confers a power, is the formal basis of the president's legislative leadership, which has attained great proportions since . this development, however, represents the play of political and social forces rather than any pronounced change in constitutional interpretation. especially is it the result of the rise of parties and the accompanying recognition of the president as party leader, of the appearance of the national nominating convention and the party platform, and of the introduction of the spoils system, an ever present help to presidents in times of troubled relations with congress.[ ] it is true that certain pre-civil war presidents, mostly of whig extraction, professed to entertain nice scruples on the score of "usurping" legislative powers;[ ] but still earlier ones, washington, jefferson, and jackson among them, took a very different line, albeit less boldly and persistently than their later imitators.[ ] today there is no subject on which the president may not appropriately communicate to congress, in as precise terms as he chooses, his conception of its duty. conversely, the president is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld.[ ] the president has frequently summoned both houses into "extra" or "special sessions" for legislative purposes, and the senate alone for the consideration of nominations and treaties. his power to adjourn the houses has never been exercised. the right of reception scope of the power "ambassadors and other public ministers" embraces not only "all possible diplomatic agents which any foreign power may accredit to the united states"[ ] but also, as a practical construction of the constitution, all foreign consular agents, who therefore may not exercise their functions in the united states without an exequatur from the president.[ ] the power to "receive" ambassadors, etc., includes, moreover, the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws.[ ] furthermore, this power makes the president the sole mouthpiece of the nation in its dealings with other nations. a presidential monopoly wrote jefferson in : "the transaction of business with foreign nations is executive altogether. it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. exceptions are to be construed strictly."[ ] so when citizen genet, envoy to the united states from the first french republic, sought an exequatur for a consul whose commission was addressed to the congress of the united states, jefferson informed him that "as the president was the only channel of communication between the united states and foreign nations, it was from him alone 'that foreign nations or their agents are to learn what is or has been the will of the nation;' that whatever he communicated as such, they had a right and were bound to consider 'as the expression of the nation;' and that no foreign agent could be 'allowed to question it,' or 'to interpose between him and any other branch of government, under the pretext of either's transgressing their functions.' mr. jefferson therefore declined to enter into any discussion of the question as to whether it belonged to the president under the constitution to admit or exclude foreign agents. 'i inform you of the fact,' he said, 'by authority from the president.' mr. jefferson therefore returned the consul's commission and declared that the president would issue no exequatur to a consul except upon a commission correctly addressed."[ ] "the logan act" when in a philadelphia quaker named logan went to paris on his own to undertake a negotiation with the french government with a view to averting war between france and the united states his enterprise stimulated congress to pass "an act to prevent usurpation of executive functions,"[ ] which, "more honored in the breach than the observance," still survives on the statute books.[ ] the year following john marshall, then a member of the house of representatives, defended president john adams for delivering a fugitive from justice to great britain under the th article of the jay treaty, instead of leaving the business to the courts. he said: "the president is the sole organ of the nation in its external relations, and its sole representative with foreign nations. of consequence, the demand of a foreign nation can only be made on him. he possesses the whole executive power. he holds and directs the force of the nation. of consequence, any act to be performed by the force of the nation is to be performed through him."[ ] ninety-nine years later a senate foreign relations committee took occasion to reiterate marshall's doctrine with elaboration.[ ] a formal or a formative power? in his attack, instigated by jefferson, upon washington's proclamation of neutrality in , at the outbreak of war between france and great britain, madison advanced the argument that all large questions of foreign policy fell within the ambit of congress, by virtue of its power "to declare war," and in support of this proposition he disparaged the presidential function of reception, in the following words: "i shall not undertake to examine, what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. it will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide for a particular mode of communication, _almost_ grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. this being the apparent design of the constitution, it would be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it."[ ] the president's diplomatic role hamilton, although he had expressed substantially the same view in the federalist regarding the power of reception,[ ] adopted a very different conception of it in defense of washington's proclamation. writing over the pseudonym "pacificus," he said: "the right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. this right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the united states and such nation, involves the power of continuing or suspending its operation. for until the new government is _acknowledged_, the treaties between the nations, so far at least as regards _public_ rights, are of course suspended. this power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. to apply it to the case of france, if there had been a treaty of alliance, offensive and defensive, between the united states and that country, the unqualified acknowledgment of the new government would have put the united states in a condition to become an associate in the war with france, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. this serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. nevertheless, the executive cannot thereby control the exercise of that power. the legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. the division of the executive power in the constitution, creates a _concurrent_ authority in the cases to which it relates."[ ] jefferson's real position nor did jefferson himself officially support madison's point of view, as the following extract from his "minutes of a conversation," which took place july , , between himself and citizen genet, show: "he asked if they [congress] were not the sovereign. i told him no, they were sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department. 'but,' said he, 'at least, congress are bound to see that the treaties are observed.' i told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the president is to see that treaties are observed. 'if he decides against the treaty, to whom is a nation to appeal?' i told him the constitution had made the president the last appeal. he made me a bow, and said, that indeed he would not make me his compliments on such a constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea."[ ] the power of recognition in his endeavor in to minimize the importance of the president's power of reception madison denied that it involved cognizance of the question, whether those exercising the government of the accrediting state have the right along with the possession. he said: "this belongs to the nation, and to the nation alone, on whom the government operates. * * * it is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and consequently a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister. it is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an illegitimate despotism. such are in fact discussed and admitted by the most approved authorities. but they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the executive of the united states; and certainly not to be brought by any torture of words, within the right to receive ambassadors."[ ] hamilton, with the case of genet before him, had taken the contrary position, which history has ratified. in consequence of his power to receive and dispatch diplomatic agents, but more especially the former, the president possesses the power to recognize new states, communities claiming the status of belligerency, and changes of government in established states; also, by the same token, the power to decline recognition, and thereby decline diplomatic relations with such new states or governments. the affirmative precedents down to are succinctly summarized by john bassett moore in his famous digest, as follows: "in the preceding review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. in every case, as it appears, of a new government and of belligerency, the question of recognition was determined solely by the executive. in the case of the spanish-american republics, of texas, of hayti, and of liberia, the president, before recognizing the new state, invoked the judgment and cooperation of congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. in numerous other cases, the recognition was given by the executive solely on his own responsibility."[ ] the case of cuba the question of congress's right also to recognize new states was prominently raised in connection with cuba's final and successful struggle for independence. beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the president, the senate foreign relations committee, in , made an elaborate investigation of the whole subject and came to the following conclusions as to this power: "the 'recognition' of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter. it is properly evidenced either by sending a public minister to the government thus recognized, or by receiving a public minister therefrom. the latter is the usual and proper course. diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. the reception of this envoy, as pointed out, is the act of the president alone. the next step, that of sending a public minister to the nation thus recognized, is primarily the act of the president. the senate can take no part in it at all, until the president has sent in a nomination. then it acts in its executive capacity, and, customarily, in 'executive session.' the legislative branch of the government can exercise no influence over this step except, very indirectly, by withholding appropriations. * * * nor can the legislative branch of the government hold any communications with foreign nations. the executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties. foreign nations communicate only through their respective executive departments. resolutions of their legislative departments upon diplomatic matters have no status in international law. in the department of international law, therefore, properly speaking, a congressional recognition of belligerency or independence would be a nullity. * * * congress can help the cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the constitution is correct. that it is correct * * * [is] shown by the opinions of jurists and statesmen of the past."[ ] congress was able ultimately to bundle a clause recognizing the independence of cuba, as distinguished from its government, into the declaration of war of april , against spain. for the most part, the sponsors of the clause defended it by the following line of reasoning. diplomacy, they said, was now at an end and the president himself had appealed to congress to provide a solution for the cuban situation. in response congress was about to exercise its constitutional power of declaring war, and it has consequently the right to state the purpose of the war which it was about to declare.[ ] the recognition of the union of soviet socialist republics in was an exclusively presidential act. the power of nonrecognition the potentialities of nonrecognition were conspicuously illustrated by president woodrow wilson when he refused, early in , to recognize provisional president huerta as the _de facto_ government of mexico, thereby contributing materially to huerta's downfall the year following. at the same time wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence; and while he observed this rule with considerable discretion, he consistently refused to recognize the union of soviet socialist republics, and his successors prior to president franklin d. roosevelt did the same. the refusal of the hoover administration to recognize the independence of the japanese puppet state of manchukuo early in was based on kindred grounds. nonrecognition of the chinese communist government by the truman administration has proved to be a decisive element of the current ( ) foreign policy of the united states. president and congress the relations of president and congress in the diplomatic field have, first and, last, presented a varied picture of alternate cooperation and tension,[ ] from which emerge two outstanding facts: first, the overwhelming importance of presidential initiative in this area of power; secondly, the ever increasing dependence of foreign policy on congressional cooperation and support. first one and then the other aspect of the relationship is uppermost. thus the united nations participation act of december , appeared to contemplate cooperation between the president and congress in the carrying out of the duties of the united states to back up decisions of the security council involving the use of armed force.[ ] when, nevertheless, the first occasion arose such action, namely, to repel the invasion in june, of south korea by north korean forces, no such agreement had been negotiated, and the intervention of the united states was authorized by the president without referring the question to congress.[ ] congressional implementation of presidential policies no president was ever more jealous of his prerogative in the realm of foreign relations than president woodrow wilson. when, however, strong pressure was brought to bear upon him by great britain respecting his mexican policy he was constrained to go before congress and ask for a modification of the panama tolls act of , which had also aroused british ire. addressing congress, he said "i ask this of you in support of the foreign policy of the administration. i shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure."[ ] the fact is, of course, that congress has enormous powers the support of which is indispensable to any foreign policy. in the long run congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although it does not direct them, that pledges the public credit, that declares war, that defines offenses against the law of nations, that regulates foreign commerce; and it has the further power "to make all laws which shall be necessary and proper"--that is, which _it_ deems to be such--for carrying into execution not only its own powers but all the powers "of the government of the united states and of any department or officer thereof." moreover, its laws made "in pursuance" of these powers are "supreme law of the land" and the president is bound constitutionally to "take care that" they "be faithfully executed." in point of fact, congressional legislation has operated to augment presidential powers in the foreign field much more frequently than it has to curtail them. the lend-lease act of march , [ ] is the classic example, although it only brought to culmination a whole series of enactments with which congress had aided and abetted the administration's foreign policy in the years between and .[ ] the doctrine of political questions it is not within the province of the courts to inquire into the policy underlying action taken by the "political departments"--congress and the president--in the exercise of their conceded powers. this commonplace maxim is, however, sometimes given an enlarged application so as to embrace questions as to the existence of facts and even questions of law which the court would normally regard as falling within its jurisdiction. such questions are termed "political questions," and are especially common in the field of foreign relations. the leading case is foster _v._ neilson,[ ] where the matter in dispute was the validity of a grant made by the spanish government in of land lying to the east of the mississippi river, involved with which question was the further one whether the region between the perdido and mississippi rivers belonged in to spain or the united states. chief justice marshall held that the court was bound by the action of the political departments, the president and congress, in claiming the land for the united states. he said: "if those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. a question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature."[ ] the doctrine thus clearly stated is further exemplified, with particular reference to presidential action, by williams _v._ the suffolk insurance company.[ ] in this case the underwriters of a vessel which had been confiscated by the argentine government for catching seals off the falkland islands contrary to that government's orders sought to escape liability by showing that the argentinian government was the sovereign over these islands and that, accordingly, the vessel had been condemned for wilful disregard of legitimate authority. the court decided against the company on the ground that the president had taken the position that the falkland islands were not a part of argentina. it said: "can there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? and in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. it is enough to know, that in the exercise of his constitutional functions, he had decided the question. having done this, under the responsibilities which belong to him, it is obligatory on the people and government of the union. if this were not the rule, cases might often arise, in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. by one of these departments, a foreign island or country might be considered as at peace with the united states; whilst the other would consider it in a state of war. no well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character."[ ] thus the right to determine the boundaries of the country is a political function;[ ] as is also the right to determine what country is sovereign of a particular region;[ ] to determine whether a community is entitled under international law to be considered a belligerent or an independent state;[ ] to determine whether the other party has duly ratified a treaty;[ ] to determine who is the _de jure_ or _de facto_ ruler of a country;[ ] to determine whether a particular person is a duly accredited diplomatic agent to the united states;[ ] to determine how long a military occupation shall continue in fulfillment of the terms of a treaty;[ ] to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be constitutionally renewed by tacit consent.[ ] recent statements of the doctrine the assumption underlying the refusal of courts to intervene in such cases is well stated in the recent case of chicago & s. airlines _v._ waterman steamship corp.[ ] here the court refused to review orders of the civil aeronautics board granting or denying applications by citizen carriers to engage in overseas and foreign air transportation which by the terms of the civil aeronautics act[ ] are subject to approval by the president and therefore impliedly beyond those provisions of the act authorizing judicial review of board orders.[ ] elaborating on the necessity of judicial abstinence in the conduct of foreign relations, justice jackson declared for the court: "the president, both as commander in chief and as the nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. it would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the executive taken on information properly held secret. nor can courts sit _in camera_ in order to be taken into executive confidences. but even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. such decisions are wholly confided by our constitution on the political departments of the government, executive and legislative. they are delicate, complex, and involve large elements of prophecy. they are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. they are decisions of a kind for which the judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry."[ ] to the same effect are the court's holding and opinion in ludecke _v._ watkins,[ ] where the question at issue was the power of the president to order the deportation under the alien enemy act of of a german alien enemy after the cessation of hostilities with germany. said justice frankfurter for the court: "war does not cease with a cease-fire order, and power to be exercised by the president such as that conferred by the act of is a process which begins when war is declared but is not exhausted when the shooting stops. * * * the court would be assuming the functions of the political agencies of the government to yield to the suggestion that the unconditional surrender of germany and the disintegration of the nazi reich have left germany without a government capable of negotiating a treaty of peace. it is not for us to question a belief by the president that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of peace has not come. these are matters of political judgment for which judges have neither technical competence nor official responsibility."[ ] the president as law enforcer types of executive power the constitution does not say that the president shall execute the laws, but that "he shall take care that the laws be faithfully executed," i.e., by others, who are commonly, but not always with strict accuracy, termed his subordinates. what powers are implied from this duty? in this connection five categories of executive power should be distinguished: first, there is that executive power which the constitution confers directly upon the president by the opening clause of article ii and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total of the powers which acts of congress at any particular time confer upon the president; thirdly, there is the sum total of discretionary powers which acts of congress at any particular time confer upon heads of departments and other executive ("administrative") agencies of the national government; fourthly, there is the power which stems from the duty to enforce the criminal statutes of the united states; finally, there are so-called "ministerial duties" which admit of no discretion as to the occasion or the manner of their discharge. three principal questions arise: first, how does the president exercise the powers which the constitution or the statutes confer upon him; second, in what relation does he stand by virtue of the "take care" clause to the powers of other executive, or administrative agencies; third, in what relation does he stand to the enforcement of the criminal laws of the united states? how the president's own powers are exercised whereas the british monarch is constitutionally under the necessity of acting always through agents if his acts are to receive legal recognition, the president is presumed to exercise certain of his constitutional powers personally. in the words of an opinion by attorney general cushing in : "it may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offences against the united states, * * * so he, and he alone, is the supreme commander in chief of the army and navy of the united states, and of the militia of the several states when called into the actual service of the united states. that is a power constitutionally inherent in the person of the president. no act of congress, no act even of the president himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the president."[ ] moreover, the obligation to act personally may be sometimes enlarged by statute, as, for example, by the act organizing the president with other designated officials into "an establishment by name of the smithsonian institute."[ ] here, says the attorney general, "the president's name of office is _designatio personae_." he is also of opinion that expenditures from the "secret service" fund in order to be valid, must be vouched for by the president personally.[ ] on like grounds the supreme court once held void a decree of a court martial, because, though it has been confirmed by the secretary of war, it was not specifically stated to have received the sanction of the president as required by the th article of war.[ ] this case has, however, been virtually overruled, and at any rate such cases are exceptional.[ ] the general rule, as stated by the court, is that when any duty is cast by law upon the president, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, thus become the president's acts.[ ] in williams _v._ united states[ ] was involved an act of congress, which prohibited the advance of public money in any case whatever to disbursing officers of the united states, except under special direction by the president.[ ] the supreme court held that the act did not require the personal performance by the president of this duty. such a practice, said the court, if it were possible, would absorb the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service. the president's duty in general requires his superintendence of the administration; yet he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the constitution and laws required and expected to perform.[ ] as a matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though in pursuance of powers conferred by statute on the president, do not even refer to the president.[ ] power and duty of the president in relation to subordinate executive officers suppose, that the law casts a duty upon a head of department _eo nomine_, does the president thereupon become entitled by virtue of his duty to "take care that the laws be faithfully executed," to substitute his own judgment for that of the principal officer regarding the discharge of such duty? in the debate in the house in on the location of the removal power madison argued that it ought to be attributed to the president alone because it was "the intention of the constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department"; and this responsibility, he held, carried with it the power to "inspect and control" the conduct of subordinate executive officers. "vest," said he, "the power [of removal] in the senate jointly with the president, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good."[ ] but this was said with respect to the office of secretary of state; and when shortly afterward the question arose as to the power of congress to regulate the tenure of the comptroller of the treasury, madison assumed a very different attitude, conceding in effect that this officer was to be an arm of certain of congress's own powers, and should therefore be protected against the removal power.[ ] (_see_ p. ). and in marbury _v._ madison,[ ] chief justice marshall traced a parallel distinction between the duties of the secretary of state under the original act which had created a "department of foreign affairs" and those which had been added by the later act changing the designation of the department to its present one. the former were, he pointed out, entirely in the "political field," and hence for their discharge the secretary was left responsible absolutely to the president. the latter, on the other hand, were exclusively of statutory origin and sprang from the powers of congress. for these, therefore, the secretary was "an officer of the law" and "amenable to the law for his conduct."[ ] administrative decentralization versus jacksonian centralism an opinion rendered by attorney general wirt in asserted the proposition that the president's duty under the "take care" clause required of him scarcely more than that he should bring a criminally negligent official to book for his derelictions, either by removing him or by setting in motion against him the processes of impeachment or of criminal prosecution.[ ] the opinion entirely overlooked the important question of the location of the power to interpret the law which is inevitably involved in any effort to enforce it. the diametrically opposed theory that congress is unable to vest any head of an executive department, even within the field of congress's specifically delegated powers, with any legal discretion which the president is not entitled to control was first asserted in unambiguous terms in president jackson's protest message of april , ,[ ] defending his removal of duane as secretary of the treasury, on account of the latter's refusal to remove the deposits from the bank of the united states. here it is asserted "that the entire executive power is vested in the president"; that the power to remove those officers who are to aid him in the execution of the laws is an incident of that power; that the secretary of the treasury was such an officer; that the custody of the public property and money was an executive function exercised through the secretary of the treasury and his subordinates: that in the performance of these duties the secretary was subject to the supervision and control of the president: and finally that the act establishing the bank of the united states "did not, as it could not change the relation between the president and secretary--did not release the former from his obligation to see the law faithfully executed nor the latter from the president's supervision and control."[ ] in short, the president's removal power, in this case unqualified, was the sanction provided by the constitution for his power and duty to control his "subordinates" in all their official actions of public consequence. congressional power versus presidential duty to the law five years later the case of kendall _v._ united states[ ] arose. the united states owed one stokes money, and when postmaster general kendall, at jackson's instigation, refused to pay it, congress passed a special act ordering payment. kendall, however, still proved noncompliant, whereupon stokes sought and obtained a mandamus in the united states circuit court for the district of columbia, and on appeal this decision was affirmed by the supreme court. while kendall _v._ united states, like marbury _v._ madison, involved the question of the responsibility of a head of department for the performance of a _ministerial_ duty, the discussion by counsel before the court and the court's own opinion covered the entire subject of the relation of the president to his subordinates in the performance by them of statutory duties. the lower court had asserted that the duty of the president under the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law, and see that the executive action conforms to it. counsel for kendall attacked this position vigorously, relying largely upon statements by hamilton, marshall, james wilson, and story having to do with the president's power in the field of foreign relations. the court rejected the implication with emphasis. there are, it pointed out, "certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the president. but it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the president. and this is emphatically the case, where the duty enjoined is of a mere ministerial character."[ ] in short, the court recognized the underlying question of the case to be whether the president's duty to "take care that the laws be faithfully executed" made it constitutionally impossible for congress ever to entrust the construction of its statutes to anybody but the president; and it answered this in the negative. myers case versus humphrey case how does this issue stand today? the answer to this question, so far as there is one, is to be sought in a comparison of the court's decisions in the myers and humphrey cases respectively.[ ] the former decision is still valid to support the president's right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the constitution; also all officials--usually heads of departments--through whom he exercises powers conferred upon him by statute. the humphrey decision assures to congress the right to protect the tenure, and hence the freedom of decision of all officials upon whom, in the exercise of its delegated powers, it confers duties of a "quasi-legislative" or a "quasi-judicial" nature. the former may be described as duties for the satisfactory discharge of which congress justifiably feels that a specialized and informed judgment is requisite. the latter are duties the discharge of which closely touches private rights and which ought therefore be accompanied or preceded by a "quasi-judicial" inquiry capable of affording the claimants of such rights the opportunity to be heard. in neither case is the president entitled to force his reading of the law upon the officer, but only to take care that the latter exercise his powers according to his own best lights. power of the president to guide enforcement of the penal law this matter also came to a head in "the reign of andrew jackson," preceding, and indeed foreshadowing, the duane episode by some months. "at that epoch," wyman relates in his principles of administrative law, "the first announcement of the doctrine of centralism in its entirety was set forth in an obscure opinion upon an unimportant matter--the jewels of the princess of orange, opin. ( ). these jewels * * * were stolen from the princess by one polari, and were seized by the officers of the united states customs in the hands of the thief. representations were made to the president of the united states by the minister of the netherlands of the facts in the matter, which were followed by request for return of the jewels. in the meantime the district attorney was prosecuting condemnation proceedings in behalf of the united states which he showed no disposition to abandon. the president felt himself in a dilemma, whether if it was by statute the duty of the district attorney to prosecute or not, the president could interfere and direct whether to proceed or not. the opinion was written by taney, then attorney-general; it is full of pertinent illustrations as to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. it concludes: if it should be said that, the district attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the president to direct him to exercise it--i answer that the direction of the president is not required to communicate any new authority to the district attorney, but to direct him in the execution of a power he is admitted to possess. the most valuable and proper measure may often be for the president to order the district attorney to discontinue prosecution. the district attorney might refuse to obey the president's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the president himself could give no order to the court or to the clerk to make any particular entry. he could only act through his subordinate officer the district attorney, who is responsible to him and who holds his office at his pleasure. and if that officer still continue a prosecution which the president is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the president through him faithfully to execute the law. and it is for this among other reasons that the power of removing the district attorney resides in the president."[ ] the president as law interpreter the power accruing to the president from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the anti-trust acts, the taft-hartley act, the internal security act, and many lesser statutes. nor is this the whole story. not only do all presidential regulations and orders based on statutes which vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the court's reading of such statutes or of the constitution,[ ] but he sometimes makes law in a more special sense. in the famous neagle case[ ] an order of the attorney general to a united states marshal to protect a justice of the supreme court whose life had been threatened by a suitor was attributed to the president and held to be "a law of the united states" in the sense of section of the revised statutes, and as such to afford basis for a writ of _habeas corpus_ transferring the said marshal, who had "got his man," from state to national custody. speaking for the court, justice miller inquired: "is this duty [the duty of the president to take care that the laws be faithfully executed] limited to the enforcement of acts of congress or of treaties of the united states according to their _express terms_, or does it include the rights, duties and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution?"[ ] obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption which is borne out by numerous precedents. and in united states _v._ midwest oil company[ ] it was ruled that the president had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the land department, public lands, both mineral and nonmineral, from private acquisition, congress having never repudiated the practice. military power in law enforcement: the posse comitatus "whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the government of the united states, it shall become impracticable, in the judgment of the president, to enforce, by the ordinary course of judicial proceedings, the laws of the united states within any state or territory, it shall be lawful for the president to call forth the militia of any or all the states, and to employ such parts of the land and naval forces of the united states as he may deem necessary to enforce the faithful execution of the laws of the united states, or to suppress such rebellion, in whatever state or territory thereof the laws of the united states may be forcibly opposed, or the execution thereof forcibly obstructed."[ ] this provision of the united states code consolidates a course of legislation which began at the time of the whiskey rebellion of .[ ] in martin _v._ mott,[ ] which arose out of the war of , it was held that the authority to decide whether the exigency has arisen belongs exclusively to the president.[ ] even before that time, jefferson had in , in the course of his efforts to enforce the embargo acts, issued a proclamation ordering "all officers having authority, civil or military, who shall be found in the vicinity" of an unruly combination to aid and assist "by all means in their power, by force of arms and otherwise" the suppression of such combination.[ ] forty-six years later attorney general cushing advised president pierce that in enforcing the fugitive slave act of , marshals of the united states, had authority when opposed by unlawful combinations, to summon to their aid not only bystanders and citizens generally, but armed forces within their precincts, both state militia and united states officers, soldiers, sailors, and marines,[ ] a doctrine which pierce himself improved upon two years later by asserting, with reference to the civil war then raging in kansas, that it lay within his obligation to take care that the laws be faithfully executed to place the forces of the united states in kansas at the disposal of the marshal there, to be used as a portion of the _posse comitatus_. lincoln's call of april , , for , volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of jefferson's conception of a _posse comitatus_ subject to presidential call.[ ] the provision above extracted from the united states code ratifies this conception as regards the state militias and the national forces. suspension of habeas corpus by the president _see_ article i, section , clause , pp. - . preventive martial law the question of executive power in the presence of civil disorder is dealt with in modern terms in moyer _v._ peabody,[ ] decided in , to which the debs case,[ ] decided in , may be regarded as an addendum. moyer, a labor leader, brought suit against peabody, for having ordered his arrest during a labor dispute which occurred while peabody was governor of colorado. speaking for a unanimous court, one justice being absent, justice holmes said: "of course the plaintiff's position is that he has been deprived of his liberty without due process of law. but it is familiar that what is due process of law depends on circumstances. it varies with the subject matter and the necessities of the situation. * * * the facts that we are to assume are that a state of insurrection existed and that the governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could release him. * * * in such a situation we must assume that he had a right under the state constitution and laws to call out troops, as was held by the supreme court of the state. * * * that means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. so long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief. * * * when it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. public danger warrants the substitution of executive process for judicial process."[ ] the debs case the debs case of arose out of a railway strike which had caused the president to dispatch troops to chicago the previous year. coincidently with this move, the united states district attorney stationed there, acting upon orders from washington, obtained an injunction from the united states circuit court forbidding the strike on account of its interference with the mails and with interstate commerce. the question before the supreme court was whether this injunction, for violation of which debs has been jailed for contempt of court, had been granted with jurisdiction. conceding, in effect, that there was no statutory warrant for the injunction, the court nevertheless validated it on the ground that the government was entitled thus to protect its property in the mails, and on a much broader ground which is stated in the following passage of justice brewer's opinion for the court: "every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other. * * * while it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its granted powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the constitution are entrusted to the care of the nation and concerning which the nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties."[ ] status of the debs case today the restrictions imposed by the norris-laguardia act[ ] on the issuance of injunctions by the federal courts in cases "involving or growing out of any labor dispute" later cast a shadow of doubt over the debs case, which was deepened, if anything, by the court's decision in , in united states _v._ united mine workers.[ ] but such doubts have been since dispelled by the taft-hartley act, which provides that whenever in his opinion a threatened or actual strike or lockout affecting the whole or a substantial part of an industry engaged in interstate commerce will, "if permitted to occur or continue, imperil the national health or safety," the president may appoint a board of inquiry and, upon its so finding, "may direct the attorney general to petition any district court of the united states having jurisdiction of the parties to enjoin such strike or lockout or the continuing thereof * * *," and the court shall have jurisdiction to do so, provided it shares the president's view of the situation.[ ] administration and labor critics of the act did not challenge the constitutionality of this provision. they questioned its necessity in view of the president's "inherent powers" in the face of emergency.[ ] the president's duty in cases of domestic violence in the states _see_ art. iv, sec. , p. . the president as executive of the law of nations illustrative of the president's duty to discharge the responsibilities of the united states at international law with a view to avoiding difficulties with other governments, was the action of president wilson in closing the marconi wireless station at siasconset, massachusetts on the outbreak of the european war in , the company having refused assurance that it would comply with naval censorship regulations. justifying this drastic invasion of private rights, attorney general gregory said: "the president of the united states is at the head of one of the three great coordinate departments of the government. he is commander in chief of the army and the navy. * * * if the president is of the opinion that the relations of this country with foreign nations are, or are likely to be, endangered by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restrictions, he may act through such executive office or department as appears best adapted to effectuate the desired end. * * * i do not hesitate, in view of the extraordinary conditions existing, to advise that the president, through the secretary of the navy or any appropriate department, close down, or take charge of and operate, the plant * * *, should he deem it necessary in securing obedience to his proclamation of neutrality."[ ] protection of american rights of person and property abroad the right of the president to use force in vindication of american rights of person and property abroad was demonstrated in by the bombardment of greytown, nicaragua by lieutenant hollins of the u.s.s. cyane, in default of reparation from the local authorities for an attack by a mob on the united states consul at that place. upon his return to the united states hollins was sued in a federal court by one durand for the value of certain property which was alleged to have been destroyed in the bombardment. his defense was based upon the orders of the president and secretary of the navy, and was sustained by justice nelson, then on circuit, in the following words: "as the executive head of the nation, the president is made the only legitimate organ of the general government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. it is to him, also, the citizens abroad must look for protection of person and of property, and for the faithful execution of the laws existing and intended for their protection. for this purpose, the whole executive power of the country is placed in his hands, under the constitution, and the laws passed in pursuance thereof; and different departments of government have been organized, through which this power may be most conveniently executed, whether by negotiation or by force--a department of state and a department of the navy. "now, as it respects the interposition of the executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the president. acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not unfrequently, require the most prompt and decided action. under our system of government, the citizen abroad is as much entitled to protection as the citizen at home. the great object and duty of government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving."[ ] presidential world policing in his little volume on world policing and the constitution[ ] mr. james grafton rogers lists episodes similar to the greytown affair, stretching between the undeclared war with france in and pearl harbor. while inviting some pruning, the list demonstrates beyond peradventure the existence in the president, as chief executive and commander in chief, of power to judge whether a situation requires the use of available forces to protect american rights of person and property outside the united states and to take action in harmony with his decision. such employment of the forces have, it is true, been usually justifiable acts of self defense rather than acts of war, but the countries where they occurred were entitled to treat them as acts of war nevertheless, although they have generally been too feeble to assert their prerogative in this respect, and have sometimes actually chosen to turn the other cheek. thus when in president mckinley, without consulting congress, contributed a sizable contingent to the joint forces that went to the relief of the foreign legations in peking, the chinese imperial government agreed that this action had not constituted war.[ ] the atlantic pact article v of the atlantic pact builds on such precedents. the novel feature is its enlarged conception of defensible american interests abroad. in the words of the published abstract of the report of the committee on foreign relations on the pact, "article records what is a fact, namely, that an armed attack within the meaning of the treaty would in the present-day world constitute an attack upon the entire community comprising the parties to the treaty, including the united states. accordingly, the president and the congress, each within their sphere of assigned constitutional responsibilities, would be expected to take all action necessary and appropriate to protect the united states against the consequences and dangers of an armed attack committed against any party to the treaty."[ ] but from the very nature of things, the discharge of this obligation against overt force will ordinarily rest with the president in the first instance, just as has the discharge in the past of the like obligation in the protection of american rights abroad. furthermore, in the discharge of this obligation the president will ordinarily be required to use force and perform acts of war. such is the verdict of history, a verdict which was foreseen more or less definitely by the framers themselves.[ ] presidential action in the domain of congress: the steel seizure case facts[ ] to avert a nation-wide strike of steel workers which he believed would jeopardize the national defense, president truman, on april th, , issued executive order [ ] directing the secretary of commerce to seize and operate most of the steel mills of the country. the order cited no specific statutory authorization, but invoked generally the powers vested in the president by the constitution and laws of the united states. secretary sawyer forthwith issued an order seizing the mills and directing their presidents to operate them as operating managers for the united states in accordance with his regulations and directions. the president promptly reported these events to congress, conceding congress's power to supersede his order; but congress failed to do anything about the matter either then or a fortnight later, when the president again brought up the subject in a special message.[ ] it had in fact provided other methods of dealing with such situations, in the elaboration of which it had declined repeatedly to authorize governmental seizures of property to settle labor disputes. the steel companies sued the secretary in a federal district court, praying for a declaratory judgment and injunctive relief. the district court issued a preliminary injunction, which the court of appeals stayed.[ ] on certiorari to the court of appeals, the district court's order was affirmed by the supreme court by a vote of six justices to three. justice black delivered the opinion of the court in which justices frankfurter, douglas, jackson, and burton formally concurred. justice clark expressly limited his concurrence to the judgment of the court. all these justices presented what are termed "concurring" opinions. the chief justice, speaking for himself and justices reed and minton, presented a dissenting opinion. the doctrine of the opinion of the court the chief points urged in the black opinion are the following: there was no statute which expressly or impliedly authorized the president to take possession of the property involved. on the contrary, in its consideration of the taft-hartley act in , congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. authority to issue such an order in the circumstances of the case was not deducible from the aggregate of the president's executive powers under article ii of the constitution; nor was the order maintainable as an exercise of the president's powers as commander in chief of the armed forces. the power sought to be exercised was the lawmaking power, which the constitution vests in the congress alone. even if it were true that other presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, congress was not thereby divested of its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the constitution "in the government of the united states, or any department or officer thereof."[ ] the factual record the pivotal proposition of the opinion is, in brief, that inasmuch as congress could have ordered the seizure of the steel mills, the president had no power to do so without prior congressional authorization. to support this position no proof is offered in the way of past opinion, and the following extract from justice clark's opinion presents a formidable challenge to it: "one of this court's first pronouncements upon the powers of the president under the constitution was made by mr. chief justice john marshall some one hundred and fifty years ago. in little _v._ barreme,[ ] he used this characteristically clear language in discussing the power of the president to instruct the seizure of the _flying fish_, a vessel bound from a french port: 'it is by no means clear that the president of the united states whose high duty it is to "take care that the laws be faithfully executed," and who is commander in chief of the armies and navies of the united states, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the united states, to seize and send into port for adjudication, american vessels which were forfeited by being engaged in this illicit commerce. but when it is observed that [an act of congress] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a french port, the legislature seems to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a french port.' accordingly, a unanimous court held that the president's instructions had been issued without authority and that they could not 'legalize an act which without those instructions would have been a plain trespass.' i know of no subsequent holding of this court to the contrary."[ ] another field which the president and congress have each occupied at different times is extradition. in president adams, in order to execute the extradition provisions of the jay treaty, issued a warrant for the arrest of one jonathan robbins. as chief justice vinson recites in his opinion: "this action was challenged in congress on the ground that no specific statute prescribed the method to be used in executing the treaty. john marshall, then a member of the house of representatives, in the course of his successful defense of the president's action, said: 'congress, unquestionably, may prescribe the mode, and congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the executive department to execute the contract by any means it possesses.'"[ ] in congress enacted a statute governing this subject which confers upon the courts, both state and federal, the duty of handling extradition cases.[ ] the first neutrality proclamation was issued by president washington in without congressional authorization.[ ] the following year congress enacted the first neutrality statute,[ ] and since then proclamations of neutrality have been based on an act of congress governing the matter. the president may, in the absence of legislation by congress, control the landing of foreign cables in the united states and the passage of foreign troops through american territory, and has done so repeatedly.[ ] likewise, until congress acts, he may govern conquered territory[ ] and, "in the absence of attempts by congress to limit his power," may set up military commissions in territory occupied by the armed forces of the united states.[ ] he may determine, in a way to bind the courts, whether a treaty is still in force as law of the land, although again the final power in the field rests with congress.[ ] one of the president's most ordinary powers and duties is that of ordering the prosecution of supposed offenders against the laws of the united states. yet congress may do the same thing.[ ] on september , , president lincoln issued a proclamation suspending the privilege of the writ of habeas corpus throughout the union in certain classes of cases. by an act passed march , , congress ratified this action of the president and at the same time brought the whole subject of military arrests in the united states under legal control.[ ] conversely, when president wilson failed in march to obtain congress's consent to his arming american merchant vessels with defensive arms, he went ahead and did it anyway, "fortified not only by the known sentiments of the majority in congress but also by the advice of his secretary of state and attorney general."[ ] on the specific matter of property seizures, justice frankfurter's concurring opinion in the youngstown case is accompanied by appendices containing a synoptic analysis of legislation authorizing seizures of industrial property and also a summary of seizures of industrial plants and facilities by presidents without definite statutory warrant. eighteen such statutes are listed, all but the first of which were enacted between and . of presidential seizures unsupported by reference to specific statutory authorization, he lists eight as occurring during world war i. to justify these it was deemed sufficient to refer to "the constitution and laws" generally. for the world war ii period he lists eleven seizures in justification of which no statutory authority was cited. the first of these was the seizure of the north american aviation, inc., of englewood, california. in support of this action attorney general jackson, as chief justice vinson points out in his dissenting opinion, "vigorously proclaimed that the president had the moral duty to keep this nation's defense effort a 'going concern.'"[ ] said the then attorney general, "the presidential proclamation rests upon the aggregate of the presidential powers derived from the constitution itself and from statutes enacted by the congress. the constitution lays upon the president the duty 'to take care that the laws be faithfully executed.' among the laws which he is required to find means to execute are those which direct him to equip an enlarged army, to provide for a strengthened navy, to protect government property, to protect those who are engaged in carrying out the business of the government, and to carry out the provisions of the lend-lease act. for the faithful execution of such laws the president has back of him not only each general law-enforcement power conferred by the various acts of congress but the aggregate of all such laws plus that wide discretion as to method vested in him by the constitution for the purpose of executing the laws."[ ] in the war labor disputes act of june , ,[ ] such seizures were put on a statutory basis. as the chief justice points out, the purpose of this measure, as stated by its sponsor, was not to augment presidential power but to "let the country know that the congress is squarely behind the president."[ ] in united states _v._ pewee coal company, inc.[ ] the court had before it the claim of a coal mine operator whose property was seized by the president without statutory authorization, "to avert a nation-wide strike of miners." the company brought an action in the court of claims to recover under the fifth amendment for the total operating losses sustained during the period in which this property was operated by the united states. the court awarded judgment for $ , . and the supreme court sustained this judgment, a result which implied the validity of the seizure.[ ] said justice reed, in his concurring opinion of the case: "the relatively new technique of temporary taking by eminent domain is a most useful administrative device: many properties, such as laundries, or coal mines, or railroads, may be subjected to public operation only for a short time to meet war or emergency needs, and can then be returned to their owners." the implications of united states _v._ pewee coal company, inc.,[ ] clearly sustained the government in youngstown, assuming that congress had not acted in the latter case. and one instance of seizure by executive order justice frankfurter fails to mention. this was the seizure by president wilson in the late summer of , following the outbreak of war in europe, of the marconi wireless station at siasconset when the company refused assurance that it would comply with naval censorship regulations. attorney general gregory's justification of this action at the time was quoted on an earlier page.[ ] the doctrine dictated by the above considerations as regards the exercise of executive power in the field of legislative power was well stated by mr. john w. davis, principal counsel on the present occasion for the steel companies, in a brief which he filed nearly forty years ago as solicitor general, in defense of the action of the president in withdrawing certain lands from public entry although his doing so was at the time contrary to express statute. "ours," the brief reads, "is a self-sufficient government within its sphere. (ex parte siebold, u.s. , ; in re debs, u.s. , .) 'its means are adequate to its ends' (mcculloch _v._ maryland, wheat. , ), and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. while perfect flexibility is not to be expected in a government of divided powers, and while division of power is one of the principal features of the constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the government and reduce its efficiency without any compensating good. the function of making laws is peculiar to congress, and the executive can not exercise that function to any degree. but this is not to say that all of the _subjects_ concerning which laws might be made are perforce removed from the possibility of executive influence. the executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by congress. in other words, just as there are fields which are peculiar to congress and fields which are peculiar to the executive, so there are fields which are common to both, in the sense that the executive may move within them until they shall have been occupied by legislative action. these are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. this situation results from the fact that the president is the active agent, not of congress, but of the nation. as such he performs the duties which the constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by congress. he is the agent of the people of the united states, deriving all his powers from them and responsible directly to them. in no sense is he the agent of congress. he obeys and executes the laws of congress, not because congress is enthroned in authority over him, but because the constitution directs him to do so. therefore it follows that in ways short of making laws or disobeying them, the executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the constitution. instances wherein the president has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have seldom been challenged in the courts."[ ] concurring opinions justice frankfurter begins the material part of his opinion with the statement: "we must * * * put to one side consideration of what powers the president would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless congressional approval were given."[ ] he then enters upon a review of the proceedings of congress which attended the enactment of the taft-hartley act, and concludes that "congress has expressed its will to withhold this power [of seizure] from the president as though it had said so in so many words."[ ] justice douglas's contribution consists in the argument that: "the branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the president has effected. that seems to me to be the necessary result of the condemnation provision in the fifth amendment."[ ] this contention overlooks such cases as mitchell _v._ harmony;[ ] united states _v._ russell;[ ] portsmouth harbor land and hotel co. _v._ united states;[ ] and united states _v._ pewee coal co.;[ ] in all of which a right of compensation was recognized to exist in consequence of damage to property which resulted from acts stemming ultimately from constitutional powers of the president. in united states _v._ pink,[ ] justice douglas quotes with approval the following words from the federalist,[ ] "all constitutional acts of power, whether in the executive or in the judicial branch, have as much validity and obligation as if they proceeded from the legislature." if this is so as to treaty obligations, then all the more must it be true of obligations which are based directly on the constitution.[ ] justice jackson's opinion contains little that is of direct pertinence to the constitutional issue. important, however, is his contention, which, seems to align him with justice frankfurter, that congress had "not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure"; from which he concludes that "* * * we can sustain the president only by holding that seizure of such strike-bound industries is within his domain and beyond control by congress."[ ] the opinion concludes: "in view of the ease, expedition and safety with which congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, i am quite unimpressed with the argument that we should affirm possession of them without statute. such power either has no beginning or it has no end. if it exists, it need submit to no legal restraint. i am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction. * * * but i have no illusion that any decision by this court can keep power in the hands of congress if it is not wise and timely in meeting its problems. a crisis that challenges the president equally, or perhaps primarily, challenges congress. if not good law, there was worldly wisdom in the maxim attributed to napoleon that 'the tools belong to the man who can use them.' we may say that power to legislate for emergencies belongs in the hands of congress, but only congress itself can prevent power from slipping through its fingers."[ ] justice burton, referring to the taft-hartley act, says: "* * * the most significant feature of that act is its omission of authority to seize," citing debate on the measure.[ ] "in the case before us, congress authorized a procedure which the president declined to follow."[ ] justice clark bases his position directly upon chief justice marshall's opinion in little _v._ barreme.[ ] he says: "i conclude that where congress has laid down specific procedures to deal with the type of crisis confronting the president, he must follow these procedures in meeting the crisis; * * * i cannot sustain the seizure in question because here, as in little _v._ barreme, congress had prescribed methods to be followed by the president in meeting the emergency at hand."[ ] his reference is to the taft-hartley act. at the same time he endorses the view, "taught me not only by the decision of chief justice marshall in little _v._ barreme, but also by a score of other pronouncements of distinguished members of this bench," that "the constitution does grant to the president extensive authority in times of grave and imperative national emergency."[ ] dissenting opinion chief justice vinson launched his opinion of dissent, for himself and justices reed and minton, with a survey of the elements of the emergency which confronted the president: the korean war; the obligations of the united states under the united nations charter and the atlantic pact; the appropriations acts by which congress has voted vast sums to be expended in our defense and that of our allies in europe; the fact that steel is a basic constituent of war matériel. he reproaches the court for giving no consideration to these things, although no one had ventured to challenge the president's finding of an emergency on the basis of them.[ ] he asks whether the steel seizure, considering the emergency involved, fits into the picture of presidential emergency action in the past and musters impressive evidence to show that it does. and "plaintiffs admit," he asserts, more questionably, "that the emergency procedures of taft-hartley are not mandatory."[ ] he concludes as follows: "the diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the district court. the broad executive power granted by article ii to an officer on duty days a year cannot, it is said, be invoked to avert disaster. instead, the president, must confine himself to sending a message to congress recommending action. under this messenger-boy concept of the office, the president cannot even act to preserve legislative programs from destruction so that congress will have something left to act upon. there is no judicial finding that the executive action was unwarranted because there was in fact no basis for the president's finding of the existence of an emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law."[ ] evaluation; presidential emergency power the doctrine of "the opinion of the court" is that, if congress can do it under, say, the necessary and proper clause, then the president, lacking authority from congress, cannot do it on the justification that an emergency requires it. although four justices are recorded as concurring in the opinion, their accompanying opinions whittle their concurrence in some instances to the vanishing point. justice douglas's supplementary argument on the basis of amendment v logically confines the doctrine of the opinion to executive seizures of property. justices frankfurter and burton and, less clearly, justice jackson insist in effect that congress had exercised its power in the premises of the case in opposition to seizure. justice clark, on the basis of chief justice marshall's opinion in little _v._ barreme, holds unambiguously that, congress having entered the field, its evident intention to rule out seizures supplied the law of the case. that the president does possess a residual of resultant power above, or in consequence of, his granted powers to deal with emergencies in the absence of restrictive legislation is explicitly asserted by justice clark, and impliedly held, with certain qualifications, by justice frankfurter and, again less clearly, by justice jackson; and is the essence of the position of the three dissenting justices. finally, the entire court would in all probability agree to the proposition that any action of the president touching the internal economy of the country for which the justification of emergency is pleaded is always subject to revision and disallowance by the legislative power. it would seem to follow that whenever the president so acts on his own initiative he should at once report his action to congress, and thenceforth bring the full powers of his office to the support of the desires of the houses once these are clearly indicated. presidential immunity from judicial direction by the decision of the court in state of mississippi _v._ johnson,[ ] in , the president was put beyond the reach of judicial direction in the exercise of any of his powers, whether constitutional or statutory, political or otherwise. an application for an injunction to forbid president johnson to enforce the reconstruction acts, on the ground of their unconstitutionality, was answered by attorney general stanbery as follows: "it is not upon any peculiar immunity that the individual has who happens to be president; upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual, as is the case with one who has royal blood in his veins; but it is on account of the office that he holds that i say the president of the united states is above the process of any court or the jurisdiction of any court to bring him to account as president. there is only one court or _quasi_ court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal but one that sits in another chamber of this capitol."[ ] speaking by chief justice chase, the court agreed: "the congress is the legislative department of the government; the president is the executive department. neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. the impropriety of such interference will be clearly seen upon consideration of its possible consequences. suppose the bill filed and the injunction prayed for allowed. if the president refuse obedience, it is needless to observe that the court is without power to enforce its process. if, on the other hand, the president complies with the order of the court and refuses to execute the acts of congress, is it not clear that a collision may occur between the executive and legislative departments of the government? may not the house of representatives impeach the president for such refusal? and in that case could this court interfere, in behalf of the president, thus endangered by compliance with its mandate, and restrain by injunction the senate of the united states from sitting as a court of impeachment? would [not?] the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?"[ ] the court further indicated that the same principle would apply to an application for a mandamus ordering the president to exercise any of his powers. the president's subordinates and the courts but while the courts are unable to compel the president to act or to keep him from acting, yet his acts, when performed are in proper cases subject to judicial review and disallowance.[ ] moreover, the subordinates through whom he acts may always be prohibited by writ of injunction from doing a threatened illegal act which might lead to irreparable damage,[ ] or be compelled by writ of mandamus to perform a duty definitely required by law,[ ] such suits being usually brought in the united states district court for the district of columbia.[ ] also, by common law principles, a subordinate executive officer is personally liable under the ordinary law for any act done in excess of authority.[ ] indeed, by a recent holding, district courts of the united states are bound to entertain suits for damages arising out of alleged violation of plaintiff's constitutional rights, even though as the law now stands the court is powerless to award damages.[ ] but congress may, in certain cases, exonerate the officer by a so-called act of indemnity,[ ] while as the law stands at present, any officer of the united states who is charged with a crime under the laws of a state for an act done under the authority of the united states is entitled to have his case transferred to the national courts.[ ] section . the president, vice president and all civil officers of the united states, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. impeachment "civil officer" a member of congress is not a civil officer within the meaning of this section; nor is a private citizen subject to impeachment;[ ] but resignation of an officer does not give immunity from impeachment for acts committed while in office.[ ] "high crimes and misdemeanors" most of the states have drafted their constitutional provisions on this subject in similar language. as there is no enumeration of offenses comprised under the last two categories, no little difficulty has been experienced in defining offenses in such a way that they fall within the meaning of the constitutional provisions. but impeachable offenses were not defined in england, and it was not the intention that the constitution should attempt an enumeration of crimes or offenses for which an impeachment would lie. treason and bribery have always been offenses whose nature was clearly understood. other high crimes and misdemeanors which might be made causes for the impeachment of civil officers were those which embraced any misbehavior while in office. madison, whose objection led to the insertion of the more definite phrase high crimes and misdemeanors, was the strongest advocate of a broad construction of the impeachment power. he argued that incapacity, negligence, or perfidy of the chief magistrate should be ground for impeachment.[ ] again, in discussing the president's power of removal, he maintained that the wanton removal from office of meritorious officers would be an act of maladministration, and would render the president liable to impeachment.[ ] hamilton thought the proceeding could "never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of the courts in favor of personal security."[ ] the chase impeachment the above relatively flexible conception of "high crimes and misdemeanors" was, however, early replaced by a much more rigid one in consequence of jefferson's efforts to diminish the importance of the supreme court, the first step in which enterprise was the impeachment in of justice samuel chase. the theory of chase's enemies was given its extremest expression by jefferson's henchman, senator giles of virginia, as follows: "impeachment is nothing more than an enquiry, by the two houses of congress, whether the office of any public man might not be better filled by another. * * * the power of impeachment was given without limitation to the house of representatives; and the power of trying impeachments was given equally without limitation to the senate; * * * a trial and removal of a judge upon impeachment need not imply any criminality or corruption in him. * * * [but] was nothing more than a declaration of congress to this effect: you hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. _we want your offices_, for the purpose of giving them to men who will fill them better."[ ] to this theory chase's counsel opposed the proposition that "high crimes and misdemeanors" meant offenses indictable at common law; and chase's acquittal went far to affix this reading to the phrase till after the war between the states. the johnson impeachment but with the impeachment of president johnson in for "high crimes and misdemeanors," the controversy was revived. representative bingham, leader of the house managers of the impeachment, defined an impeachable offense as follows: "an impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose."[ ] former justice benjamin r. curtis stated the position of the defense in these words: "my first position is, that when the constitution speaks of 'treason, bribery, and other high crimes and misdemeanors,' it refers to, and includes only, high criminal offences against the united states, made so by some law of the united states existing when the acts complained of were done, and i say that this is plainly to be inferred from each and every provision of the constitution on the subject of impeachment."[ ] later impeachments with johnson's acquittal, the narrow view of "high crimes and misdemeanors" appeared again to win out. two successful impeachments of lower federal judges in recent years have, however, restored something like the broader conception of the term which madison and hamilton had endorsed. in judge archbald of the commerce court was removed from office by the impeachment process, and disqualified to hold and enjoy any office of honor, profit or trust under the constitution, for soliciting for himself and friends valuable favors from railroad companies some of which were at the time litigants in his court, although it was conceded that in so doing he had not committed an indictable offense;[ ] and in judge ritter of the florida district court was similarly removed for conduct in relation to a receivership case which evoked serious doubts as to his integrity, although on the specific charges against him he was acquitted.[ ] it is probable that in both these instances the final result was influenced by the consideration that judges of the united states hold office during "good behavior" and that the impeachment process is the only method indicated by the constitution for determining whether a judge's behavior has been "good." in other words, as to judges of the united states at least lack of "good behavior" and "high crimes and misdemeanors" are overlapping if not precisely coincidental concepts.[ ] notes [ ] as is pointed out by hamilton in the federalist no. . [ ] charles c. thach, the creation of the presidency, - (baltimore, ), - . [ ] ibid. . [ ] max farrand, records, ii, . [ ] ibid. ii, (september ), . [ ] annals of congress ff. [ ] ibid. - ; - . for a thorough-going review and evaluation of this debate, _see_ james hart, the american presidency in action, - (new york, ). [ ] works of alexander hamilton, vii, , - (j.c. hamilton, ed., new york, ). hamilton was here simply interpreting the executive power clause in light of the views of blackstone, locke, and montesquieu as to the location of power in the conduct of foreign relations. _see_ edward s. corwin, the president, office and powers ( d ed.), - . for a parallel argument to hamilton's respecting "the judicial power of the united states," article , section , clause , _see_ justice brewer's opinion in kansas _v._ colorado, u.s. , ( ). [ ] myers _v._ united states, u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. - , . _see also_ ibid. citing u.s. senate reports, committee on foreign relations, vol. , p. (february , ). [ ] ibid. , citing panama refining co. _v._ ryan, u.s. , - ( ). [ ] in youngstown co. _v._ sawyer, u.s. ( ) the doctrine is advanced that the president has no power in the field of congress' legislative powers except such as are delegated him by congress. this doctrine is considered below in the light of previous practice and adjudication. _see_ pp. - . [ ] _see_ e.g., abel upshur, a brief inquiry into the true nature and character of our federal government ( ), - . [ ] the federalist no. , . [ ] james hart, the american presidency in action (new york, ), - . [ ] dall. ( ). [ ] messages and papers of the presidents, i, . [ ] corwin, the president, office and powers ( d ed.), - , - , , , . "the executive [branch of the government], possessing the rights of self-government from nature, cannot be controlled in the exercise of them but by a law, passed in the forms of the constitution." thomas jefferson, official opinion ( ) ford, ed. (new york, - ). "in times of peace the people look most to their representatives; but in war, to the executive solely." letter to caesar a. rodney, ( ) monticello, ford, ed. . [ ] corwin - , and citations. [ ] ibid. - , and citations. [ ] ibid. - . [ ] ibid. . _see also_ ibid. . [ ] ford, the rise and growth of american politics (new york, ), . [ ] as to the meaning of "the fourth day of march", _see_ charles warren, political practice and the constitution, univ. of pa. l. rev. (june, ) - . [ ] on the anti-third term tradition, _see_ corwin, the president, office and powers ( d ed.), - , - . [ ] mcpherson _v._ blacker, u.s. , ( ). [ ] ibid. - . [ ] max farrand, ii, . [ ] in re green, u.s. , - ( ). [ ] united states _v._ hartwell, wall. , ( ). [ ] hawke _v._ smith, u.s. ( ). [ ] burroughs _v._ united states, u.s. , ( ). [ ] ex parte yarbrough, u.s. ( ). [ ] burroughs _v._ united states, u.s. ( ). [ ] ibid. . during the recent war, congress laid claim in the act of september , , to the power "in time of war" to secure to every member of the armed forces the right to vote for members of congress and presidential electors notwithstanding any provisions of state law relating to the registration of qualified voters or any poll tax requirement under state law. the constitutional validity of this act was open to serious question and by the act of april , was abandoned. the latter act established a war ballot commission which was directed to prepare an adequate number of official war ballots, whereby the service men would be enabled in certain contingencies to vote for members of congress and presidential electors; but the validity of such ballots was left to be determined by state election officials under state laws. (app.) u.s.c.a. §§ - , , . [ ] u.s. ( ). [ ] _see_ pp. - . [ ] stat. . [ ] u.s.c. § . [ ] u.s.c. § . [ ] public law , th cong., st sess. by section (a) of public law of the th cong., st sess., approved july , , that is, eight days after public law , the "secretary of war" and the "secretary of the navy" were stricken from the line of succession and the "secretary of defense" whose office public law created, was inserted instead. [ ] _cf._ op. atty. gen. ( ), holding that a specific tax by the united states upon the salary of an officer, to be deducted from the amount which otherwise would by law be payable as such salary, is a diminution of the compensation to be paid to him, which, in the case of the president of the united states, would be unconstitutional if the act of congress levying the tax was passed during his official term. [ ] the federalist no. , , . [ ] story's commentaries, ii, § . [ ] fleming _v._ page, how. , , ( ). [ ] ex parte milligan, wall. , ( ). [ ] stat. ( ); stat. ( ). _see also_ martin _v._ mott, wheat. , - ( ), asserting the finality of the president's judgment of the existence of a state of facts requiring his exercise of the powers conferred by the act of . [ ] messages and papers of the presidents, vii, . [ ] bl. ( ). [ ] messages and papers of the presidents, vii, , , . [ ] bl. at - . [ ] stat. ( ). [ ] james g. randall, constitutional problems under lincoln, - (new york, ). [ ] _see_ the government's brief in united states _v._ montgomery ward and co., f. d ( ). [ ] united states _v._ curtiss-wright export corp., u.s. , ( ). [ ] _see_ white house digest of provisions of law which would become operative upon proclamation of a national emergency by the president. the digest is dated december , . it was released to the press on december th. [ ] stat. . [ ] cong. rec. th cong., d sess., vol. , pt. , p. (september , ). [ ] u.s.c.a. war, app. . for emergency war agencies that were functioning at any particular time, consult the _united states government manual_ of the approximate date. the executive order creating an agency is cited by number. for a chronological list of wartime agencies (including government corporations) and some account of their creation down to the close of , _see_ chapter on war powers and their administration by dean arthur t. vanderbilt in annual survey of american law (new york university school of law, ), pp. - . at the close of the war there were agencies grouped under oem, of which ocd, wmc, and oc were the first to fold up. at the same date there were separate government corporations, engaged variously in production, transportation, power-generation, banking and lending, housing, insurance, merchandising, and other lines of business and enjoying the independence of autonomous republics, being subject to neither congressional nor presidential scrutiny, nor to audit by the general accounting office. [ ] f. d. ( ). [ ] _see_ corwin, the president, office and powers ( d ed.) , . [ ] exec. order , fed. reg. . [ ] stat. . [ ] hirabayashi _v._ united states, u.s. , - ( ). [ ] korematsu _v._ united states, u.s. ( ). [ ] new york times, june , . [ ] fed. reg. . [ ] stat. . [ ] "during the course of the year [ ] the president directed the seizure of many of the nation's industries in the course of labor disputes. the total number of facilities taken over is significant: two railroad systems, one public utility, nine industrial companies, the transportation systems of two cities, the motor carriers in one city, a towing company and a butadiene plant. in addition thereto the president on april seized bituminous coal mines belonging to companies and on may , more bituminous mines of additional companies. the anthracite coal industry fared no better; on may and may all the mines of companies and operators were taken away from the owners, and on october the president ordered the seizure of plants and pipe lines of petroleum producing companies in addition to four taken over prior thereto. "during the year disputes between railroad companies and the brotherhoods resulted in the establishment of twelve railroad emergency boards to investigate disputes and to report to the president. the president also established on october a railway express emergency board to investigate the dispute between the railway express and a union. "to implement the directives of the national war labor board, the office of economic stabilization directed the cancellation of all priority applications, allocation applications and outstanding priorities and allocations in the cases of three clothing companies and one transportation system which refused to comply with orders of the national war labor board." arthur t. vanderbilt, war powers and their administration, , annual survey of american law (new york university school of law), pp. - . [ ] fed. reg. . [ ] stat. . [ ] u.s. ( ). [ ] ibid. - . [ ] _see_ corwin, the president, office and powers ( d ed.) - . [ ] charles fairman, the law of martial rule (chicago, ), - . albert venn dicey, introduction to the study of the law of the constitution ( th ed.), - . [ ] dicey, introduction to the study of the law of the constitution, chap. viii, - . [ ] how. ( ). _see also_ martin _v._ mott, wheat. , - ( ). [ ] bl. ( ). [ ] wall. ( ). [ ] ibid. . [ ] ibid. - . in ex parte vallandigham the court had held while war was still flagrant that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the army, commanding a military department. wall. ( ). [ ] stat. , . [ ] duncan _v._ kahanamoku, u.s. ( ). [ ] ibid. . [ ] ibid. . [ ] ibid. . [ ] ex parte quirin, u.s. ( ). [ ] u.s. , - , ( ). [ ] ibid. , - . [ ] ibid. - . [ ] stat. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] _see_ leo gross, the criminality of aggressive war, american political science review (april, ), - . [ ] fleming _v._ page, how. , ( ). [ ] madsen _v._ kinsella, u.s. , ( ). _see also_ johnson _v._ eisentrager, u.s. , ( ). [ ] totten _v._ united states, u.s. ( ). [ ] hamilton _v._ dillin, wall. ( ); haver _v._ yaker, wall. ( ). [ ] mitchell _v._ harmony, how. ( ); united states _v._ russell, wall. ( ); totten _v._ united states, note above; [transcriber's note: reference is to footnote , above.] op. atty. gen. - ( ). [ ] _cf._ the protocol of august , , which largely foreshadowed the peace of paris; and president wilson's fourteen points, which were incorporated in the armistice of november , . [ ] fleming _v._ page, how. , ( ). [ ] santiago _v._ nogueras, u.s. ( ). as to temporarily occupied territory, _see_ dooley _v._ united states, u.s. , - ( ). [ ] swaim _v._ united states, u.s. ( ); and cases there reviewed. _see also_ givens _v._ zerbst, u.s. ( ). [ ] op. atty. gen. and note; ibid. ; _cf._ ibid. , , where the contrary view is stated by attorney general wirt. [ ] ex parte quirin, u.s. , - ( ). [ ] general orders, no. , official records, war of rebellion, ser. iii, vol. iii; april , . [ ] _see_ e.g., mimmack _v._ united states, u.s. , ( ); united states _v._ corson, u.s. ( ). [ ] u.s.c. § . [ ] mullan _v._ united states, u.s. ( ); wallace _v._ united states, u.s. ( ). [ ] surrogate's court, dutchess county, new york, ruling july , that the estate of franklin d. roosevelt was not entitled to tax benefits under sections and of the internal revenue code, which extends certain tax benefits to persons dying in the military service of the united states. new york times, july , , p. , col. . [ ] farrand, i, , , ; ii, , , - , , - (_passim_). [ ] heads of executive departments except the postmaster general have no fixed legal terms. for the history of legislation on the subject. _see_ op. atty. gen. - (april , ); _also_ everett s. brown, the tenure of cabinet officers, american political science review - (june, ). [ ] _see_ corwin, the president, office and powers ( d ed.), new york university press, , - , , - , , - , - , - , - . the only question of a constitutional nature that has arisen concerning the cabinet meeting is as to its right to meet, on the call of the secretary of state, in the president's absence. ibid. . [ ] united states _v._ wilson, pet. , - ( ). [ ] u.s. , ( ). [ ] ibid. - . [ ] armstrong _v._ united states, wall. , ( ). in brown _v._ walker, u.s. ( ), the court had said: "it is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed." ibid. , citing british cases. [ ] biddle _v._ perovich, u.s. , ( ). [ ] _cf._ w.h. humbert, the pardoning power of the president, american council on public affairs (washington, ) . [ ] u.s. at . [ ] op. atty. gen. ( ); illinois central r. co. _v._ bosworth, u.s. ( ). [ ] ex parte wells, how. ( ). for the contrary view _see_ some early opinions of attorney general, opins. atty. gen. ( ); ibid. ( ); ibid. ( ); _cf._ ibid. ; united states _v._ wilson, pet. , ( ). [ ] ex parte united states, u.s. ( ). amendment of sentence, however, (within the same term of court) by shortening the term of imprisonment, although defendant had already been committed, is a judicial act and no infringement of the pardoning power. united states _v._ benz, u.s. ( ). [ ] _see_ messages and papers of the presidents, i, , ; ii, ; vii, , ; viii, ; xiv, . [ ] united states _v._ klein, wall. , ( ). _see also_ united states _v._ padelford, wall. ( ). [ ] ex parte garland, wall. , ( ). [ ] f.w. maitland, constitutional history of england (cambridge, ), - ; op. atty. gen. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. , . [ ] wall. , ( ). [ ] ibid. . [ ] ibid. - . [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] knote _v._ united states, u.s. , - ( ). [ ] united states _v._ klein, wall. , , ( ). [ ] the laura, u.s. ( ). [ ] brown _v._ walker, u.s. ( ). [ ] farrand, ii, . [ ] ibid. - . [ ] the federalist no. . [ ] farrand, iii, . [ ] washington sought to use the senate as a council, but the effort proved futile, principally because the senate balked. for the details _see_ corwin, the president, office and powers ( d ed.), - . [ ] united states _v._ curtiss-wright export corp., u.s. , ( ). [ ] corwin, the president, office and powers ( d ed.), - . [ ] "obviously the treaty must contain the whole contract between the parties, and the power of the senate is limited to a ratification of such terms as have already been agreed upon between the president, acting for the united states, and the commissioners of the other contracting power. the senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratifications conditional upon the adoption of amendments to the treaty." fourteen diamond rings _v._ united states, u.s. , ( ). [ ] _cf._ article i, section , clause ; _also_ missouri pacific r. co. _v._ kansas, u.s. , - ( ). [ ] _see_ samuel crandall, treaties, their making and enforcement ( d ed., washington, ), § , for instances. [ ] foster _v._ neilson, pet. , ( ). "though several writers on the subject of government place that [the treaty-making] power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either. the essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose, or for the common defence, seem to comprise all the functions of the executive magistrate. the power of making treaties is, plainly, neither the one nor the other. it relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. its objects are _contracts_ with foreign nations, which have the force of law, but derive it from the obligations of good faith. they are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. the power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive." hamilton in the federalist no. . [ ] head money cases, u.s. , ( ). for treaty provisions operative as "law of the land" ("self-executing"), _see_ crandall, treaties ( d ed.), - , - (_passim_), , - , , - , , , , - . for treaty provisions of an "executory" character, _see_ ibid. - , , , , , , , , . [ ] _see_ crandall, chap. iii, - . [ ] dall. ( ). [ ] cr. ( ). [ ] "in chirac _v._ chirac ( wheat. ), it was held by this court that a treaty with france gave to her citizens the right to purchase and hold land in the united states, removed the incapacity of alienage and placed them in precisely the same situation as if they had been citizens of this country. the state law was hardly adverted to, and seems not to have been considered a factor of any importance in this view of the case. the same doctrine was reaffirmed touching this treaty in carneal _v._ banks ( wheat. ) and with respect to the british treaty of , in hughes _v._ edwards ( wheat. ). a treaty stipulation may be effectual to protect the land of an alien from forfeiture by escheat under the laws of a state. orr _v._ hodgson ( wheat. ). by the british treaty of , 'all impediment of alienage was absolutely levelled with the ground despite the laws of the states. it is the direct constitutional question in its fullest conditions. yet the supreme court held that the stipulation was within the constitutional powers of the union. fairfax's devisees _v._ hunter's lessee, cr. ; _see_ ware _v._ hylton, dall. .' op. attys-gen. . mr. calhoun, after laying down certain exceptions and qualifications which do not affect this case, says: 'within these limits all questions which may arise between us and other powers, be the subject-matter what it may, fall within the treaty-making power and may be adjusted by it.' treat. on the const. and gov. of the u.s. . "if the national government has not the power to do what is done by such treaties, it cannot be done at all, for the states are expressly forbidden to 'enter into any treaty, alliance, or confederation.' const., art. i. sect. . "it must always be borne in mind that the constitution, laws, and treaties of the united states are as much a part of the law of every state as its own local laws and constitution. this is a fundamental principle in our system of complex national polity." u.s. at - . [ ] u.s. ( ). [ ] _see also_ de geofroy _v._ riggs, u.s. ( ); sullivan _v._ kidd, u.s. ( ); nielsen _v._ johnson, u.s. ( ). but a right under treaty to acquire and dispose of property does not except aliens from the operation of a state statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. todok _v._ union state bank, u.s. ( ). nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the natives of rights and privileges in respect to protection and security of person and property, violated by a state statute which denied to a nonresident alien _wife_ of a person killed within the state, the right to sue for wrongful death, although such right was afforded to native resident _relatives_. maiorano _v._ baltimore & o.r. co., u.s. ( ). the treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the pennsylvania workmen's compensation act, compensation was expressly limited to resident parents; the supreme court held that it did not. liberato _v._ royer, u.s. ( ). [ ] terrace _v._ thompson, u.s. ( ). [ ] u.s. ( ). _see also_ takahashi _v._ fish and game comm., u.s. ( ), in which a california statute prohibiting the issuance of fishing licenses to persons ineligible to citizenship is disallowed, both on the basis of amendment xiv and on the ground that the statute invaded a field of power reserved to the national government, namely, the determination of the conditions on which aliens may be admitted, naturalized, and permitted to reside in the united states. for the latter proposition hines _v._ davidowitz, u.s. , ( ) was relied upon. [ ] this occurred in the much advertised case of sei fujii _v._ state of california, p. d, ( ). a lower california court had held that the legislation involved was void under the united nations charter, but the california supreme court was unanimous in rejecting this view. the charter provisions invoked in this connection [arts. , , and ], said chief justice gibson, "we are satisfied * * * were not intended to supersede domestic legislation". [ ] clark _v._ allen, u.s. ( ). [ ] cr. , ( ). [ ] foster _v._ neilson, pet. , ( ); strother _v._ lucas, pet. , ( ); edye _v._ robertson (head money cases), u.s. , , ( ); united states _v._ rauscher, u.s. , ( ); bacardi corp. _v._ domenech, u.s. ( ). [ ] the doctrine of political questions is not always strictly adhered to in cases of treaty interpretation. in the case of the "_appam_" it was conspicuously departed from. this was a british merchant vessel which was captured by a german cruiser early in and brought by a german crew into newport news, virginia. the german imperial government claimed that under the treaties of and between the united states and prussia, the vessel was entitled to remain in american waters indefinitely. secretary of state lansing ruled against the claim, and the supreme court later did the same, but ostensibly on independent grounds and without reference to the attitude of the department of state. the steamship appam, u.s. ( ). although it is a principle of international law that, as respects the rights of the signatory parties, a treaty is binding from the date of signature, a different rule applies in this country as to a treaty as "law of the land" and as such a source of human rights. before a treaty can thus operate it must have been approved by the senate. haver _v._ yaker, wall. ( ). [ ] _see_ crandall, treaties, their making and enforcement, ( d ed.), - , with citations. [ ] madison writings (hunt ed.), . [ ] "we express no opinion as to whether congress is bound to appropriate the money * * * it is not necessary to consider it in this case, as congress made prompt appropriation of the money stipulated in the treaty" (the treaty of paris of between spain and the united states). de lima _v._ bidwell, u.s. , ( ). for a list of earlier appropriations of the same kind, _see_ crandall, - , n. . [ ] willoughby, on the constitution, i ( d ed., new york, ), . _see also_ h. rept. , th cong., d sess., for an exhaustive review of the subject. [ ] edye _v._ robertson (head money cases), u.s. , - ( ). the repealability of treaties by act of congress was first asserted in an opinion of the attorney general in ( op. atty. gen. ). the year following the doctrine was adopted judicially in a lengthy and cogently argued opinion of justice curtis, speaking for a united states circuit court in taylor _v._ morton, fed. cas. no. , ( ). the case turned on the following question: "if an act of congress should levy a duty upon imports, which an existing commercial treaty declares shall not be levied, so that the treaty is in conflict with the act, does the former or the latter give the rule of decision in a judicial tribunal of the united states, in a case to which one rule or the other must be applied?" citing the supremacy clause of the constitution, justice curtis said: "there is nothing in the language of this clause which enables us to say, that in the case supposed, the treaty, and not the act of congress, is to afford the rule. ordinarily, treaties are not rules prescribed by sovereigns for the conduct of their subjects, but contracts, by which they agree to regulate their own conduct. this provision of our constitution has made treaties part of our municipal law. but it has not assigned to them any particular degree of authority in our municipal law, nor declared whether laws so enacted shall or shall not be paramount to laws otherwise enacted. * * * [this] is solely a question of municipal, as distinguished from public law. the foreign sovereign between whom and the united states a treaty has been made, has a right to expect and require its stipulations to be kept with scrupulous good faith; but through what internal arrangements this shall be done, is, exclusively, for the consideration of the united states. whether the treaty shall itself be the rule of action of the people as well as the government, whether the power to enforce and apply it shall reside in one department, or another, neither the treaty itself, nor any implication drawn from it, gives him any right to inquire. if the people of the united states were to repeal so much of their constitution as makes treaties part of their municipal law, no foreign sovereign with whom a treaty exists could justly complain, for it is not a matter with which he has any concern. * * * by the eighth section of the first article of the constitution, power is conferred on congress to regulate commerce with foreign nations, and to lay duties, and to make all laws necessary and proper for carrying those powers into execution. that the act now in question is within the legislative power of congress, unless that power is controlled by the treaty, is not doubted. it must be admitted, also, that in general, power to legislate on a particular subject, includes power to modify and repeal existing laws on that subject, and either substitute new laws in their place, or leave the subject without regulation, in those particulars to which the repealed laws applied. there is therefore nothing in the mere fact that a treaty is a law, which would prevent congress from repealing it. unless it is for some reason distinguishable from other laws, the rule which it gives may be displaced by the legislative power, at its pleasure. * * * i think it is impossible to maintain that, under our constitution, the president and senate exclusively, possess the power to modify or repeal a law found in a treaty. if this were so, inasmuch as they can change or abrogate one treaty, only by making another inconsistent with the first, the government of the united states could not act at all, to that effect, without the consent of some foreign government; for no new treaty, affecting, in any manner, one already in existence, can be made without the concurrence of two parties, one of whom must be a foreign sovereign. that the constitution was designed to place our country in this helpless condition, is a supposition wholly inadmissible. it is not only inconsistent with the necessities of a nation, but negatived by the express words of the constitution. * * *" _see also_ the cherokee tobacco, wall. ( ); united states _v._ forty-three gallons of whiskey, u.s. , ( ); botiller _v._ dominguez, u.s. ( ); chae chan ping _v._ united states, u.s. , ( ); whitney _v._ robertson, u.s. , ( ); fong yue ting _v._ united states, u.s. , ( ); etc. "congress by legislation, and so far as the people and authorities of the united states are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the president and approved by the senate." la abra silver mining co. _v._ united states, u.s. , ( ). _cf._ reichert _v._ felps, wall. , - ( ), where it is stated obiter that "congress is bound to regard the public treaties, and it had no power * * * to nullify [indian] titles confirmed many years before * * *" [ ] united states _v._ schooner peggy, cr. ( ). [ ] foster _v._ neilson, pet. ( ). [ ] united states _v._ percheman, pet. ( ). [ ] willoughby, on the constitution, i, ( d ed.), . [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] it is arguable that the maximum _leget posteriores_ is not the most eligible rule for determining conflicts between "laws of the united states * * * made in pursuance thereof" (i.e. of the constitution) and "treaties made * * * under the authority of the united states". it may be that the former, being mentioned immediately after "this constitution" and before "treaties," are entitled always to prevail over the latter, just as both acts of congress and treaties yield to the constitution. [ ] stat. . [ ] dall. ( ). [ ] crandall, treaties ( d ed.), ; _see_ messages and papers of the presidents, iv, ; and benton, abridgment of the debates of congress, . mangum of north carolina denied that congress could authorize the president to give notice: "he entertained not a particle of doubt that the question never could have been thrown upon congress unless as a war or _quasi_ war measure. * * * congress had no power of making or breaking a treaty." he owned, however, that he might appear singular in his view of the matter. ibid. . [ ] crandall, - ; wright, the control of american foreign relations, . [ ] stat. . [ ] crandall, . [ ] _see_ jesse s. reeves, the jones act and the denunciation of treaties, american journal of international law (january, ) - . among other precedents which call into question the exclusive significance of the legislative role in the termination of treaties as international conventions is one mentioned by mr. taft: "in my administration the lower house passed a resolution directing the abrogation of the russian treaty of , couched in terms which would have been most offensive to russia, and it did this by a vote so nearly unanimous as to indicate that in the senate, too, the same resolution would pass. it would have strained our relations with russia in a way that seemed unwise. the treaty was an old one, and its construction had been constantly the subject of controversy between the two countries, and therefore, to obviate what i felt would produce unnecessary trouble in our foreign relations, i indicated to the russian ambassador the situation, and advised him that i deemed it wise to abrogate the treaty, which, as president, i had the right to do by due notice couched in a friendly and courteous tone and accompanied by an invitation to begin negotiations for a new treaty. having done this, i notified the senate of the fact, and this enabled the wiser heads of the senate to substitute for the house resolution a resolution approving my action, and in this way the passage of the dangerous resolution was avoided." the resolution in question, it should be added, was a joint resolution, and purported to ratify the president's action. the president himself had asked only for ratification and approval of his course by the senate. william howard taft, the presidency (new york, ), - . two other precedents bearing on outright abrogation of treaties are the following. the question whether to regard the extradition article of the treaty of with great britain as void on account of certain acts of the british government was laid before congress by president grant in a special message dated june , , in the following terms: "it is for the wisdom of congress to determine whether the article of the treaty relating to extradition is to be any longer regarded as obligatory on the government of the united states or as forming part of the supreme law of the land. should the attitude of the british government remain unchanged, i shall not, without an expression of the wish of congress that i should do so, take any action either in making or granting requisitions for the surrender of fugitive criminals under the treaty of ." messages and papers of the presidents, ix, , . three years later congress passed a resolution requiring the president to abrogate articles v and vi of the treaty of with china. president hayes vetoed it, partly on the ground that "the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the constitution. * * *" at the same time, he also wrote: "the authority of congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is as free from controversy under our constitution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the constitution in congress, but in the president, by and with the advice and consent of the senate, as shown by the concurrence of two-thirds of that body." ibid. - . the veto would seem to have been based on a quibble. [ ] u.s. ( ). [ ] ibid. - . [ ] clark _v._ allen, u.s. ( ). [ ] charlton _v._ kelly, u.s. ( ). [ ] fed. cas. no. , ( ). [ ] pet. , ( ). [ ] acts of march , and of february , ; stat. and stat. . [ ] in re ross, u.s. ( ), where the treaty provisions involved are given. the supplementary legislation was later reenacted as rev. stat. §§ - . [ ] u.s.c.a. §§ - . [ ] baldwin _v._ franks, u.s. , ( ). [ ] neely _v._ henkel, u.s. , ( ). a different theory is offered by justice story in his opinion for the court in prigg _v._ pennsylvania, pet. ( ), in the following words: "treaties made between the united states and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of congress to carry them into effect, and congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon congress to make laws to carry the stipulations of treaties into effect. it has been supposed to result from the duty of the national government to fulfil all the obligations of treaties." ibid. . story was here in quest of arguments to prove that congress had power to enact a fugitive slave law, which he based on its power "to carry into effect rights expressly given and duties expressly enjoined" by the constitution. ibid. - . but the treaty-making power is neither a right nor a duty, but one of the powers "vested by this constitution in the government of the united states." article i, section , clause . [ ] geofroy _v._ riggs, u.s. ( ). _see also_ fort leavenworth railroad co. _v._ lowe, u.s. , ( ), which is cited in the field opinion in support of the idea that no cession of any portion of a state's territory could be effected without the state's consent. the statement is the purest obiter. [ ] ibid. . [ ] the majority of the cases, as was pointed out earlier, dealt with the competence of the treaty-making power to grant aliens the right to inherit real property contrary to state law. the nearest the court ever came to lending countenance to the state rights argument in this connection was in frederickson _v._ louisiana, how. ( ). _see_ ibid. . [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . "the treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. it can, equally with any of the former or present governments of europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein." in re ross, u.s. , ( ). [ ] jefferson excepted out of the treaty-making power the delegated powers of congress, though just what he meant by this exception is uncertain. he may have meant that no international agreement could be constitutionally entered into by the united states within the sphere of such powers, or only that treaty-provisions dealing with matters which are also subject to the legislative power of congress must, in order to become law of the land, receive the assent of congress. the latter interpretation, however, does not state a limitation on the power of making treaties in the sense of international conventions, but rather a necessary procedure before certain conventions are cognizable by the courts in the enforcement of rights under them, while the former interpretation has been contradicted in practice from the outset. various other limitations to the treaty-making power have been suggested from time to time. thus, it has been contended that the territory of a state of the union could not be ceded without such state's consent, _see above_; also, that while foreign territory can be annexed to the united states by the treaty-making power, it could not be incorporated with the united states except with the consent of congress; also, that while the treaty-making power can consent to the united states being sued for damages in an international tribunal for an alleged incorrect decision of a court of the united states, it could not consent to an appeal being taken from one of its courts to an international tribunal. the first of these alleged limitations may be dismissed as resting on the unallowable idea that the united states is not as to its powers a territorial government, but only the agent of the states. in the words of chancellor kent: "the better opinion would seem to be, that such a power of cession of the territory of a state without its consent does reside exclusively in the treaty-making power, under the constitution of the united states, yet sound discretion would forbid the exercise of it without the consent of the local government who are interested, except in cases of great necessity, in which the consent might be presumed." comm. - and note. this seems also to have been substantially the view of marshall and story. _see_ willoughby, on the constitution, i ( d ed., ), - . the second suggested limitation, which was urged at tremendous length by chief justice white in his concurring opinion for himself and three other justices, in downes _v._ bidwell, u.s. , - ( ), boils down simply to the question of correct constitutional procedure for the effectuation of a treaty; and much the same may be said of the third alleged limitation. this limitation was first suggested in connection with the hague convention of providing for an international prize court as a result of appeal from the prize courts of belligerents. to this arrangement president taft objected that the treaty-making power could not transfer to a tribunal not known to the constitution part of the "judicial power of the united states," and upon this view of the matter dispensation was finally granted the united states in a special protocol whereby this nation was allowed, in lieu of granting appeals from its prize courts to the international court, to be mulcted in damages in the latter for erroneous decisions in the former. it is submitted that president taft's position was fallacious, for the simple reason that not even the whole american nation is entitled to judge finally of its rights or of those of its citizens under the law which binds all nations and determines their rights; and that, therefore, the whole american nation never had any authority to create a judicial power vested with any such jurisdiction. _see_ edye _v._ robertson (head money cases), u.s. , ( ). the law of nations seems of itself to presuppose a tribunal of nations with coextensive jurisdiction. thus there is no reason why a completely independent nation like the united states may not consent to be bound by the decisions of such a tribunal without any derogation from its rightful sovereignty. and if "the authority of the united states" is the authority of the nation in the field of foreign relations--if the national government has constitutional powers coextensive with its international responsibilities--we must conclude that such consent can be validly given through the existing treaty-making power. _see_ favoring membership of the united states in the permanent court of international justice, h. rept. , th cong., d sess. [ ] pet. ( ). [ ] pet. ( ). [ ] ibid. . [ ] holden _v._ joy, wall. , ( ); united states _v._ gallons of whiskey, etc., u.s. , ( ); dick _v._ united states, u.s. , - ( ). [ ] the new york indians, wall. ( ). [ ] the kansas indians, wall. , ( ). [ ] united states _v._ gallons of whiskey, etc., u.s. , ( ). [ ] the cherokee tobacco, wall. ( ). _see also_ ward _v._ race horse, u.s. , ( ); and thomas _v._. gay, u.s. , ( ). [ ] stat. , ; rev. stat § . [ ] ward _v._ race horse, u.s. ( ). [ ] lone wolf _v._ hitchcock, u.s. ( ). [ ] cherokee nation _v._ southern kansas r. co., u.s. ( ). [ ] the cherokee tobacco, wall. , ( ). [ ] choate _v._ trapp, u.s. , - ( ); jones _v._ meehan, u.s. ( ). [ ] for an effort to distinguish "treaties," "compacts," "agreements," "conventions," etc., _see_ chief justice taney's opinion in holmes _v._ jennison, pet. , - ( ). vattel is taney's chief reliance. [ ] story, comm. § . the president has the power in the absence of legislation by congress, to control the landing of foreign cables on the shores of the united states, op. atty. gen. and ( , ). [ ] crandall, treaties ( d ed.) chap. viii. _see also_ mcclure, international executive agreements (columbia university press, ), chaps. i and ii. [ ] crandall, ; mcclure, - . [ ] crandall, - ; mcclure, - . [ ] tucker _v._ alexandroff, u.s. , ( ). [ ] ibid. . the first of these conventions, signed july , , had asserted its constitutionality in very positive terms. "the power to make and enforce such a temporary convention respecting its own territory is a necessary incident to every national government, and adheres where the executive power is vested. such conventions are not treaties within the meaning of the constitution, and, as treaties, supreme law of the land, conclusive on the courts, but they are provisional arrangements, rendered necessary by national differences involving the faith of the nation and entitled to the respect of the courts. they are not a casting of the national will into the firm and permanent condition of law, and yet in some sort they are for the occasion an expression of the will of the people through their political organ, touching the matters affected; and to avoid unhappy collision between the political and judicial branches of the government, both which are in theory inseparably all one, such an expression to a reasonable limit should be followed by the courts and not opposed, though extending to the temporary restraint or modification of the operation of existing statutes. just as here, we think, this particular convention respecting san juan should be allowed to modify for the time being the operation of the organic act of this territory [washington] so far forth as to exclude to the extent demanded by the political branch of the government of the united states, in the interest of peace, all territorial interference for the government of that island." wright, the control of american foreign relations, , quoting watts _v._ united states, wash. terr., , ( ). [ ] quincy wright, the control of american foreign relations (new york, ), . [ ] crandall, - . [ ] ibid. . [ ] willoughby, on the constitution, i, . [ ] wallace mcclure, international executive agreements (columbia university press, ), . [ ] tyler dennett, roosevelt and the russo-japanese war (new york, ), - . [ ] mcclure, international executive agreements, - . [ ] ibid. - . [ ] willoughby, on the constitution, i, . [ ] wallace mcclure, international executive agreements (columbia university press, ), , . [ ] mcclure, international executive agreements, . [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] ibid. - . citing the federalist, no. . [ ] ibid. . citing guaranty trust co. _v._ united states, u.s. , ( ). [ ] ibid. - . citing nielsen _v._ johnson, u.s. ( ). [ ] ibid. . citing santovincenzo _v._ egan, u.s. ( ); united states _v._ belmont, u.s. ( ). [ ] ibid. - . citing oetjen _v._ central leather co., u.s. , ( ). [ ] u.s. at - _passim_. chief justice stone and justice roberts dissented, chiefly on the question of the interpretation of the litvinov agreement, citing guaranty trust co. _v._ united states, note above. [ ] mcclure, p. . [ ] ibid. - ; united states department of state bulletin, september , , pp. - . [ ] mcclure, - ; _cf._ the constitution, article iv, section , clause . when president john adams signed a deed conveying property for a legation to the queen of portugal, he was informed by his attorney general that only congress was competent to grant away public property. _see_ w.b. bryan, a history of the national capitol from its foundation through the period of the adoption of the organic act, i, - ; american state papers, misc., . _see also_ chief justice hughes, for the court, in ashwander _v._ tennessee valley authority, u.s. , ( ). [ ] state department bulletin, april , , pp. - . [ ] what purports to be the correct text of these agreements was published in the new york times of march , . the joint statement by the united states, great britain, and france on arms aid for the middle east which was released by the white house on may , (_see_ a.p. dispatches of that date) bears the earmarks of an executive agreement. and the same may be said of the following communique issued by the north atlantic council at the close of its sixth session at brussels on december , . "the north atlantic council acting on recommendations of the defense committee today completed the arrangements initiated in september last for the establishment in europe of an integrated force under centralized control and command. this force is to be composed of contingents contributed by the participating governments. "the council yesterday unanimously decided to ask the president of the united states to make available general of the army dwight d. eisenhower to serve as supreme commander. following receipt this morning of a message from the president of the united states that he had made general eisenhower available, the council appointed him. he will assume his command and establish his headquarters in europe early in the new year. he will have the authority to train the national units assigned to his command and to organize them into an effective integrated defense force. he will be supported by an international staff drawn from the nations contributing to the force. "the council, desiring to simplify the structure of the north atlantic treaty organization in order to make it more effective, asked the council deputies to initiate appropriate action. in this connection the defense committee, meeting separately on december th, had already taken action to establish a defense production board with greater powers than those of the military production and supply board which it supersedes. the new board is charged with expanding and accelerating production and with furthering the mutual use of the industrial capacities of the member nations. "the council also reached unanimous agreement regarding the part which germany might assume in the common defense. the german participation would strengthen the defense of europe without altering in any way the purely defensive character of the north atlantic treaty organization. the council invited the governments of france, the united kingdom and the united states to explore the matter with the government of the german federal republic. "the decisions taken and the measures contemplated have the sole purpose of maintaining and consolidating peace. the north atlantic nations are determined to pursue this policy until peace is secure." department of state release to the press of december , (no. ). [ ] mcclure, international executive agreements, ; stat. - ; reenacted in stat. , . [ ] mcclure, - ; crandall, - . [ ] crandall, - . [ ] stat. . section of the civil aeronautics act of ( stat. ) "clearly anticipates the making of agreements with foreign countries concerning civil aviation." op. atty. gen. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. , ( ). [ ] ibid. . [ ] stat. . one specific donation was of a destroyer to the queen of holland, a refugee at the time in great britain. [ ] stat. , , - ; extended by stat. . [ ] _see_ corwin, the president, office and powers ( d ed.) and notes. [ ] stat. . [ ] mcclure, - . [ ] ibid. . [ ] "there have been numerous instances in which the senate has approved treaties providing for the submission of specific matters to arbitration, leaving it to the president to determine exactly the form and scope of the matter to be arbitrated and to appoint the arbitrators. professor j.b. moore, in the article to which reference has already been made, enumerates thirty-nine instances in which provision has thus been made for the settlement of pecuniary claims. twenty of these were claims against foreign governments, fourteen were claims against both governments, and five against the united states alone." willoughby, on the constitution, i, . [ ] a decade of american foreign policy, s. doc. , st cong., st sess., . [ ] a decade of american foreign policy, s. doc. , st cong., st sess., . [ ] united states _v._ hartwell, wall. , ( ). [ ] op. atty. gen. ( ). [ ] it was so assumed by senator william maclay. _see_ journal of william maclay (new york, ), - . [ ] benton, abridgment of the debates of congress, - ; letters and other writings of james madison (philadelphia, ), - , - . [ ] stat. , . [ ] op. atty. gen. . [ ] stat. ; _see also_ the act of march , , stat. , which purported to authorize the president to appoint ambassadors in certain cases. [ ] u.s.c. §§ - . [ ] benton, abridgement of the debates of congress, - . [ ] s. misc. doc. , th cong., st sess., . [ ] s. rept. , d cong., d sess., . at the outset of our entrance into world war i president wilson dispatched a mission to "petrograd," as it was then called, without nominating the members of it to the senate. it was headed by mr. elihu root, with "the rank of ambassador," while some of his associates bore "the rank of envoy extraordinary." [ ] _see_ george frisbie hoar, autobiography, ii, - . [ ] justice brandeis, dissenting in myers _v._ united states, u.s. , - ( ). [ ] _see_ data in corwin, the president, office and powers ( d ed.) . congress has repeatedly designated individuals, sometimes by name, more frequently by reference to a particular office, for the performance of specified acts or for posts of a nongovernmental character; e.g., to paint a picture (jonathan trumbull), to lay out a town, to act as regents of smithsonian institution, to be managers of howard institute, to select a site for a post office or a prison, to restore the manuscript of the declaration of independence, to erect a monument at yorktown, to erect a statue of hamilton, and so on and so forth. harvard law review, , - . in his message of april , , president monroe stated the thesis that, "as a general principle, * * * congress have no right under the constitution to impose any restraint by law on the power granted to the president so as to prevent his making a free selection of proper persons for these [newly created] offices from the whole body of his fellow-citizens." messages and papers of the presidents, ii, , . the statement is ambiguous, but its apparent intention is to claim for the president unrestricted power in determining who are proper persons to fill newly created offices. [ ] stat. , ( ). [ ] in ex parte curtis, u.s. ( ), chief justice waite reviews early congressional legislation regulative of conduct in office. "the act now in question is one regulating in some particulars the conduct of certain officers and employés of the united states. it rests on the same principle as that originally passed in at the first session of the first congress, which makes it unlawful for certain officers of the treasury department to engage in the business of trade or commerce, or to own a sea vessel, or to purchase public lands or other public property, or to be concerned in the purchase or disposal of the public securities of a state, or of the united states (rev. stat., sect. ); and that passed in , which makes it an offence for a clerk in the same department to carry on trade or business in the funds or debts of the states or of the united states, or in any kind of public property (id., sect. ); and that passed in , which makes is unlawful for a judge appointed under the authority of the united states to exercise the profession of counsel or attorney, or to be engaged in the practice of the law (id., sect. ); and that passed in , which prohibits every officer of the united states or person holding any place of trust or profit, or discharging any official function under or in connection with any executive department of the government of the united states, or under the senate or house of representatives, from acting as an agent or attorney for the prosecution of any claim against the united states (id., sect. ); and that passed in , prohibiting members of congress from practicing in the court of claims (id., sect. ); and that passed in , punishing, by dismissal from service, an officer or employé of the government who requires or requests any workingman in a navy-yard to contribute or pay any money for political purposes (id., sect. ); and that passed in , prohibiting members of congress from being interested in contracts with the united states (id., sect. ); and another, passed in , which provides that no officer, clerk, or employé in the government of the united states shall solicit contributions from other officers, clerks, or employés for a gift to those in a superior official position, and that no officials or [clerical superiors shall receive any gift or] present as a contribution to them from persons in government employ getting a less salary than themselves, and that no officer or clerk shall make a donation as a gift or present to any official superior (id., sect. ). many others of a kindred character might be referred to, but these are enough to show what has been the practice in the legislative department of the government from its organization, and, so far as we know, this is the first time the constitutionality of such legislation has ever been presented for judicial determination." ibid. - . [ ] u.s.c. §§ - . [ ] stat. , ( ). [ ] u.s. ( ). [ ] u.s.c. . [ ] _see_ bills listed in index to digest of public general bills, th cong., d sess. [ ] fed reg. . [ ] shoemaker _v._ unite states, u.s. , ( ). [ ] united states _v._ germaine, u.s. ( ) is the leading case. for further citations _see_ auffmordt _v._ hedden, u.s. , ( ). the court will, nevertheless, be astute to ascribe to a head of department an appointment made by an inferior of such head. nishimura ekiu _v._ united states, u.s. , ( ). for the view that there is an intrinsic difference between a "public office" and a "public employment" _see_ mechem, public officers, pp. - . [ ] ex parte hennen, pet. , - ( ); united states _v._ germaine, u.s. , ( ). the statement on the point is in both instances obiter. [ ] ex parte siebold, u.s. , ( ). [ ] "they [the clauses of the constitution] seem to contemplate three distinct operations: st. the nomination. this is the sole act of the president, and is completely voluntary. d. the appointment. this is also the act of the president, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. d. the commission. to grant a commission to a person appointed, might, perhaps, be deemed a duty enjoined by the constitution. 'he shall,' says that instrument, 'commission all the officers of the united states.'" marbury _v._ madison, cr. , - ( ). marshall's statement that the appointment "is the act of the president," conflicts with the more generally held, and sensible view that when an appointment is made with its consent, the senate shares the appointing power. kent's comm. ; story comm. § ; ex parte hennen, pet. , ( ). [ ] op. atty. gen. ( ). [ ] story comms., § ; writings of jefferson (ford, ed.), ( ); writings of madison (hunt, ed.), - ( ). [ ] u.s. ( ). [ ] corwin, the president, office and powers ( d ed.), . [ ] marbury _v._ madison, cr. , - , ( ). [ ] op. atty. gen. ( ). [ ] it should be remembered that, for various reasons, marbury got neither commission nor office. the case assumes, in fact, the necessity of possession of his commission by the appointee. [ ] opins. atty. gen. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ); ibid. ( ). in opins. atty. gen. , ( ), the general doctrine was held not to apply to a yet unfilled office which was created during the previous session of congress, but this distinction is rejected in ibid. ( ); ibid. ; and ibid. . [ ] opins. atty. gen. ( ); ibid. ( ). a "recess" may, however, be merely "constructive," as when a regular session succeeds immediately upon a special session. it was this kind of situation that gave rise to the once famous _crum_ incident. _see_ willoughby, iii, - . [ ] u.s.c. § . [ ] opins. atty. gen. ( ); ibid. ( ); ibid. ( ); ibid. ( ). [ ] u.s. . [ ] stat. , . [ ] u.s. - . [ ] the reticence of the constitution respecting removal left room for four possibilities, _first_, the one suggested by the common law doctrine of "estate in office," from which the conclusion followed that the impeachment power was the only power of removal intended by the constitution; _second_, that the power of removal was an incident of the power of appointment and hence belonged, at any rate in the absence of legal or other provision to the contrary, to the appointing authority; _third_, that congress could, by virtue of its power "to make all laws which shall be necessary and proper," etc., determine the location of the removal of power; _fourth_, that the president by virtue of his "executive power" and his duty "to take care that the laws be faithfully executed," possesses the power of removal over all officers of the united states except judges. in the course of the debate on the act to establish a department of foreign affairs (later changed to department of state) all of these views were put forward, with the final result that a clause was incorporated in the measure which implied, as pointed out above, that the head of the department would be removable by the president at his discretion. contemporaneously and indeed until after the civil war, this action by congress, in other words "the decision of ," was interpreted as establishing "a practical construction of the constitution" with respect to executive officers appointed without stated terms. however, in the dominant opinion of those best authorized to speak on the subject, the "correct interpretation" of the constitution was that the power of removal was always an incident of the power of appointment, and that therefore in the case of officers appointed by the president with the advice and consent of the senate the removal power was exercisable by the president only with the advice and consent of the senate. _see_ hamilton in the federalist no. ; kent's comm. ; story comm. §§ and ; ex parte hennen, pet. , - ( ). the doctrine of estate in office was countenanced by chief justice marshall in his opinion in marbury _v._ madison, cr. , - ( ), but has long been rejected. _see_ crenshaw _v._ united states, u.s. , ( ). the three remaining views are treated by the chief justice, at some cost in terms of logic as well as of history, as grist to his mill. [ ] u.s. at . [ ] annals of congress, cols. - . [ ] u.s. ( ). the case is also styled rathbun, executor _v._ united states, humphrey having, like myers before him, died in the course of his suit for salary. [ ] u.s. at. - , - . justice sutherland's statement, quoted above, that a federal trade commissioner "occupies no place in the executive department" (_see also_ to the same effect p. of the opinion) was not necessary to the decision of the case, was altogether out of line with the same justice's reasoning in springer _v._ philippine islands, u.s. , - ( ), and seems later to have caused the author of it much perplexity. _see_ robert e. cushman, the independent regulatory commissions (oxford university press, ), - . as professor cushman adds: "every officer and agency created by congress to carry laws into effect is an arm of congress. * * * the term may be a synonym; it is not an argument." ibid. . [ ] united states _v._ perkins, u.s. ( ). [ ] parsons _v._ united states, u.s. ( ). [ ] shurtleff _v._ united states, u.s. ( ). [ ] blake _v._ united states, u.s. ( ); quackenbush _v._ united states, u.s. ( ); wallace _v._ united states, u.s. ( ). [ ] morgan _v._ tva, f. supp. ( ), certiorari refused march , . u.s. , . [ ] _see_ united public workers _v._ mitchell, u.s. ( ); _also_ ex parte curtis, u.s. ( ); and op. atty. gen. ( ). [ ] op. atty. gen. ( ); in re neagle, u.s. ( ). [ ] united states _v._ lovett, u.s. ( ). [ ] messages and papers of the presidents, ii, (january , ). [ ] _see_ u.s. at . [ ] in this connection the following colloquy between attorney general lincoln and the court in course of the proceedings in marbury _v._ madison is of first importance: "mr. lincoln, attorney-general, having been summoned, and now called, objected to answering. * * * on the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive. he was acting as secretary of state at the time when this transaction happened. he was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as secretary of state. he did not think himself bound to disclose his official transactions while acting as secretary of state; * * * the court said, that if mr. lincoln wished time to consider what answers he should make, they would give him time; but they had no doubt he ought to answer. there was nothing confidential required to be disclosed. if there had been he was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound to disclose it; * * *" cr. , - ( ). [ ] the following letter, dated april , , from attorney general jackson to hon. carl vinson, chairman of the house committee on naval affairs is of interest in this connection: "my dear mr. vinson: i have your letter of april , requesting that your committee be furnished with all federal bureau of investigation reports since june , together with all future reports, memoranda, and correspondence of the federal bureau of investigation, or the department of justice, in connection with 'investigations made by the department of justice arising out of strikes, subversive activities in connection with labor disputes, or labor disturbances of any kind in industrial establishments which have naval contracts, either as prime contractors or subcontractors.' your request to be furnished reports of the federal bureau of investigation is one of the many made by congressional committees. i have on my desk at this time two other such requests for access to federal bureau of investigation files. the number of these requests would alone make compliance impracticable, particularly where the requests are of so comprehensive a character as those contained in your letter. in view of the increasing frequency of these requests, i desire to restate our policy at some length, together with the reasons which require it. it is the position of this department, restated now with the approval of and at the direction of the president, that all investigative reports are confidential documents of the executive department of the government, to aid in the duty laid upon the president by the constitution to 'take care that the laws be faithfully executed,' and that congressional or public access to them would not be in the public interest. "disclosure of the reports could not do otherwise than seriously prejudice law enforcement. counsel for a defendant or prospective defendant, could have no greater help than to know how much or how little information the government has, and what witnesses or sources of information it can rely upon. this is exactly what these reports are intended to contain. * * * "in concluding that the public interest does not permit general access to federal bureau of investigation reports for information by the many congressional committees who from time to time ask it, i am following the conclusions reached by a long line of distinguished predecessors in this office who have uniformly taken the same view. example of this are to be found in the following letters, among others: "letter of attorney general knox to the speaker of the house, dated april , , declining to comply with a resolution of the house requesting the attorney general to furnish the house with all papers and documents and other information concerning the investigation of the northern securities case. "letter of attorney general bonaparte to the speaker of the house, dated april , , declining to comply with a resolution of the house requesting the attorney general to furnish to the house information concerning the investigation of certain corporations engaged in the manufacture of wood pulp or print paper. "letter of attorney general wickersham to the speaker of the house, dated march , , declining to comply with a resolution of the house directing the attorney general to furnish to the house information concerning an investigation of the smelter trust. "letter of attorney general mcreynolds to the secretary to the president, dated august , , stating that it would be incompatible with the public interest to send to the senate in response to its resolution, reports made to the attorney general by his associates regarding violations of law by the standard oil co. "letter of attorney general gregory to the president of the senate, dated february , , declining to comply with a resolution of the senate requesting the attorney general to report to the senate his findings and conclusions in the investigation of the smelting industry. "letter of attorney general sargent to the chairman of the house judiciary committee, dated june , , declining to comply with his request to turn over to the committee all papers in the files of the department relating to the merger of certain oil companies. * * * "this discretion in the executive branch has been upheld and respected by the judiciary. the courts have repeatedly held that they will not and cannot require the executive to produce such papers when in the opinion of the executive their production is contrary to the public interests. the courts have also held that the question whether the production of the papers would be against the public interest is one for the executive and not for the courts to determine." mr. jackson cites marbury _v._ madison, cr. , ( ); and more than a dozen other cases, federal and state, most of which involved "privileged communications" in ordinary court proceedings. the doctrine of the equality of the three departments is also invoked by him.-- op. atty. gen. . [ ] _see_ norman j. small, some presidential interpretations of the presidency (johns hopkins press, ); henry c. black, the relation of the executive power to legislation (princeton, ); w.e. binkley, the president and congress (new york, ); edward s. corwin, the president, office and powers ( d ed., ), chaps. i and vii, _passim_. [ ] the first harrison, polk, taylor, and fillmore all fathered sentiments to this general effect. _see_ messages and papers of the president, iv, ; v, ; vi, - , - , , . [ ] note , above. [transcriber's note: reference is to footnote , above.] [ ] charles warren, presidential declarations of independence, boston university law review, no. (january, ); willoughby, on the constitution, iii, - . [ ] op. atty. gen. , ( ). [ ] moore, international law digest, - . [ ] ibid. - ; ibid. - . [ ] opinion on the question whether the senate has the right to negative the grade of persons appointed by the executive to fill foreign missions, april , ; padover, the complete jefferson (new york, ), . [ ] moore, international law digest, - . [ ] this measure, amended by the act of march , ( stat. ), is now u.s.c.a. § . [ ] _see_ memorandum on the history and scope of the laws prohibiting correspondence with a foreign government, s. doc. , th cong., d sess., ( ). the author was mr. charles warren, then assistant attorney general. further details concerning the observance of the "logan" act are given in corwin, the president, office and powers ( d ed.) - , - . early in october, president harold stassen of the university of pennsylvania announced that he had written premier stalin offering to confer with him respecting issues between the two governments. [ ] benton abridgment of the debates of congress, - . [ ] s. doc. , th cong., d sess., ( ). [ ] the federalist, containing the letters of pacificus and helvidius (new ed., ) ; _see also_ p. , n. . [transcriber's note: reference is to footnote , below.] [ ] the federalist no. , where he wrote: "the president is also to be authorized to receive ambassadors, and other public ministers. this, though it has been a rich theme of declamation, is more a matter of dignity than of authority. it is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister; though it were merely to take the place of a departed predecessor." ibid. . [ ] "letters of pacificus," works (hamilton ed.) , - . [ ] moore, international law digest, iv, - . [ ] the federalist containing the letters of pacificus and helvidius (new ed. ) - . [ ] moore, international law digest, i, - . the course of the monroe administration in inviting the cooperation of congress in connection with recognition of the spanish-american republics, although it was prompted mainly by the consideration that war with spain might result, was nonetheless opposed by secretary of state john quincy adams. "instead," said he, "of admitting the senate or house of representatives to any share in the act of recognition, i would expressly avoid that form of doing it which would require the concurrence of those bodies. it was i had no doubt, by our constitution an act of the executive authority. general washington had exercised it in recognizing the french republic by the reception of mr. genet. mr. madison had exercised it by declining several years to receive, and by finally receiving, mr. onis; and in this instance i thought the executive ought carefully to preserve entire the authority given him by the constitution, and not weaken it by setting the precedent of making either house of congress a party to an act which it was his exclusive right and duty to perform. mr. crawford said he did not think there was anything in the objection to sending a minister on the score of national dignity, and that there was a difference between the recognition of a change of government in a nation already acknowledged as sovereign, and the recognition of a new nation itself. he did not, however, deny, but admitted, that the recognition was strictly within the powers of the executive alone, and i did not press the discussion further.'" ibid., - ; citing memoirs of john quincy adams, iv, - . [ ] s. doc. , th cong., d sess., pp. - . [ ] said senator nelson of minnesota: "the president has asked us to give him the right to make war to expel the spaniards from cuba. he has asked us to put that power in his hands; and when we are asked to grant that power--the highest power given under the constitution--we have the right, the intrinsic right, vested in us by the constitution, to say how and under what conditions and with what allies that war-making power shall be exercised." cong. record, pt. , p. . [ ] _see_ in this connection a long list of resolutions or bills originating in the house of representatives appertaining to foreign relations. h. rept. ("confidential"), th cong., d sess. (february , ). [ ] _see_ a decade of american foreign policy, s. doc. , st cong., st sess., p. . [ ] president truman's statement of june , , a.p. release: "the security council called upon all members of the united nations to render every assistance to the united nations in the execution of this resolution. "in these circumstances i have ordered united states air and sea forces to give the korean government troops cover and support. "the attack upon korea makes it plain beyond all doubt that communism has passed beyond the use of subversion to conquer independent nations and will now use armed invasion and war. "it has defied the orders of the security council of the united nations issued to preserve international peace and security. in these circumstances the occupation of formosa by communist forces would be a direct threat to the security of the pacific area and to united states forces performing their lawful and necessary functions in that area. "accordingly i have ordered the seventh fleet to prevent any attack on formosa. as a corollary of this action i am calling upon the chinese government on formosa to cease all air and sea operations against the mainland. the seventh fleet will see that this is done. the determination of the future status of formosa must await the restoration of security in the pacific, a peace settlement with japan, or consideration by the united nations. "i have also directed that united states forces in the philippines be strengthened and that military assistance to the philippine government be accelerated. "i have similarly directed acceleration in the furnishing of military assistance to the forces of france and the associated states in indo-china and the dispatch of a military mission to provide close working relations with those forces." [ ] messages and papers of the presidents, xvii, ( ), . [ ] stat. ; u.s.c. ( ), supp. iv, §§ - . [ ] james f. green, the president's control of foreign policy, foreign policy reports (april , ), - ; corwin, the president, office and powers ( d ed.), - ; - , - . [ ] pet. ( ). [ ] ibid. . [ ] pet. ( ). [ ] ibid. . [ ] foster _v._ neilson, supra. [ ] williams _v._ suffolk ins. co., pet. ( ). [ ] united states _v._ palmer, wheat. ( ). [ ] doe _v._ braden, how. , ( ). [ ] jones _v._ united states, u.s. ( ); oetjen _v._ central leather co., u.s. ( ). [ ] in re baiz, u.s. ( ). [ ] neely _v._ henkel, u.s. ( ). [ ] terlinden _v._ ames, u.s. ( ); charlton _v._ kelly, u.s. ( ). [ ] u.s. ( ). [ ] u.s.c. § . [ ] ibid. § . [ ] chicago & s. airlines _v._ waterman s.s. corp., u.s. , ( ). _see also_ oetjen _v._ central leather co., u.s. ( ); ricaud _v._ american metal co., u.s. ( ); and compania espanola de navegacion maritima, s.a. _v._ the navemar, u.s. , ( ). in this last case the court declared: "the vessel of a friendly government in its possession and service is a public vessel, even though engaged in the carriage of merchandise for hire, and as such is immune from suit in the courts of admiralty of the united states. * * * it is open to a friendly government to assert that such is the public status of the vessel and to claim her immunity from suit, either through diplomatic channels or, if it chooses, as a claimant in the courts of the united states. if the claim is recognized and allowed by the executive branch of the government, it is then the duty of the courts to release the vessel upon appropriate suggestion by the attorney general of the united states, or other officer acting under his direction. * * * the foreign government is also entitled as of right upon a proper showing, to appear in a pending suit, there to assert its claim to the vessel, and to raise the jurisdictional question in its own name or that of its accredited and recognized representative." similarly, it has been held that courts may not exercise their jurisdiction by the seizure and detention of the property of a friendly sovereign, so as to embarrass the executive arm of the government in conducting foreign relations. ex parte republic of peru, u.s. ( ). [ ] u.s. ( ). [ ] ibid. , . four justices dissented, by justice black, who said: "the court * * * holds, as i understand its opinion, that the attorney general can deport him whether he is dangerous or not. the effect of this holding is that any unnaturalized person, good or bad, loyal or disloyal to this country, if he was a citizen of germany before coming here, can be summarily seized, interned and deported from the united states by the attorney general, and that no court of the united states has any power whatever to review, modify, vacate, reverse, or in any manner affect the attorney general's deportation order. * * * i think the idea that we are still at war with germany in the sense contemplated by the statute controlling here is a pure fiction. furthermore, i think there is no act of congress which lends the slightest basis to the claim that after hostilities with a foreign country have ended the president or the attorney general, one or both, can deport aliens without a fair hearing reviewable in the courts. on the contrary, when this very question came before congress after world war i in the interval between the armistice and the conclusion of formal peace with germany, congress unequivocally required that enemy aliens be given a fair hearing before they could be deported." ibid. - . _see also_ woods _v._ miller, u.s. ( ), where the continuation of rent control under the housing and rent act of , enacted after the termination of hostilities was unanimously held to be a valid exercise of the war power, but the constitutional question raised was asserted to be a proper one for the court. said justice jackson, in a concurring opinion: "particularly when the war power is invoked to do things to the liberties of people, or to their property or economy that only indirectly affect conduct of the war and do not relate to the management of the war itself, the constitutional basis should be scrutinized with care." ibid. - . [ ] op. atty. gen. , - ( ). [ ] stat. ( ); u.s.c. §§ and . [ ] _cf._ stat. . the provision has long since dropped out of the statute book. [ ] runkle _v._ united states, u.s. ( ). [ ] _cf._ in re chapman, u.s. , - ( ), where it is held that presumptions in favor of official action "preclude collateral attack on the sentences of courts-martial." _see also_ united states _v._ fletcher, u.s. , - ( ); and bishop _v._ united states, u.s. , - ( ); both of which in effect repudiate runkle _v._ united states. [ ] "the president, in the exercise of his executive powers under the constitution, may act through the head of the appropriate executive department. the heads of departments are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts." wilcox _v._ jackson ex dem mcconnel, pet. , ( ). _see also_, united states _v._ eliason, pet. ( ); williams _v._ united states, how. , ( ); united states _v._ jones, how. , ( ); united states _v._ clarke (confiscation cases), wall. ( ); united states _v._ farden, u.s. ( ); wolsey _v._ chapman, u.s. ( ). [ ] how. ( ). [ ] stat. ( ). [ ] how. at - . [ ] "it is manifestly impossible for the president to execute every duty, and every detail thereof, imposed upon him by the congress. the courts have recognized this and have further recognized that he usually and properly acts through the several executive departments. every reasonable presumption of validity is to be indulged with respect to the performance by the head of a department of a duty imposed upon the president and executed by the department head ostensibly in behalf of the president. nevertheless, the authorities indicate that the president cannot, without statutory authority, delegate a discretionary duty, relieving himself of all responsibility, so that the duty when performed will not be his act but wholly the act of another. williams _v._ united states, how. , ( ); runkle _v._ united states, u.s. , ( ); united states _v._ fletcher, u.s. , ( ); french _v._ weeks, u.s. , ( )"; op. atty. gen. - ( ). [ ] annals of congress, cols. - . [ ] ibid. cols. - . [ ] cr. ( ). [ ] ibid. - . [ ] op. atty. gen. ( ). [ ] messages and papers of the presidents, iii, . [ ] ibid. . [ ] pet. ( ). [ ] ibid. . [ ] u.s. ( ); u.s. ( ). [ ] bruce wyman, the principles of the administrative law governing the relations of public officers (st. paul, ), - . [ ] united states _v._ eliason, pet. , - ( ); kurtz _v._ moffitt, u.s. , ( ); smith _v._ whitney, u.s. , - ( ). [ ] u.s. ( ). [ ] ibid. . the phrase "a law of the united states" came from the act of march , ( stat. ). however, in u.s.c. (c) ( ), as it stands following the amendment of may , , c. , the phrase is replaced by the term an act of congress, thereby eliminating the basis of the holding in in re neagle. [ ] u.s. ( ); mason _v._ united states, u.s. ( ). [ ] rev. stat. § ; u.s.c. § . [ ] stat. ( ); stat. ( ); stat. ( ); stat. ( ). [ ] wheat. ( ). [ ] ibid. - . [ ] "federal aid in domestic disturbances," s. doc. , th cong., sess., p. ( ). [ ] op. atty. gen. ( ). by the posse comitatus act of ( stat. ) it was provided that "* * * it shall not be lawful to employ any part of the army of the united states, as a _posse comitatus_, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the constitution or by act of congress * * *" the effect of this prohibition, however, was largely nullified by a ruling of the attorney general "that by revised statutes §§ and , the military forces, under the direction of the president, could be used to assist a marshal. op. atty. gen. ." bennett milton rich, the presidents and civil disorder (the brookings institution, ), fn. . [ ] stat (app.) . [ ] u.s. ( ). [ ] in re debs, u.s. ( ). [ ] u.s. at - . _see also_ sterling _v._ constantin, u.s. ( ), which endorses moyer _v._ peabody, while emphasizing the fact that it applies only to a condition of disorder. [ ] u.s. at , . some years earlier, in the united states _v._ san jacinto tin co., the courts sustained the right of the attorney general and of his assistants to institute suits simply by virtue of their general official powers. "if," the court said, "the united states in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts, for relief * * *" in the question of appealing to them "must primarily be decided by the attorney general * * *" and if restrictions are to be placed upon the exercise of this authority it is for congress to enact them. u.s. , ( ). _cf._ hayburn's case, dall. ( ), in which the court rejected attorney general randolph's contention that he had the right _ex officio_ to move for a writ of _mandamus_ ordering the united states circuit court for pennsylvania to put the invalid pension act into effect. [ ] u.s.c. §§ - ; stat. ( ). [ ] u.s. . here it was held that the norris-laguardia act did not apply to a case brought by the government as operator, under the war labor disputes act of , of a large proportion of the nation's soft coal mines. in reaching this result chief justice vinson invoked the "rule that statutes which in general terms divest preexisting rights or privileges will not be applied to the sovereign without express words to that effect." standing by itself these words would seem to save the debs case. but they do not stand by themselves, for the chief justice presently added "that congress, in passing the [norris-laguardia] act, did not intend to permit the united states to continue to intervene by injunction in purely private labor disputes. * * * where some public interest was thought to have become involved," words which seem intended to repudiate the debs case. however, the chief justice goes on at once to say, "* * * whether congress so intended or not is a question different from the one before us now." ibid. , . [ ] public law , th cong., st sess., §§ - . [ ] _see_ louis stark in new york times, february , ; labor relations, hearings before the senate committee on labor and public welfare on s. , st cong., st sess., pp. , , , , ; julius and lillian cohen, the divine rights of presidents, nebraska law review, p. , march . [ ] op. atty. gen. , , . [ ] durand _v._ hollins, blatch. , ( ). [ ] published by world peace foundation (boston, ) _see also_, for the period to , j. reuben clark's memorandum as solicitor of the department of state entitled right to protect citizens in foreign countries by landing forces (government printing office, , ). the great majority of the landings were for "the simple protection of american citizens in disturbed areas," and only about a third involved belligerent action. [ ] moore, international law digest, - , _passim_. [ ] a decade of american foreign policy, s. doc. , st cong., st sess., p. . [ ] _see_ max farrand, records, ii, - . [ ] youngstown co. _v._ sawyer, u.s. ( ). [ ] fed. reg. - . "whereas on december , , i proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the united nations and otherwise to bring about a lasting peace; and "whereas american fighting men and fighting men of other nations of the united nations are now engaged in deadly combat with the forces of aggression in korea, and forces of the united states are stationed elsewhere overseas for the purpose of participating in the defense of the atlantic community against aggression; and "whereas the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and "whereas steel is likewise indispensable to the carrying out of programs of the atomic energy commission of vital importance to our defense efforts; and "whereas a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the united states, upon which our military strength depends; and "whereas a controversy has arisen between certain companies in the united states producing and fabricating steel and the elements thereof and certain of their workers represented by the united steel workers of america, cio, regarding terms and conditions of employment; and "whereas the controversy has not been settled through the processes of collective bargaining or through the efforts of the government, including those of the wage stabilization board, to which the controversy was referred on december , , pursuant to executive order no. , and a strike has been called for : a.m., april , ; and "whereas a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and "whereas in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the united states take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided: "now, therefore, by virtue of the authority vested in me by the constitution and laws of the united states, and as president of the united states and commander in chief of the armed forces of the united states, it is hereby ordered as follows: " . the secretary of commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation. " . in carrying out this order the secretary of commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all federal agencies shall cooperate with the secretary of commerce to the fullest extent possible in carrying out the purposes of this order. " . the secretary of commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. the secretary of commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties. " . except so far as the secretary of commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies. " . except so far as the secretary of commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes. " . whenever in the judgment of the secretary of commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility, or other property to the company in possession and control thereof at the time possession was taken under this order. " . the secretary of commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable. harry s. truman. the white house, april , ." [ ] u.s. , . [ ] ibid. . [ ] u.s. , - . [ ] cr. ( ). [ ] u.s. , , . [ ] u.s. , , citing annals of congress, ( ). _see also_ p. . [ ] stat. ; r.s. §§ - . [ ] for the controversy thereby precipitated between hamilton ("pacificus") and madison (helvidius), _see_ edward s. corwin, the president's control of foreign relations (princeton university press, ), chap. i. [ ] the act of june , ; stat. . the act was the direct outcome of suggestions made by washington in his message of december , . richardson . [ ] opins. a.g. ( ); tucker _v._ alexandroff, u.s. , ( ). an act was passed may , ( stat. ) which requires presidential license for the landing and operation of cables connecting the united states with foreign countries. quincy wright, the control of american foreign relations (new york, ) fn. . [ ] santiago _v._ nogueras, u.s. ( ). [ ] madsen _v._ kinsella, u.s. ( ). [ ] charlton _v._ kelly, u.s. ( ). _see also_ botiller _v._ dominguez, u.s. ( ). [ ] sinclair _v._ united states, u.s. , , ( ). [ ] stat. . [ ] berdahl, war powers of the executive in the united states (university of illinois, ), . [ ] u.s. , . [ ] cong. rec. ( ). [ ] stat. . [ ] u.s. , . [ ] u.s. ( ). [ ] _see_ hooe _v._ united states, u.s. , - ( ); united states _v._ north american co., u.s. , ( ). _cf._ larson _v._ domestic and foreign corp., u.s. , - ( ). [ ] u.s. , . [ ] _see_ p. . [ ] brief for the united states, no. , october term, , pp. , - , quoted by the chief justice in u.s. , - . assistant attorney general knaebel's name was also on the brief. [ ] u.s. , . [ ] ibid. . [ ] u.s. , - . [ ] how. ( ). [ ] wall. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , ( ). [ ] federalist no. . [ ] _see also_ op. atty. gen. , ( ). [ ] u.s. , , . [ ] ibid. , . [ ] u.s. , . [ ] ibid. . [ ] cr. ( ). [ ] u.s. , , . [ ] ibid. . [ ] u.s. , , . [ ] ibid. . [ ] ibid. - . [ ] wall. ( ). [ ] ibid. . [ ] ibid. - . [ ] kendall _v._ united states, pet. ( ); united states _v._ lee, u.s. ( ). it should be noted, however, that if the president fails to act, or if he adopts a narrow construction of a statute which he dislikes, and on this ground professes inability to act, the only remedy available against him is impeachment. [ ] noble _v._ union river logging r. co., u.s. ( ); philadelphia co. _v._ stimson, u.s. ( ). [ ] kendall _v._ united states, above; [transcriber's note: reference is to footnote , above.] united states _v._ schurz, u.s. ( ); united states ex rel. dunlap _v._ black, u.s. ( ). _cf._ decatur _v._ paulding, pet. ( ); and riverside oil co. _v._ hitchcock, u.s. ( ), where the rule is reiterated that neither injunction nor mandamus will lie against an officer to control him in the exercise of an official duty which requires the exercise of his judgment and discretion. [ ] this was originally on the theory that the supreme court of the district had inherited, via the common law of maryland, the jurisdiction of the king's bench "over inferior jurisdictions and officers." pet. at and - . [ ] little _v._ barreme, cr. ( ); united states _v._ lee, above; [transcriber's note: reference is to footnote , above.] spaulding _v._ vilas, u.s. ( ). [ ] bell _v._ hood, u.s. ( ). the decision is based on an interpretation of u.s.c. § ( ). [ ] mitchell _v._ clark, u.s. ( ). an official action is indemnifiable if congress could have authorized it in the first place, or if it was done under "imperative orders which could not be resisted," or "under necessity or mistake." ibid. - . [ ] tennessee _v._ davis, u.s. ( ); in re neagle, u.s. ( ). _cf._ maryland _v._ soper, u.s. ( ). [ ] op. atty. gen. ( ). _see also_ hinds' precedents, iii, §§ - ( ). [ ] the belknap case, ibid. § . [ ] elliot, debates, v, , . [ ] ibid. iv, . [ ] the federalist no. . for the above _see_ william s. carpenter, judicial tenure in the united states (yale university press, ), - . [ ] john quincy adams, memoirs, i, , ( ). [ ] trial of andrew johnson, i, (government printing office, ), . [ ] ibid. . johnson and his cabinet were much concerned over rumors that it was the intention of his enemies in the house, following impeachment and pending the trial, to put him under arrest and/or suspend him from office. gideon welles, diary, iii, , , , , , , , , , , , , . but no such step was attempted. several state constitutions contain provisions authorizing suspension from office in such a case. [ ] carpenter, judicial tenure, - . [ ] senate proceedings in cong. record, vol. , pp. - , (april , ). [ ] on this account, as well as because of the cumbersomeness of the impeachment process and the amount of time it is apt to consume, it has been suggested that a special court could, and should, be created to try cases of alleged misbehavior in office of inferior judges of the united states, this type of officer having furnished the great majority of cases of impeachment under the constitution. _see_ memorandum on removal power of congress with respect to the supreme court, senate judiciary committee, th cong., st sess.; _also_ burke shartel, federal judges--appointment, supervision, and removal--some possibilities under the constitution, mich. l. rev., - (may ). is impeachment the only way in which congress, or either house thereof, is constitutionally entitled to call the president to account for his conduct in office? _cf._ george wharton pepper, family quarrels, the president, the senate, and the house (new york, ), ff.; and corwin, the president, office and powers ( d ed.), - . article iii the judicial department section . the judicial power, courts, judges: page characteristics and attributes of judicial power "judicial power" "shall be vested" finality of judgment taney doctrine award of execution ancillary powers contempt power; the act of an inherent power contempt power exalted recession of the doctrine bridges _v._ california summary punishment of contempt; misbehavior of counsel punishment of counsel; the sacher case contempt by disobedience of orders criminal versus civil contempts judicial power aids administrative power power to issue writs; the act of common law powers of the district of columbia courts habeas corpus congress limits the inquisition power injunctions under the emergency price control act of rule-making power and powers over process limits to the power appointment of referees, masters, and special aids power to admit and disbar attorneys organization of courts; compensation of judges "one supreme court" inferior courts made and abolished abolition of the commerce court compensation diminution of salaries courts of specialized jurisdiction emergency court of appeals of judicial review restrained legislative courts; canter case other legislative courts powers of congress over legislative courts status of the court of claims a judicial paradox status of the courts of the district of columbia.' section . jurisdiction clause . scope of jurisdiction "cases and controversies" two classes of "cases and controversies" adverse litigants stockholders' suits substantial interest doctrine substantial interest in suits by states abstract, contingent, and hypothetical questions political questions origin of the concept exemplifications of the doctrine recent cases advisory opinions declaratory judgments declaratory judgment act of "case or controversy" test in declaratory judgment proceedings cases arising under the constitution, laws, and treaties of the united states definition judicial review judicial review and national supremacy judicial review of acts of congress hamilton's argument marbury _v._ madison marshall's argument importance of marbury _v._ madison limits to the exercise of judicial review the doctrine of "strict necessity" the doctrine of political questions the "reasonable doubt" doctrine exclusion of extra-constitutional tests disallowance by statutory interpretation stare decisis in constitutional law allegations of federal question corporations chartered by congress removal from state courts of suits against federal officials tennessee _v._ davis supreme court review of state court decisions suits affecting ambassadors, other public ministers, and consuls when ambassadors, etc., are affected cases of admiralty and maritime jurisdiction origin and characteristics congressional interpretation of the admiralty clause judicial approval of congressional interpretation two types of cases maritime torts prize cases, forfeitures, etc. proceedings in rem absence of a jury territorial extent of admiralty and maritime jurisdiction admiralty jurisdiction versus state power exclusive of admiralty jurisdiction concessions to state power the jensen case and its sequelae power of congress to modify maritime law; the "lottawanna" cases to which the united states is a party; right of united states to sue suits against states immunity of united states from suit waiver of immunity by congress united states _v._ lee difficulties created by the lee case official immunity today classification of suits against officers suits against government corporations suits between two or more states boundary disputes; the law applied modern types of suits between states cases in which the court has declined jurisdiction problem of enforcement; virginia _v._ west virginia controversies between a state and citizens of another state nonjusticiable controversies jurisdiction confined to civil cases suits by a state as parens patriae; jurisdiction declined suits by a state as parens patriae; jurisdiction accepted georgia _v._ pennsylvania railroad controversies between citizens of different states the meaning of "state," hepburn _v._ ellzey extension of jurisdiction by act of citizenship, natural persons citizenship, corporations black and white taxicab case the law applied in diversity cases; swift _v._ tyson extension of the tyson case the tyson rule protested erie railroad _v._ tompkins; tyson case overruled extension of the tompkins rule controversies between citizens of the same state claiming lands under grants of different states controversies between a state, or the citizens thereof, and foreign states, citizens, or subjects suits by foreign states indian tribes narrow construction of the jurisdiction clause . original and appellate jurisdiction of the supreme court original jurisdiction of the supreme court an autonomous jurisdiction cannot be enlarged; marbury _v._ madison concurrent jurisdiction of the lower federal courts appellate jurisdiction of the supreme court subject to limitation by congress mccardle case power of congress to regulate the jurisdiction of lower federal courts martin _v._ hunter's lessee plenary power of congress over jurisdiction judicial power under the emergency price control act legislative control over writs injunctions in labor disputes; norris-laguardia act judicial power equated with due process of law judicial versus nonjudicial functions federal-state court relations problems raised by concurrency disobedience of supreme court orders by state courts worcester _v._ georgia conflicts of jurisdiction; comity jurisdiction of the _res_ state interference by injunction with federal jurisdiction federal interference by injunction with state jurisdiction federal injunctions against state official action ex parte young state interference by habeas corpus proceedings with federal jurisdiction federal interference, by removal and habeas corpus comity as a principle of statutory construction comity as cooperation early use of state courts in enforcement of federal law retreat from this practice resumption of this practice state obligation to enforce federal law right of foreign corporations to resort to federal courts clause . trial by jury. [_see_ pp. - under amendment vi] section . treason clause . treason defined definition levying war the burr trial aid and comfort to the enemy; the cramer case the haupt case the kawakita case doubtful state of the law of treason today clause . punishment of treason corruption of blood and forfeiture judicial department article iii section . the judicial power of the united states, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. characteristics and attributes of judicial power "judicial power" judicial power, as justice miller defined it in , is the power "of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision";[ ] or in the words of the court in muskrat _v._ united states,[ ] it is "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction."[ ] although the terms "judicial power" and "jurisdiction" are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit,[ ] or as the "power to entertain the suit, consider the merits and render a binding decision thereon,"[ ] the cases and commentaries support and, for that matter, necessitate a distinction between the two concepts. jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case.[ ] included with the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority,[ ] to issue writs in aid of jurisdiction when authorized by statute;[ ] to make rules governing their process in the absence of statutory authorizations or prohibitions;[ ] inherent equitable powers over their own process to prevent abuse, oppression and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law;[ ] the power to appoint masters in chancery, referees, auditors, and other investigators;[ ] and to admit and disbar attorneys.[ ] "shall be vested" the distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words "shall be vested." whereas all of the judicial power of the united states is vested in the supreme court and the lower federal judiciary, neither has ever been vested with all the jurisdiction they are capable of receiving under article iii. except for the original jurisdiction of the supreme court, which flows directly from the constitution,[ ] two prerequisites to jurisdiction must be present. first, the constitution must have given the courts the capacity to receive it; second, an act of congress must have conferred it.[ ] finality of judgment since the federal courts have emphasized finality of judgment as an essential attribute of judicial _power_. in hayburn's case[ ] a motion for mandamus was filed in the supreme court to direct the circuit court for the district of pennsylvania to act upon a petition for a pension under the pensions act which placed the administration of pensions in the judges of the federal courts, but which made the action of the courts on application subject to review by congress and the secretary of war. the court took the case under advisement, but congress changed the law by the act of february , , before decision was rendered. in view of the attitude of the circuit courts of the united states for the districts of new york, north carolina and pennsylvania there can be no doubt what the decision would have been. the judges of the circuit courts in each of these districts refused to administer the pensions, because the revisory powers of congress and the secretary of war were regarded as making the administration of the law nonjudicial in nature. at the time of this episode, chief justice jay and justice cushing were members of the circuit court in the new york district, justices wilson and blair in pennsylvania and justice iredell in north carolina. the taney doctrine on these foundations chief justice taney posthumously erected finality into a judicial absolute.[ ] the original act creating the court of claims provided for an analogous procedure with appeals to the supreme court after which judgments in favor of claimants were to be referred to the secretary of the treasury for payments out of the general appropriation for the payment of private claims. however, section of the act provided that no money should be paid out of the treasury for any claims "till after an appropriation therefor shall be estimated by the secretary of the treasury." in gordon _v._ united states,[ ] the court refused to hear an appeal, probably for the reasons given in chief justice taney's opinion which he did not deliver because of his death before the court reconvened but which was published many year later.[ ] in any event the reiteration of taney's opinion in subsequent cases made much of it good law. because the judgment of the court of claims and the supreme court depended for execution upon future action of the secretary of the treasury and of congress, the chief justice regarded it as nothing more than a certificate of opinion and in no sense a judicial judgment. congress, therefore, could not authorize the supreme court to take appeals from an auditor or require it to express an opinion in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the parties, and where processes of execution were not awarded to carry it into effect. the chief justice then proceeded to formulate a rule, repeated in many subsequent cases until modified in and reversed in , to the effect that the award of execution is a part and an essential part of every judgment passed by a court exercising judicial powers; it was no judgment in the legal sense of the term without it.[ ] this rule was given rigid application in liberty warehouse co. _v._ grannis,[ ] where the supreme court sustained a district court in refusing to entertain a declaratory proceeding for lack of jurisdiction because such a proceeding was regarded as nonjudicial. one year later, the court applied the extreme of the rule in liberty warehouse _v._ burley tobacco growers association,[ ] when it ruled that it could exercise no appellate jurisdiction in a declaratory proceeding in a state court. award of execution meanwhile in the supreme court began to qualify its insistence upon an award of execution, holding in fidelity national bank and trust co. _v._ swope[ ] that an award of execution is not an indispensable adjunct of the judicial process. this ruling prepared the way for nashville, chattanooga and st. louis r. co. _v._ wallace[ ] which reversed the decision in the grannis case, sustained an appeal from a state court to the supreme court in a declaratory proceeding, and effectively interred the rule that award of execution is essential to judicial power. regardless, nevertheless, of the fate of an award of execution, the rule that finality of judgment is an essential attribute of judicial power remains unimpaired. ancillary powers the contempt power; the act of the summary power of the courts of the united states to punish contempts of their authority had its origin in the law and practice of england where disobedience of court orders was regarded as contempt of the king himself and attachment was a prerogative process derived from presumed contempt of the sovereign.[ ] by the latter part of the eighteenth century summary power to punish was extended to all contempts whether committed in or out of court.[ ] in the united states, the judiciary act of in section [ ] conferred power on all courts of the united states "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same." the only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. the abuse of this extensive power led, following the unsuccessful impeachment of judge james h. peck of the federal district court of missouri, to the passage of the act of limiting the power of the federal courts to punish contempts to misbehavior in the presence of the courts, "or so near thereto as to obstruct the administration of justice," to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court.[ ] an inherent power the validity of the act of was sustained forty-three years later in ex parte robinson,[ ] where justice field for the court propounded principles full of potentialities for conflict. he declared: "the power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. the moment the courts of the united states were called into existence and invested with jurisdiction over any subject, they become possessed of this power." expressing doubts concerning the validity of the act as to the supreme court, he declared, however, there could be no question of its validity as applied to the lower courts on the ground that they are created by congress and that their "powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction."[ ] with the passage of time, later adjudications, especially after , came to place more emphasis on the inherent power of courts to punish contempts than upon the power of congress to regulate summary attachment. by the court was saying that the contempt power must be exercised by a court without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.[ ] in michaelson _v._ united states[ ] the supreme court intentionally placed a narrow interpretation upon those sections of the clayton act[ ] relating to punishment for contempt of court by disobedience to injunctions in labor disputes. the sections in question provided for a jury trial upon the demand of the accused in contempt cases in which the acts committed in violation of district court orders also constituted a crime under the laws of the united states or of those of the state where they were committed. although justice sutherland reaffirmed earlier rulings establishing the authority of congress to regulate the contempt power, he went on to qualify this authority and declared that "the attributes which inhere in that power [to punish contempt] and are inseparable from it can neither be abrogated nor rendered practically inoperative." the court mentioned specifically "the power to deal summarily with contempts committed in the presence of the courts or so near thereto as to obstruct the administration of justice," and the power to enforce mandatory decrees by coercive means.[ ] the contempt power exalted the phrase "in the presence of the court or so near thereto as to obstruct the administration of justice" was interpreted in toledo newspaper co. _v._ united states[ ] so broadly as to uphold the action of a district court judge in punishing for contempt a newspaper for publishing spirited editorials and cartoons on questions at issue in a contest between a street railway company and the public over rates. a majority of the court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but "the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty." similarly the test of whether a particular act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but "the reasonable tendency of the acts done to influence or bring about the baleful result * * * without reference to the consideration of how far they may have been without influence in a particular case."[ ] in craig _v._ hecht[ ] these criteria were applied to sustain the imprisonment of the comptroller of new york city for writing and publishing a letter to a public service commissioner which criticized the action of a united states district judge in receivership proceedings. recession of the doctrine the decision in the toledo newspaper case did not follow earlier decisions interpreting the act of and was grounded on historical error. for these reasons it was reversed in nye _v._ united states[ ] and the theory of constructive contempt based on the "reasonable tendency" rule rejected in a proceeding wherein defendants in a civil suit, by persuasion and the use of liquor, induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. the events in the episode occurred more than miles from where the court was sitting, and were held not to put the persons responsible for them in contempt of court. bridges _v._ california although nye _v._ united states is exclusively a case of statutory construction, it is significant from a constitutional point of view in that its reasoning is contrary to that of earlier cases narrowly construing the act of and asserting broad inherent powers of courts to punish contempts independently of and contrary to congressional regulation of this power. bridges _v._ california,[ ] though dealing with the power of state courts to punish contempts, in the face of the due process clause of the fourteenth amendment, is significant for the dictum of the majority that the contempt power of all courts, federal as well as state, is limited by the guaranty of the first amendment against interference with freedom of speech or of the press. summary punishment of contempt; misbehavior of counsel there have been three notable cases within the last half century raising questions concerning the power of a trial judge to punish counsel summarily for alleged misbehavior in the course of a trial. in _ex parte_ terry,[ ] decided in , terry had been jailed by the united states circuit court of california for assaulting in its presence a united states marshal. the supreme court denied his petition for a writ of habeas corpus. in cooke _v._ united states,[ ] however, decided in , the court remanded for further proceedings a judgment of the united states circuit court of texas sustaining the judgment of a united states district judge sentencing to jail an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. distinguishing the case from that of terry, chief justice taft, speaking for the unanimous court, said: "the important distinction * * * is that this contempt was not in open court. * * * to preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. there is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. such summary vindication of the court's dignity and authority is necessary. it has always been so in the courts of the common law and the punishment imposed is due process of law."[ ] the chief justice then added: "another feature of this case seems to call for remark. the power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. but its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. this rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. the judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. the substitution of another judge would avoid either tendency but it is not always possible. of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. but attempts of this kind are rare. all of such cases, however, present difficult questions for the judge. all we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. cornish _v._ united states, f. , ; toledo newspaper co. _v._ united states, f. , . the case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows."[ ] contempt power: punishment of counsel; sacher case this case[ ] is an outgrowth of the trial of the eleven communists,[ ] in which sacher et al. were counsel for the defense. the facts of the case were as follows: on receiving the verdict of conviction of the defendants, trial judge medina at once issued a certificate under rule (a) of federal rules of criminal procedure, finding counsel guilty of criminal contempt and imposing various jail terms up to six months. the immediate question raised was whether the contempt charged was one which the judge was authorized to determine for himself, or one which under rule (b) could only be passed upon by another judge and after notice and hearing; but behind this issue loomed the same constitutional issue which was dealt with by the court in the cooke case, of the requirements of due process of law. the court sustained the circuit court of appeals in affirming the convictions and sentences, at the same time, however, reversing some of judge medina's specifications of contempt, one of these being the charge that the petitioners entered into an agreement deliberately to "impair my health." "we hold," said justice jackson, speaking for the majority, "that rule allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. we hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power. * * * we are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. but we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. that such clients seem to have thought these tactics necessary is likely to contribute to the bar's reluctance to appear for them rather more than fear of contempt. but that there may be no misunderstanding, we make clear that this court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. but it will not equate contempt with courage or insults with independence. it will also protect the processes of orderly trial, which is the supreme object of the lawyer's calling."[ ] contempt by disobedience of orders disobedience of injunction orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. in united states _v._ united mine workers[ ] the court held that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court's jurisdiction, is punishable as criminal contempt where the issue is not frivolous but substantial. secondly, the court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional. thirdly, on the basis of united states _v._ shipp,[ ] it was held that violations of a court's order are punishable as criminal contempt even though the order is set aside on appeal as in excess of the court's jurisdiction or though the basic action has become moot. finally, the court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and to punitive measures, which may be imposed in a single proceeding. criminal versus civil contempts prior to the united mine workers case, the court had distinguished between criminal and civil contempts on the basis of the vindication of the authority of the courts on the one hand and the preservation and enforcement of the rights of the parties on the other. a civil contempt consists of the refusal of a person in a civil case to obey a mandatory order. it is incomplete in nature and may be purged by obedience to the court order. in criminal contempt, however, the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such contempt.[ ] in a dictum in ex parte grossman,[ ] chief justice taft, while holding for the court on the main issue that the president may pardon a criminal contempt, declared that he may not pardon a civil contempt. in an analogous case, the court was emphatic in a dictum that congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties.[ ] judicial power aids administrative power proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of interstate commerce commission _v._ brimson,[ ] where it was held that the contempt power of the courts might by statutory authorization be utilized in aid of the interstate commerce commission in enforcing compliance with its orders. in a proceeding to enforce a _subpoena duces tecum_ issued by the securities and exchange commission during the course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. the court then enunciated the principle that where a fine or imprisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil contempt.[ ] power to issue writs; the act of from the beginning of government under the constitution of congress has assumed under the necessary and proper clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts and the power to regulate the issuance of writs. the thirteenth section of the judiciary act of authorized the circuit courts to issue writs of prohibition to the district courts, and the supreme court to issue such writs to the circuit courts. the supreme court was also empowered to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the united states."[ ] section provided that all courts of the united states should "have power to issue writs of _scire facias_, _habeas corpus_, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."[ ] issuance of the writ of _habeas corpus_ was limited in that it was to extend only to persons in custody under or by color of authority of the united states. although the act of left the power over writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have on the whole concurred, that an act of congress is necessary to confer judicial power to issue writs. common law powers of the district of columbia courts that portion of section which authorized the supreme court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in marbury _v._ madison,[ ] as an unconstitutional enlargement of the supreme court's original jurisdiction. after two more futile efforts to obtain a writ of mandamus, in cases in which the court found that power to issue the writ had not been vested by statute in the courts of the united states except in aid of already existing jurisdiction,[ ] a litigant was successful in kendall _v._ united states ex rel. stokes[ ] in finding a court which would take jurisdiction in a mandamus proceeding. this was the circuit court of the united states for the district of columbia which was held to have jurisdiction, on the theory that the common law, in force in maryland when the cession of that part of the state which became the district of columbia was made to the united states, remained in force in the district. at an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the limits imposed by the common law and the separation of powers. habeas corpus although the writ of _habeas corpus_ has something of a special status by virtue of article i, section , paragraph , the power of a specific court to issue the writ has long been held to have its authorization only in written law.[ ] in ex parte yerger,[ ] where the petitioner was held in custody by the military authorities under the reconstruction acts, the court, referring to the prohibition against the suspension of the writ of _habeas corpus_, clearly indicated that congress is not bound to provide for the protection of federal rights by investing the federal courts with jurisdiction to protect them. furthermore, the case also incorporates the rule that power to issue the writ may be withdrawn even in pending cases.[ ] the rules pertaining to mandamus and _habeas corpus_ are applicable to the other common law and statutory writs, the power to issue which, though judicial in nature, must be derived from the statutes and cannot go beyond them. congress limits the inquisition power although the speculations of some publicists and some judicial dicta[ ] support the idea of an inherent power of the federal courts sitting in equity to issue injunctions independently of statutory limitations, neither the course taken by congress nor the specific rulings of the supreme court support any such principle. congress has repeatedly exercised its power to limit the use of the injunction in the federal courts. the first limitation on the equity jurisdiction of the federal courts is to be found in section of the judiciary act of , which provided that no equity suit should be maintained where there was a full and adequate remedy at law. although this provision did no more than declare a pre-existing rule long applied in chancery courts,[ ] it did assert the power of congress to regulate the equity powers of the federal courts. the act of march , ,[ ] prohibited the issuance of any injunction by any court of the united states to stay proceedings in state courts except where such injunctions may be authorized by any law relating to bankruptcy proceedings. in subsequent statutes congress has prohibited the issuance of injunctions in the federal courts to restrain the collection of taxes;[ ] provided for a three-judge court, as a prerequisite to the issuance of injunctions to restrain the enforcement of state statutes for unconstitutionality,[ ] for enjoining federal statutes for unconstitutionality,[ ] and for enjoining orders of the interstate commerce commission;[ ] limited the power to issue injunctions restraining rate orders of state public utility commissions,[ ] and the use of injunctions in labor disputes;[ ] and placed a very rigid restriction of the power to enjoin orders of the administrator under the emergency price control act.[ ] all of these restrictions have been sustained by the supreme court as constitutional and applied with varying degrees of thoroughness. the court has made exceptions to the application of the prohibition against the stay of proceedings in state courts,[ ] but has on the whole adhered to the statute. the exceptions raise no constitutional issues, and the later tendency is to contract the scope of the exceptions.[ ] in duplex printing company _v._ deering,[ ] the supreme court placed a narrow construction upon the labor provisions of the clayton act and thereby contributed in part to the more extensive restriction by congress of the use of injunctions in labor disputes in the norris-laguardia act of which has not only been declared constitutional,[ ] but has been applied liberally,[ ] and in such a manner as to repudiate the notion of an inherent power to issue injunctions contrary to statutory provisions. injunctions under the emergency price control act of lockerty _v._ phillips[ ] justifies the same conclusion. here the validity of the special appeals procedure of the emergency price control act of was sustained. this act provided for a special emergency court of appeals which, subject to review by the supreme court, was given exclusive jurisdiction to determine the validity of regulations, orders, and price schedules issued by the office of price administration. the emergency court and the emergency court alone was permitted to enjoin regulations or orders of opa, and even it could enjoin such orders only after finding that the order was not in accordance with law, or was arbitrary or capricious. the emergency court was expressly denied power to issue temporary restraining orders or interlocutory decrees; and in addition the effectiveness of any permanent injunction it might issue was to be postponed for thirty days. if review was sought in the supreme court by certiorari, effectiveness was to be postponed until final disposition. a unanimous court speaking through chief justice stone declared that there "is nothing in the constitution which requires congress to confer equity jurisdiction on any particular inferior federal court." all federal courts, other than the supreme court, it was asserted, derive their jurisdiction solely from the exercise of the authority to ordain and establish inferior courts conferred on congress by article iii, § , of the constitution. this power, which congress is left free to exercise or not, was held to include the power "'of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to congress may seem proper for the public good.'"[ ] although the court avoided passing upon the constitutionality of the prohibition against interlocutory decrees, the language of the court was otherwise broad enough to support it, as was the language of yakus _v._ united states[ ] which sustained a different phase of the special procedure for appeals under the emergency price control act. the rule-making power and powers over process among the incidental powers of courts is that of making all necessary rules governing their process and practice and for the orderly conduct of their business.[ ] however, this power too is derived from the statutes and cannot go beyond them. the landmark case is wayman _v._ southard[ ] which sustained the validity of the process acts of and as a valid exercise of authority under the necessary and proper clause. although chief justice marshall regarded the rule-making power as essentially legislative in nature, he ruled that congress could delegate to the courts the power to vary minor regulations in the outlines marked out by the statute. fifty-seven years later in fink _v._ o'neil,[ ] in which the united states sought to enforce by summary process the payment of a debt, the supreme court ruled that under the process acts the law of wisconsin was the law of the united states and hence the government was required to bring a suit, obtain a judgment, and cause execution to issue. justice matthews for a unanimous court declared that the courts have "no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction, except as the law confers and limits it." limits to the power the principal function of court rules is that of regulating the practice of courts as regards forms, the operation and effect of process, and the mode and time of proceedings. however, rules are sometimes employed to state in convenient form principles of substantive law previously established by statutes or decisions. but no such rule "can enlarge or restrict jurisdiction. nor can a rule abrogate or modify the substantive law." this rule is applicable equally to courts of law, equity, and admiralty, to rules prescribed by the supreme court for the guidance of lower courts, and to rules "which lower courts make for their own guidance under authority conferred."[ ] as incident to the judicial power, courts of the united states possess inherent authority to supervise the conduct of their officers, parties, witnesses, counsel, and jurors by self-preserving rules for the protection of the rights of litigants and the orderly administration of justice.[ ] the courts of the united states possess inherent equitable powers over their process to prevent abuse, oppression and injustice, and to protect their jurisdiction and officers in the protection of property in the custody of law.[ ] such powers are said to be essential to and inherent in the organization of courts of justice.[ ] the courts of the united states also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and to rectify defects or omissions in their records even after the lapse of a term, subject, however, to the qualification that the power to amend records conveys no power to create a record or re-create one of which no evidence exists.[ ] appointment of referees, masters, and special aids the administration of insolvent enterprises, investigations into the reasonableness of public utility rates, and the performance of other judicial functions often require the special services of masters in chancery, referees, auditors, and other special aids. the practice of referring pending actions to a referee was held in heckers _v._ fowler[ ] to be coeval with the organization of the federal courts. in the leading case of ex parte peterson[ ] a united states district court appointed an auditor with power to compel the attendance of witnesses and the production of testimony. the court authorized him to conduct a preliminary investigation of facts and file a report thereon for the purpose of simplifying the issues for the jury. this action was neither authorized nor prohibited by statute. in sustaining the action of the district judge, justice brandeis, speaking for the court, declared: "courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. * * * this power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause."[ ] the power to appoint auditors by federal courts sitting in equity has been exercised from their very beginning, and here it was held that this power is the same whether the court sits in law or equity. the power to admit and disbar attorneys subject to general statutory qualifications for attorneys, the power of the federal courts to admit and disbar attorneys rests on the common law from which it was originally derived. according to chief justice taney, it was well settled by the common law that "it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed." such power, he made clear, however, "is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court, as the right and dignity of the court itself."[ ] the test-oath act of july , , which purported to exclude former confederates from the practice of law in the federal courts, was invalidated in ex parte garland.[ ] in the course of his opinion for the court, justice field discussed generally the power to admit and disbar attorneys. the exercise of such a power, he declared, is judicial power. the attorney is an officer of the court and though congress may prescribe qualifications for the practice of law in the federal courts, it may not do so in such a way as to inflict punishment contrary to the constitution or to deprive a pardon of the president of its legal effect.[ ] organization of courts, tenure and compensation of judges "one supreme court" the constitution is almost completely silent concerning the organization of the federal judiciary. although it provides for one supreme court, it makes no reference to the size and composition of the court, the time or place for sitting, or its internal organization save for the reference to the chief justice in the impeachment provision of article i, § , relating to impeachment of the president. all these matters are therefore confided to congressional determination. under the terms of the judiciary act of , the court consisted of a chief justice and five associate justices. this number was gradually increased until it reached a total of ten judges under the act of march , . due to the exigencies of reconstruction and the tension existing between congress and the president the number was reduced to seven as vacancies should occur, by the act of april , . the number never actually fell below eight, and on april , , with andrew johnson out of the white house, congress restored the number to nine, where it has since remained. there have been proposals at various times for an organization of the court into sections or divisions. no authoritative judicial expression is available, although chief justice hughes in a letter to senator wheeler of march , , expressed doubts concerning the validity of such a device and stated that "the constitution does not appear to authorize two or more supreme courts functioning in effect as separate courts."[ ] congress has also determined the time and place of sessions of the court, going so far in as to change its terms so that for fourteen months, between december, and february, the court did not convene. inferior courts made and abolished by article i, § , paragraph , congress is expressly declared to have the power to constitute tribunals inferior to the supreme court, and the power is repeated in a different formula in article iii, § , when provision is also made for tenure during good behavior and for a compensation which shall not be diminished. since congress, with repeated judicial acquiescence and concurrence, has interpreted both of these sections as leaving it free to establish inferior courts or not, as it deems fit in the exercise of a boundless discretion. by the judiciary act of , congress constituted thirteen district courts which were to have four sessions annually[ ] and three circuit courts which were to consist jointly of the supreme court judges and the district judge of such districts which were to meet annually at the time and places designated by the statute.[ ] by the judiciary act of february , , passed in the closing weeks of the adams administration, the number of judges of the supreme court was to be reduced to five after the next vacancy, the districts were reorganized, and six circuit courts consisting of three judges each and organized independently of the supreme court and the district courts were created.[ ] whatever merits this plan of organization possessed were lost in the fierce partisanship of the period, which led the expiring federalist administration to appoint federalists almost exclusively to the new judgeships to the dismay of the jeffersonians who, upon coming into power, set plans in motion to repeal the act. in a bitter debate the major constitutional issue to emerge centered about the abolition of courts once they were created in the light of the provision for tenure during good behavior. suffice it to say, the repeal bill was passed and approved by the president on march , [ ] without any provision for the displaced judges. the validity of the act of was questioned in stuart _v._ laird,[ ] where justice paterson in a terse opinion, which hardly touched charles lee's argument that congress lacked power to abolish or destroy courts and judges, held for the court that congress has the power to establish inferior courts from time to time as it may think proper and to transfer a cause from one tribunal to another. in answer to the argument that supreme court justices could not constitutionally sit as circuit judges, he pointed to practice and acquiescence contemporaneous with the constitution as an interpretation too strong and obstinate to be shaken or controlled. abolition of the commerce court since congress has many times exercised its power to constitute inferior courts, but not until did it again abolish a court. this was the unfortunately launched commerce court from which so much was expected and so little came. again, as in , there was a constitutional debate on the power of congress to abolish courts without providing for the displaced judges, but unlike the act of the act of [ ] provided for the redistribution of the commerce court judges among the circuit courts of appeals and the transfer of its jurisdiction to the district courts.[ ] compensation the prohibition against the diminution of judicial salaries has presented very little litigation. in in evans _v._ gore[ ] the court invalidated the application of the income tax as applied to a federal judge, over the strong dissent of justice holmes, who was joined by justice brandeis. this ruling was extended in miles _v._ graham[ ] to exempt the salary of a judge of the court of claims appointed subsequent to the enactment of the taxing act. evans _v._ gore was disapproved and miles _v._ graham in effect overruled in o'malley, collector of internal revenue _v._ woodrough,[ ] where the court upheld section of the revenue act of (now u.s.c.a. (a)) which extended the application of the income tax to salaries of judges taking office after june , . such a tax was regarded neither as an unconstitutional diminution of the compensation of judges nor as an encroachment on the independence of the judiciary.[ ] to subject judges who take office after a stipulated date to a nondiscriminatory tax laid generally on an income, said the court, "is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose constitution and laws they are charged with administering."[ ] diminution of salaries the appropriations act of reduced "the salaries and retired pay of all judges (except judges whose compensation may not, under the constitution, be diminished during their continuance in office)," by - / per cent if below $ , , or to $ , if above that figure. while this provision presented no questions of its own constitutionality, it did raise the question of what judges' salaries could be constitutionally reduced. in o'donoghue _v._ united states[ ] the section was held inapplicable to the salaries of judges of the courts of the district of columbia on the ground that as to their organization and tenure and compensation, congress was limited by the provisions of article iii. in williams _v._ united states,[ ] on the other hand, it was ruled that the reduction was applicable to the salaries of the judges of the court of claims, that being a legislative court created in pursuance of the power of congress to pay the debts of the united states and to consent to suits against the united states. as such it is not within the provisions of article iii respecting the tenure and compensation of judges. courts of specialized jurisdiction by virtue of its power "to ordain and establish" courts congress has occasionally created courts under article iii to exercise a specialized jurisdiction. otherwise these tribunals are like other article iii courts in that they exercise "the judicial power of the united states," and only that power, that their judges must be appointed by the president and the senate and must hold office during good behavior subject to removal by impeachment only, and that the compensation of their judges cannot be diminished during their continuance in office. one example of such courts was the commerce court created by the mann-elkins act of ,[ ] which was given exclusive jurisdiction of all cases to enforce orders of the interstate commerce commission except those involving money penalties and criminal punishment; of cases brought to enjoin, annul, or set aside orders of the commission; of cases brought under the act of to prevent unjust discriminations; and of all mandamus proceedings authorized by the act of . this court actually functioned for less than three years, being abolished in , as was mentioned above. the emergency court of appeals of another court of specialized jurisdiction but created for a limited time only was the emergency court of appeals organized by the emergency price control act of january , .[ ] by the terms of the statute this court consisted of three or more judges designated by the chief justice from the judges of the united states district courts and circuit courts of appeal. the chief justice was authorized to designate one of the judges as chief judge, to designate additional judges from time to time, and to revoke designations. the chief judge in turn was authorized to divide the court into divisions of three or more members each, with any such division empowered to render judgment as the judgment of the court. the court was vested with jurisdiction and powers of a district court to hear appeals filed within thirty days against denials of protests by the price administrator and with exclusive jurisdiction to set aside regulations, orders, or price schedules, in whole or in part, or to remand the proceeding. but no regulation or price schedule could be set aside or enjoined unless the court was satisfied that it was contrary to law or was arbitrary or capricious. even then the effectiveness of a restraining order was to be suspended for thirty days and, if appealed to the supreme court within thirty days, until its final disposition. although the act deprived the district courts of the power to enjoin the enforcement of orders and price schedules, it vested them with jurisdiction to enforce the act and orders issued thereunder in actions brought by the administrator to enjoin violations and to try criminal prosecutions brought by the attorney general. since the emergency court of appeals, subject to review by the supreme court, was given exclusive jurisdiction to determine the validity of any order issued under the act, it resulted that the district courts were deprived of the power to inquire into the validity of orders involved in civil or criminal proceedings in which they had jurisdiction.[ ] judicial review restrained in yakus _v._ united states[ ] the court held in an opinion by chief justice stone that there is "no principle of law or provision of the constitution which precludes congress from making criminal the violation of an administrative regulation, by one who has failed to avail himself of an adequate separate procedure for the adjudication of its validity, or which precludes the practice, in many ways desirable, of splitting the trial for violations of an administrative regulation by committing the determination of the issue of its validity to the agency which created it, and the issue of violation to a court which is given jurisdiction to punish violations. such a requirement presents no novel constitutional issue."[ ] in a dissent justice rutledge took issue with this holding, saying: "it is one thing for congress to withhold jurisdiction. it is entirely another to confer it and direct that it be exercised in a manner inconsistent with constitutional requirements or, what in some instances may be the same thing, without regard to them. once it is held that congress can require the courts criminally to enforce unconstitutional laws or statutes, including regulations, or to do so without regard for their validity, the way will have been found to circumvent the supreme law and, what is more, to make the courts parties to doing so. this congress cannot do. there are limits to the judicial power. congress may impose others. and in some matters congress or the president has final say under the constitution. but whenever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it. the problem therefore is not solely one of individual right or due process of law. it is equally one of the separation and independence of the powers of government and of the constitutional integrity of the judicial process, more especially in criminal trials."[ ] legislative courts: the canter case quite distinct from special courts exercising the judicial power of the united states, but at the same time a significant part of the federal judiciary, are the legislative courts, so called because they are created by congress in pursuance of its general legislative powers. the distinction between constitutional courts and legislative courts was first made in american insurance company _v._ canter,[ ] which involved the question of the admiralty jurisdiction of the territorial court of florida, the judges of which were limited to a four-year term in office. said chief justice marshall for the court: "these courts, then, are not constitutional courts, in which the judicial power conferred by the constitution on the general government, can be deposited. they are incapable of receiving it. they are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables congress to make all needful rules and regulations, respecting the territory belonging to the united states. the jurisdiction with which they are invested, is not a part of that judicial power which is defined in the rd article of the constitution, but is conferred by congress, in the execution of those general powers which that body possesses over the territories of the united states."[ ] the court went on to hold that admiralty jurisdiction can be exercised in the states in those courts only which are established in pursuance of article iii, but that the same limitation does not apply to the territorial courts; for, in legislating for them, "congress exercises the combined powers of the general, and of a state government."[ ] other legislative courts the distinction made in the canter case has been repeated with elaborations since , receiving its fullest exposition in ex parte bakelite corporation,[ ] which contains a review of the history of legislative courts and the cases supporting the power of congress to create them. in addition to discussing the derivation of power to establish legislative courts, the bakelite case ruled that such courts "also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. the mode of determining matters of this class is completely within congressional control. congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals."[ ] among the matters susceptible of judicial determination but not requiring it are claims against the states,[ ] the disposal of the public lands and claims arising therefrom,[ ] questions concerning membership in the indian tribes,[ ] and questions arising out of the administration of the customs and internal revenue laws.[ ] for the determination of these matters congress has created the court of claims, the court of private land claims, the choctaw and chickasaw citizenship court, the court of customs, the court of customs and patent appeals, and the tax court of the united states (formerly the board of tax appeals). power of congress over legislative courts in creating legislative courts congress is not limited by the restrictions imposed in article iii concerning tenure during good behavior and the prohibition against limitation of salaries. congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the tax court of the united states, and it may subject the judges of legislative courts to removal by the president.[ ] in mcallister _v._ united states,[ ] the removal of a territorial judge was sustained on the basis of the principle that: "the whole subject of the organization of territorial courts, the tenure by which the judges of such courts shall hold their offices, the salary they receive and the manner in which they may be removed or suspended from office, was left, by the constitution, with congress under its plenary power over the territories of the united states."[ ] long afterwards the court held in williams _v._ united states[ ] that the reduction of the salaries of the judges of the court of claims, and inferentially of judges of other legislative courts, to $ , per year by the appropriation act of june , , was constitutional. in so doing the court rejected dicta in earlier cases which classified the court of claims as a constitutional court and silently reversed miles _v._ graham,[ ] which had held that congress could not include the salary of a judge of the court of claims in his taxable income. status of the court of claims it follows, too, that in creating legislative courts, congress can vest in them nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. thus in gordon _v._ united states[ ] there was no objection to the power of the secretary of the treasury and congress to revise or suspend the early judgments of the court of claims. likewise in united states _v._ ferreira[ ] the court sustained the act conferring powers on the florida territorial court to examine claims arising under the spanish treaty and to report his decisions and the evidence on which they were based to the secretary of the treasury for subsequent action. "a power of this description," it was said, "may constitutionally be conferred on a secretary as well as on a commissioner. but [it] is not judicial in either case, in the sense in which judicial power is granted by the constitution to the courts of the united states." a judicial paradox chief justice taney's view in the gordon case that the judgments of legislative courts could never be reviewed by the supreme court was tacitly rejected in de groot _v._ united states,[ ] when the court took jurisdiction from a final judgment of the court of claims. since the decision of this case in the authority of the supreme court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts, but rather upon the nature of the proceeding before the lower court and the finality of its judgment. consequently in proceedings before a legislative court which are judicial in nature and admit of a final judgment the supreme court may be vested with appellate jurisdiction. thus there arises the workable anomaly that though the legislative courts can exercise no part of the judicial power of the united states and the supreme court can exercise only that power, the latter nonetheless can review judgments of the former. however, it should be emphasized that the supreme court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such courts.[ ] status of the courts of the district of columbia through a long course of decisions the courts of the district of columbia were regarded as legislative courts upon which congress could impose nonjudicial functions. in butterworth _v._ united states ex rel. hoe,[ ] the court sustained an act of congress which conferred revisionary powers upon the supreme court of the district in patent appeals and made its decisions binding only upon the commissioner of patents. similarly, the court later sustained the authority of congress to vest revisionary powers in the same court over rates fixed by a public utilities commission.[ ] not long after this the same rule was applied to the revisionary power of the district supreme court over orders of the federal radio commission.[ ] these rulings were based on the assumption, express or implied, that the courts of the district were legislative courts, created by congress in pursuance of its plenary power to govern the district of columbia. in an obiter dictum in ex parte bakelite corporation,[ ] while reviewing the history and analyzing the nature of legislative courts, the court stated that the courts of the district were legislative courts. in , nevertheless, the court, abandoning all previous dicta on the subject, found the courts of the district of columbia to be constitutional courts exercising judicial power of the united states,[ ] with the result of shouldering the task of reconciling the performance of nonjudicial functions by such courts with the rule that constitutional courts can exercise only the judicial power of the united states. this task was easily accomplished by the argument that in establishing courts for the district, congress is performing dual functions in pursuance of two distinct powers, the power to constitute tribunals inferior to the supreme court, and its plenary and exclusive power to legislate for the district of columbia. however, article iii, § , limits this latter power with respect to tenure and compensation, but not with regard to vesting legislative and administrative powers in such courts. subject to the guarantees of personal liberty in the constitution, "congress has as much power to vest courts of the district with a variety of jurisdiction and powers as a state legislature has in conferring jurisdiction on its courts."[ ] the effect of the o'donoghue decision is to confer a dual status on the courts of the district of columbia. as regards their organization, and the tenure and compensation of their judges they are constitutional courts, as regards jurisdiction and powers they are simultaneously legislative and constitutional courts, and as such can be vested with nonjudicial powers while sharing the judicial power of the united states.[ ] jurisdiction: cases and controversies section . the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the united states shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. the two classes of cases and controversies by the terms of the foregoing section the judicial power extends to nine classes of cases and controversies, which fall into two general groups. in the words of chief justice marshall in cohens _v._ virginia:[ ] "in the first, their jurisdiction depends on the character of the cause, whoever may be the parties. this class comprehends 'all cases in law and equity arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority.' this cause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. if there be any exception, it is to be implied, against the express words of the article. in the second class, the jurisdiction depends entirely on the character of the parties. in this are comprehended 'controversies between two or more states, between a state and citizens of another state,' and 'between a state and foreign states, citizens or subjects.' if these be the parties, it is entirely unimportant, what may be the subject of controversy. be it what it may, these parties have a constitutional right to come into the courts of the union."[ ] judicial power is "the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."[ ] the meaning attached to the terms "cases" and "controversies" determines therefore the extent of the judicial power, as well as the capacity of the federal courts to receive jurisdiction. as chief justice marshall declared in osborn _v._ bank of the united states, judicial power is capable of acting only when the subject is submitted in a case, and a case arises only when a party asserts his rights "in a form prescribed by law."[ ] many years later justice field, relying upon chisholm _v._ georgia,[ ] and tucker's edition of blackstone, amended this definition by holding that "controversies," to the extent that they differ from "cases," include only suits of a civil nature. he continued: "by cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. whenever the claim of a party under the constitution, laws, or treaties of the united states takes such a form that the judicial power is capable of acting upon it, then it has become a case. the term implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication."[ ] the definitions propounded by chief justice marshall and justice field were quoted with approval in muskrat _v._ united states,[ ] where the court held that the exercise of judicial power is limited to cases and controversies and emphasized "adverse litigants," "adverse interests," an "actual controversy," and conclusiveness or finality of judgment as essential elements of a case.[ ] adverse litigants the necessity of adverse litigants with real interests has been stressed in numerous cases,[ ] and has been particularly emphasized in suits to contest the validity of a federal or state statute. a few illustrations will suffice to describe the practical operation of these limitations. in chicago and grand trunk railroad co. _v._ wellman,[ ] which originated in the courts of michigan on an agreed statement of facts between friendly parties desiring to contest a rate-making statute, the supreme court ruled there was no case or controversy. in the course of its opinion, which held that the courts have no "immediate and general supervision" of the constitutionality of legislative enactments, the court said: "whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, state or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. it is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. it never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."[ ] in applying the rule requiring adverse litigants to present an honest and actual antagonistic assertion of rights, the court invalidated an act of congress which authorized certain indians to bring suits against the united states to test the constitutionality of the indian allotment acts, on the ground that such a proceeding was not a case or controversy in that the united states had no interest adverse to the claimants.[ ] the court has also held that in contesting the validity of a statute, the issue must be raised by one adversely affected and not a stranger to the operation of the statute,[ ] and that the interest must be of a personal as contrasted with an official interest.[ ] hence a county court cannot contest the validity of a statute in the interest of third parties,[ ] nor can a county auditor contest the validity of a statute even though he is charged with its enforcement,[ ] nor can directors of an irrigation district occupy a position antagonistic to it.[ ] it is a well settled rule that: "the court will not pass upon the constitutionality of legislation * * *, or upon the complaint of one who fails to show that he is injured by its operation, * * *"[ ] it is equally well established as a corollary that, "litigants may challenge the constitutionality of a statute only insofar as it affects them."[ ] stockholders' suits it must be noted, however, that adversity is a relative element which the courts may or may not discover. thus in pollock _v._ farmers' loan and trust co.,[ ] the supreme court sustained the jurisdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circumventing section of the revised statutes, which forbids the maintenance in any court of a suit "for the purpose of restraining the collection of any tax."[ ] subsequently the court has found adversity of parties in a suit brought by a stockholder to restrain a title company from investing its funds in farm loan bonds issued by the federal land banks,[ ] and in a suit brought by certain preferred stockholders against the alabama power company and the tva to enjoin the performance of contracts between the company and the authority and a subsidiary, the electric home and farm authority, on the ground that the act creating these agencies was unconstitutional.[ ] the ability to find adversity in narrow crevices of casual disagreement is well illustrated by carter _v._ carter coal co.,[ ] where the president of the company brought suit against the company and its officials, among whom was carter's father who was vice president of the company.[ ] the court entertained the suit and decided the case on its merits. substantial interest doctrine equally important as an essential element of a case is the concept of real or substantial interests. as a general rule the interest of taxpayers in the general funds of the federal treasury is insufficient to give them a standing in court to contest the expenditure of public funds on the ground that this interest "is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity."[ ] likewise, the court has held that the general interest of a citizen in having the government administered by law does not give him a standing to contest the validity of governmental action.[ ] nor can a member of the bar of the supreme court challenge the validity of an appointment to the court since his "is merely a general interest common to all members of the public."[ ] similarly an electric power company has been held not to have a sufficient interest to maintain an injunction suit to restrain the making of federal loans and grants to municipalities for the construction or purchase of electric power distribution plants on the ground that the "lender owes the sufferer no enforcible duty to refrain from making the unauthorized loan; and the borrower owes him no obligation to refrain from using the proceeds in any lawful way the borrower may choose."[ ] recent cases, involving the issue of religion in the schools, reach somewhat divergent results. in illinois ex rel. mccollum _v._ board of education,[ ] the court held that a litigant had the requisite standing to bring a mandamus suit challenging, on the basis of her interests as a resident and taxpayer of the school district and the parent of a child required by law to attend the school or one meeting the state's educational requirements, the validity of a religious education program involving the use of public school rooms one half hour each week. but in doremus _v._ board of education,[ ] decided early in , the court declined jurisdiction in a case challenging the validity of a new jersey statute which requires the reading at the opening of each public school day of five verses of the old testament. appellants' interest as taxpayers was found to be insufficient to sustain the proceeding. substantial interest in suits by states these principles have been applied in a number of cases to which a state was one of the parties and in suits between states. one of the most important of these is state of georgia _v._ stanton,[ ] which was an original suit in equity brought by the state of georgia against the secretary of war and others to enjoin the enforcement of the reconstruction acts. the state's counsel contended that enforcement of the acts brought about "an immediate paralysis of all the authority and power of the state government by military force; * * * [which was divesting the state] of her legally and constitutionally established and guaranteed existence as a body politic and a member of the union." the supreme court dismissed the suit for want of jurisdiction, holding that for a case to be presented for the exercise of the judicial power, the rights threatened "must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity."[ ] the rule of the stanton case was applied and elaborated in massachusetts _v._ mellon,[ ] where the state in its own behalf and as _parens patriae_ sought to enjoin the administration of the maternity act[ ] which, it was alleged, was an unconstitutional invasion of the reserved rights of the state and an impairment of its sovereignty. the suit was held not justiciable on the ground that a state cannot maintain a suit either to protect its political rights or as _parens patriae_ to protect citizens of the united states against the operation of a federal law. concerning the right of a state to sue in its own behalf to protect its political rights, the court said: "in that aspect of the case we are called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, not quasi sovereign rights actually invaded or threatened, but abstract questions of political power, of sovereignty, of government."[ ] however, these holdings do not affect the right of a state as _parens patriae_ to intervene in behalf of the economic welfare of its citizens against discriminatory rates set by an alleged illegal combination of carriers,[ ] or the right of a state to assert its quasi sovereign rights over wild life within its domain,[ ] or to protect its citizens against the discharge of noxious gases by an industrial plant in an adjacent state.[ ] abstract, contingent, and hypothetical questions closely related to the requirements of adverse parties and substantial interests is that of a _real_ issue as contrasted with _speculative_, abstract, hypothetical, or moot cases. as put by chief justice stone in alabama state federation of labor _v._ mcadory,[ ] it has long been the court's "considered practice not to decide abstract, hypothetical or contingent questions," or as justice holmes said years earlier by way of dictum, a party cannot maintain a suit "for a mere declaration in the air."[ ] texas _v._ interstate commerce commission,[ ] presents a good illustration of an abstract question. here, texas attempted to enjoin the enforcement of the transportation act of on the ground that it invaded the reserved rights of the state. the court dismissed the complaint as presenting no case or controversy, declaring: "it is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power."[ ] again in ashwander _v._ tennessee valley authority,[ ] the court refused to decide any issue save that of the validity of the contracts between the authority and the company because, "the pronouncements, policies and program of the tennessee valley authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining." chief justice hughes cited new york _v._ illinois,[ ] where the court dismissed a suit as presenting abstract questions "as to the possible effect of the diversion of water from lake michigan upon hypothetical water power developments in the indefinite future."[ ] he also cited among other cases arizona _v._ california,[ ] where it was held that claims based merely upon assumed potential invasions of rights were not enough to warrant judicial intervention. the concepts of real interests and abstract questions again appear prominently in united public workers of america _v._ mitchell.[ ] here a number of government employees sued to enjoin the civil service commission from enforcing the prohibitions of the hatch act against activity in political management or campaigns, and to obtain a declaratory judgment that the act was invalid. except for one of the employees none had violated the act, but they did state that they desired to engage in the forbidden political activities. the court held that as to all the parties save the one who had violated the act there was no justiciable controversy. "concrete legal issues, presented in actual cases, not abstractions" were declared to be requisite. the generality of their objection was regarded as really an attack on the political expediency of the hatch act.[ ] from the rule that courts will not render advisory opinions or write essays in political theory on speculative issues, it follows logically that they will not determine moot cases or suits arranged by collusion between parties who have no opposing interests. a moot case has been defined as "one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy."[ ] cases may become moot because of a change in the law, or the status of the litigants, or because of some act of the parties which dissolves the controversy.[ ] just as courts will not speculate an hypothetical question, so they will not analyze dead issues.[ ] the duty of every federal court, said justice gray, "is to decide actual controversies by a judgment which can be carried into effect, and not give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter at issue in the case before it."[ ] political questions the rule has been long established that the courts have no general supervisory power over the executive or administrative branches of government.[ ] in decatur _v._ paulding,[ ] which involved an attempt by mandamus to compel the secretary of the navy to pay a pension, the supreme court in sustaining denial of relief stated: "the interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them."[ ] it follows, therefore, that mandamus will lie against an executive official only to compel the performance of a ministerial duty which admits of no discretion as contrasted with executive or political duties which admit of discretion.[ ] it follows, too, that an injunction will not lie against the president,[ ] or against the head of an executive department to control the exercise of executive discretion.[ ] these principles are well illustrated by georgia _v._ stanton,[ ] mississippi _v._ johnson,[ ] and kendall _v._ united states ex rel. stokes.[ ] origin of the concept the concept of "political question" is an old one. as early as marbury _v._ madison,[ ] chief justice marshall stated: "the province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." the concept, as distinguished from that of interference with executive functions, was first elaborated in luther _v._ borden,[ ] which involved the meaning of "a republican form" of government and the question of the lawful government of rhode island among two competing groups purporting to act as the lawful authority. "it is the province of a court to expound the law, not to make it," declared chief justice taney. "and certainly it is no part of the judicial functions of any court of the united states to prescribe the qualification of voters in a state, * * *; nor has it the right to determine what political privileges the citizens of a state are entitled to, unless there is an established constitution or law to govern its decision."[ ] the court went on to hold that such matters as the guaranty to a state of a republican form of government and of protection against invasion and domestic violence are political questions committed to congress and the president whose decisions are binding upon the courts.[ ] exemplifications of the doctrine from this case and later applications of it, a political question may be defined as a question relating to the possession of political power, of sovereignty, of government, the determination of which is vested in congress and the president whose decisions are conclusive upon the courts. the more common classifications[ ] of cases involving political questions are: ( ) those which raise the issue of what proof is required that a statute has been enacted,[ ] or a constitutional amendment ratified;[ ] ( ) questions arising out of the conduct of foreign relations;[ ] ( ) the termination of wars,[ ] or rebellions;[ ] the questions of what constitutes a republican form of government,[ ] and the right of a state to protection against invasion or domestic violence;[ ] questions arising out of political actions of states in determining the mode of choosing presidential electors,[ ] state officials,[ ] and reapportionment of districts for congressional representation;[ ] and suits brought by states to test their political and so-called sovereign rights.[ ] the leading case on the evidence required to prove the enactment of a statute is field _v._ clark,[ ] where it was held that the enactment of a statute is conclusively proved by the enrolled act signed by the speaker of the house of representatives and the president of the senate, and the court will not look beyond these formalities of record by examining the journals of the two houses of congress or other records. similarly, the court has held that the efficacy of the ratification of a proposed constitutional amendment in the light of previous rejection or subsequent attempted withdrawal is political in nature, pertaining to the political departments, with the ultimate authority in congress by virtue of its control over the promulgation of the adoption of amendments.[ ] simultaneously, the court ruled that the question of the lapse of a reasonable length of time between proposal and ratification is for congress to determine and not the court.[ ] recent cases a few cases will suffice to illustrate the application of the concept of political questions since . in colegrove _v._ green,[ ] a declaratory judgment was sought to have the division of illinois into congressional districts declared invalid as a violation of the equal protection of the laws. justice frankfurter in announcing the judgment of the court, in an opinion in which justices reed and burton joined, was of the opinion that dismissal of the suit was required both by the decision in wood _v._ broom,[ ] that there is no federal requirement that congressional districts shall contain as nearly as practicable an equal number of inhabitants, and because the question was not justiciable. justice rutledge thought that smiley _v._ holm[ ] indicated that the question was justiciable but concurred in the result on the ground that the case was one in which the courts should decline to exercise jurisdiction.[ ] justice black in a dissent supported by justices douglas and murphy thought that the case was justiciable and would have invalidated the reapportionment, leaving the state free to elect all of its representatives from the state at large.[ ] in macdougall _v._ green,[ ] however, the court seemed to regard as justiciable the question of the validity of the provision of the illinois election code requiring that a petition for the nomination of candidates of a new political party be signed by , voters including at least from each of at least of the states' counties, for it went on to sustain the provision in a brief _per curiam_ opinion. in ludecke _v._ watkins,[ ] the court held, as it had earlier, that the determination of the cessation of a state of war is a question for the political branch of the government and not for the courts. nevertheless, the court actually found a state of war to exist between the united states and germany after the end of hostilities, and ruled that an enemy alien is not entitled to judicial review in a deportation proceeding. very recently in south _v._ peters,[ ] the court refused to pass upon the validity of the county unit scheme used in georgia for the nomination of candidates in primary elections. advisory opinions perhaps no portion of constitutional law pertaining to the judiciary has evoked such unanimity as the rule that the federal courts will not render advisory opinions. in the supreme court refused to grant the request of president washington and secretary of state jefferson to construe the treaties and laws of the united states pertaining to questions of international law arising out of the wars of the french revolution. after convening the court which considered the request, chief justice jay replied to president washington concerning the functions of the three departments of government: "these being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the constitution to the president, of calling on the heads of departments for opinions, seems to have been _purposely_ as well as expressly united to the _executive_ departments."[ ] since the court has frequently reiterated the early view that the federal courts organized under article iii cannot render advisory opinions or that the rendition of advisory opinions is not a part of the judicial power of the united states.[ ] even in the absence of this early precedent, the rule that constitutional courts will render no advisory opinions would have logically emerged from the rule subsequently developed, that constitutional courts can only decide cases and controversies in which an essential element is a final and binding judgment on the parties. as stated by justice jackson, when the court refused to review an order of the civil aeronautics board, which in effect was a mere recommendation to the president for his final action, "to revise or review an administrative decision which has only the force of a recommendation to the president would be to render an advisory opinion in its most obnoxious form--advice that the president has not asked, tendered at the demand of a private litigant, on a subject concededly within the president's exclusive, ultimate control. this court early and wisely determined that it would not give advisory opinions even when asked by the chief executive. it has also been the firm and unvarying practice of constitutional courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action."[ ] the early refusal of the court to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,[ ] or where the judgment of the court was subject to later review or action by the executive or legislative branches of government,[ ] or where the issues involved were abstract or contingent.[ ] declaratory judgments the rigid emphasis placed upon such elements of the judicial power as finality of judgment and an award of execution in united states _v._ ferreira,[ ] gordon _v._ united states[ ], and liberty warehouse _v._ grannis,[ ] coupled with the equally rigid emphasis upon adverse parties and real interests as essential elements of a case or controversy in muskrat _v._ united states,[ ] created serious doubts concerning the validity of a proposed federal declaratory judgment act. these were dispelled to some extent by fidelity national bank _v._ swope,[ ] which held that an award of execution is not an essential part of every judgment and contained general statements in opposition to the principles of the grannis and willing cases. then in the supreme court entertained an appeal from a declaratory judgment rendered by the tennessee courts in nashville, c. & st. l.r. co. _v._ wallace,[ ] and in doing so declared that the constitution does not require that a case or controversy be presented by traditional forms of procedure, involving only traditional remedies, and that article iii defined and limited judicial power not the particular method by which that power may be invoked or exercised. the federal declaratory judgments act of was in due course upheld in aetna life insurance co. _v._ haworth,[ ] as a valid exercise of congressional power over the practice and procedure of federal courts which includes the power to create and improve as well as to abolish or restrict. the declaratory judgment act of the act of was carefully drawn, and provided that: "in cases of actual controversy the courts of the united states shall have power * * * to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such." the other two sections provided for further relief whenever necessary and proper and for jury trials of matters of fact.[ ] in the first case involving private parties exclusively to arise under the act, aetna life insurance co. _v._ haworth,[ ] the court held that a declaration should have been issued by the district court, although it reiterated with the usual emphasis the necessity of adverse parties, a justiciable controversy and specific relief. in the ashwander case it approved the refusal of the lower court to issue a declaration generally on the constitutionality of the tennessee valley authority, because the act of applied only to "cases of actual controversy." in the same case the court itself refused to pass upon the navigability of the new and kanawha rivers and the authority of the federal power commission even at the request of the united states, on the ground that the bill did no more than state a difference of opinion between the united states and west virginia to which the judicial power did not extend.[ ] similarly, in electric bond & share co. _v._ securities and exchange commission,[ ] the court refused to decide any constitutional issues arising out of the public utility holding company act of except the registration provisions because the cross bill in which the company had asked for a declaration that the whole act was unconstitutional was regarded as presenting a variety of hypothetical questions that might never become real. the "case" or "controversy" test in declaratory judgment proceedings the insistence of the court upon the rule that "the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit,"[ ] and the fact that many actions for a declaration of rights have involved the validity of legislation, where the court is even more insistent upon the essentials of a case, have done much to limit the use of the declaratory judgment. there are, nevertheless, a number of cases, some of which involved constitutional issues, in which a declaratory judgment has been rendered. among these are currin _v._ wallace,[ ] where tobacco warehousemen and auctioneers contested the validity of the tobacco inspection act under which the secretary of agriculture had already designated a tobacco market for inspection and grading; perkins _v._ elg,[ ] where a natural-born citizen of naturalized parents who left the country during her minority sought to establish her status as a citizen; maryland casualty co. _v._ pacific coal and oil co.,[ ] where a liability insurer sought to establish his lack of liability in an automobile collision case; and aetna life insurance co. _v._ haworth,[ ] where a declaration was sought under the disability benefit clauses of an insurance policy. as stated by justice douglas for the court in the maryland casualty case: "the difference between an abstract question and a 'controversy' contemplated by the declaratory judgment act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."[ ] it remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. even, then, however, the court is under no compulsion to exercise its jurisdiction.[ ] cases arising under the constitution, laws and treaties of the united states definition cases arising under the constitution are cases which require an interpretation of the constitution for their correct decision.[ ] they arise when a litigant claims an actual or threatened invasion of his constitutional rights by the enforcement of some act of public authority, usually an act of congress or of a state legislature, and asks for judicial relief. the clause furnishes the textual basis for the fountain-head of american constitutional law, in the strict sense of the term, which fountain-head is judicial review, or the power and duty of the courts to pass upon the constitutional validity of legislative acts which they are called upon to recognize and enforce in cases coming before them, and to declare void and refuse enforcement to such as do not accord with their own interpretation of the constitution. judicial review the supremacy clause clearly recognizes judicial review of state legislative acts in relation not only to the constitution, but also in relation to acts of congress which are "in pursuance of the constitution," and in relation to "treaties made or which shall be made under the authority of the united states." these constitute "the supreme law of the land," and "the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." this provision was originally implemented by the famous twenty-fifth section of the judiciary act of which provided that final judgments or decrees of the highest courts of law or equity in the states in which a decision could be had, "where is drawn in question the validity of a treaty or statute of, or an authority exercised under the united states, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the united states, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the united states, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the supreme court of the united states upon a writ of error, * * *"[ ] judicial review and national supremacy a quarter of a century after its enactment the validity of this section was challenged on states' rights premises in martin _v._ hunter's lessee,[ ] and seven years after that in cohens _v._ virginia.[ ] the states' rights argument was substantially the same in both cases. it amounted to the contention that while the courts of virginia were constitutionally obliged to prefer "the supreme law of the land" as defined in the supremacy clause over conflicting state laws it was only by their own interpretation of the said supreme law that they, as the courts of a sovereign state, were bound. furthermore, it was contended that cases did not "arise" under the constitution unless they were brought in the first instance by some one claiming such a right, from which it followed that "the judicial power of the united states" did not "extend" to such cases unless they were brought in the first instance in the courts of the united states. in answer to these arguments chief justice marshall declared that: "a case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the united states, whenever its correct decision depends upon the construction of either."[ ] passing then to broader considerations, he continued: "let the nature and objects of our union be considered; let the great fundamental principles, on which the fabric stands, be examined; and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction."[ ] judicial review of acts of congress judicial review of acts of congress is not provided for in the constitution in such explicit terms as is judicial review of state legislation, but it is nevertheless fairly evident that its existence is assumed. in the first place, the term "cases arising under the constitution" is just as valid a textual basis for the one type of constitutional case as for the other; and, in the second place, it is clearly indicated that acts of congress are not "supreme law of the land" unless they are "in pursuance of the constitution," thus evoking a question which must be resolved in the first instance by state judges, when state legislation coming before them for enforcement is challenged in relation to "the supreme law of the land." furthermore, most of the leading members of the federal convention are on record contemporaneously, though not always in the convention itself, as accepting the idea.[ ] hamilton's argument the argument for judicial review of acts of congress was first elaborated in full by alexander hamilton in the seventy-eighth number of _the federalist_ while the adoption of the constitution was pending. said hamilton: "the interpretation of the laws is the proper and peculiar province of the courts. a constitution is, in fact, and must be regarded by the judges as a fundamental law. it must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. if there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their [legislative] agents."[ ] it was also set forth as something commonly accepted by justice iredell in in calder _v._ bull[ ] in the following words: "if any act of congress, or of the legislature of a state, violates those constitutional provisions, it is unquestionably void; though, i admit, that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority, but in a clear and urgent case." and between these two formulations of the doctrine, the membership of the supreme court had given it their sanction first individually, then as a body. in hayburn's case,[ ] the justices while on circuit court duty refused to administer the invalid pensions act,[ ] which authorized the circuit courts to dispose of pension applications subject to review by the secretary of war and congress on the ground that the federal courts could be assigned only those functions such as are properly judicial and to be performed in a judicial manner. in hylton _v._ united states,[ ] a made case in which congress appropriated money to pay counsel on both sides of the argument, the court passed on the constitutionality of the carriage tax and sustained it as valid, and in so doing tacitly assumed that it had the power to review congressional acts. marbury _v._ madison all the above developments were, however, only preparatory. judicial review of acts of congress was made constitutional law, and thereby the cornerstone of american constitutionalism, by the decision of the supreme court, speaking through chief justice marshall in the famous case of marbury _v._ madison[ ] decided in february, . the facts of the case briefly stated are that marbury had been appointed a justice of the peace in the district of columbia by john adams almost at the close of his administration, and john marshall who was serving simultaneously as secretary of state failed to deliver to marbury his commission which had been signed before the new administration had begun. one of the first acts of jefferson was his instruction to secretary of state madison to withhold commissions to office which remained undelivered. thereupon marbury sought to compel madison to deliver the commission by seeking a writ of mandamus in the supreme court in the exercise of its original jurisdiction and in pursuance of section of the judiciary act of [ ] which prescribed the original jurisdiction of the court and authorized it to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the united states." marshall's argument in the portion of his opinion dealing with judicial review marshall began his argument with the assumption that "the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness * * *" and, once established, these principles are fundamental. second, the government of the united states is limited in its powers by a written constitution. the constitution either "controls any legislative act repugnant to it; or, * * * the legislature may alter the constitution by an ordinary act." but the constitution is paramount law and written as such. "it is emphatically the province and duty of the judicial department to say what the law is. * * * if two laws conflict with each other, the courts must decide on the operation of each. * * * if, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply." to declare otherwise, the chief justice concluded, would be subversive of the very foundation of all written constitutions, would force the judges to close their eyes to the constitution, and would make the judicial oath "a solemn mockery."[ ] the court must therefore look into some portions of the constitution, and if they can open it at all, what part of it are they forbidden to read or obey? in conclusion the chief justice declared that the constitution is mentioned first in the supremacy clause and that "the particular phraseology of the constitution * * * confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, [of government] are bound by that instrument."[ ] importance of marbury _v._ madison the decision in marbury _v._ madison has never been disturbed, although it has often been criticized. nor was its contemporary effect confined to the national field. from that time on judicial review by state courts of local legislation in relation to the local constitutions made rapid progress and was securely established in all states by under the influence not only of marbury _v._ madison, but also of early principles of judicial review established in the circuit courts of the united states.[ ] limits to the exercise of judicial review because judicial review is an outgrowth of the fiction that courts only declare what the law is in specific cases,[ ] and are without will or discretion,[ ] its exercise is surrounded by the inherent limitations of the judicial process and notably the necessity of a case or controversy between adverse litigants with a standing in court to present the issue of unconstitutionality in which they are directly interested. the requisites to a case or controversy have been treated more extensively above, but it may be noted that the supreme court has repeatedly emphasized the necessity of "an honest and actual antagonistic assertion of rights by one individual against another,"[ ] and its lack of power to supervise legislative functions in friendly proceedings, moot cases, or cases which present abstract issues.[ ] the doctrine of "strict necessity" but even when a case involving a constitutional issue is presented, the court has repeatedly stated that it will decide constitutional questions only if strict necessity requires it to do so. hence constitutional issues will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied; nor if the record presents some other ground upon which to decide the case; nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation; nor if a construction of the statute is fairly possible by which the question may be fairly avoided.[ ] speaking of the policy of avoiding the decision of constitutional issues except when necessary justice rutledge, speaking for the court, declared in : "the policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. they are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system."[ ] the doctrine of political questions a third limitation to the exercise of judicial review is the rule, partly inherent in the judicial process, but also partly a precautionary rule adopted by the court in order to avoid clashes with the "political branches," is that the federal courts will not decide "political questions."[ ] the "reasonable doubt" doctrine a fourth rule, of a precautionary nature, is that no act of legislation will be declared void except in a very clear case, or unless the act is unconstitutional beyond all reasonable doubt.[ ] sometimes this rule is expressed in another way, in the formula that an act of congress or a state legislature is presumed to be constitutional until proved otherwise "beyond all reasonable doubt."[ ] in operation this rule is subject to two limitations which seriously impair its efficacy. the first is that the doubts which are effective are the doubts of the majority only. if five justices of learning and attachment to the constitution are convinced that the statute is invalid and four others of equal learning and attachment to the constitution are convinced that it is valid or are uncertain that it is invalid, the convictions of the five prevail over the convictions or doubts of the four, and vice versa. second, the court has made exceptions to this rule in certain categories of cases. at one time statutes interfering with freedom of contract were presumed to be unconstitutional until proved valid,[ ] and more recently presumptions of invalidity have appeared to prevail against statutes alleged to interfere with freedom of expression and of religious worship, which have been said to occupy a preferred position in the constitution.[ ] exclusion of extra-constitutional tests a fifth maxim of constitutional interpretation runs to the effect that the courts are concerned only with the constitutionality of legislation and not with its motives, policy or wisdom, or with its concurrence with natural justice, fundamental principles of government, or spirit of the constitution.[ ] in various forms this maxim has been repeated to such an extent that it has become trite and has increasingly come to be incorporated in constitutional cases as a reason for fortifying a finding of unconstitutionality. through absorption of natural rights doctrines into the text of the constitution, the court was enabled to reject natural law and still to partake of its fruits, and the same is true of the _laissez faire_ principles incorporated in judicial decisions from about to . such protective coloration is transparent in such cases as lochner _v._ new york[ ] and united states _v._ butler.[ ] disallowance by statutory interpretation a sixth principle of constitutional interpretation designed by the courts to discourage invalidation of statutes is that if at all possible the courts will construe the statute so as to bring it within the law of the constitution.[ ] at times this has meant that a statute was construed so strictly in order to avoid constitutional difficulties that its efficacy was impaired if not lost.[ ] a seventh principle closely related to the preceding one is that in cases involving statutes, portions of which are valid and other portions invalid, the courts will separate the valid from the invalid and throw out only the latter unless such portions are inextricably connected.[ ] sometimes statutes expressly provide for the separability of provisions, but it remains for the courts in the last resort to determine whether the provisions are separable.[ ] _stare decisis_ in constitutional law an eighth limitation on the power of the federal courts to invalidate legislation springs from the principle of _stare decisis_, a limitation which has been progressively weakened since the court proceeded to correct "a century of error" in pollock _v._ farmers' loan & trust co.[ ] because of the difficulty of amending the constitution the court has long taken the position that it will reverse its previous decisions on constitutional issues when convinced they are grounded on error more quickly than in other types of cases in which earlier precedents are not absolutely binding.[ ] the "constitutional revolution" of produced numerous reversals of earlier precedents as other sections of this study disclose, and the process continues. in smith _v._ allwright,[ ] which reversed grovey _v._ townsend,[ ] justice reed cited fourteen cases decided between march , , and june , , in which one or more earlier decisions of constitutional questions were overturned. although the general effect of the numerous reversals of precedent between and was to bring judicial interpretation more generally into accord with the formal text of the constitution, and to dispose of a considerable amount of constitutional chaff, justice roberts was moved to say in the allwright case that frequent reversals of earlier decisions tended to bring adjudications of the supreme court "into the same class as a restricted railroad ticket, good for this day and train only."[ ] a ninth limitation which has nothing to do with statutory or constitutional construction as such and which is altogether precautionary is that the court will declare no legislative act void unless a majority of its full membership so concurs.[ ] the cumulative effect of these limitations is difficult to measure. the limitation imposed by the case concept definitely has the effect of postponing judicial nullification, but beyond this the most that can be said is that constitutional issues affecting important issues can ordinarily be presented in a case and so will sooner or later reach the court. the limitations of the presumptions of statutory validity, lack of concern with the wisdom of the legislation, alternative construction, separability of provisions and the like depend for their effectiveness upon the consciousness of the individual judge of the judicial proprieties and have been equally endorsed by those judges most frequently addressing themselves to the task of finding legislation invalid. the limitation imposed by the concept of political questions does not limit in any significant way the power of the federal courts to review legislation, but does remove from judicial scrutiny vast areas of executive action. in general, therefore, the extent to and manner in which the courts will exercise their power to review legislation is a matter of judicial discretion. allegations of federal question the question of jurisdiction of cases involving federal questions is determined by the allegations made by the plaintiff and not upon the facts as they may emerge or by a decision of the merits.[ ] plaintiffs seeking to docket such cases in the federal courts must set forth a substantial claim under the constitution, laws or treaties of the united states.[ ] nor does jurisdiction arise simply because an averment of a federal right is made, "if it plainly appears that such averment is not real and substantial, but is without color of merit."[ ] the federal question averred may be insubstantial because obviously without merit, or because its unsoundness so clearly results from previous decisions of the supreme court as to foreclose the issue and leaves no room for the inference that the questions sought to be raised can be subjects of controversy.[ ] in gully _v._ first national bank[ ] the court reviewed earlier precedents and endeavored to restate the rules for determining when a case arises. first there must be a right or immunity created by the constitution, laws, or treaties of the united states which must be such that it will be supported if the constitution, laws, or treaties are given one construction, or defeated if given another. second, a genuine and present controversy as distinguished from a possible or conjectural one must exist with reference to the federal right. third, the controversy must be disclosed upon the face of the complaint unaided by the answer.[ ] corporations chartered by congress the earlier hospitality of the federal courts to cases involving federal questions is also manifested in suits by corporations chartered by congress. although in bank of united states _v._ deveaux[ ] the court held that the first bank of the united states could not sue in the federal courts merely because it was incorporated by an act of congress, the act incorporating the second bank authorized such suits and this authorization was not only sustained in osborn _v._ bank of united states,[ ] but an act of incorporation was declared to be a law of the united states for purposes of jurisdiction in cases involving federal questions. consequently, the door was opened to other federally chartered corporations to go into the federal courts after the act of vested original jurisdiction generally in the lower courts of such questions. corporations, chartered by congress, particularly railroads, quickly availed themselves of this opportunity, and succeeded in the pacific railroad removal cases[ ] in removing suits from the state to the federal courts in cases involving no federal question solely on the basis of federal incorporation. the result of this and similar cases was congressional legislation depriving national banks of the right to sue in the federal courts solely on the basis of federal incorporation in ,[ ] depriving railroads holding federal charters of this right in ,[ ] and finally in removing from federal jurisdiction involving federal questions all suits brought by federally chartered corporations, solely on the basis of federal incorporation, except where the united states holds half of the stock.[ ] removal from state courts of suits against federal officials of greater significance and of immediate importance to the maintenance of national supremacy are those cases involving state prosecution of federal officials for acts committed under the color of federal authority. as early as congress provided temporarily for the removal of prosecutions against customs officials for acts done or omitted as an officer or under color of an act of congress, except for offenses involving corporal punishment.[ ] in , in partial answer to south carolina's nullification proclamation, congress enacted the so-called force act providing for removal from state courts of all prosecutions against any officer of the united states or under color thereof.[ ] as a part of the civil war legislation and limited to the war period, an act in provided for removal from state courts of cases brought against federal officials for acts committed during the war and justified under the authority of congress and the president.[ ] the act of , with amendments, has been kept in force. since the united states code has provided for the removal to a federal district court of civil actions or criminal prosecutions in state courts against "any officer of the united states or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any act of congress for the apprehension or punishment of criminals or the collection of the revenue."[ ] tennessee _v._ davis the validity of the act of as it was carried over into the revised statutes, § , was contested in tennessee _v._ davis,[ ] which involved the attempt of a state to prosecute a deputy collector of internal revenue who had killed a man while seeking to seize an illicit distilling apparatus. in an opinion in the tradition of martin _v._ hunter's lessee[ ] and cohens _v._ virginia,[ ] justice strong emphasized the power of the national government to protect itself in the exercise of its constitutional powers, the inability of a state to exclude it from the exercise of any authority conferred by the constitution, and the comprehensive nature of the term "cases in law and equity arising under the constitution, the laws of the united states, and treaties * * *" which was held to embrace criminal prosecutions as well as civil actions. then speaking of a case involving federal questions he said: "it is not merely one where a party comes into court to demand something conferred upon him by the constitution or by a law or treaty. a case consists of the right of one party as well as the other, and may truly be said to arise under the constitution or a law or a treaty of the united states whenever its correct decision depends upon the construction of either. cases arising under the laws of the united states are such as grow out of the legislation of congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted."[ ] supreme court review of state court decisions in addition to the constitutional issues presented earlier by § of the act of , which was superseded in when the "writ of error" was replaced by "appeal," issues have continued to arise concerning its application which go directly to the nature and extent of the supreme court's appellate jurisdiction. these have to do with such matters as the existence of a federal question, exhaustion of remedies in state courts, and review of findings of fact by state courts. whether a federal question has been adequately presented to and decided by a state court has been held to be in itself a federal question, to be decided by the supreme court on appeal.[ ] likewise a contention that a decision of a state court disregarded decrees of a united states court has been held to bring a case within the court's jurisdiction;[ ] also a decision by a state court which was adverse to an asserted federal right although, as the record of the case showed, it might have been based upon an independent and adequate nonfederal ground.[ ] this latter ruling, however, was qualified during the same term of court in a case which held that it is essential to the jurisdiction of the supreme court, in reviewing a decision of a state court that it must appear affirmatively from the record, not only that a federal question was presented for determination, but that its decision was necessary to the determination of the cause; that the federal question was actually decided, or that the judgment could not have been given without deciding it.[ ] these rules all flow from the broader principle that if the laws and constitution of the united states are to be observed, the supreme court cannot accept as final the decision of a state court on matters alleged to give rise to an asserted federal right.[ ] consequently, the supreme court will review the findings of fact by a state court where a federal right has been denied by a finding shown by the record to be without evidence to support it, and where a conclusion of law as to a federal right and findings of facts are so intermingled as to make it necessary to analyze the facts in order to pass upon the federal question.[ ] it should be noted, too, that barring exceptional circumstances such as those in gilchrist _v._ interborough rapid transit co.,[ ] which involved intricate contracts between the city of new york and the company, the meaning of which had not been determined by the state courts, or explicit statutory provisions as in u.s.c.a. §§ - , , , resort to a federal court may precede the exhaustion of remedies of state courts.[ ] suits affecting ambassadors, other public ministers, and consuls the earliest interpretation of the grant of original jurisdiction to the supreme court came in the judiciary act of , which conferred on the federal district courts jurisdiction of suits to which a consul might be a party. this legislative interpretation was sustained in in a circuit court case in which the judges held that congress might vest concurrent jurisdiction involving consuls in the inferior courts and sustained an indictment against a consul.[ ] many years later, in , the supreme court held that consuls could be sued in the federal courts,[ ] and in another case in the same year declared sweepingly that congress could grant concurrent jurisdiction to the inferior courts in cases where the supreme court has been invested with original jurisdiction.[ ] nor does the grant of original jurisdiction to the supreme court in cases affecting ambassadors and consuls of itself preclude suits in state courts against consular officials. the leading case is ohio ex rel. popovici _v._ agler[ ] in which a rumanian vice-consul contested an ohio judgment against him for divorce and alimony. justice holmes, speaking for the court, said: "the words quoted from the constitution do not of themselves and without more exclude the jurisdiction of the state. * * * it has been understood that, 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the united states.' * * * in the absence of any prohibition in the constitution or laws of the united states it is for the state to decide how far it will go." when "ambassadors" etc., are "affected" a number of incidental questions arise in connection with the phrase "affecting ambassadors and consuls." does the ambassador or consul to be affected have to be a party in interest, or is a mere indirect interest in the outcome of the proceeding sufficient? in united states _v._ ortega,[ ] the court ruled that a prosecution of a person for violating international law and the laws of the united states by offering violence to the person of a foreign minister was not a suit "affecting" the minister, but a public prosecution for vindication of the laws of nations and the united states. another question concerns the official status of a person claiming to be an ambassador, etc. in ex parte baiz,[ ] the court refused to review the decision of the executive with respect to the public character of a person claiming to be a public minister and laid down the rule that it has the right to accept a certificate from the department of state on such a question. a third question was whether the clause included ambassadors and consuls accredited by the united states to foreign governments. the court held that it includes only persons accredited to the united states by foreign governments.[ ] however, matters of especial delicacy such as suits against ambassadors and public ministers or their servants, where the law of nations permits such suits, and in all controversies of a civil nature to which a state is a party,[ ] congress has made the original jurisdiction of the supreme court exclusive of that of other courts. by its compliance with the congressional distribution of exclusive and concurrent original jurisdiction, the court has tacitly sanctioned the power of congress to make such jurisdiction exclusive or concurrent as it may choose. likewise, as in the popovici case, it has implied that congress, if it chose, could make the court's jurisdiction of consular officials exclusive of state courts. cases of admiralty and maritime jurisdiction origin and characteristics the admiralty and maritime jurisdiction of the federal courts had its origin in the jurisdiction vested in the courts of the admiral of the english navy. prior to independence, vice-admiralty courts were created in the colonies by commissions from the english high court of admiralty. after independence, the states established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by congress under the articles of confederation.[ ] since one of the objectives of the philadelphia convention was the promotion of commerce and the removal of obstacles to it, it was only logical that the constitution should deprive the states of all admiralty jurisdiction and vest it exclusively in the federal courts. congressional interpretation of the admiralty clause the constitution uses the terms "admiralty and maritime jurisdiction" without defining them. though closely related the words are not synonyms. in england the word "maritime" referred to the cases arising upon the high seas, whereas "admiralty" meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. a long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of english admiralty jurisdiction. for this and other reasons, a much broader conception of admiralty and maritime jurisdiction existed in the united states at the time of the framing of the constitution than in the mother country.[ ] at the very beginning of government under the constitution, congress conferred on the federal district courts exclusive original cognizance "of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the united states, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; * * *"[ ] this broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by english law but by the principles of maritime law "as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of europe."[ ] judicial approval of congressional interpretation although a number of supreme court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,[ ] it was not until that the court ruled squarely in its favor, which it did by declaring that, "whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in england, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed."[ ] the court thereupon proceeded to hold that admiralty had jurisdiction _in personam_ as well as _in rem_, over controversies arising out of contracts of affreightment between new york and providence. two types of cases admiralty and maritime jurisdiction comprises two types of cases: ( ) those involving acts committed on the high seas or other navigable waters; and ( ) those involving contracts and transactions connected with shipping employed on the seas or navigable waters. in the first category, which includes prize cases, and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act; while in the second category subject matter is the primary determinative factor.[ ] specifically, contract cases include suits by seamen for wages,[ ] cases arising out of marine insurance policies,[ ] actions for towage[ ] or pilotage[ ] charges, actions on bottomry or respondentia bonds,[ ] actions for repairs on a vessel already used in navigation,[ ] contracts of affreightment,[ ] compensation for temporary wharfage,[ ] agreements of consortship between the masters of two vessels engaged in wrecking,[ ] and surveys of damaged vessels.[ ] in the words of the court in ex parte easton,[ ] admiralty jurisdiction "extends to all contracts, claims and services essentially maritime." maritime torts jurisdiction of maritime torts depends exclusively upon the commission of the wrongful act upon navigable waters[ ] regardless of the voyage and the destination of the vessel.[ ] by statutory elaboration, as well as judicial decision, maritime torts include injuries to persons,[ ] damages to property arising out of collisions or other negligent acts,[ ] and violent dispossession of property.[ ] but until congress makes some regulation touching the liability of parties for marine torts resulting in the death of the persons injured, a state statute providing "that when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission," applies, and, as thus applied, it constitutes no encroachment upon the commerce power of congress.[ ] prize cases, forfeitures, etc. from the earliest days of the republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of prize cases.[ ] also, in contrast to other phases of admiralty jurisdiction prize law as applied by the british courts continued to provide the basis of american law so far as practicable,[ ] and so far as it was not modified by subsequent legislation, treaties, or executive proclamations. finally, admiralty and maritime jurisdiction comprises the seizure and forfeiture of vessels engaged in activities in violation of the laws of nations or municipal law, such as illicit trade,[ ] infraction of revenue laws,[ ] and the like.[ ] proceedings _in rem_ procedure in admiralty jurisdiction differs in few respects from procedure in actions at law, but the differences that do exist are significant. suits in admiralty take the form of a proceeding _in rem_ against the vessel and, with exceptions to be noted, proceedings _in rem_ concerning navigable waters are confined exclusively to federal admiralty courts. however, if a common law remedy exists, a plaintiff may bring an action at law in either a state or federal court of competent jurisdiction,[ ] but in this event the action is a proceeding _in personam_ against the owner of the vessel. on the other hand, although the court has sometimes used language which would confine proceedings _in rem_ to admiralty courts,[ ] yet it has sustained proceedings _in rem_ in the state courts in actions of forfeiture. thus in the case of c.j. hendry co. _v._ moore,[ ] the court held that a proceeding _in rem_ in a state court against fishing nets in the navigable waters of california was a common law proceeding within the meaning of § of the judiciary act of , and therefore within the exception to the grant of admiralty jurisdiction to the federal courts. at the same time, however, the court was careful to confine such proceedings to forfeitures arising out of violations of state law. absence of a jury another procedural difference between actions at law and in admiralty is the absence of jury trial in civil proceedings in admiralty courts unless congress specifically provides for it. otherwise the judge of an admiralty court tries issues of fact as well as of law.[ ] indeed, the absence of a jury in admiralty proceedings appears to have been one of the reasons why the english government vested a broad admiralty jurisdiction in the colonial vice-admiralty courts of america, since they provided a forum where the english authorities could enforce the navigation laws without what chief justice stone called "the obstinate resistance of american juries."[ ] territorial extent of admiralty and maritime jurisdiction as early as a federal district court in kentucky asserted admiralty jurisdiction over inland waterways to the consternation of certain interests in kentucky which succeeded in inducing the senate to pass a bill confining admiralty jurisdiction to the ebb and flow of the tide, only to see it defeated in the house.[ ] however, in , in _the thomas jefferson_[ ] the court relieved these tensions by confining admiralty jurisdiction to the high seas and upon rivers as far as the ebb and flow of the tide extended in accordance with the english rule. twenty-two years later this rule was qualified in waring _v._ clarke,[ ] when the court ruled that the admiralty jurisdiction under the constitution was not to be limited or interpreted by english rules of admiralty and extended the jurisdiction of the federal courts to a collision on the mississippi river ninety-five miles above new orleans. in this ruling the court moved in the direction of accommodating the rising commerce on the inland waterways and prepared the way for the genesee chief,[ ] which reversed the thomas jefferson and sustained the constitutionality of an act of congress passed in giving the district courts jurisdiction over the great lakes and connecting waters, and so in effect extended the admiralty jurisdiction to all the navigable waters of the united states.[ ] the genesee chief therefore vastly expanded federal power,[ ] and marked a trend which was continued in ex parte boyer,[ ] where admiralty jurisdiction was extended to canals, and in the daniel ball,[ ] where it was extended to waters wholly within a given state provided they form a connecting link in interstate commerce. this latter case is also significant for its definition of navigable waters of the united states as those that are navigable in fact, and as navigable in fact when so "used, or * * * susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[ ] the doubts left by the ball case in its distinction between navigable waters of the united states and navigable waters of the states were clarified by in re garnett,[ ] where it was held that the power of congress to amend the maritime law was coextensive with that law and not confined "to the boundaries or class of subjects which limit and characterize the power to regulate commerce," and that the admiralty jurisdiction extends "to all public navigable lakes and rivers." in united states _v._ appalachian electric power co.,[ ] the concept of "navigable waters of the united states" was further expanded to include waterways which by reasonable improvement can be made navigable for use in interstate commerce provided there is a balance between cost and need at a time when the improvement would be useful. nor is it necessary that the improvement shall have been undertaken or authorized. conversely, a navigable waterway of the united states does not cease to be so because navigation has ceased, and it may be a navigable waterway for only part of its course. although this doctrine was announced as an interpretation of the commerce clause, the garnett case and the decision rendered in southern s.s. co. _v._ national labor relations board,[ ] to the effect that admiralty jurisdiction includes all navigable waters within the country, makes it applicable also to the admiralty and maritime clause. admiralty jurisdiction versus state power the extension of the admiralty and maritime jurisdiction to navigable waters within a state does not, however, of its own force include general or political powers of government. thus in the absence of legislation by congress, the states through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the shore. in united states _v._ bevans[ ] the court denied the jurisdiction of a federal circuit court to try defendant for a murder committed in boston harbor in the absence of statutory authorization of trials in federal courts for offenses committed within the jurisdiction of a state. while admitting that congress may pass all laws which are necessary and proper for giving complete effect to admiralty jurisdiction, chief justice marshall at the same time declared that "the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. the residuary powers of legislation are still in massachusetts."[ ] exclusiveness of the jurisdiction determination of the bounds of admiralty jurisdiction is a judicial function, and "no state law can enlarge it, nor can an act of congress or a rule of court make it broader than the judicial power may determine to be its true limits."[ ] nor is the jurisdiction self-executing. it can only be exercised under acts of congress vesting it in the federal courts.[ ] the admiralty jurisdiction of the federal courts was made exclusive of state court jurisdiction by the judiciary act of according to the "moses taylor,"[ ] which also held that state laws conferring remedies _in rem_ could only be enforced in the federal courts. consequently, the state courts were deprived of jurisdiction of a great number of cases arising out of maritime contracts and torts over which they had exercised jurisdiction prior to . however, as before noted, the ninth section of the act of contained a provision, still in effect, which enables parties to avail themselves in state courts of such remedies as the common law is competent to give,[ ] but in such cases the rights and obligations involved are still determined by the maritime law.[ ] concessions to state power nor does the exclusiveness of federal admiralty jurisdiction preclude the states from creating rights enforceable in admiralty courts. in the "lottawanna,"[ ] it was held that federal district courts sitting in admiralty could enforce liens given for security of a contract even when created by state laws. likewise liabilities created by state statutes for injuries resulting in death have been enforced by proceedings _in rem_ in federal admiralty courts,[ ] and, in the absence of congressional legislation, a state may enact laws governing the rights and obligations of its citizens on the high seas. under this general rule a law of delaware providing for damages for wrongful death was enforced in an admiralty proceeding against a vessel arising out of a collision at sea of two vessels owned by delaware corporations.[ ] and in , in just _v._ chambers,[ ] the supreme court held specifically applicable in admiralty proceedings the law of florida whereby a cause of action for personal injury due to another's negligence survives the death of the tort-feasor against his estate and against the vessel. the jensen case and its sequelae in the face of these decisions, except the last, the court, nevertheless, held in in southern pacific co. _v._ jensen[ ] that a new york workman's compensation statute was unconstitutional as applied to employees engaged in maritime work. proceeding on the assumption that "congress has paramount power to fix and determine the maritime law which shall prevail through the country," and that in the absence of a controlling statute the general maritime law as accepted by the federal courts is a part of american national law, justice mcreynolds proceeded to draw an analogy between the power of the states to legislate on admiralty and maritime matters and their power to legislate on matters affecting interstate commerce. just as the states may not regulate interstate commerce where the subject is national in character and requires uniform regulation, so, he argued, they may not legislate on maritime matters in such fashion as to destroy "the very uniformity in respect to maritime matters which the constitution was designed to establish" or to hamper and impede freedom of navigation between the states and with foreign countries. nor could the act be covered by the saving clause of the act of governing common law remedies, since the remedy provided by the compensation statute was unknown to the common law.[ ] following the jensen decision congress enacted a statute saving to claimants their rights and remedies under state workmen's compensation laws.[ ] in knickerbocker ice co. _v._ stewart[ ] the same majority of judges, with justice mcreynolds again their spokesman, invalidated this statute as an unconstitutional delegation of legislative power to the states. the holding was based on the premise, stated as follows: "the constitution itself adopted and established, as part of the laws of the united states, approved rules of the general maritime law and empowered congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. moreover, it took from the states all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations."[ ] and a like fate overtook the attempt of congress in to protect longshoremen and other workers under state compensation laws by excluding masters and crew members of vessels from those who might claim compensation for maritime injuries.[ ] finally, in congress passed the longshoremen's and harbor workers' act,[ ] which provided accident compensation for those workers who could not validly be compensated under state statutes. this time it seems to have succeeded, the constitutionality of the statute being apparently taken for granted.[ ] the net result of the jensen case and its progeny has been a series of cases which hold that in some circumstances the states can apply their compensation laws to maritime employees and in other circumstances cannot, if to do so "works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations."[ ] but, as justice black pointed out in in davis _v._ department of labor,[ ] "when a state could, and when it could not, grant protection under a compensation act was left as a perplexing problem, for it was held 'difficult, if not impossible,' to define this boundary with exactness."[ ] nor, he continued, has the court been able "to give any guiding, definite rule to determine the extent of state power in advance of litigation, and has held that the margins of state authority must 'be determined in view of surrounding circumstances as cases arise.'"[ ] as to the specific claim involved in the davis case, justice black stated further that it was "fair to say that a number of cases can be cited both in behalf of and in opposition to recovery here."[ ] concurring in the davis case, justice frankfurter referred to the jensen case as "that ill-starred decision," but agreed that reversal would not eliminate its resultant complexities and confusions until congress attempted another comprehensive solution of the problem. until then all the court could do was "to bring order out of the remaining judicial chaos as marginal situations" were presented.[ ] power of congress to modify the maritime law; the "lottawanna" in view of the chaos created by the jensen case and its apparent disharmony with earlier as well as some later decisions the question arises as to the scope of congress's power to revise and codify the maritime law. in the "lottawanna"[ ] justice bradley as spokesman of the court, while admitting the existence of a general body of maritime law, asserted that it is operative as law only insofar "as it is adopted by the laws and usages of that country,"[ ] subject to such modifications and qualifications as may be made. so adopted and qualified it becomes the law of a particular nation, but not until then. "that we have a maritime law of our own, operative throughout the united states, cannot be doubted. the general system of maritime law which was familiar to the lawyers and statesmen of the country when the constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the united states shall extend 'to all cases of admiralty and maritime jurisdiction.'" continuing, justice bradley stated that "the constitution must have referred to a system of law coextensive with and operating uniformly in, the whole country. it certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states."[ ] however, the framers of the constitution could not have contemplated that the law should remain ever the same, especially as congress "has authority under the commercial power, if no other, to introduce such changes as are likely to be needed."[ ] sixteen years later in the garnett case[ ] justice bradley, speaking for a unanimous court, asserted that the power of congress to amend the maritime law is coextensive with that law and not limited by the boundaries of the commerce clause, and that the maritime law is "subject to such amendments as congress may see fit to adopt."[ ] likewise, justice mcreynolds in southern pacific co. _v._ jensen[ ] emphasizes congress' "paramount power to fix and determine the maritime law which shall prevail throughout the country," albeit in the absence of a controlling statute the general maritime law prevails; and the language of knickerbocker ice co. _v._ stewart[ ] is to like effect, as is also that of swanson _v._ marra bros.,[ ] decided in . the law administered by the federal courts sitting in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by congressional enactments, the common law of torts and contracts as modified by state or national legislation, and international prize law. this body of law, however, is subject at all times to the paramount authority of congress to change it in pursuance of its powers under the commerce clause, the admiralty and maritime clause, and the necessary and proper clause. that portion of the jensen opinion emphasizing congressional power in this respect has never been in issue in either the opinions of the dissenters in that case or in subsequent opinions critical of it, which in effect invite congress to exercise its power to modify the maritime law.[ ] cases to which the united states is a party: right of the united states to sue as justice story pointed out in his commentaries, "it would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts."[ ] as early as the supreme court ruled that the united states could sue in its own name in all cases of contract without congressional authorization of such suits.[ ] later this rule was extended to other types of actions. in the absence of statutory provisions to the contrary such suits are initiated by the attorney general in the name of the united states.[ ] as in other judicial proceedings, the united states, like any other party plaintiff, must have an interest in the subject matter and a legal right to the remedy sought.[ ] by the judiciary act of and subsequent amendments congress has vested jurisdiction in the federal district courts to hear all suits of a civil nature at law or in equity, brought by the united states as a party plaintiff.[ ] suits against states controversies to which the united states is a party include suits brought against states as party defendants. the first such suit occurred in united states _v._ north carolina[ ] which was an action by the united states to recover upon bonds issued by north carolina. although no question of jurisdiction was raised, in deciding the case on its merits in favor of the state, the court tacitly assumed that it had jurisdiction of such cases. the issue of jurisdiction was directly raised by texas a few years later in a bill in equity brought by the united states to determine the boundary between texas and the territory of oklahoma, and the court sustained its jurisdiction over strong arguments by texas to the effect that it could not be sued by the united states without its consent and that the supreme court's original jurisdiction did not extend to cases to which the united states is a party.[ ] stressing the inclusion within the judicial power of cases to which the united states and a state are parties, justice harlan pointed out that the constitution made no exception of suits brought by the united states. in effect, therefore, consent to be sued by the united states "was given by texas when admitted to the union upon an equal footing in all respects with the other states."[ ] suits brought by the united states against states have, however, been infrequent. all of them have arisen since , and they have become somewhat more common since . that year the supreme court decided a dispute between the united states and minnesota over land patents issued to the state by the united states in breach of its trust obligations to the indians.[ ] in united states _v._ west virginia,[ ] the court refused to take jurisdiction of a suit in equity brought by the united states to determine the navigability of the new and kanawha rivers on the ground that the jurisdiction in such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the officials of the two governments. a few years earlier, however, it had taken jurisdiction of a suit by the united states against utah to quiet title to land forming the beds of certain sections of the colorado river and its tributaries within the states.[ ] similarly, it took jurisdiction of a suit brought by the united states against california to determine the ownership of and paramount rights over the submerged land and the oil and gas thereunder off the coast of california between the low-water mark and the three-mile limit.[ ] like suits were decided against louisiana and texas in .[ ] immunity of the united states from suit in pursuance of the general rule that a sovereign cannot be sued in his own courts, it follows that the judicial power does not extend to suits against the united states unless congress by general or special enactment consents to suits against the government. this rule first emanated in embryo form in an _obiter dictum_ by chief justice jay in chisholm _v._ georgia, where he indicated that a suit would not lie against the united states because "there is no power which the courts can call to their aid."[ ] in cohens _v._ virginia,[ ] also by way of dictum, chief justice marshall asserted, "the universally received opinion is, that no suit can be commenced or prosecuted against the united states." the issue was more directly in question in united states _v._ clarke[ ] where chief justice marshall stated that as the united states is "not suable of common right, the party who institutes such suit must bring his case within the authority of some act of congress, or the court cannot exercise jurisdiction over it." he thereupon ruled that the act of may , , for the final settlement of land claims in florida condoned the suit. the doctrine of the exemption of the united states from suit was repeated in various subsequent cases, without discussion or examination.[ ] indeed, it was not until united states _v._ lee[ ] that the court examined the rule and the reasons for it, and limited its application accordingly. waiver of immunity by congress since suits against the united states can be maintained only by permission, it follows that they can be brought only in the manner prescribed by congress and subject to the restrictions imposed.[ ] only congress can take the necessary steps to waive the immunity of the united states from liability for claims, and hence officers of the united states are powerless by their actions either to waive such immunity or to confer jurisdiction on a federal court.[ ] even when authorized, suits can be brought only in designated courts.[ ] these rules apply equally to suits by states against the united states.[ ] although an officer acting as a public instrumentality is liable for his own torts, congress may grant or withhold immunity from suit on behalf of government corporations.[ ] united states _v._ lee united states _v._ lee, a five-to-four decision, qualified earlier holdings to the effect that where a judgment affected the property of the united states the suit was in effect against the united states, by ruling that title to the arlington estate of the lee family, then being used as a national cemetery, was not legally vested in the united states but was being held illegally by army officers under an unlawful order of the president. in its examination of the sources and application of the rule of sovereign immunity, the court concluded that the rule "if not absolutely limited to cases in which the united states are made defendants by name, is not permitted to interfere with the judicial enforcement of the rights of plaintiffs when the united states is not a defendant or a necessary party to the suit."[ ] except, nevertheless, for an occasional case like kansas _v._ united states,[ ] which held that a state cannot sue the united states, most of the cases involving sovereign immunity from suit since have been cases against officers, agencies, or corporations of the united states where the united states has not been named as a party defendant. thus, it has been held that a suit against the secretary of the treasury to review his decision on the rate of duty to be exacted on imported sugar would disturb the whole revenue system of the government and would in effect be a suit against the united states.[ ] even more significant is stanley _v._ schwalby,[ ] which resembles without paralleling united states _v._ lee, where it was held that an action of trespass against an army officer to try title in a parcel of land occupied by the united states as a military reservation was a suit against the united states because a judgment in favor of the plaintiffs would have been a judgment against the united states. difficulties created by the lee case subsequent cases repeat and reaffirm the rule of united states _v._ lee that where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as officers or agents of the united states, does not make the action one against the united states until it is determined that they were acting within the scope of their lawful authority.[ ] contrariwise, the rule that a suit in which the judgment would affect the united states or its property is a suit against the united states has also been repeatedly approved and reaffirmed.[ ] but, as the court has pointed out, it is not "an easy matter to reconcile all of the decisions of the court in this class of cases,"[ ] and, as justice frankfurter quite justifiably stated in a dissent, "the subject is not free from casuistry."[ ] justice douglas' characterization of land _v._ dollar, "this is the type of case where the question of _jurisdiction_ is dependent on decision of the _merits_,"[ ] is frequently applicable. official immunity today the recent case of larson _v._ domestic and foreign corp.,[ ] illuminates these obscurities somewhat. here a private company sought to enjoin the administrator of the war assets in his official capacity from selling surplus coal to others than the plaintiff who had originally bought the coal, only to have the sale cancelled by the administrator because of the company's failure to make an advance payment. chief justice vinson and a majority of the court looked upon the suit as one brought against the administrator in his official capacity, acting under a valid statute, and therefore a suit against the united states. it held that although an officer in such a situation is not immune from suits for his own torts, yet his official action, though tortious cannot be enjoined or diverted, since it is also the action of the sovereign.[ ] the court then proceeded to repeat the rule that "the action of an officer of the sovereign (be it holding, taking, or otherwise legally affecting the plaintiff's property) can be regarded as so individual only if it is not within the officer's statutory powers, or, if within those powers, only if the powers or their exercise in the particular case, are constitutionally void."[ ] the court rejected the contention that the doctrine of sovereign immunity should be relaxed as inapplicable to suits for specific relief as distinguished from damage suits, saying: "the government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right."[ ] classification of suits against officers suits against officers involving the doctrine of sovereign immunity have been classified by justice frankfurter in a dissenting opinion into four general groups. first, there are those cases in which the plaintiff seeks an interest in property which belongs to the government, or calls "for an assertion of what is unquestionably official authority."[ ] such suits, of course, cannot be maintained.[ ] second, cases in which action adverse to the interests of a plaintiff is taken under an unconstitutional statute or one alleged to be so. in general these suits are maintainable.[ ] third, cases involving injury to a plaintiff because the official has exceeded his statutory authority. in general these suits are also maintainable.[ ] fourth, cases in which an officer seeks immunity behind statutory authority or some other sovereign command for the commission of a common law tort.[ ] this category of cases presents the greatest difficulties since these suits can as readily be classified as falling into the first group if the action directly or indirectly is one for specific performance or if the judgment would affect the united states. suits against government corporations the multiplication of government corporations during periods of war and depression has provided one motivation for limiting the doctrine of sovereign immunity. in keifer & keifer _v._ reconstruction finance corp. and regional agricultural credit corp.,[ ] the court held that the government does not become a conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. nor does the creation of a government corporation confer upon it legal immunity. whether congress endows a public corporation with governmental immunity in a specific instance, is a matter of ascertaining the congressional will. moreover, it has been held that waivers of governmental immunity in the case of federal instrumentalities and corporations should be construed liberally.[ ] on the other hand, indian nations are exempt from suit without further congressional authorization; it is as though their former immunity as sovereigns passed to the united states for their benefit, as did their tribal properties.[ ] suits between two or more states the extension of the federal judicial power to controversies between states and the vesting of original jurisdiction in the supreme court of suits to which a state is a party had its origin in experience. prior to independence disputes between colonies claiming charter rights to territory were settled by the privy council. under the articles of confederation congress was made "the last resort on appeal" to resolve "all disputes and differences * * * between two or more states concerning boundary, jurisdiction, or any other cause whatever," and to constitute what in effect were _ad hoc_ arbitral courts for determining such disputes and rendering a final judgment therein. when the philadelphia convention met in , serious disputes over boundaries, lands, and river rights involved ten states.[ ] it is hardly surprising, therefore, that during its first sixty years the only state disputes coming to the supreme court were boundary disputes[ ] or that such disputes constitute the largest single number of suits between states. since , however, as the result of the increasing mobility of population and wealth and the effects of technology and industrialization other types of cases have occurred with increasing frequency. boundary disputes; the law applied of the earlier examples of suits between states, that between new jersey and new york is significant for the application of the rule laid down earlier in chisholm _v._ georgia,[ ] that the supreme court may proceed _ex parte_ if a state refuses to appear when duly summoned. the long drawn out litigation between rhode island and massachusetts is of even greater significance for its rulings, after the case had been pending for seven years, that though the constitution does not extend the judicial power to all controversies between states, yet it does not exclude any;[ ] that a boundary dispute is a justiciable and not a political question;[ ] and that a prescribed rule of decision is unnecessary in such cases. on the last point justice baldwin stated: "the submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the appropriate law of the case ( ves. ); which depends on the subject-matter, the source and nature of the claims of the parties, and the law which governs them. from the time of such submission, the question ceases to be a political one, to be decided by the _sic volo_, _sic jubeo_, of political power; it comes to the court, to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires."[ ] modern types of suits between states beginning with missouri _v._ illinois and the sanitary district of chicago,[ ] which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the mississippi river, water rights, the use of water resources, and the like have become an increasing source of suits between states. such suits have been especially frequent in the western states, where water is even more of a treasure than elsewhere, but they have not been confined to any one region. in kansas _v._ colorado,[ ] the court established the principle of the equitable division of river or water resources between conflicting state interests. in new jersey _v._ new york[ ] where new jersey sought to enjoin the diversion of waters into the hudson river watershed for new york in such a way as to diminish the flow of the delaware river in new jersey, injure its shad fisheries, and increase harmfully the saline contents of the delaware, justice holmes stated for the court: "a river is more than an amenity, it is a treasure. it offers a necessity of life that must be rationed among those who have power over it. new york has the physical power to cut off all the water within its jurisdiction. but clearly the exercise of such a power to the destruction of the interest of lower states could not be tolerated. and, on the other hand, equally little could new jersey be permitted to require new york to give up its power altogether in order that the river might come down to it undiminished. both states have real and substantial interests in the river that must be reconciled as best they may be."[ ] other types of interstate disputes of which the court has taken jurisdiction include suits by a state as the donee of the bonds of another to collect thereon,[ ] by virginia against west virginia to determine the proportion of the public debt of the original state of virginia which the latter owed the former,[ ] of one state against another to enforce a contract between the two,[ ] of a suit in equity between states for the determination of a decedent's domicile for inheritance tax purposes,[ ] and of a suit by two states to restrain a third from enforcing a natural gas measure which purported to restrict the interstate flow of natural gas from the state in the event of a shortage.[ ] in general in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the supreme court proceeded upon the liberal construction of the term "controversies between two or more states" enunciated in rhode island _v._ massachusetts,[ ] and fortified by chief justice marshall's dictum in cohens _v._ virginia[ ] concerning jurisdiction because of the parties to a case, that "it is entirely unimportant, what may be the subject of controversy. be it what it may, these parties have a constitutional right to come into the courts of the union." cases of which the court has declined jurisdiction in other cases, however, the court, centering its attention upon the elements of a case or controversy, has declined jurisdiction. thus in alabama _v._ arizona[ ] where alabama sought to enjoin states from regulating or prohibiting the sale of convict-made goods, the court went far beyond holding that it had no jurisdiction, and indicated that jurisdiction of suits between states will be exercised only when absolutely necessary, that the equity requirements in a suit between states are more exacting than in a suit between private persons, that the threatened injury to a plaintiff state must be of great magnitude and imminent, and that the burden on the plaintiff state to establish all the elements of a case is greater than that generally required by a petitioner seeking an injunction suit in cases between private parties. pursuing a similar line of reasoning, the court declined to take jurisdiction of a suit brought by massachusetts against missouri and certain of its citizens to prevent missouri from levying inheritance taxes upon intangibles held in trust in missouri by resident trustees. in holding that the complaint presented no justiciable controversy, the court declared that to constitute such a controversy, the complainant state must show that it "has suffered a wrong through the action of the other state, furnishing ground for judicial redress, or is asserting a right against the other state which is susceptible of judicial enforcement according to * * * the common law or equity systems of jurisprudence."[ ] the fact that the trust property was sufficient to satisfy the claims of both states and that recovery by either would not impair any rights of the other distinguished the case from texas _v._ florida,[ ] where the contrary situation obtained. furthermore, the missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon massachusetts any contractual right. the court then proceeded to reiterate its earlier rule that a state may not invoke the original jurisdiction of the supreme court for the benefit of its residents or to enforce the individual rights of its citizens.[ ] moreover, massachusetts could not invoke the original jurisdiction of the court by the expedient of making citizens of missouri parties to a suit not otherwise maintainable.[ ] accordingly, massachusetts was held not to be without an adequate remedy in missouri's courts or in a federal district court in missouri.[ ] the problem of enforcement; virginia _v._ west virginia a very important issue that presents itself in interstate litigation is the enforcement of the court's decree, once it has been entered. in some types of suits, as charles warren has indicated, this issue may not arise; and if it does, it may be easily met. thus a judgment putting a state in possession of disputed territory is ordinarily self-executing. but if the losing state should oppose execution, refractory state officials, as individuals, would be liable to civil suits or criminal prosecutions in the federal courts. likewise an injunction decree may be enforced against state officials as individuals by civil or criminal proceedings. those judgments, on the other hand, which require a state in its governmental capacity to perform some positive act present the issue of enforcement in more serious form. the issue arose directly in the long and much litigated case between virginia and west virginia over the proportion of the state debt of original virginia owed by west virginia after its separate admission to the union under a compact which provided that west virginia assume a share of the debt. the suit was begun in , and a judgment was rendered against west virginia in . finally in virginia filed a suit against west virginia to show cause why, in default of payment of the judgment, an order should not be entered directing the west virginia legislature to levy a tax for payment of the judgment.[ ] starting with the rule that the judicial power essentially involves the right to enforce the results of its exertion,[ ] the court proceeded to hold that it applied with the same force to states as to other litigants,[ ] and to consider appropriate remedies for the enforcement of its authority. in this connection, chief justice white declared: "as the powers to render the judgment and to enforce it arise from the grant in the constitution on that subject, looked at from a generic point of view, both are federal powers and, comprehensively considered, are sustained by every authority of the federal government, judicial, legislative, or executive, which may be appropriately exercised."[ ] the court, however, left open the question of its power to enforce the judgment under existing legislation and scheduled the case for reargument at the next term, but in the meantime west virginia accepted the court's judgment and entered into an agreement with virginia to pay it.[ ] controversies between a state and citizens of another state the decision in chisholm _v._ georgia[ ] that this category of cases included equally those where a state was a party defendant provoked the proposal and ratification of the eleventh amendment, and since then controversies between a state and citizens of another state have included only those cases where the state has been a party plaintiff or has consented to be sued. as a party plaintiff, a state may bring actions against citizens of other states to protect its legal rights or as _parens patriae_ to protect the health and welfare of its citizens. in general, the court has tended to construe strictly this grant of judicial power which simultaneously comes within its original jurisdiction by perhaps an even more rigorous application of the concepts of cases and controversies than that in cases between private parties.[ ] this it does by holding rigorously to the rule that all the party defendants be citizens of other states,[ ] and by adhering to congressional distribution of its original jurisdiction concurrently with that of other federal courts.[ ] non-justiciable controversies the supreme court has refused to take jurisdiction of a number of suits brought by states because of the lack of a justiciable controversy. in cases like mississippi _v._ johnson[ ] and georgia _v._ stanton,[ ] the political nature of the controversy constituted the dominant reason. in others, like massachusetts _v._ mellon[ ] and florida _v._ mellon,[ ] the political issue, though present, was accompanied by the inability of a state to sue in behalf of its citizens as _parens patriae_ to contest the validity of an act of congress when in national matters the national government bore the relation of _parens patriae_ to the same persons as citizens of the united states. moreover, a state may not bring a suit in its own name for the benefit of particular persons.[ ] jurisdiction confined to civil cases in cohens _v._ virginia[ ] there is a dictum to the effect that the original jurisdiction of the supreme court does not include suits between a state and its own citizens. long afterwards, the supreme court dismissed an action for want of jurisdiction because the record did not show the corporation against which the suit was brought was chartered in another state.[ ] subsequently the court has ruled that it will not entertain an action by a state to which its citizens are either parties of record, or would have to be joined because of the effect of a judgment upon them.[ ] in his dictum in cohens _v._ virginia, chief justice marshall also indicated that perhaps no jurisdiction existed over suits by states to enforce their penal laws.[ ] sixty-seven years later the court wrote this dictum into law in wisconsin _v._ pelican insurance co.[ ] here wisconsin sued a louisiana corporation to recover a judgment rendered in its favor by one of its own courts. relying partly on the rule of international law that the courts of no country execute the penal laws of another, partly upon the th section of the judiciary act of which vested the supreme court with exclusive jurisdiction of controversies of a civil nature where a state is a party, and partly on justice iredell's dissent in chisholm _v._ georgia,[ ] where he confined the term "controversies" to civil suits, justice gray ruled for the court that for purposes of original jurisdiction, "controversies between a state and citizens of another state" are confined to civil suits.[ ] suits by a state as _parens patriae_; jurisdiction declined the distinction between suits brought by states to protect the welfare of the people as a whole and suits to protect the private interests of individual citizens is not easily drawn. in oklahoma ex rel. johnson _v._ cook,[ ] the court dismissed a suit brought by oklahoma to enforce the statutory liability of a stockholder of a state bank then in the process of liquidation through a state officer. although the state was vested with legal title to the assets under the liquidation procedure, the state's action was independent of that and it was acting merely for the benefit of the bank's creditors and depositors. a generation earlier the court refused jurisdiction of oklahoma _v._ atchison, topeka & santa fe r. co.[ ] in which oklahoma sought to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, inasmuch as the state was not engaged in shipping these commodities and had no proprietary interest in them. suits by a state as _parens patriae_; jurisdiction accepted georgia _v._ evans,[ ] on the other hand, presents the case of a clear state interest as a purchaser of materials. here, georgia sued certain asphalt companies for treble damages under the sherman act arising allegedly out of a conspiracy to control the prices of asphalt of which georgia was a large purchaser. the matter of georgia's interest was not contested and did not arise. the case is primarily significant for the ruling that a state is a person under section of the sherman act authorizing suits by "any person" for treble damages arising out of violations of the sherman act. a less clear-cut case, and one not altogether in accord with oklahoma _v._ atchison, topeka & santa fe r. co.,[ ] is georgia _v._ pennsylvania r. co.[ ] in which the state, suing as _parens patriae_ and in its proprietary capacity, was permitted to file a bill of complaint against twenty railroads for injunctive relief from freight rates, allegedly discriminatory against the state and asserted to have been fixed through coercive action by the northern roads against the southern roads in violation of the th section of the clayton act. although the rights of georgia were admittedly based on federal laws, the court indicated that the enforcement of the sherman and clayton acts depends upon civil as well as criminal sanctions. moreover, the interests of a state for purposes of invoking the original jurisdiction of the supreme court were held, as in georgia _v._ tennessee copper co.,[ ] not to be confined to those which are proprietary but to "embrace the so-called 'quasi-sovereign' interests which * * * are 'independent of and behind the titles of its citizens, in all the earth and air within its domain.'"[ ] georgia _v._ pennsylvania railroad in the course of his opinion justice douglas, speaking for a narrowly divided court, treated the alleged injury to georgia as a proprietor as a "makeweight," and remarked that the "original jurisdiction of this court is one of the mighty instruments which the framers of the constitution provided so that adequate machinery might be available for the peaceful settlement of disputes between states and between a state and citizens of another state * * * trade barriers, recriminations, intense commercial rivalries had plagued the colonies. the traditional methods available to a sovereign for the settlement of such disputes were diplomacy and war. suit in this court was provided as an alternative."[ ] discriminatory freight rates, said he, may cause a blight no less serious than noxious gases in that they may arrest the development of a state and put it at a competitive disadvantage. "georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister states. these are matters of grave public concern in which georgia has an interest apart from that of particular individuals who may be affected. georgia's interest is not remote; it is immediate. if we denied georgia as _parens patriae_ the right to invoke the original jurisdiction of the court in a matter of that gravity, we would whittle the concept of justiciability down to the stature of minor or conventional controversies. there is no warrant for such a restriction."[ ] controversies between citizens of different states the meaning of "state"; hepburn _v._ ellzey despite stringent definitions of the words "citizen" and "state" and strict statutory safeguards against abuse of the jurisdiction arising out of it, the diversity of citizenship clause is one of the more prolific sources of federal jurisdiction. in hepburn _v._ ellzey,[ ] chief justice marshall, speaking for the court, confined the meaning of the word "state," as used in the constitution, to "the members of the american confederacy" and ruled that a citizen of the district of columbia could not sue a citizen of virginia on the basis of diversity of citizenship. in the course of his brief opinion marshall owned that it was "extraordinary that the courts of the united states, which are open to aliens, and to the citizens of every state in the union should be closed" to the residents of the district, but the situation, he indicated, was "a subject for legislative, not for judicial consideration."[ ] the same restrictive rule was later extended to citizens of territories of the united states.[ ] extension of jurisdiction by the act of whether chief justice marshall had in mind a constitutional amendment or an act of congress when he spoke of legislative consideration is not clear. at any rate, not until did congress enact a statute to confer on federal district courts jurisdiction of civil actions (involving no federal question) "between citizens of different states, or citizens of the district of columbia, the territory of hawaii, or alaska and any state or territory."[ ] in national mutual insurance co. _v._ tidewater transfer co.,[ ] this act was sustained by five judges, but for widely different reasons. justice jackson, in an opinion in which justices black and burton joined, was for adhering to the rule that the district of columbia is not a state, but held the act to be valid nevertheless because of the exclusive and plenary power of congress to legislate for the district and its broad powers under the necessary and proper clause.[ ] justice rutledge, in a concurring opinion, in which justice murphy joined, agreed that the act was valid and asserted that the ellzey case should be overruled.[ ] chief justice vinson in a dissent in which justice douglas concurred[ ] and justice frankfurter in a dissent in which justice reed joined[ ] thought the act invalid and would have adhered to the rule in the ellzey case. the net result is that the ellzey case still stands insofar as it holds that the district of columbia is not a state, but that under congressional enactment citizens of the district may now sue citizens of states in the absence of a federal question, on the basis of no statable constitutional principle, but through the grace of what justice frankfurter called "conflicting minorities in combination."[ ] citizenship, natural persons for purposes of diversity jurisdiction state citizenship is determined by domicile or residence, for the determination of which various tests have been stated: removal to a state, acquiring real estate there, and paying taxes;[ ] residence in a state for a considerable time;[ ] and removal to a state with the intent of making it one's home for an indefinite period of time.[ ] where citizenship is dependent on intention, acts may disclose it more satisfactorily than declarations.[ ] the fact that removal to another state is motivated solely by a desire to acquire citizenship for diversity purposes does not oust the federal courts of jurisdiction so long as the new residence is indefinite or the intention to reside there indefinitely is shown.[ ] but a mere temporary change of domicile for the purpose of suing in a federal court is not sufficient to effectuate a change in citizenship.[ ] exercise of the right of suffrage is a conclusive test of citizenship in a state, and the acquisition of the right to vote without exercising it is sufficient to establish citizenship.[ ] citizenship, corporations in bank of united states _v._ deveaux,[ ] chief justice marshall declared: "that invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and consequently cannot sue or be sued in the courts of the united states, unless the rights of the members, in this respect, can be exercised in their corporate name." he proceeded then to look beyond the corporate entity and hold that the bank could sue under the diversity provisions of the constitution and the judiciary act of because the members of the bank as a corporation were citizens of one state and deveaux was a citizen of another. this holding was reaffirmed a generation later, in commercial and railroad bank of vicksburg _v._ slocomb,[ ] at a time when corporations were coming to play a more important role in the national economy. the same rule, combined with the rule that in a diversity proceeding all the persons on one side of a suit must be citizens of different states from all persons on the other side,[ ] could in the course of time have closed the federal courts in diversity cases to the larger corporations having stockholders in all or most of the states. if such corporations were to have the benefits of diversity jurisdiction, either the deveaux or the strawbridge rule would have to yield. by , only four years after the slocomb case, the interests of corporations in docketing cases in the federal courts as citizens of different states appeared more important to the supreme court than the weight to be attached to precedents, even those set by john marshall, and in louisville, cincinnati, and charleston r. co. _v._ letson,[ ] both the deveaux and slocomb cases were overruled. after elaborate arguments by counsel, the court, speaking through justice wayne, held that "a corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same state, for the purposes of its incorporation, capable of being treated as a citizen of that state, as much as a natural person."[ ] in the letson case the emphasis is upon the place of incorporation of a joint stock company as something completely separate from the citizenship of its members. in succeeding cases, however, this fiction of corporate personality has undergone modifications so that a corporation, though still a citizen of the state where it is chartered, is such by virtue of the jurisdictional fiction that all the stockholders are citizens of the state which by its laws created the corporation.[ ] this presumption is conclusive and irrebuttable and resembles in many ways the english jurisdictional fiction that for providing remedies for wrongs done in the mediterranean "the island of minorca was at london, in the parish of st. mary le bow in the ward of cheap."[ ] this fiction creates a logical anomaly, which the letson rule had avoided, in those cases in which a stockholder of one state sues a corporation chartered in another state. although all stockholders are conclusively presumed to be citizens of the state where the corporation is chartered, an individual stockholder from a different state may nevertheless aver his actual citizenship so as to maintain a diversity suit against the corporation.[ ] these rulings lead to some extraordinary results, as john chipman gray has indicated: "the federal courts take cognizance of a suit by a stockholder who is a citizen, say, of kentucky, against the corporation in which he owns stock, which has been incorporated, say, by ohio. since he is a stockholder of an ohio corporation, the court conclusively presumes that he is a citizen of ohio, but if he were a citizen of ohio, he could not sue an ohio corporation in the federal courts. therefore the court considers that he is and he is not at the same time a citizen of ohio, and it would have no jurisdiction unless it considered that he both was and was not at the same time a citizen both of ohio and kentucky."[ ] the black and white taxicab case these fictions of corporate citizenship make it easy for corporations to go into the federal courts on matters of law that are purely local in nature, and they have availed themselves of the opportunity to the full. for a time the supreme court tended to look askance at collusory incorporations and the creation of dummy corporations for purposes of getting cases into the federal courts,[ ] but as a result of the kentucky taxicab case,[ ] decided in , the limitation of collusion lost much of its force. here the black and white company, a kentucky corporation, dissolved itself and obtained a charter as a tennessee corporation in order to get the benefit of a federal rule which would condone an exclusive contract with a railroad to park its cabs in and around a station whereas the state rule forbade such contracts. the only change made was of the state of incorporation. the name of the company, its officers, and shareholders, and the location of its business all remained the same. yet no collusion was found, and the company received the benefit of the federal rule--a measure of salvation by being born again in tennessee. the odd result in the taxicab case, whereby citizens of kentucky could conduct business there contrary to state law with the sanction of the supreme court of the united states, did not stem solely from the rule that the citizenship of a corporation is determined by the state of its incorporation, but also from this rule combined with the rule of swift _v._ tyson,[ ] another by-product of diversity jurisdiction. the law applied in diversity cases: swift _v._ tyson section of the judiciary act of provided that in diversity cases at common law the laws of the several states should be the rules of decision in the united states courts. however, in swift _v._ tyson[ ] the supreme court refused to apply this section on the ground that it did not extend to contracts or instruments of a commercial nature, the interpretation of which therefore ought to be according to "the general principles and doctrines of jurisprudence"; and while the decisions of state courts on such subjects were entitled to and would receive attention and respect, they could not be conclusive or binding upon the federal courts.[ ] extension of the tyson case for ninety-six years the court followed this opinion, which the other justices saw only the evening before it was delivered, and which invoked a precedent of lord mansfield on the law of the sea and an epigram of cicero on the law of nature.[ ] later decisions expanded the concept of matters of a commercial nature so that the scope of the tyson rule was greatly extended.[ ] in many instances the state courts followed their own rules of decision even when contrary to the federal rules, so that justice story's attempt at uniformity in matters of a commercial nature paradoxically led to a greater diversity and to the mischief in many instances of two conflicting rules of law in the same state, with the outcome of suits dependent upon whether the case was docketed in a state or a federal court. simultaneously, the supreme court was holding under the tyson rule that the federal courts were not bound by decisions of state courts interpreting state constitutions[ ] or state statutes.[ ] the tyson rule protested moreover, decisions extending the scope of the tyson rule were frequently rendered by a divided court over the strong protests of dissenters.[ ] in baltimore and ohio r. co. _v._ baugh,[ ] which further projected the tyson rule into the law of torts in disregard of state law, justice field wrote a sharp dissent in which he indicated an opinion that the supreme court's disregard of state court decisions was unconstitutional. such disregard, nevertheless, was further aggravated in kuhn _v._ fairmont coal co.,[ ] where the court held that in construing a contract in a case involving real estate and mining law a federal court was not bound by a west virginia decision touching the same subject. this evoked a provocative dissent from justice holmes, who later wrote one of his more famous dissents in the black and white taxicab company case,[ ] in which he asserted emphatically that the court's extensions of the tyson rule were unconstitutional.[ ] erie railroad co. _v._ tompkins; tyson overruled increasing criticism of the tyson rule led to a restriction of it in mutual life ins. co. _v._ johnson,[ ] where the court chose to apply virginia decisions rather than exercise its independent judgment on the ground that the case was "balanced with doubt."[ ] the federal judicial power was subordinated to what justice cardozo called "a benign and prudent comity."[ ] four years later, and without further preparation other than a change in two of the justices, the court overturned swift _v._ tyson and its judicial progeny in erie railroad co. _v._ tompkins,[ ] in an opinion by justice brandeis which is remarkable in a number of ways. in the first place, it reversed a ninety-six year old precedent which counsel had not questioned; secondly, for the first and only time in american constitutional history, it held action of the supreme court itself to have been unconstitutional, to wit, action taken by it in reliance on its interpretation of the th section of the judiciary act of , a question which also was not before the court; and thirdly, it completely ignored the power of congress under the commerce clause, as well as its power to prescribe rules of decision for the federal courts in the cases enumerated in article iii. like the fairmont coal and taxicab cases, the tompkins case presented the possibility of a head-on conflict between state and federal rules of decision. tompkins was seriously injured by a passing freight train while he was walking along the railroad's right of way in pennsylvania. as a citizen of pennsylvania, tompkins could have sued in that state, but he could also have sued in the federal district court in pennsylvania, or in new york because the railroad was incorporated in the latter state. he elected to sue in the federal court for the southern district of new york, where he obtained a verdict for $ , after the trial judge had ruled that the applicable law did not preclude recovery. the circuit court of appeals affirmed the judgment because it thought it unnecessary to consider whether the law of pennsylvania precluded recovery, inasmuch as the question was one of general law to be decided by the federal courts in the exercise of their independent judgment. citing warren's discovery that swift _v._ tyson was an erroneous interpretation of the judiciary act of , criticism of the tyson doctrine both on and off the bench, and the political and social defects of the rule in working discriminations against citizens of a state in favor of noncitizens and in producing injustice and confusion, justice brandeis declared: "if only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely * * * [followed for] nearly a century. but the unconstitutionality of the course pursued has now been made clear and compels us to do so. * * * there is, [he continued], no federal general common law. congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or 'general,' be they commercial law or a part of the law of torts. and no clause in the constitution purports to confer such a power upon the federal courts."[ ] after quoting justice field and justice holmes on the unconstitutionality of the tyson rule, justice brandeis made it clear that the court was not invalidating § of the federal judiciary act of , but was merely declaring that the supreme court and the lower federal courts had, in their application of it, "invaded rights which * * * are reserved by the constitution to the several states."[ ] justice butler, joined by justice mcreynolds, concurred in the result, because in his view tompkins was not entitled to damages under general law, but he deprecated the reversal of swift _v._ tyson. he also objected to the decision of the constitutional issue as unnecessary.[ ] justice reed likewise concurred, but thought it questionable to raise the constitutional issue. "if the opinion, [said he], commits this court to the position that the congress is without power to declare what rules of substantive law shall govern the federal courts, that conclusion also seems questionable."[ ] extension of the tompkins rule since the federal courts have been most assiduous in following the decisions of the state courts in diversity cases. the decisions followed, moreover, include not only those of the highest state courts, but those also of intermediate courts. in west _v._ american telephone and telegraph co.[ ] the supreme court held that a decision of an ohio county court of appeals which the supreme court of the state had declined to review was binding on the lower federal courts regardless of the desirability of the rule of the decision or of the belief that the highest court of the state might establish a different rule in future litigation. in fidelity union trust co. _v._ field[ ] the court went even farther and ruled that the lower courts were bound to follow the decisions of two chancery courts in new jersey although there had been no appeal to the highest state court, and obviously other new jersey courts were not bound by the decisions of two vice-chancellors. the anomaly of this decision was partially removed in king _v._ order of united commercial travelers,[ ] where the court held that the federal courts were not bound by the decision of a court of first instance of south carolina, which was the only decision applicable to the interpretation of the insurance policy in dispute. nor is this the whole story. in the event of a state supreme court's reversal of its earlier decisions the federal courts are bound by the latest decision. hence a judgment of a federal district court, correctly applying state law as interpreted by the state's highest court, must be reversed on appeal if the state court in the meantime has reversed its earlier rulings and adopted a contrary interpretation. though aware of possible complications from this rule, the court insisted that "until such time as a case is no longer _sub judice_, the duty rests upon the federal courts to apply the rules of decision statute in accordance with the then controlling decision of the highest state court."[ ] although the rules of decision act[ ] requires the federal courts to follow state decisions only in civil cases, the application of the tompkins rule has been extended to suits in equity.[ ] in guaranty trust co. _v._ york,[ ] the court held that when a statute of limitations barred recovery in a state court, a federal court sitting in equity could not entertain the suit because of diversity of citizenship. this ruling was based on the express premise that "a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the state, * * * "[ ] it was held to be immaterial, therefore, whether statutes of limitations were designated as substantive or procedural. the tompkins case, it was said, was not an endeavor to formulate scientific legal terminology. "in essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a state court."[ ] controversies between citizens of the same state claiming lands under grants of different states this clause was not in the first draft of the constitution, but was added without objection.[ ] undoubtedly the motivation for this extension of the judicial power was the existence of boundary disputes affecting ten states at the time the philadelphia convention met. with the northwest ordinance of , the ultimate settlement of boundary disputes between states, and the passing of land grants by states, this clause, never productive of many cases, has become obsolete.[ ] controversies between a state, or the citizens thereof, and foreign states, citizens or subjects the scope of this jurisdiction has been limited both by judicial decisions and the eleventh amendment. by judicial application of the law of nations a foreign state is immune from suit in the federal courts without its consent,[ ] an immunity which extends to suits brought by states of the american union.[ ] conversely, the eleventh amendment has been construed to bar suits by foreign states against a state of the american union.[ ] consequently, the jurisdiction conferred by this clause comprehends only suits brought by a state against citizens or subjects of foreign states, by foreign states against american citizens, citizens of a state against the citizens or subjects of a foreign state, and by aliens against citizens of a state. suits by foreign states the privilege of a recognized foreign state to sue in the courts of a foreign state upon the principle of comity is recognized by both international law and american constitutional law.[ ] to deny a sovereign this privilege "would manifest a want of comity and friendly feeling."[ ] although national sovereignty is continuous, a suit in behalf of a national sovereign can be maintained in the courts of the united states only by a government which has been recognized by the political branches of our own government as the authorized government of the foreign state.[ ] once a foreign government avails itself of the privilege of suing in the courts of the united states, it subjects itself to the procedure and rules of decision governing those courts and accepts whatever liabilities the court may decide to be a reasonable incident of bringing the suit.[ ] also, certain of the benefits extending to the domestic sovereign do not extend to a foreign sovereign suing in the courts of the united states. thus a foreign sovereign does not receive the benefit of the rule which exempts the united states and its member states from the operation of the statute of limitations, because considerations of public policy back of the rule are regarded as absent.[ ] indian tribes within the terms of article iii, an indian tribe is not a foreign state and hence cannot sue in the courts of the united states. this rule was applied in the case of cherokee nation _v._ georgia,[ ] where chief justice marshall conceded that the cherokee nation was a state, but not a foreign state, being a part of the united states and dependent upon it. other passages of the opinion specify the elements essential to a foreign state for purposes of jurisdiction, such as sovereignty and independence. narrow construction of the jurisdiction as in cases of diversity jurisdiction, suits brought to the federal courts under this category must clearly state in the record the nature of the parties. as early as the supreme court ruled that a federal court could not take jurisdiction of a cause where the defendants were described in the record as "late of the district of maryland," but were not designated as citizens of maryland, and plaintiffs were described as aliens and subjects of the united kingdom.[ ] the meticulous care manifested in this case appeared twenty years later when the court narrowly construed section of the judiciary act of , vesting the federal courts with jurisdiction where an alien was a party, in order to keep it within the limits of this clause. the judicial power was further held not to extend to private suits in which an alien is a party, unless a citizen is the adverse party.[ ] this interpretation was extended in by a holding that if there is more than one plaintiff or defendant, each plaintiff or defendant must be competent to sue or liable to suit.[ ] these rules, however, do not preclude a suit between citizens of the same state if the plaintiffs are merely nominal parties and are suing on behalf of an alien.[ ] clause . in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. in all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make. the original jurisdiction of the supreme court an autonomous jurisdiction acting on the assumption that its existence is derived directly from the constitution, the supreme court has held since that its original jurisdiction flows directly from the constitution and is therefore self-executing without further action by the congress. in the famous case of chisholm _v._ georgia[ ] the supreme court entertained an action of assumpsit against georgia by a citizen of another state. although the th section of the judiciary act of invested the supreme court with original jurisdiction in suits between a state and citizens of another state, it did not authorize actions of assumpsit in such cases, nor did it prescribe forms of process for the court in the exercise of original jurisdiction. over the dissent of justice iredell, the court in opinions by chief justice jay and justices blair, wilson, and cushing, sustained its jurisdiction and its power, in the absence of congressional enactments, to provide forms of process and rules of procedure. so strong were the states' rights sentiments of the times that georgia refused to appear as a party litigant, and other states were so disturbed that the eleventh amendment was proposed forthwith and ratified. this amendment, however, did not affect the direct flow of original jurisdiction to the court, which continued to take jurisdiction of cases to which a state was party plaintiff and of suits between states without specific provision by congress for forms of process. by chief justice taney could enunciate with confidence, after a review of the precedents, that in all cases where original jurisdiction is given by the constitution, the supreme court has authority "to exercise it without further act of congress to regulate its powers or confer jurisdiction, and that the court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice."[ ] cannot be enlarged; marbury _v._ madison since the original jurisdiction is derived directly from the constitution, it follows logically that congress can neither restrict it nor, as was held in the great case of marbury _v._ madison,[ ] enlarge it. in holding void the th section of the judiciary act of , which was interpreted as giving the court power to issue a writ of mandamus in an original proceeding, chief justice marshall declared that "a negative or exclusive sense" had to be given to the affirmative enunciation of the cases to which original jurisdiction extends.[ ] while the rule that the supreme court is vested with original jurisdiction by the constitution and that this jurisdiction cannot be extended or restricted deprives congress of any power to define it, it allows a considerable latitude of interpretation to the court itself. in some cases, as in missouri _v._ holland,[ ] the court has manifested a tendency toward a liberal construction of original jurisdiction; in others, as in massachusetts _v._ mellon,[ ] it has placed a narrow construction upon the grant through the device of a restrictive interpretation of cases and controversies; and in still other cases, as in california _v._ southern pacific co.,[ ] it has stated that its original jurisdiction "is limited and manifestly to be sparingly exercised, and should not be expanded by construction." concurrent jurisdiction of the lower federal courts although congress can neither enlarge nor restrict the original jurisdiction of the supreme court, it may vest concurrent jurisdiction in the lower federal courts in cases over which the supreme court has original jurisdiction.[ ] thus among the grounds given for the decision in wisconsin _v._ pelican insurance co.,[ ] that the court had no original jurisdiction of an action by a state to enforce a judgment for a pecuniary penalty awarded by one of its own courts, was the provision of the th section of the judiciary act of [ ] that "the supreme court shall have exclusive jurisdiction of controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction." speaking of that act with particular reference to this section, justice gray declared that it "was passed by the first congress assembled under the constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning."[ ] in cases affecting consuls, moreover, the original jurisdiction of the supreme court is shared concurrently with state courts unless congress by positive action makes such jurisdiction exclusive.[ ] the appellate jurisdiction of the supreme court subject to limitation by congress unlike its original jurisdiction, the appellate jurisdiction of the supreme court is subject to control by congress in the exercise of the broadest discretion. although the provisions of article iii seem, superficially at least, to imply that its appellate jurisdiction would flow directly from the constitution until congress should by positive enactment make exceptions to it, rulings of the court since establish the contrary rule. consequently, before the supreme court can exercise appellate jurisdiction, an act of congress must have bestowed it, and affirmative bestowals of jurisdiction are interpreted as exclusive in nature so as to constitute an exception to all other cases. this rule was first applied in wiscart _v._ dauchy[ ] where the court held that in the absence of a statute prescribing a rule for appellate proceedings, the court lacked jurisdiction. it was further stated that if a rule were prescribed, the court could not depart from it. fourteen years later chief justice marshall observed for the court that its appellate jurisdiction is derived from the constitution, but proceeded nevertheless to hold that an affirmative bestowal of appellate jurisdiction by congress, which made no express exceptions to it, implied a denial of all others.[ ] the mccardle case the power of congress to make exceptions to the court's appellate jurisdiction has thus become, in effect, a plenary power to bestow, withhold, and withdraw appellate jurisdiction, even to the point of its abolition. and this power extends to the withdrawal of appellate jurisdiction even in pending cases. in the notable case of ex parte mccardle,[ ] a mississippi newspaper editor who was being held in custody by the military authorities acting under the authority of the reconstruction acts filed a petition for a writ of _habeas corpus_ in the circuit court for southern mississippi. he alleged unlawful restraint and challenged the validity to the reconstruction statutes. the writ was issued, but after a hearing the prisoner was remanded to the custody of the military authorities. mccardle then appealed to the supreme court which denied a motion to dismiss the appeal, heard arguments on the merits of the case, and took it under advisement. before a conference could be held, congress, fearful of a test of the reconstruction acts, enacted a statute withdrawing appellate jurisdiction from the court in certain _habeas corpus_ proceedings.[ ] the court then proceeded to dismiss the appeal for want of jurisdiction. chief justice chase, speaking for the court said: "without jurisdiction the court cannot proceed at all in any cause. jurisdiction is the power to declare the law and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."[ ] although the mccardle case goes to the ultimate in sustaining congressional power over the court's appellate jurisdiction and although it was born of the stresses and tensions of the reconstruction period, it has been frequently reaffirmed and approved.[ ] the result is to vest an unrestrained discretion in congress to curtail and even abolish the appellate jurisdiction of the supreme court, and to prescribe the manner and forms in which it may be exercised. this principle is well expressed in the "francis wright"[ ] where the court sustained the validity of an act of congress which limited the court's review in admiralty cases to questions of law appearing on the record. a portion of the opinion is worthy of quotation: "authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to reexamination and review, while others are not. to our minds it is no more unconstitutional to provide that issues of fact shall not be retried in any case, than that neither issues of law nor fact shall be retried in cases where the value of the matter in dispute is less than $ , . the general power to regulate implies the power to regulate in all things. the whole of a civil appeal may be given, or a part. the constitutional requirements are all satisfied if one opportunity is had for the trial of all parts of a case. everything beyond that is a matter of legislative discretion."[ ] the power of congress to regulate the jurisdiction of the lower federal courts martin _v._ hunter's lessee the power of congress to vest, withdraw, and regulate the jurisdiction of the lower federal courts is derived from the power to create tribunals under article i, the necessary and proper clause, and the clause in article iii, vesting the judicial power in the supreme court and such inferior courts as "the congress may from time to time ordain and establish." balancing these provisions, however, are the phrases in article iii to the effect that the judicial power "shall be vested" in courts and "shall extend" to nine classes of cases and controversies and the question of what is the force of the word "shall." in martin _v._ hunter's lessee,[ ] justice story declared obiter that it was imperative upon congress to create inferior federal courts and vest in them all the jurisdiction they were capable of receiving. this dictum was criticized by justice johnson in his dissent, in which he contended that the word "shall" was used "in the future sense," and had "nothing imperative in it."[ ] and for that matter in another portion of his opinion justice story expressly recognized that congress may create inferior courts and "parcel out such jurisdiction among such courts, from time to time at their own pleasure";[ ] and in his commentaries he took a broad view of the power of congress to regulate jurisdiction.[ ] plenary power of congress over jurisdiction neither legislative construction nor judicial interpretation has sustained justice story's position in martin _v._ hunter's lessee. the judiciary act of , which was a contemporaneous interpretation of the constitution by the congress, rests on the assumption of a broad discretion on the part of congress to create courts and to grant jurisdiction to and withhold it from them. this act conferred original jurisdiction upon the district and circuit courts in certain cases, but by no means all they were capable of receiving. thus suits at the common law to which the united states was a party were limited by the amount in controversy. except for offenses against the united states, seizures and forfeitures made under the impost, navigation, or trade laws of the united states, and suits by aliens under international law or treaties, that whole group of cases involving the constitution, laws, and treaties of the united states was withheld from the jurisdiction of the district and circuit courts,[ ] with the result that original jurisdiction in these cases was exercised by the state courts subject to appeal to the supreme court under section . jurisdiction was vested in the district courts over admiralty and maritime matters and in the circuit courts over suits between citizens of different states where the amount exceeded $ , or suits to which an alien was a party.[ ] the act of empowered the courts to issue writs, to require parties to produce testimony, to punish contempts, to make rules, and to grant stays of execution.[ ] finally, equity jurisdiction was limited to those cases where a "plain, adequate, and complete remedy" could not be had at law.[ ] this care for detail in conferring jurisdiction upon the inferior courts and vesting them with ancillary powers in order to render such jurisdiction effective is of the utmost significance in the later development of the law pertaining to congressional regulation of jurisdiction, inasmuch as it demonstrates conclusively that a majority of the members of the first congress regarded positive action on the part of congress to be necessary before jurisdiction and judicial powers could be exercised by courts of its own creation. ten years later this practical construction of article iii was accepted by the supreme court in turner _v._ bank of north america.[ ] the case involved an attempt to recover on a promissory note in a diversity case contrary to § of the act of which forbade diversity suits involving assignments unless the suit was brought before the assignment was made. counsel for the bank argued that the circuit courts were not inferior courts and that the grant of judicial power by the constitution was a direct grant of jurisdiction. this argument evoked questions from chief justice ellsworth and the following statement from justice chase: "the notion has been frequently entertained, that the federal courts derive their power immediately from the constitution; but the political truth is, that the judicial power (except in a few specified instances) belongs to congress. if congress has given the power to this court, we possess it, not otherwise; and if congress has not given the power to us, or to any other court, it still remains at the legislative disposal. besides, congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every subject, in every form, which the constitution might warrant."[ ] the court applied § of the judiciary act and ruled that the circuit court lacked jurisdiction. eight years later chief justice marshall in distinguishing between common law and statutory courts declared that "courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction."[ ] this rule was reaffirmed in the famous case of united states _v._ hudson and goodwin[ ] on the assumption that the power of congress to create inferior courts necessarily implies "the power to limit the jurisdiction of those courts to particular objects."[ ] after pointing to the original jurisdiction which flows immediately from the constitution, justice johnson asserted: "all other courts created by the general government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer."[ ] to the same affect is rhode island _v._ massachusetts[ ] where justice baldwin declared that "the distribution and appropriate exercise of the judicial power must therefore be made by laws passed by congress and cannot be assumed by any other department * * *" a more sweeping assertion of congressional power over jurisdiction was made by the supreme court in cary _v._ curtis,[ ] which bears more directly upon the issue than some of the earlier cases. here counsel had argued that a statute which made final the decisions of the secretary of the treasury in tax disputes was unconstitutional in that it deprived the federal courts of the judicial power vested in them by the constitution. in reply to this argument the court speaking through justice daniel declared: "the judicial power of the united states * * * is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of congress, who possess the sole power of creating the tribunals (inferior to the supreme court) * * * and of investing them with jurisdiction, either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to congress may seem proper for the public good." continuing, justice daniel said: "it follows then that courts created by statute, must look to the statute as the warrant for their authority; certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may clearly be denied to them."[ ] the principles of cary _v._ curtis were reiterated five years later in sheldon _v._ sill[ ] where the validity of § of the judiciary act of was directly questioned. the assignee of a negotiable instrument filed a suit in a circuit court even though no diversity of citizenship existed as between the original parties to the mortgage. the circuit court entertained jurisdiction in spite of the prohibition against such suits in § and ordered a sale of the property in question. on appeal to the supreme court, counsel for the assignee contended that § was void because the right of a citizen of any state to sue citizens of another in the federal courts flowed directly from article iii and congress could not restrict that right. the supreme court unanimously rejected these contentions and held that since the constitution had not established the inferior courts or distributed to them their respective powers, and since congress had the authority to establish such courts, it could define their jurisdiction and withhold from any court of its own creation jurisdiction of any of the enumerated cases and controversies in article iii.[ ] sheldon _v._ sill has been cited, quoted, and reaffirmed many times.[ ] its effect and that of the cases following it is that as regards the jurisdiction of the lower federal courts two elements are necessary to confer jurisdiction: first, the constitution must have given the courts the capacity to receive it, and second, an act of congress must have conferred it. the manner in which the inferior federal courts acquire jurisdiction, its character, the mode of its exercise, and the objects of its operation are remitted without check or limitation to the wisdom of the legislature.[ ] judicial power under the emergency price control act the plenary power of congress to withhold and restrict jurisdiction was given renewed vitality by the emergency price control act of [ ] and the cases arising therefrom. fearful that the price control program might be effectively nullified by injunctions, congress provided for a special court and special procedures for contesting the validity of price regulations. in lockerty _v._ phillips[ ] the supreme court sustained the power of congress to confine equity jurisdiction, to restrain enforcement of the act to the specially created emergency court of appeals, with appeal to the supreme court. the court went much farther than this in yakus _v._ united states,[ ] and held that the provision of the act conferring on the emergency court of appeals and the supreme court exclusive jurisdiction to determine the validity of any regulation or order, and providing that no court should have jurisdiction or power to consider the validity of any regulation, precluded the plea of invalidity of such a regulation as a defense to its violation in a criminal proceeding in a district court. although justice rutledge protested in his dissent that this provision of the act conferred jurisdiction on the district courts from which essential elements of the judicial power had been abstracted,[ ] chief justice stone declared for the majority that the provision presented no novel constitutional issue. legislative control over writs the authority of congress to regulate the jurisdiction of the lower federal courts includes that of controlling the power of the courts to issue writs in cases where they have jurisdiction and to regulate other ancillary powers generally.[ ] among some of the more notable restrictions in this regard are the limitations on the power of courts to issue injunctions, particularly in the field of taxation and labor disputes. by the act of march , ,[ ] congress provided that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." there have never been any constitutional doubts concerning this provision, which was strictly applied for many years[ ] until when the supreme court began to make exceptions[ ] which in the later cases[ ] made the provision so inefficacious that by october, , more than suits had been filed to restrain the collection of processing taxes under the agricultural adjustment act.[ ] none of these cases, however, raises any issue other than that of statutory interpretation, and since the court has interpreted the exceptions to the statute somewhat more strictly.[ ] injunctions in labor disputes; the norris-laguardia act the norris-laguardia act of [ ] is significant for its restrictions on the powers of the federal courts to issue injunctions in labor disputes in the form of requirements for hearings followed by findings that unlawful acts are threatened and will be committed unless restrained, or if already committed will be continued; that substantial injury to the property of complainants will ensue; that as to the relief granted greater injury will be inflicted upon complainants by denying relief than will be inflicted on defendants by granting it; that the complainants have no adequate remedy at law; and, finally, that the public officials charged with the protection of complainants' property are either unable or unwilling to do so. this act has been scrupulously applied by the supreme court, which has implicitly sustained its constitutionality by construing its restrictions liberally[ ] in every case except united states _v._ united mine workers,[ ] where it was held that the statute did not apply to suits brought by the united states to enjoin a strike in the coal industry while the government technically was operating the mines. judicial power equated with due process of law although the cases point to a plenary power in congress to withhold jurisdiction from the inferior courts and to withdraw it at any time after it has been conferred, even as applied to pending cases, there are a few cases in addition to martin _v._ hunter's lessee[ ] which slightly qualify the cumulative effect of this impressive array of precedents. as early as , the supreme court in murray _v._ hoboken land and improvement co.[ ] distinguished between matters of private right which from their nature were the subject of a suit at the common law, equity, or admiralty and cannot be withdrawn from judicial cognizance and those matters of public right which, though susceptible of judicial determination, did not require it and which might or might not be brought within judicial cognizance. seventy-seven years later the court elaborated this distinction in crowell _v._ benson,[ ] which involved the finality to be accorded administrative findings of jurisdictional facts in compensation cases. in holding that an employer was entitled to a trial _de novo_ of the constitutional jurisdictional facts of the matter of the employer-employee relationship and of the occurrence of the injury in interstate commerce, chief justice hughes, speaking for the majority fused the due process clause of amendment v and article iii, but emphasized that the issue ultimately was "rather a question of the appropriate maintenance of the federal judicial power," and "whether the congress may substitute for constitutional courts, in which the judicial power of the united states is vested, an administrative agency * * * for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend." to do so, contended the chief justice, "would be to sap the judicial power as it exists under the federal constitution and to establish a government of a bureaucratic character alien to our system, wherever constitutional rights depend, as not infrequently they do depend, upon the facts, and finality as to facts becomes in effect finality in law."[ ] judicial _versus_ nonjudicial functions the power of congress to confer jurisdiction on the lower federal courts is qualified by the rule that before congress can vest jurisdiction in the inferior courts, they must have the capacity to receive it. the capacity of the lower judiciary to receive jurisdiction is defined in the enumeration of cases and controversies in article iii. consequently in vesting courts with jurisdiction, congress cannot go beyond this enumeration.[ ] it follows from the rule that constitutional courts can perform only judicial functions that congress, in vesting courts with jurisdiction, cannot impose upon them nonjudicial duties such as administering pensions,[ ] deciding issues subject to later executive or legislative action,[ ] rendering advisory opinions, or opinions which are not final and conclusive upon the parties,[ ] or taking jurisdiction of matters from which any essential element of the judicial power has been abstracted.[ ] to be sure, congress may clothe some matters of an administrative nature with the mantle of a case or controversy and thereby make it a matter of judicial cognizance, as it has done with naturalization proceedings,[ ] the administration of certain laws relating to the expulsion of aliens,[ ] the limited administration of funds received from the government of mexico to compensate american citizens for claims against that government,[ ] and, of course, the traditional administration of bankrupt enterprises through the medium of a receiver. federal-state court relations problems raised by concurrency the american federal system with its dual system of courts, exercising concurrent jurisdiction in a number of classes of cases, presents numerous possibilities of inter-court conflicts and interference. subject to congressional enactments to the contrary, the state courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in article iii except suits between states, those to which the united states is a party, those to which a foreign state is a party, and cases of admiralty and maritime jurisdiction. even in admiralty cases the state courts, though unable to exercise any portion of admiralty or maritime jurisdiction by delegation or otherwise,[ ] may have a concurrent jurisdiction when the same issues assume the form of a case at common law.[ ] in addition to conflicts arising out of concurrent jurisdiction, relations between federal and state courts are exposed to other frictions, such as injunctions in one jurisdiction restraining judicial processes in another, the use of the writ of _habeas corpus_ by a court of concurrent jurisdiction to release persons in custody of another, and the refusal by state courts to comply with orders of the supreme court. the relations between federal and state courts are governed in part by constitutional law with respect to state court interference with the federal courts and state court refusal to comply with the judgments of federal tribunals, by statutes as regards interference by federal courts with those of the states, and by self-imposed rules of comity applied for the avoidance of unseemly conflicts. disobedience of supreme court orders by state courts the refusal of state courts to make returns on writs of errors issued by the supreme court has already been noted in connection with the disobedience of the virginia courts in martin _v._ hunter's lessee[ ] and cohens _v._ virginia[ ] and in that of the wisconsin court in ableman _v._ booth.[ ] more spectacular disobedience to federal authority arose out of the cherokee indian case involving actions of georgia and its courts. in the first of these the supreme court had issued a writ of error to the georgia supreme court to review the conviction of corn tassel for the murder of another cherokee indian. the writ was served, but before a hearing could be held corn tassel was executed on the day originally set for punishment contrary to the federal law that a writ of error superseded sentence until the appeal was decided. this action ensued as a result of the legislature's approval of the governor's policy that he would permit no interference with georgia's courts by orders of the supreme court and would resist by force any attempt to enforce them with all the forces at his command.[ ] worcester _v._ georgia two years later georgia renewed its defiance of the supreme court in worcester _v._ georgia[ ] which involved the conviction of two missionaries for residing among the indians without a license. the supreme court reversed the conviction on the ground that the state had no jurisdiction over the cherokee reservations and ordered worcester's discharge in a special mandate to the superior court of gwinnett county. the state court ignored the mandate and once again the governor of the state announced that he would meet such usurpation by the supreme court with determined resistance. consequently, worcester and butler remained in jail until they agreed to abandon further efforts for their discharge by federal authority in the form of a writ of error, whereupon the governor pardoned them on the condition that they leave the state. conflicts of jurisdiction: comity aside from these more dramatic assertions of independence of federal courts, state court interference with the federal judiciary has occurred for the most part in conflicts of jurisdiction which affect only the lower federal courts as courts of concurrent jurisdiction and in attempts to release persons in federal custody. to the extent that this phase of federal-state relations is not governed by statute or the supremacy clause of article vi, it is governed by comity, a self-imposed rule of judicial morality whereby independent tribunals of concurrent or coordinate jurisdiction exercise a mutual restraint in order to prevent interference with each other and to avoid collisions of authority. although the court on one occasion has stated that the principle of comity is not a rule of law but "one of practice, convenience, and expediency"[ ] which persuades, but does not command, it has also declared that in the american federal system it has come to have "a higher sanction than the utility which comes from concord" and has been converted into a principle "of right and of law, and therefore of necessity."[ ] as developed and applied by the supreme court the rule of comity is exemplified in three classes of cases: first, those in which a court has acquired jurisdiction of the _res_ or the possession of property and another court interferes with that jurisdiction or possession; second, those in which a court has acquired jurisdiction or custody of the person and another interferes with such jurisdiction or custody, most frequently by discharges from custody in _habeas corpus_ proceedings; and, third, those in which injunctions are used to stay proceedings in another court or to enjoin official action before the courts of proper jurisdiction have had an opportunity to adjudicate the issue. jurisdiction of the _res_ as applied by the supreme court in cases involving concurrent jurisdiction the principle of comity means that when the jurisdiction of a court and the right of a plaintiff to prosecute a suit therein have attached and when a court has acquired constructive possession of property, such jurisdiction cannot be taken away or obstructed by proceedings in another court, nor can the possession of the property be disturbed by proceedings in another court; and the court which has first acquired jurisdiction of the cause or the possession of the _res_ has exclusive jurisdiction to hear and determine the case and all controversies relating thereto, provided that the subject matter of the suit, the remedies sought, and the parties to it are the same, and provided further that it is not necessary for the federal courts to exercise jurisdiction in order to enforce the supremacy of the constitution and laws of the united states.[ ] state interference by injunction with federal jurisdiction it has long been settled as a general rule that state courts have no power to enjoin proceedings or judgments of the federal courts.[ ] in united states ex rel. riggs _v._ johnson county[ ] this rule was attributed to no paramount jurisdiction of the federal courts, but rather to the complete independence of the state and federal courts in their spheres of action. like many of the rules governing federal-state court relations, this rule is not absolute, as shown by a case arising in pennsylvania. two surviving trustees had filed an account for themselves and a deceased trustee in a court of common pleas. thereafter, two of the five beneficiaries sued the two trustees and the deceased trustee in a federal district court, charging mismanagement and praying for an accounting and restitution and removal of the trustees. the supreme court held that the state court upon the filing of the account acquired jurisdiction over the trust _quasi in rem_ exclusively and therefore sustained the state court's injunction restraining the parties from further proceeding in the federal court while simultaneously holding that the district court could not enjoin the parties from proceeding in the state court.[ ] the power of a state court to enjoin parties from proceeding in a federal court obviously does not include that of enjoining a federal court. federal interference by injunction with state jurisdiction the discretion of the federal courts to enjoin proceedings in state courts has not been left exclusively to doctrines of comity, for since the federal courts have been prohibited by statute from restraining proceedings in state courts.[ ] initially this statute was applied with strict literalness in condemning attempts by the lower federal courts to enter exceptions to it,[ ] but gradually the supreme court began to interpret the provision as not prohibitive of all injunctions. first, it has been held that an injunction will lie against proceedings in a state court to protect the lawfully acquired jurisdiction of a federal court against impairment or defeat.[ ] this exception is notably applicable to cases where the federal court has taken possession of property which it may protect by injunction from interference by state courts.[ ] second, in order to prevent irreparable damages to persons and property the federal courts may restrain the legal officers of a state from taking proceedings in state courts to enforce state legislation alleged to be unconstitutional.[ ] nor does the prohibition of § of the judicial code [ u.s.c.a. § ] prevent injunctions restraining the execution of judgments in state courts obtained by fraud,[ ] the restraint of proceedings in state courts in cases which have been removed to the federal courts,[ ] nor, until lately, to proceedings in state courts to relitigate issues previously adjudicated and finally settled by decrees of a federal court.[ ] in toucey _v._ new york life insurance co.,[ ] justice frankfurter, as spokesman for the court, reviewed earlier cases and in effect overruled the exception of suits designed to relitigate issues previously adjudicated by a federal court, and held that a suit for injunction would not lie to restrain a proceeding in a state court on the ground that the claim had been previously adjudicated. in so doing he placed this issue in its proper context of _res judicata_. in addition he went beyond the requirements of the case at bar to cast doubts upon the exception of suits brought to enjoin the execution of judgments of state courts obtained by fraud. furthermore, by regarding the exception of suits restraining proceedings in state courts in cases which had been removed to the federal courts as emanating from the removal acts, justice frankfurter concluded that only one exception had been made by judicial construction to § , [ u.s.c.a. § ] namely, that permitting injunction of proceedings in state courts to protect the possession of property previously acquired.[ ] the rule of this case was extended on the same day to forbid an injunction to restrain proceedings in a state court in support of jurisdiction previously begun earlier and still pending in the federal court.[ ] federal injunctions of state official action injunctions by federal courts restraining state officials from enforcing unconstitutional state statutes constitute an indirect interference with state courts and a serious obstruction to the administration of public policy. from osborn _v._ bank of the united states,[ ] which was the first case in which an injunction was used to restrain state action under an unconstitutional statute, to ex parte young[ ] the supreme court established firmly the rule that jurisdiction exists in the federal courts to restrain the enforcement of unconstitutional state statutes and to enjoin state officials charged with the duty of enforcing state laws from bringing criminal or civil proceedings to enforce an invalid statute. until ex parte young, the court had been careful to sustain the jurisdiction of the lower federal courts to enjoin the enforcement of unconstitutional state legislation only after a finding of unconstitutionality,[ ] but ex parte young abandoned this rule by holding that the enforcement of a state statute by the attorney general of the state through proceedings in state courts could be enjoined pending the determination of its constitutionality. ex parte young although a suit to restrain the attorney general of a state from proceeding in the courts of the state to enforce a state law not declared unconstitutional would seem effectively to stay proceedings in a state court, justice peckham drew a distinction between the power to enjoin the attorney general and other law officers as individuals and a suit against a state court on the ground that the former does not include the "power to prevent any investigation or action by a grand jury. the latter body is part of the machinery of a criminal court, and an injunction against a state court would be a violation of the whole scheme of our government."[ ] justice harlan, not convinced by this distinction, characterized the suit as an attempt "_to tie the hands_ of the _state_ so that it could not in any manner or by any mode of proceeding _in its own courts_, test the validity of the statutes and orders in question."[ ] although the rigor of the rule of ex parte young has been mitigated by subsequent decisions[ ] and the mode of its exercise somewhat narrowed by statute, it has not been overruled and remains a source of friction in federal-state relations. simultaneously, however, § (_see_ note above[transcriber's note: reference is to footnote of article iii.]) has been construed strictly as designed "to secure the public interest in 'a limited class of cases of special importance,'"[ ] and not "a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such."[ ] state interference by _habeas corpus_ proceedings with federal jurisdiction the most spectacular type of state court interference with federal courts has been their use of the writ of _habeas corpus_ to release persons in federal custody. between and , judges in nine state courts asserted the right to release persons in federal custody,[ ] and the issue was not finally settled until , when ableman _v._ booth[ ] was decided. here a justice of the wisconsin supreme court first released a prisoner held by a united states commissioner on charges of violating the fugitive slave law. after the trial, conviction, and sentence of the defendant, the state supreme court issued a second writ of _habeas corpus_ and after hearing ordered the release of the prisoner. the national supreme court then issued a writ of error to the state court which refused to make a return. in an opinion based in part on national supremacy and in part on dual sovereignty, chief justice taney, speaking for the court, laid down the absolute rule that no state court has the power to release prisoners held in custody under the authority of the united states.[ ] notwithstanding the strong language of the court in ableman _v._ booth, the wisconsin courts thirteen years later again asserted the power to release persons in federal custody by directing the release of an enlisted soldier in the custody of a recruiting officer of the united states army. once again the court held that a state court has no authority to issue a writ of _habeas corpus_ for the release of persons held under the authority or claim and color of authority of the united states. justice field for the court went on to lay down the generalization that neither government "can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the national government to preserve its rightful supremacy in cases of conflict of authority."[ ] federal interference by removal and _habeas corpus_ another potential source of friction between state and federal courts is the use of the writ of _habeas corpus_ or of removal proceedings in the federal courts to release persons from state custody. as has already been indicated the rule of national supremacy deprives the courts of the states of any power to release persons held in federal custody. recourse to _habeas corpus_ or removal proceedings in the federal courts to release persons in the custody of state courts is governed by statute and comity. the judiciary act of [ ] conferred jurisdiction upon the federal courts to issue writs of _habeas corpus_ to release persons in state custody only for the purpose of having them appear as witnesses in federal proceedings. the same act also provided for the removal before trial into a federal court of civil cases arising under the laws of the united states. both branches of this jurisdiction were broadened as a result of the nullification movement in south carolina so as to make either removal or _habeas corpus_ available to persons held in state custody for any act done or omitted in pursuance of the laws of the united states.[ ] these recourses were in made available to aliens restrained by state authority in violation of their international rights,[ ] and in to all persons restrained in violation of the constitution, laws, or treaties of the united states.[ ] in substance all these acts still remain on the statute book.[ ] of these provisions the most important are those governing the release of persons held under state authority for an act done or omitted under federal authority and persons held in violation of the constitution, laws, or treaties of the united states. in the leading case of tennessee _v._ davis,[ ] decided in , the question was faced of their constitutionality. davis was a federal revenue officer who, in the discharge of his duties, killed a man, and was arraigned by tennessee for murder. he thereupon applied for removal of his case to a federal court under the act of . to tennessee's evocation of the doctrine of state sovereignty, the court rejoined with a ringing assertion of the principle of national supremacy. subsequently, the same provisions have been construed to procure the release of a deputy united states marshal from state custody for killing a man while protecting a justice of the supreme court under a presidential order which was regarded as a "law" of the united states;[ ] the release of an election official held under state authority for perjury on the ground that jurisdiction to punish a false witness belonged to the federal courts in this instance;[ ] and the release of a collector of internal revenue held in kentucky for his refusal to file copies of his official papers with a state court.[ ] similarly, the governor of a national home for disabled soldiers was released from ohio custody for serving oleomargarine in the home in violation of an ohio statute.[ ] a more extreme exercise of _habeas corpus_ jurisdiction is illustrated by hunter _v._ wood[ ] where a ticket agent of a railroad held in state custody for an overcharge on a ticket was released because prior to his trial in the state court, a united states circuit court had enjoined the enforcement of the statute. the element common to all of these cases is the supremacy of the national government and the inability of the states through judicial proceedings or otherwise to obstruct the enforcement of federal authority. the doctrine of comity is inapplicable in this category of cases. comity as a principle of statutory construction on the other hand, in ex parte royall,[ ] decided in , the court held that the jurisdiction of the lower federal courts in the above category of cases involved no duty to release persons from state custody but only a discretion to do so. such discretion, the court declared, "should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between the courts equally bound to guard and protect rights secured by the constitution."[ ] in pursuance of these principles the court has subsequently formulated rules to the effect that mere error in the prosecution and trial of a suit cannot confer jurisdiction upon a federal court to review the proceedings upon a writ of _habeas corpus_;[ ] that the writ of _habeas corpus_ cannot be substituted for the writ of error, however serious the errors committed by the state court;[ ] that except in extreme and urgent cases the federal courts will not discharge a prisoner in state custody prior to final disposition of the case in the state courts, where the prisoner must first exhaust all state remedies; and even after the state courts have acted, the federal courts will usually leave the prisoner to the usual and orderly procedure of appeal to the supreme court. furthermore, the supreme court will, in the exercise of a sound discretion, issue a writ of mandamus to compel a federal court to remand to a state court a prosecution of a federal officer removed to it, when it appears that the officer in question, in seeking removal, failed to make a candid, specific, and positive explanation of his relation to the transaction giving rise to the crime for which he was indicted.[ ] because of the care with which the discretion to issue writs of _habeas corpus_ and to grant removals has been exercised by the federal courts to release persons from state custody there has been a minimum of friction in this area of federal-state relations, in contrast to that produced by their extensive use of injunctions to restrain the enforcement of state statutes. in wade _v._ mayo,[ ] justice murphy cited the statistics of the administrative office of the united states courts which revealed that during the fiscal years of , , and , there was an average of _habeas corpus_ petitions filed each year in federal district courts by persons in state custody, and that of these petitions, an average of only six per year resulted in a reversal of the conviction and the release of the prisoner. comity as cooperation moreover, cold comity may become on occasion warm cooperation between the two systems of courts. in ponzi _v._ fessenden,[ ] the matter at issue was the authority of the attorney general of the united states to consent to the transfer on a writ of _habeas corpus_ of a federal prisoner to a state court to be there put on trial upon indictments there pending against him. the court, speaking by chief justice taft, while conceding that there was no express statutory authority for such action, sustained it. said the chief justice: "we live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in common territory. it would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. the people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. the situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure."[ ] early use of state courts in enforcement of federal law the final phase of the relation of state courts has to do with their administration of federal law. although it is the general rule that congress cannot vest the judicial power of the united states in courts other than those created in pursuance of article iii,[ ] it has from the beginning of the national government left to the state courts wide areas of jurisdiction which it might have vested exclusively in the federal courts, section of the judiciary act of offering the supreme illustration. but going far beyond that, in the latter years of the eighteenth century and the early part of the nineteenth, congress provided that suits by the national government itself for fines, forfeitures, and penalties imposed by the revenue laws might be brought in state courts of competent jurisdiction as well as in the federal courts.[ ] the fugitive slave act of ,[ ] the naturalization act of ,[ ] and the alien enemies act of ,[ ] all imposed positive duties on state courts to enforce federal law. in the state courts were vested with jurisdiction to try criminal offenses against federal laws.[ ] extensive reliance was placed on state courts for the enforcement of the embargo acts;[ ] and the act of march , ,[ ] vested in state or county courts within or directly adjoining a federal tax-collection district cognizant "of all complaints, suits and prosecutions for taxes, duties, fines, penalties, and forfeitures." retreat from this practice the indifference, however, of the state courts in new england to the embargo acts, the later hostility of courts in the northern states to the fugitive slave act, and the refusal of courts in other states to administer federal law on the general principle that the courts of no nation are bound to enforce the penal laws of another,[ ] all combined to produce strong sentiments against the use of state courts to administer federal law. these sentiments came in time to be incorporated in dissenting opinions,[ ] and in in prigg _v._ pennsylvania[ ] the court definitely ruled that the states could not be compelled to enforce federal law. however, it was later held that this ruling did not prevent congress from authorizing state courts to administer federal law or the action taken by them, if they choose to do so, from being valid.[ ] resumption of the practice near the end of the nineteenth century and afterwards congress resumed its earlier practice of vesting concurrently the enforcement of federally created rights in the state and federal courts. the administration of indian lands and the determination of rights to inherit allotted lands[ ] marked the beginning of the restoration of the use of state courts to apply federal law, and the federal employers' liability act of [ ] carried the practice further, not only by vesting concurrent jurisdiction in suits arising under the act, in state courts but also in prohibiting the removal of cases begun in state courts to the federal courts. soon afterwards the connecticut courts in a compensation case applied the state's common law rules of liability contrary to the federal act and held that congress could not require a state court to grant a remedy which local law did not permit. the connecticut courts further held that enforcement of the federal act was contrary to the public policy of the state.[ ] this decision was overruled in the second employers' liability cases,[ ] where it was held on the basis of national supremacy that rights arising under the act can be enforced "as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion." subsequently, the supreme court has held that the rights created under this statute cannot be defeated by forms of local practice and that it is the duty of the supreme court to construe allegations in a complaint asserting a right under the liability act in order to determine whether a state court has denied a right of trial guaranteed by congress.[ ] state obligation to enforce federal law the issue of state obligation to administer federal law was presented most recently by testa _v._ katt.[ ] this case arose out of the emergency price control act of ,[ ] which provided that persons who had been overcharged in violation of the act or, in the alternative, the price administrator, could sue for treble damages in any court of competent jurisdiction. on the ground that one sovereign cannot enforce the penal laws of another, the rhode island supreme court ruled that the state courts had no jurisdiction of such suits. assuming for the purposes of the case that the treble damage provision, was "penal" in nature, justice black for a unanimous court proceeded to lay to rest the principle that a state court is not bound to enforce federal criminal law as an assumption flying "in the face of the fact that the states of the union constitute a nation" and one which disregarded the supremacy clause. justice black also pointed to early acts of congress and early decisions of the supreme court as establishing the rule that "state courts do not bear the same relation to the united states as they do to foreign countries."[ ] the prigg case, though not overruled expressly, was ignored save for its citation in a footnote.[ ] right of foreign corporations to resort to federal courts in a series of cases the court has been called upon to adjudicate between the power of a state to exclude foreign corporations from doing a purely domestic business within its borders and the right of such foreign corporations to resort to the federal courts. after deciding first one way and then the other, on the basis of some highly refined distinctions,[ ] it finally, in , came out unqualifiedly for the latter right. this was in terral _v._ burke construction co.,[ ] in which an arkansas statute requiring the cancellation of the license of a foreign corporation to do business in the state, upon notice that such corporation had removed a case to a federal court, was pronounced void. at the same time all contrary decisions were explicitly overruled. clause . the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed. _see_ amendment vi, pp. - . section . treason against the united states, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. treason the provisions and phraseology of this section are derived from the english statute of treasons enacted in , in the reign of edward iii,[ ] as an expression of grievance against the application of the doctrine of constructive treasons by the common law courts. the constitutional definition is, of course, much more restrictive than the enumeration of treasons in the english statute, but like that statute, it is emphatically a limitation on the power of government to define treason and to prove its existence. the rigid and exclusive definition of treason takes from congress all power to define treason and prescribes limitations on the power to prescribe punishment thereupon. levying war early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, in which were involved the treason trials of aaron burr and his associates. in ex parte bollman,[ ] which involved two of burr's confederates, chief justice marshall, speaking for himself and three other justices, confined the meaning of levying of war to the actual waging of war. "however flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. to conspire to levy war and actually to levy war, are distinct offences. the first must be brought into open action, by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. so far has this principle been carried, that * * * it has been determined that the actual enlistment of men, to serve against the government, does not amount to the levying of war."[ ] chief justice marshall was careful, however, to state that the court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. "on the contrary, if it be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. but there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."[ ] on the basis of these considerations and due to the fact that no part of the crime charged had been committed in the district of columbia, the court held that bollman and swartwout could not be tried in the district and ordered their discharge. he continued by saying that "the crime of treason should not be extended by construction to doubtful cases" and concluded that no conspiracy for overturning the government and "no enlisting of men to effect it, would be an actual levying of war."[ ] the burr trial not long afterward the chief justice went to richmond to preside over the trial of burr himself. his ruling[ ] denying a motion to introduce certain collateral evidence bearing on burr's activities is significant both for rendering the latter's acquittal inevitable and for the qualifications and exceptions made to the bollman decision. in brief this ruling held that burr, who had not been present at the assemblage on blennerhassett's island, could be convicted of advising or procuring a levying of war, only upon the testimony of two witnesses to his having procured the assemblage. this operation having been covert, such testimony was naturally unobtainable. the net effect of marshall's pronouncements was to make it extremely difficult to convict one of levying war against the united states short of the conduct of or personal participation in actual hostilities.[ ] aid and comfort to the enemy; the cramer case since the bollman case only three treason cases have ever reached the supreme court, all of them outgrowths of world war ii and all charging adherence to enemies of the united states and giving them aid and comfort. in the first of these, cramer _v._ united states,[ ] the issue was whether the "overt act" had to be "openly manifest treason" or if it was enough if, when supported by other proper evidence, it showed the required treasonable intention.[ ] the court in a five-to-four opinion by justice jackson in effect took the former view holding that "the two-witness principle" interdicted "imputation of _incriminating acts_ to the accused by circumstantial evidence or by the testimony of a single witness,"[ ] even though the single witness in question was the accused himself. "every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,"[ ] justice jackson asserted. justice douglas in a dissent, in which chief justice stone and justices black and reed concurred, contended that cramer's treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by cramer on the witness stand. the haupt case the supreme court sustained a conviction of treason, for the first time in its history in in haupt _v._ united states.[ ] here it was held that although the overt acts relied upon to support the charge of treason--defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant--were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. speaking for the court, justice jackson said: "no matter whether young haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. in the light of his mission and his instructions, they were more than casually useful; they were aid in steps essential to his design for treason. if proof be added that the defendant knew of his son's instructions, preparation and plans, the purpose to aid and comfort the enemy becomes clear."[ ] the court held that conversations and occurrences long prior to the indictment were admissible evidence on the question of defendant's intent. and more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. this relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from justice douglas who saw in the haupt decision a vindication of his position in the cramer case. his concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length; "as the _cramer_ case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. but if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. for proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character. "the requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. that requirement is undeniably met in the present case, as it was in the case of _cramer_. "the _cramer_ case departed from those rules when it held that 'the two-witness principle is to interdict imputation of _incriminating acts_ to the accused by circumstantial evidence or by the testimony of a single witness.' u.s. p. . the present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transformed into an incriminating one."[ ] the kawakita case the third case referred to above is kawakita _v._ united states,[ ] which was decided on june , . the facts are sufficiently stated in the following headnote: "at petitioner's trial for treason, it appeared that originally he was a native-born citizen of the united states and also a national of japan by reason of japanese parentage and law. while a minor, he took the oath of allegiance to the united states; went to japan for a visit on an american passport; and was prevented by the outbreak of war from returning to this country. during the war, he reached his majority in japan; changed his registration from american to japanese; showed sympathy with japan and hostility to the united states; served as a civilian employee of a private corporation producing war materials for japan; and brutally abused american prisoners of war who were forced to work there. after japan's surrender, he registered as an american citizen; swore that he was an american citizen and had not done various acts amounting to expatriation; and returned to this country on an american passport." the question whether, on this record kawakita had intended to renounce american citizenship, said the court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. an american citizen, it continued, owes allegiance to the united states wherever he may reside, and dual nationality does not alter the situation.[ ] doubtful state of the law of treason today the vacillation of chief justice marshall between the bollman[ ] and burr[ ] cases and the vacillation of the court in the cramer[ ] and haupt[ ] cases leaves the law of treason in a somewhat doubtful condition. the difficulties created by the burr case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label within a formula provided by chief justice marshall himself in the bollman case. the passage reads: "crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. the wisdom of the legislature is competent to provide for the case; and the framers of our constitution * * * must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation."[ ] clause . the congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. corruption of blood and forfeiture the confiscation act of [ ] "to suppress insurrection; to punish treason and rebellion; to seize and confiscate the property of rebels raised issues under article iii, section , clause ." because of the constitutional doubts of the president the act was accompanied by an explanatory joint resolution which stipulated that only a life estate terminating with the death of the offender could be sold and that at his death his children could take the fee simple by descent as his heirs without deriving any title from the united states. in applying this act, passed in pursuance of the war power and not the power to punish treason,[ ] the court in one case[ ] quoted with approval the english distinction between a disability absolute and perpetual and one personal or temporary. corruption of blood as a result of attainder of treason was cited as an example of the former and was defined as the disability of any of the posterity of the attainted person "to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him."[ ] notes [ ] miller, on the constitution, (new york, ). [ ] u.s. ( ) [ ] ibid. . [ ] united states _v._ arredondo, pet. ( ). [ ] general investment co. _v._ new york central r. co., u.s. , ( ). [ ] for distinctions between judicial power and jurisdiction _see_ williams _v._ united states, u.s. , ( ); and the dissent of justice rutledge in yakus _v._ united states, u.s. , - ( ). [ ] michaelson _v._ united states, u.s. ( ). [ ] mcintire _v._ wood, cr. ( ); ex parte bollman, cr. ( ). [ ] wayman _v._ southard, wheat. ( ) [ ] gumbel _v._ pitkin, u.s. ( ). [ ] ex parte peterson, u.s. ( ). [ ] ex parte garland, wall. , ( ). [ ] chisholm _v._ georgia, dall. ( ); kentucky _v._ dennison, how. , ( ) contains a review of authorities on this point. [ ] mayor of nashville _v._ cooper, wall. , ( ); cary _v._ curtis, how. ( ); shelden _v._ sill, how. ( ); kline _v._ burke construction co., u.s. ( ). _see also_ the cases discussed under the heading of the power of congress to regulate the jurisdiction of the lower federal courts, _infra_, p. . [ ] dall. ( ). [ ] his initial effort was in united states _v._ ferreira, how. ( ). this case involved the validity of an act of congress directing the judge of the territorial court of florida to examine and adjudge claims of spanish subjects against the united states and to report his decisions with evidence thereon to the secretary of the treasury who in turn was to pay the award to the claimant if satisfied that the decisions were just and within the terms of the treaty of cession. after florida became a state and the territorial court a district court of the united states, the supreme court refused to entertain an appeal under the statute for want of jurisdiction to review nonjudicial proceedings. the duties required by the act, it was said "are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws." ibid. . [ ] wall. ( ). [ ] u.s. appx. ( ). _see also_ de groot _v._ united states, wall. ( ) and united states _v._ klein, wall. ( ), which sustained supreme court revision after the jurisdiction of the court of claims had been made final. the gordon decision had indicated that the supreme court could not review the decision of any legislative court. [ ] u.s. , . this last doctrine was repeated to the extent that for many years an award of execution as distinguished from finality of judgment came to be regarded as an essential attribute of judicial power. _see_ in re sanborn, u.s. , ( ); interstate commerce commission _v._ brimson, u.s. , ( ); la abra silver mining co. _v._ united states, u.s. , ( ); frasch _v._ moore, u.s. ( ); muskrat _v._ united states, u.s. , , - ( ), and postum cereal co. _v._ california fig nut co., u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). this case also clarified any doubts concerning a federal declaratory judgment act which was passed in and sustained in aetna life insurance co. _v._ haworth, u.s. ( ). [ ] u.s. ( ). the decision in the swope and wallace cases removed all constitutional doubts which had previously shrouded a proposed federal declaratory judgment act which was enacted in ( stat. ) and sustained in aetna life ins. co. _v._ haworth, u.s. ( ). [ ] john charles fox, the king _v._ almon, law quarterly review , - ( ). [ ] john charles fox, the summary power to punish contempt, law quarterly review, , ( ). [ ] stat. , . [ ] act of march , , stat. , now u.s.c.a. . for a summary of the peck impeachment and the background of the act of , _see_ felix frankfurter and james landis, power of congress over procedure in criminal contempts in inferior federal courts--a study in separation of powers, harvard law review, , - ( ). [ ] wall. ( ). [ ] ibid. , - . [ ] gompers _v._ bucks stove & range co., u.s. , ( ). _see also_ in re debs, u.s. , ( ). [ ] u.s. ( ). [ ] stat. ( ). [ ] u.s. , - . [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). in his dissent in this case, justice holmes stated that unless a judge has power to "lay hold of anyone who ventures to publish anything that tends to make him unpopular or to belittle him * * *. a man cannot be summarily laid by the heels because his words may make public feeling more unfavorable in case the judge should be asked to act at some later date, any more than he can for exciting feeling against a judge for what he already has done." ibid. - . [ ] u.s. , - ( ). [ ] u.s. , ( ). _see_ pp. - (amendment i). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] ibid. . [ ] sacher _v._ united states, u.s. ( ). [ ] dennis _v._ united states, u.s. ( ). [ ] u.s. , , - . justice clark did not participate. justices black, frankfurter, and douglas dissented. justice frankfurter's opinion is accompanied by an elaborate review of exchanges between the trial judge and defense counsel, excerpted from the record of the case. on the constitutional issue he said: "summary punishment of contempt is concededly an exception to the requirements of due process. necessity dictates the departure. necessity must bound its limits. in this case the course of events to the very end of the trial shows that summary measures were not necessary to enable the trial to go on. departure from established judicial practice, which makes it unfitting for a judge who is personally involved to sit in his own case, was therefore unwarranted. neither self-respect nor the good name of the law required it. quite otherwise. despite the many incidents of contempt that were charged, the trial went to completion, nine months after the first incident, without a single occasion making it necessary to lay any one of the lawyers by the heel in order to assure that the trial proceed. the trial judge was able to keep order and to continue the court's business by occasional brief recesses calculated to cool passions and restore decorum, by periodic warnings to defense lawyers, and by shutting off obstructive arguments whenever rulings were concisely stated and firmly held to." ibid. . justice douglas summarized the position of all three dissenters, as follows: "i agree with mr. justice frankfurter that one who reads this record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench to whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. i have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly demonstration of garrulous discussion and of ill will and hot tempers. i therefore agree with mr. justice black and mr. justice frankfurter that this is the classic case where the trial for contempt should be held before another judge. i also agree with mr. justice black that petitioners were entitled by the constitution to a trial by jury." ibid. . [ ] u.s. , - ( ). [ ] u.s. ( ) [ ] gompers _v._ bucks stove & range co., u.s. , - ( ); ex parte grossman, u.s. ( ). _see also_ bessette _v._ w.b. conkey co., u.s. , - ( ). [ ] u.s. , - ( ). [ ] michaelson _v._ united states, u.s. , - ( ). [ ] u.s. ( ). [ ] penfield co. _v._ securities and exchange commission, u.s. ( ). note the dissent of justice frankfurter. for delegations of the subpoena power to administrative agencies and the use of judicial process to enforce them _see also_ mccrone _v._ united states, u.s. ( ); endicott johnson corp. _v._ perkins, u.s. ( ); oklahoma press pub. co. _v._ walling, u.s. ( ). in the last mentioned case justice murphy dissented on the ground that delegation of the subpoena power to nonjudicial officers is unconstitutional as "a corrosion of liberty." in the endicott johnson case he expressed dissatisfaction with the exercise of this power by administrative agencies but confined his dissent to emphasizing greater judicial scrutiny in enforcing administrative orders to appear and produce testimony. [ ] stat. , . [ ] ibid. - . [ ] cr. ( ). _cf._ wiscart _v._ dauchy, dall. ( ). [ ] mcintire _v._ wood, cr. ( ); and mcclung _v._ silliman, wheat. ( ). [ ] pet. ( ). [ ] ex parte bollman, cr. , , ( ). [ ] ex parte yerger, wall. ( ). [ ] _see also_ ex parte mccardle, wall. ( ). [ ] in united states _v._ detroit timber & lumber co., u.s. , ( ), justice brewer, speaking for the court, approached a theory of inherent equity jurisdiction when he declared: "the principles of equity exist independently of and anterior to all congressional legislation, and the statutes are either annunciations of those principles or limitations upon their application in particular cases." it should be emphasized, however, that the court made no suggestion that it could apply pre-existing principles of equity without jurisdiction over the subject matter. indeed, the inference is to the contrary. in a dissenting opinion in which justices mckenna and van devanter joined, in paine lumber co. _v._ neal, u.s. , ( ), justice pitney contended that article iii, section , "had the effect of adopting equitable remedies in all cases arising under the constitution and laws of the united states where such remedies are appropriate." [ ] boyce's executors _v._ grundy, pet. ( ). [ ] stat. ; u.s.c.a. . [ ] stat. ( ); u.s.c.a. (a). [ ] stat. ( ); u.s.c.a. . [ ] stat. ( ); u.s.c.a. . [ ] stat. ( ); u.s.c.a. . [ ] stat. ( ); u.s.c.a. . [ ] stat. ( ) (clayton act); u.s.c.a. , and stat. ( ) (norris-laguardia act); u.s.c.a. - . [ ] stat. ( ), § ; u.s.c.a. (app.). [ ] freeman _v._ howe, how. ( ); gaines _v._ fuentes, u.s. ( ); ex parte young, u.s. ( ). [ ] langnes _v._ green, u.s. ( ); riehle _v._ margolies, u.s. ( ), and essanay film mfg. co. _v._ kane, u.s. ( ). _see also_ hill _v._ martin, u.s. , ( ); kohn _v._ central distributing co., u.s. , ( ); and oklahoma packing co. _v._ oklahoma gas and electric co., u.s. , ( ). [ ] u.s. ( ). [ ] lauf _v._ e.g. shinner & co., u.s. ( ); new negro alliance _v._ sanitary grocery co., u.s. ( ). [ ] in addition to the cases cited in note , [transcriber's note: reference is to footnote , above.] _see_ milk wagon drivers' union _v._ lake valley farm products co., u.s. , - ( ). [ ] u.s. ( ). [ ] ibid. , quoting cary _v._ curtis, how. , ( ). [ ] u.s. ( ). [ ] washington-southern navigation co. _v._ baltimore co., u.s. ( ). [ ] wheat. ( ). [ ] u.s. , ( ). [ ] washington-southern navigation co. _v._ baltimore co., u.s. , , ( ). [ ] mcdonald _v._ pless, u.s. , ( ); griffin _v._ thompson, how. , ( ). [ ] gumbel _v._ pitkin, u.s. ( ); covell _v._ heyman, u.s. ( ), and buck _v._ colbath, wall. ( ). [ ] eberly _v._ moore, how. ( ); arkadelphia milling co. _v._ st. louis s.w.r. co., u.s. ( ). [ ] gagnon _v._ united states, u.s. , ( ). [ ] wall. , - ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ex parte secombe, how. , ( ). [ ] wall. ( ). [ ] ibid. - . for an extensive treatment of disbarment and american and english precedents thereon, _see_ ex parte wall, u.s. ( ). [ ] reorganization of the judiciary, hearings on s. ; th cong., st sess., , pt. , p. . justices van devanter and brandeis approved the letter. for earlier proposals to have the court sit in divisions, _see_ felix frankfurter and james m. landis, the business of the supreme court, pp. - , (new york, ). [ ] stat. - , § - . [ ] ibid. , - ; § - . [ ] stat. . [ ] stat. . for a general account of the events leading to the acts of and , _see_ felix frankfurter and james m. landis, the business of the supreme court; a study in the federal judicial system (new york, ), pp. - . this book also contains an excellent account of the organization and reorganization of the judiciary by statute from time to time. for another account of the acts of and _see_ charles warren, the supreme court in united states history (boston, rev. ed., ), - . [ ] cr. , ( ). [ ] stat. , - . [ ] prior to the act of congress had voted to abolish the commerce court, but president taft vetoed the bill which converted the commerce court judges into ambulatory circuit judges. for a general account of the abolition of the commerce court, _see_ felix frankfurter and james m. landis, the business of the supreme court (new york, ), pp. - . [ ] evans _v._ gore, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. . [ ] u.s. , ( ). [ ] u.s. ( ). [ ] stat. ( ). for the legislative history of the commerce court _see_ felix frankfurter and james m. landis, the business of the supreme court (new york, ), pp. - . [ ] stat. , - . [ ] in lockerty _v._ phillips, u.s. ( ), the limitations on the use of injunctions, except the prohibition against interlocutory decrees, was unanimously sustained. [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . [ ] pet. ( ). [ ] ibid. . [ ] ibid. . closely analogous to the territorial courts are extraterritorial and consular courts created in the exercise of the foreign relations power. _see_ in re ross, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] gordon _v._ united states, u.s. ( ); mcelrath _v._ united states, u.s. ( ); williams _v._ united states, u.s. ( ). [ ] united states _v._ coe, u.s. ( ). [ ] wallace _v._ adams, u.s. ( ). [ ] old colony trust co. _v._ commissioner of internal revenue, u.s. ( ); ex parte bakelite corporation, u.s. ( ). [ ] the general tendency in the evolution of legislative courts is to provide for tenure during good behavior. this is true of the judges of the court of claims, the customs court, the court of customs and patent appeals. the terms of the judges of the tax court are limited to twelve years and the judges are subject to removal by the president after notice and hearing. for the provisions of the statutes governing these matters _see_ u.s.c. §§ , , - a; u.s.c. §§ b, d, f. the territorial judges in alaska ( u.s.c. § ) have four-year terms subject to removal by the president; in hawaii six years unless removed by the president ( u.s.c. § ), eight years in puerto rico ( u.s.c. § ); eight years in the canal zone subject to removal by the president ( u.s.c. § ); and four years in the virgin islands unless sooner removed by the president ( u.s.c. § y). [ ] u.s. ( ). [ ] ibid. [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] how. , ( ). _see also_ keller _v._ potomac electric power co., u.s. ( ); federal radio commission _v._ general electric co., u.s. ( ). [ ] wall. ( ). [ ] postum cereal co. _v._ california fig nut co., u.s. ( ); federal radio commission _v._ general electric co., u.s. ( ); pope _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] keller _v._ potomac electric co., u.s. ( ). [ ] federal radio commission _v._ general electric co., u.s. ( ). [ ] u.s. ( ). all of these rulings with respect to the vesting of revisory powers in the courts of the district carried the qualification that revisory actions and interlocutory opinions, as nonjudicial functions, were not reviewable on appeal to the supreme court of the united states. frasch _v._ moore, u.s. ( ); e.c. atkins & co. _v._ moore, u.s. ( ); keller _v._ potomac electric co., u.s. ( ); federal radio commission _v._ general electric co., u.s. ( ). [ ] o'donoghue _v._ united states, u.s. ( ). [ ] ibid. - . [ ] ibid. . chief justice hughes in a dissent joined by justice van devanter and cardozo took the position that the plenary power of congress over the district is complete in itself and its power to create courts in the district is not derived from article iii. consequently, they argued that the limitations of article iii do not apply to the organization of such courts. the o'donoghue case is discussed in the opinions of justices jackson and rutledge and in the dissent of chief justice vinson in national mutual insurance co. _v._ tidewater transfer co., u.s. , - , - , - ( ). [ ] wheat. ( ). [ ] ibid. . [ ] miller, constitution, , quoted in muskrat _v._ united states, u.s. , ( ). [ ] wheat. , ( ). [ ] dall. , , ( ). [ ] in re pacific railway commission, f. , ( ). justice field repeated the substance of this definition in smith _v._ adams, u.s. , - ( ). [ ] u.s. , ( ). [ ] ibid. - . judicial power is here defined by justice day as "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction." ibid. . [ ] muskrat _v._ united states, u.s. ( ); chicago & grand trunk r. co. _v._ wellman, u.s. ( ); lampasas _v._ bell, u.s. ( ); braxton county court _v._ west virginia, u.s. ( ); smith _v._ indiana, u.s. ( ); tregea _v._ modesto irrigation district, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] muskrat _v._ united states, u.s. ( ). [ ] lampasas _v._ bell, u.s. , ( ). [ ] braxton county court _v._ west virginia, u.s. ( ). [ ] ibid. . [ ] smith _v._ indiana, u.s. , ( ). [ ] tregea _v._ modesto irrigation district, u.s. ( ). [ ] coffman _v._ breeze corporations, inc., u.s. , - ( ), citing tyler _v._ the judges, u.s. ( ); hendrick _v._ maryland, u.s. ( ). [ ] fleming _v._ rhodes, u.s. , ( ). _see also_ blackmer _v._ united states, u.s. , ( ); virginian r. co. _v._ system federation, u.s. ( ); carmichael _v._ southern coal & coke co., u.s. , ( ). [ ] u.s. ( ). the first injunction suit by a stockholder to restrain a corporation from paying the tax appears to be dodge _v._ woolsey, how. ( ) which involved the validity of an ohio tax. the suit was entertained on the basis of english precedents. a case similar to the pollock case is brushaber _v._ union pacific r. co., u.s. ( ). hawes _v._ oakland, u.s. ( ) is cited in the pollock case, although it in fact threw out a stockholder's suit. [ ] _cf._ cheatham et al. _v._ united states, u.s. ( ); and snyder _v._ marks, u.s. ( ). [ ] smith _v._ kansas city title co., u.s. , , ( ). [ ] ashwander _v._ tennessee valley authority, u.s. ( ). although the holdings of the plaintiffs amounted to only one-three hundred and fortieth of the preferred stock, the court ruled that the right to maintain the suit was not affected by the smallness of the holdings. [ ] u.s. ( ). [ ] robert l. stern, in the commerce clause and the national economy, harv. l. rev. , - ( ), gives the following account of the litigation in the first bituminous coal case: on the same day that the bituminous coal act became law, the directors of the carter coal company met in new york. james carter presented a letter saying the coal act was unconstitutional and that the company should not join the code. his father agreed that the act was invalid, but thought the company should not take the risk of paying the tax required of nonmembers in the event the act should be sustained. the third director agreed with the elder carter, and the board passed a resolution rejecting james carter's proposals. this action was subsequently approved by a majority of the voting stock held by james carter's father and mother who outvoted him and his wife. [ ] massachusetts _v._ mellon, u.s. , ( ). _see also_ williams _v._ riley, u.s. ( ). [ ] fairchild _v._ hughes, u.s. ( ). [ ] ex parte levitt, u.s. ( ). _see_, however, massachusetts state grange _v._ benton, u.s. ( ), where the supreme court, though affirming the dismissal of a suit to enjoin a day-light-saving statute, nonetheless, sustained the jurisdiction of the district court to entertain the suit. [ ] alabama power co. _v._ ickes, u.s. , - ( ). [ ] u.s. ( ). [ ] u.s. ( ). _see_ p. (amendment i). [ ] wall. , ( ). _see also_ state of mississippi _v._ johnson, wall. ( ). [ ] wall. at . [ ] u.s. ( ). [ ] stat. ( ). [ ] u.s. , - . _see also_ new jersey _v._ sargent, u.s. , - ( ), where the court refused jurisdiction of a suit to enjoin the federal water power act because of its effect on the conservation of potable waters in new jersey. a similar situation arose in arizona _v._ california, u.s. , ( ), where the court declined to take jurisdiction of an injunction suit to restrain the secretary of the interior and the five states of the colorado river compact from constructing boulder dam. [ ] georgia _v._ pennsylvania r. co., u.s. ( ). [ ] missouri _v._ holland, u.s. ( ). [ ] georgia _v._ tennessee copper co., u.s. ( ). [ ] alabama state federation of labor _v._ mcadory, u.s. , ( ). [ ] giles _v._ harris, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. , ( ). [ ] u.s. ( ). [ ] ashwander _v._ tennessee valley authority, u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . justices black and douglas wrote separate dissents, but each contended that the controversy was justiciable. justice douglas could not agree that the men should violate the act and lose their jobs in order to test their rights. [ ] ex parte steele, f. , ( ). [ ] pennsylvania _v._ wheeling & belmont bridge co., how. ( ); united states _v._ chambers, u.s. ( ); mills _v._ green, u.s. ( ); united states _v._ evans, u.s. ( ). [ ] mills _v._ green, u.s. ( ). this case came to the supreme court on appeal from a decree of the circuit court of appeals dissolving an injunction restraining certain registration officials from excluding the appellant from the voting list. however, the election in which appellant desired to vote was held prior to the appeal, and the case thereby became moot. _see also_ st. pierre _v._ united states, u.s. ( ). [ ] ibid. . [ ] keim _v._ united states, u.s. , ( ); georgia _v._ stanton, wall. , ( ). [ ] pet. ( ). [ ] ibid. . [ ] ibid., and kendall _v._ united states ex rel. stokes, pet. , ( ); _see also_ marbury _v._ madison, cr. ( ). [ ] mississippi _v._ johnson, wall. ( ). [ ] georgia _v._ stanton, wall. ( ). [ ] ibid. [ ] wall. ( ). [ ] pet. ( ). [ ] cr. , ( ). [ ] how. ( ). [ ] ibid. . [ ] ibid. - . [ ] this classification follows in the main that of melville fuller weston, political questions, harv. l. rev. ( ). [ ] field _v._ clark, u.s. ( ). [ ] coleman _v._ miller, u.s. ( ). [ ] foster _v._ neilson, pet. ( ). _see_ p. , supra. [ ] commercial trust co. of new jersey _v._ miller, u.s. ( ). [ ] united states _v._ anderson, wall. ( ). [ ] luther _v._ borden, how. ( ); pacific states telephone & telegraph co. _v._ oregon, u.s. ( ). [ ] luther _v._ borden, how. ( ). [ ] mcpherson _v._ blacker, u.s. ( ), where the court refused to pass upon the act of the michigan legislature in providing for the election of presidential electors by congressional districts. [ ] south _v._ peters, u.s. ( ). [ ] colegrove _v._ green, u.s. ( ). [ ] massachusetts _v._ mellon, u.s. ( ); georgia _v._ stanton, wall. u.s. ( ); cherokee nation _v._ georgia, pet. ( ). [ ] u.s. , - ( ). [ ] coleman _v._ miller, u.s. , ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] u.s. ( ). this case involved an unsuccessful attempt to enjoin an election of representatives in congress in mississippi because the districts formed by the legislature for that purpose were not a contiguous and compact territory and of equal population and that the redistricting violated article i, § and the fourteenth amendment. the court held that the provisions of the reapportionment act of did not reenact the requirements of the act of and that it was therefore unnecessary to determine whether the questions raised were justiciable. [ ] u.s. ( ). here the court held that the act of the minnesota legislature redistricting the state required the governor's signature, and that representatives should be chosen at large until a redistricting was passed. [ ] u.s. , - . [ ] ibid. ff. [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] charles warren, the supreme court in united states history, i, (boston, ), - . for the full correspondence _see_ correspondence and public papers of john jay ( - ), (edited by henry phelps johnston), . according to e.f. albertsworth, advisory functions in federal supreme court, georgetown l.j., , - (may ), the court rendered an advisory opinion to president monroe in response to a request for legal advice on the power of the government to appropriate federal funds for public improvements by responding that congress might do so under the war and postal powers. the inhibitions of the court against advisory opinions do not prevent the individual justices from giving advice or aiding the political departments in their private capacities. ever since chief justice jay went on a mission to england to negotiate a treaty the members of the court have performed various nonjudicial functions. john marshall served simultaneously as secretary of state and chief justice, and later justice robert jackson served as war crimes prosecutor. [ ] for example, muskrat _v._ united states, u.s. , ( ); chicago & southern airlines _v._ waterman steamship corp., u.s. , ( ); united public workers of america _v._ mitchell, u.s. , ( ). [ ] chicago & southern airlines _v._ waterman steamship corp., u.s. , - ( ), citing hayburn's case, dall. ( ); united states _v._ ferreira, how. ( ); gordon _v._ united states, u.s. ( ); in re sanborn, u.s. ( ); interstate commerce commission _v._ brimson, u.s. ( ); la abra silver mining co. _v._ united states, u.s. ( ); muskrat _v._ united states, u.s. ( ); united states _v._ jefferson electric co., u.s. ( ). [ ] muskrat _v._ united states, u.s. ( ). [ ] united states _v._ ferreira, how. ( ). [ ] united public workers of america _v._ mitchell, u.s. , ( ). here, justice reed, for the court, after asserting that constitutional courts do not render advisory opinions, declared that "'concrete legal issues, presented in actual cases, not abstractions,' are requisite" for the adjudication of constitutional issues, citing electric bond and share co. _v._ securities & exchange commission, u.s. , ( ); united states _v._ appalachian electric power co., u.s. , ( ); alabama state federation of labor _v._ mcadory, u.s. , ( ); and coffman _v._ breeze corporations, u.s. , ( ). [ ] how. ( ). [ ] u.s. ( ). [ ] u.s. ( ). in willing _v._ chicago auditorium association, u.s. ( ) certain lessees desired to ascertain their rights under a lease to demolish a building after the lessors had failed to admit such rights on the allegation that claims, fears, and uncertainties respecting the rights of the parties greatly impaired the value of the leasehold. because there was no showing that the lessors had hampered the full use of the premises or had committed or threatened a hostile act, the supreme court sustained the decree of the lower court dismissing the bill on the ground that the plaintiff was seeking a mere declaratory judgment. the court admitted that the proceeding was not moot, that there were adverse parties with substantial interests, and that a final judgment could have been rendered, but held, nonetheless, that the proceeding was not a case or controversy merely because plaintiffs were thwarted by its own doubts, or by the fears of others. ibid. - . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , ( ). [ ] u.s. , ( ). [ ] u.s.c.a. §§ , ; stat. . [ ] u.s. , - ( ). the court distinguished between a justiciable controversy and a dispute of an abstract character, emphasized that the controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests, and reiterated the necessity of "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." [ ] ashwander _v._ tennessee valley authority, u.s. , - ( ). [ ] u.s. , ( ). [ ] alabama state federation of labor _v._ mcadory, u.s. , ( ), citing nashville, c. & st. l.r. co. _v._ wallace, u.s. ( ); aetna life insurance co. _v._ haworth, u.s. ( ); maryland casualty co. _v._ pacific co., u.s. , ( ); great lakes co. _v._ huffman, u.s. , , ( ); and coffman _v._ breeze corporation, u.s. ( ). here, as in other cases, the court refused to entertain hypothetical, or contingent questions, and the decision of constitutional issues prematurely. for this same rule _see also_, altvater _v._ freeman, u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] maryland casualty co. _v._ pacific coal & oil co., u.s. , , ( ). [ ] brillhart _v._ excess insurance co., u.s. ( ). this was a diversity of citizenship case which presented only local questions. [ ] cohens _v._ virginia, wheat. , ( ). [ ] stat. , - . [ ] wheat. ( ). [ ] wheat. ( ). [ ] ibid. . [ ] ibid. - . in martin _v._ hunter's lessee, wheat. ( ), justice story had traversed some of these same grounds. he, too, began with the general assumptions that the constitution was established by the people of the united states and not by the states in their sovereign capacities, that the constitution is to be construed liberally, and that the national government is supreme in relation to its objects; and had concluded that the supreme court had authority to review state court decisions under the express provisions of articles iii and vi, and also from the necessity that final decision must rest somewhere and from the importance and necessity of uniformity of decisions interpreting the constitution. many years later in ableman _v._ booth, how. , - ( ), where the wisconsin supreme court, like the virginia courts earlier, had declared an act of congress invalid and disregarded a writ of error from the supreme court, chief justice taney on grounds both of dual sovereignty and national supremacy was even more emphatic in his rebuke of state pretensions. his emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the states from national encroachments, and to make the constitution and laws of the united states uniform all combine to enhance the federal judicial power to a degree beyond that envisaged even by marshall and story. as late as the questions presented in the foregoing cases were before the court in williams _v._ bruffy, u.s. ( ), which again involved the refusal of a virginia court to enforce a mandate of the supreme court. by the act of december , , stat. , the th section of the judiciary act of which was carried over with modifications into the revised statutes, § ; u.s.c. § was amended so as to provide for review of state court decisions on certiorari whether the federal claim is sustained or denied. these provisions are now contained in u.s.c.a. ( ). the first case involving invalid state legislation arose under a treaty of the united states. ware _v._ hylton, dall. ( ). in calder _v._ bull, dall. ( ), the court sustained a state statute as not being an _ex post facto_ law. the first case in which a state statute was held invalid as a violation of the constitution was fletcher _v._ peck, cr. ( ), which came to the supreme court by appeal from a united states circuit court and not by a writ of error under section . famous cases coming to the court under section were sturges _v._ crowninshield, wheat. , mcculloch _v._ maryland, wheat. , and dartmouth college _v._ woodward, wheat. . all three were decided in and the state legislation involved in each was held void. [ ] that the great majority of the most influential members of the convention of thought the constitution secured to courts in the united states the right to pass on the validity of acts of congress under it cannot be reasonably doubted. confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the constitution, we find the following members of the convention that framed the constitution definitely asserting that this would be the case: gerry and king of massachusetts, wilson and gouverneur morris of pennsylvania, martin of maryland, randolph, madison, and mason of virginia, dickinson of delaware, yates and hamilton of new york, rutledge and charles pinckney of south carolina, davie and williamson of north carolina, sherman and ellsworth of connecticut. _see_ max farrand, records of the federal convention (yale univ. press, ); i, (gerry), (king); ii, (wilson), (martin), (mason), (dickinson and morris), (rutledge), (pinckney), (williamson), (sherman), (madison); iii, (martin, in "genuine information"). the federalist: nos. and (madison), nos. and (hamilton). elliot's debates (ed. of ), ii, - (ellsworth), and (wilson), - (hamilton); iii, , , (randolph), (mason), - (madison); iv, (davie). p.l. ford, pamphlets on the constitution, (dickinson, in "letters of fabius"). ford, essays on the constitution, (robert yates, writing as "brutus"). true these are only seventeen names out of a possible fifty-five, but they designate fully three-fourths of the leaders of the convention, four of the five members of the committee of detail which drafted the constitution (gorham, rutledge, randolph, ellsworth, and wilson) and four of the five members of the committee of style which gave the constitution final form (johnson, hamilton, gouverneur morris, madison, and king). against them are to be pitted, in reference to the question under discussion, only mercer of maryland, bedford of delaware, and spaight of north carolina, the record in each of whose cases is of doubtful implication. it should be noted, however, that there was later some backsliding. madison's record is characteristically erratic. his statement in the federalist no. written probably early in , is very positive: the tribunal which is to ultimately decide, in controversies relating to the boundary between the two jurisdictions, is to be established under the general government. yet a few months later (probably october, ) he seemed to repudiate judicial review altogether, writing: "in the state constitutions and indeed in the federal one also, no provision is made for the case of a disagreement in expounding them; and as the courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with its final character. this makes the judiciary department paramount in fact to the legislature, which was never intended and can never be proper." writings (hunt ed.), . yet in june, , we find him arguing as follows in support of the proposals to amend the constitution which led to the bill of rights: "if they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislature or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights." ibid. . nine years later as author of the virginia resolutions of , he committed himself to the proposition that the final power in construing the constitution rested with the respective state legislatures, a position from the logical consequences of which he spent no little effort to disengage himself in the years of his retirement. another recidivist was charles pinckney, who in denounced the idea of judicial review as follows: "on no subject am i more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. it is placing the opinion of an individual, or of two or three, above that of both branches of congress, a doctrine which is not warranted by the constitution, and will not, i hope, long have many advocates in this country." wharton, state trials, . the great debate in congress in the first session of the th congress over the repeal of the judiciary act of speedily developed into a debate over whether judicial review of acts of congress was contemplated by the constitution. in the senate breckenridge of kentucky, author of the kentucky resolutions of , contended for the equal right of the three departments to construe the constitution for themselves within their respective spheres, and from it deduced the exclusive right of the legislature to interpret the constitution in what regards the lawmaking power and the obligation of the judges to execute what laws they make. but the feeble disguise which this doctrine affords legislative sovereignty made it little attractive even to republicans, who for the most part either plainly indicated their adherence to the juristic view of the constitution, or following a hint by giles of virginia, kept silent on the subject. the federalists on the other hand were unanimous on the main question, though of divergent opinions as to the grounds on which judicial review was to be legally based, some grounding it on the "arising" and "pursuant" clauses, some on the precedents of the pension and carriage cases, some on the nature of the constitution and of the judicial office, some on the contemporary use of terms and the undisputed practice under the constitution of all constitutional authorities. moreover, said the federalist orators, judicial review was expedient, since the judiciary had control of neither the purse nor the sword; it was the substitute offered by political wisdom for the destructive right of revolution; to have established this principle of constitutional security, a novelty in the history of nations, was the peculiar glory of the american people; the contrary doctrine was monstrous and unheard of. the year following marshall concluded the debate, and rendered decision, in marbury _v._ madison. _see_ edward s. corwin, the doctrine of judicial review (princeton university press. ), - ; and court over constitution ( ), chap. . "the glory and ornament of our system which distinguishes it from every other government on the face of the earth is that there is a great and mighty power hovering over the constitution of the land to which has been delegated the awful responsibility of restraining all the coordinate departments of government within the walls of the governmental fabric which our fathers built for our protection and immunity."--chief justice edward douglass white when senator from louisiana. cong. record, d cong., d sess., p. ( ). "i do not think the united states would come to an end if we lost our power to declare an act of congress void. i do think the union would be imperiled if we could not make that declaration as to the laws of the several states." oliver wendell holmes, collected legal papers (new york, ), - . [ ] the federalist no. . [ ] dall. , ( ). [ ] dall. ( ). [ ] stat. ( ). [ ] dall. ( ). [ ] cr. ( ). [ ] stat. , . [ ] cr. , - . [ ] ibid. . the opinion in marbury _v._ madison is subject to two valid criticisms. in the first place the construction of the th section of the judiciary act, if not erroneous, was unnecessary since the section could have been interpreted, as it afterward was, merely to give the court the power to issue mandamus and other writs when it had jurisdiction but not for the purpose of acquiring jurisdiction. the exclusive interpretation of the court's original jurisdiction, sometimes made a subject of criticism, had been adopted by the court in wiscart _v._ dauchy, dall. ( ), and while couched in terms which had later to be qualified in cohens _v._ virginia, wheat. , - ( ), by marshall himself, has remained the doctrine of the court. secondly, there was good ground for jefferson's criticism, which did not touch the constitutional features of the decision, but did inveigh against the temerity of the court in passing on the merits of a case of which, by its own admission, it had no jurisdiction. [ ] in this connection justice patterson's jury charge in van horne's lessee _v._ dorrance, dall. , ( ), is of significance for its discussion of the relation of the constitution, the legislature and the courts. a constitution, he said, "is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. the constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it." legislatures are the creatures of the constitution to which they owe their existence and powers, and in case of conflict between a legislative act and the constitution it is the duty of the courts to hold it void. in accordance with these doctrines fortified by natural law concepts, the circuit court invalidated a pennsylvania statute as being in conflict with the federal and state constitutions as a violation of the inalienable rights of property. in the federal circuit court in north carolina, over which chief justice marshall presided, invalidated an act of north carolina as a violation of the contract clause and the separation of powers in ogden _v._ witherspoon, fed. cas. no. , ( ). the reliance on general principles and natural rights continued in fletcher _v._ peck, cr. , ( ) where the supreme court invalidated an act of the georgia legislature revoking an earlier land grant as a violation either of the "general principles which are common to our free institutions," or of the contract clause. [ ] this phase of judicial review is described by justice sutherland as follows: "from the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the constitution, is of no effect and binding on no one. this is not the exercise of a substantive power to review and nullify acts of congress, for no such substantive power exists. it is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law." adkins _v._ children's hospital, u.s. , ( ). in united states _v._ butler, u.s. , ( ), justice roberts for the court reduced judicial review to very simple terms when he declared that when an act is challenged as being unconstitutional, "the judicial branch of the government has only one duty,--to lay the article of the constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former." [ ] note, for example, the following statement of chief justice marshall: "judicial power, as contradistinguished from the power of the laws, has no existence. courts are the mere instruments of the law, and can will nothing." osborn _v._ bank of united states, wheat. , ( ). note also the assertion of justice roberts: "all the court does, can do, is to announce its considered judgment upon the question. the only power it has, if such it may be called, is the power of judgment. this court neither approves nor condemns any legislative policy. its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the constitution; and, having done that, its duty ends." united states _v._ butler, u.s. , - ( ). [ ] chicago & grand trunk r. co. _v._ wellman, u.s. , ( ). [ ] ibid. _see also_ muskrat _v._ united states, u.s. ( ); massachusetts _v._ mellon, u.s. ( ); alabama state federation of labor _v._ mcadory, u.s. ( ); united public workers of america _v._ mitchell, u.s. ( ); fleming _v._ rhodes, u.s. , ( ) [ ] rescue army _v._ municipal court of los angeles, u.s. , - ( ). _see also_ alma motor co. _v._ timken-detroit axle co., u.s. ( ); spector motor service _v._ mclaughlin, u.s. , ( ); coffman _v._ breeze corporations, u.s. , - ( ); carter _v._ carter coal co., u.s. , ( ); siler _v._ l. & n.r. co., u.s. , ( ); berea college _v._ kentucky, u.s. , ( ); and the cases cited in the notes to the preceding paragraph. [transcriber's note: reference is to footnote , above.] [ ] u.s. , ( ). [ ] _see_ pp. - . for the distinction between inherent and precautionary limitations to the exercise of judicial review and the operation of judicial review within them, _see_ edward s. corwin, judicial review in action, univ. of pennsylvania l. rev. ( ). for the limitations generally _see also_ the concurring opinion of justice brandeis in ashwander _v._ tennessee valley authority, u.s. , - ( ), and the cases cited therein. [ ] one of the earliest formulations of this rule is that by justice iredell in calder _v._ bull, dall. , ( ), and by justice chase in the same case, p. . on the other hand justice chase in this same case asserted that there were certain powers which "it cannot be presumed" have been entrusted to the legislature. _see also_ sinking-fund cases, u.s. ( ). [ ] ogden _v._ saunders, wheat. ( ); providence bank _v._ billings, pet. , ( ) (argument of counsel); legal tender cases, wall. ( ); madden _v._ kentucky, u.s. ( ); alabama state federation of labor _v._ mcadory, u.s. ( ). _see also_ justice moody's dissenting opinion in howard _v._ illinois c.r. co. (the employers' liability cases), u.s. , - ( ). [ ] adkins _v._ children's hospital, u.s. ( ). "but freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances." ibid. . [ ] kovacs _v._ cooper, u.s. , ( ) opinion of justice reed. _see_ justice frankfurter's concurring opinion for a criticism of this rule. for other cases imputing to freedom of religion and the press a preferred position so as to reverse the presumption of validity _see_ herndon _v._ lowry, u.s. , ( ); united states _v._ carolene products co., u.s. , , n. ( ); thornhill _v._ alabama, u.s. , ( ); schneider _v._ state, u.s. , ( ); bridges _v._ california, u.s. , - ( ); murdock _v._ pennsylvania, u.s. , ( ); prince _v._ massachusetts, u.s. , ( ); follett _v._ mccormick, u.s. , ( ); marsh _v._ alabama, u.s. ( ); board of education _v._ barnette, u.s. , ( ); thomas _v._ collins, u.s. , ( ); saia _v._ new york, u.s. , ( ). justice frankfurter has criticized the concept of "the preferred position" of these rights as a phrase that has "uncritically crept into some recent opinions" of the court, kovacs _v._ cooper, u.s. , ( ); and justice jackson in a dissent has also opposed the idea that some constitutional rights have a preferred position. brinegar _v._ united states, u.s. , ( ). "we cannot," he said, "give some constitutional rights a preferred position without relegating others to a deferred position; * * *" [ ] watson _v._ buck, u.s. ( ); justice iredell's opinion in calder _v._ bull, dall. ( ); jacobson _v._ massachusetts, u.s. ( ). _see also_ cohen _v._ beneficial industrial loan corp., u.s. ( ); daniel _v._ family security life ins. co., u.s. ( ); railway express agency _v._ new york, u.s. ( ); wickard _v._ filburn, u.s. ( ); united states _v._ petrillo, u.s. ( ); american power & light co. _v._ securities & exchange commission, u.s. ( ); sunshine anthracite coal co. _v._ adkins, u.s. ( ). _see also_ railroad retirement board _v._ alton r. co., u.s. ( ); home bldg. & loan assoc. _v._ blaisdell, u.s. ( ); arizona _v._ california, u.s. ( ); mccray _v._ united states, u.s. ( ); hamilton _v._ kentucky distilleries & w. co., u.s. ( ). compare, however, bailey _v._ drexel furniture co. (child labor tax case), u.s. ( ), where the court considered the motives of the legislation. [ ] u.s. ( ). [ ] u.s. ( ). the majority opinion evoked a protest from justice stone who said in dissenting: "the power of courts to declare ... [an act of congress unconstitutional] is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. one is that courts are concerned only with the power to enact statutes, not with their wisdom. the other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. for the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government." ibid. - . [ ] united states _v._ congress of industrial organizations, u.s. ( ); miller _v._ united states, wall. ( ). [ ] _see_, for example, michaelson _v._ united states, u.s. ( ), where the court narrowly construed those sections of the clayton act regulating the power of courts to punish contempt in order to avoid constitutional difficulties. _see also_ united states _v._ delaware & h.r. co., u.s. ( ), where the hepburn act was narrowly construed. judicial disallowance in the guise of statutory interpretation was foreseen by hamilton, _see_ federalist no. . [ ] pollock _v._ farmers' l. & t. co., u.s. , , ( ). [ ] in the first guffey-snyder (bituminous coal) act of ( stat. ), there was a section providing for separability of provisions, but the court none the less held the price-fixing provisions inseparable from the labor provisions which it found void and thereby invalidated the whole statute. carter _v._ carter coal co., u.s. , - ( ). on this point _see also_ the dissent of chief justice hughes. ibid. - . [ ] u.s. , - ( ). [ ] justice brandeis dissenting in burnet _v._ coronado oil & gas co., u.s. , - ( ) states the rules governing the binding force of precedents and collects the decisions overruling earlier decisions to . in helvering _v._ griffiths, u.s. , ( ), justice jackson lists other cases overruled between and . _cf._ smith _v._ allwright, u.s. ( ) for similar list. [ ] u.s. , ( ). [ ] u.s. ( ). [ ] u.s. , . justice roberts in a dissent, in which justice frankfurter joined, also protested against overruling "earlier considered opinions" in mahnich _v._ southern s.s. co., u.s. , - ( ). more recently in united states _v._ rabinowitz, u.s. ( ), justice frankfurter has protested in a dissent against reversals of earlier decisions immediately following changes of the court's membership. "especially ought the court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that law is the expression of chance--for instance, of unexpected changes in the court's composition and the contingencies in the choice of successors." ibid. . [ ] _see_ corwin, judicial review in action, university of pennsylvania law review ( ). [ ] levering & garrigues co. _v._ morrin, u.s. , ( ), citing mosher _v._ phoenix, u.s. , ( ). [ ] levering & garrigues co. _v._ morrin, u.s. , ( ). _see also_ binderup _v._ pathe exchange, u.s. , - ( ); south covington & c. st. ry. co. _v._ newport, u.s. , ( ); hull _v._ burr, u.s. , ( ); the fair _v._ kohler die co., u.s. , ( ); montana catholic missions _v._ missoula county, u.s. , ( ); western union tel. co. _v._ ann arbor r. co., u.s. ( ). [ ] newburyport water co. _v._ newburyport, u.s. , ( ). for these issues, _see also_ bell _v._ hood, u.s. ( ). [ ] levering & garrigues co. _v._ morrin, u.s. , - ( ). [ ] u.s. , - ( ). [ ] whether the doctrine that the plaintiff must allege the constitutional question to make the case one arising under the constitution rests on constitutional or statutory grounds is uncertain. _see_ tennessee _v._ union and planters' bank, u.s. ( ); oregon short line and utah n. ry. co. _v._ skottowe, u.s. , ( ); galveston, h. & s.a. ry. co. _v._ texas, u.s. , ( ); sawyer _v._ kochersperger, u.s. ( ); board of councilmen of frankfort _v._ state national bank, u.s. ( ); boston and montana consolidated copper & silver mining co. _v._ montana ore purchasing co., u.s. , ( ). some of these cases apply to the removal of cases from state courts where the plaintiff does not aver a federal question. on this point note the following statement of chief justice fuller in arkansas _v._ kansas & t.c. co. & s.f.r., u.s. , ( ): "hence it has been settled that a case cannot be removed from a state court into the circuit court of the united states on the sole ground that it is one arising under the constitution, laws or treaties of the united states, unless that appears by plaintiff's statement of his own claim; and if it does not so appear, the want of it cannot be supplied by any statement of the petition for removal or in the subsequent pleadings. and moreover that jurisdiction is not conferred by allegations that defendant intends to assert a defence based on the constitution or a law or treaty of the united states, or under statutes of the united states, or of a state, in conflict with the constitution." [ ] cr. ( ). [ ] wheat. ( ). [ ] u.s. ( ). [ ] stat. , § ( ). [ ] stat. , § ( ). [ ] stat. , ( ); u.s.c.a. § . [ ] stat. , ( ). [ ] stat. , , § ( ). [ ] stat. , , § ( ). [ ] u.s.c.a. § (a) ( ). [ ] u.s. ( ). [ ] wheat. ( ). [ ] wheat. ( ). [ ] u.s. , . _see also_ the mayor of nashville _v._ cooper, wall. ( ). [ ] lovell _v._ city of griffin, u.s. ( ). [ ] stoll _v._ gottlieb, u.s. ( ). [ ] indiana ex rel. anderson _v._ brand, u.s. ( ). [ ] southwestern bell telephone co. _v._ oklahoma, u.s. ( ). [ ] adam _v._ saenger, u.s. , ( ). [ ] united gas public service co. _v._ texas, u.s. , ( ). [ ] u.s. ( ). [ ] lane _v._ wilson, u.s. , ( ). it is fairly obvious, of course, that whether state courts have exceeded their powers under the state constitution is not a federal question. this rule was applied in schuylkill trust co. _v._ pennsylvania, u.s. , ( ), where it was contended that instead of construing a state statute, the courts had actually amended it by a species of judicial legislation prohibited by the state constitution. [ ] united states _v._ ravara, dall. ( ). [ ] börs _v._ preston, u.s. ( ). [ ] ames _v._ kansas ex rel. johnston, u.s. , ( ). [ ] u.s. , - ( ). [ ] wheat. ( ). [ ] u.s. , ( ). [ ] ex parte gruber, u.s. ( ). [ ] stat. ( ). [ ] _see_ w.w. willoughby, the constitutional law of the united states, iii, , (new york, ). [ ] willoughby, _op. cit._, iii, . [ ] stat. , § ( ). [ ] justice washington in davis _v._ brig seneca, fed. cas. no. , ( ). [ ] the "vengeance," dall. ( ); the "schooner sally," cr. ( ); the "schooner betsey," cr. ( ); the "samuel," wheat. ( ); the "octavia," wheat. ( ). [ ] new jersey steam nav. co. _v._ merchants' bank, how. , ( ). [ ] waring _v._ clarke, how. ( ); ex parte easton, u.s. ( ); north pacific s.s. co. _v._ hall brothers m.r. & s. co., u.s. ( ); grant smith-porter ship co. _v._ rohde, u.s. ( ). [ ] sheppard _v._ taylor, pet. , ( ). [ ] new england m. ins. co. _v._ dunham, wall. , ( ). [ ] knapp, stout & co. _v._ mccaffrey, u.s. ( ). [ ] atlee _v._ northwestern union p. co., wall. ( ); ex parte mcniel, wall. ( ). [ ] o'brien _v._ miller, u.s. ( ); the "grapeshot" _v._ wallerstein, wall. ( ). [ ] new bedford dry dock co. _v._ purdy, u.s. ( ); north pac. s.s. co. _v._ hall bros. m.r. & s. co., u.s. ( ); the general smith, wheat. ( ). [ ] new jersey steam nav. co. _v._ merchants' bank, how. ( ). [ ] ex parte easton, u.s. ( ). [ ] andrews _v._ wall, how. ( ). [ ] janney _v._ columbia ins. co., wheat. , , , ( ), cited by justice story in the "tilton," fed. cas. no. , ( ). [ ] u.s. , ( ). [ ] the "belfast" _v._ boon, wall. ( ). [ ] ex parte garnett, u.s. ( ). [ ] the "city of panama," u.s. ( ); _see also_ kenward _v._ "admiral peoples," u.s. ( ); the "harrisburg," u.s. ( ). although a suit for damages for wrongful death will not lie in the courts of the united states under the general maritime law, admiralty courts will enforce a state law creating liability for wrongful death. just _v._ chambers, u.s. ( ). [ ] the "raithmoor," u.s. ( ); erie r. co. _v._ erie & western t. co., u.s. ( ). _see also_ canadian aviator _v._ united states, u.s. ( ). [ ] l'invincible, wheat. ( ). _see also_ in re fassett, u.s. ( ). [ ] sherlock _v._ alling, u.s. , ( ). _see also_ old dominion s.s. co. _v._ gilmore (the "hamilton"), u.s. ( ). [ ] jennings _v._ carson, cr. ( ); taylor _v._ carryl, how. ( ). [ ] thirty hogsheads of sugar _v._ boyle, cr. ( ); the siren, wall. , ( ). [ ] hudson _v._ guestier, cr. ( ). [ ] la vengeance, dall. ( ); church _v._ hubbart, cr. ( ); the schooner sally, cr. ( ). [ ] the brig. ann, cr. ( ); the sarah, wheat. ( ); maul _v._ united states, u.s. ( ). [ ] section of the original judiciary act, since carried over in u.s.c.a. § , saves to suitors such a common law remedy. [ ] for example, the court stated in the "moses taylor" _v._ hammons, wall. , ( ), that a proceeding _in rem_ as used in the admiralty courts, is not a remedy afforded by the common law and that a proceeding _in rem_ is essentially a proceeding possible only in admiralty. [ ] u.s. ( ). in the course of his opinion for the court which contains a lengthy historical account of admiralty jurisdiction in this country, chief justice stone cited smith _v._ maryland, how. ( ), where the court without discussion sustained the seizure and forfeiture of a vessel in a judgment _in rem_ of a state court for violation of a maryland fishing law within the navigable waters of the state. [ ] judiciary act of , stat. , § ; la vengeance, dall. ( ); united states _v._ the schooner sally, cr. ( ); united states _v._ schooner betsey and charlotte, cr. ( ); whelan _v._ united states, cr. ( ); the samuel, wheat. ( ). [ ] hendry _v._ moore, u.s. , ( ). [ ] charles warren, the supreme court in united states history, ii, - (boston, ). [ ] wheat. ( ). [ ] how. ( ). _see also_ new jersey steam nav. co. _v._ merchants' bank, how. ( ). aside from rejecting english rules, waring _v._ clarke did not affect the rule concerning the ebb and flow of the tide, inasmuch as the collision occurred within the ebb and flow of the tide, though within the body of a county. citing peyroux _v._ howard, pet. ( ); the "orleans" _v._ phoebus, pet. ( ); the "thomas jefferson," wheat. ( ); united states _v._ coombs, pet. ( ). [ ] how. ( ). [ ] soon afterwards in jackson _v._ steamboat magnolia, how. ( ), the court rejected what was left of narrow doctrines of the extent of admiralty jurisdiction by holding that a collision on the alabama river above tidal flow and wholly within the state of alabama came within the grant of admiralty jurisdiction in the judiciary act of which extended it "to rivers navigable from the sea * * * as well as upon the high seas." [ ] _see_ warren, ii, - . [ ] u.s. ( ); _see also_ perry _v._ haines, u.s. ( ) where the admiralty jurisdiction was extended to inland canals. [ ] wall. ( ). [ ] ibid. . _see also_ the montello, wall. ( ), where this doctrine was applied to the fox river in wisconsin after it had been improved to become navigable. [ ] u.s. , - ( ). this case contains a good review of admiralty cases to the time of its decision. [ ] u.s. , - ( ). [ ] u.s. , ( ). [ ] wheat. ( ). _see also_ manchester _v._ massachusetts, u.s. ( ) which followed this rule and which seems to contain a rule analogous to the "silence of congress" doctrine applied in cases involving state legislation which affect interstate commerce. [ ] ibid. . [ ] the st. lawrence, bl. , ( ). [ ] the "lottawanna," wall. , , ( ); _see also_ janney _v._ columbian ins. co., wheat. , ( ), where it was held that the admiralty jurisdiction rests on the grant in the constitution and can only be exercised under the laws of the united states extending that grant to the respective courts of the united states. [ ] wall. , , ( ); the hine _v._ trevor, wall. ( ). [ ] knapp, stout & co. _v._ mccaffrey, u.s. ( ); red cross line _v._ atlantic fruit co., u.s. ( ). [ ] chelentis _v._ luckenbach s.s. co., u.s. ( ). [ ] rodd _v._ heartt, wall. ( ). [ ] old dominion s.s. co. _v._ gilmore, u.s. ( ). [ ] ibid. [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. , - . this was a five to four decision with justices holmes, pitney, brandeis, and clarke dissenting. justice holmes' dissent is notable among other reasons for his epigrams that "judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions," ibid. ; and that "the common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or some quasi-sovereign that can be identified." ibid. . justice pitney attacked the decision as unsupported by precedent and contended that article iii speaks only of jurisdiction and does not prescribe the procedural or substantive law by which the exercise of admiralty jurisdiction is to be governed. ibid. - . [ ] stat. ( ). [ ] u.s. ( ). [ ] ibid. . for the discussion of the statute as an invalid delegation of power, _see_ ibid. - . justice holmes wrote a dissent in which justices pitney, brandeis and clarke concurred. [ ] stat. ( ); overturned in washington _v._ w.c. dawson & co., u.s. ( ). [ ] stat. . [ ] nogueira _v._ new york, n.h. & h.r. co., u.s. ( ); vancouver s.s. co. _v._ rice, u.s. ( ). [ ] u.s. , . [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . citing baizley iron works _v._ span, u.s. , ( ). [ ] u.s. ( ). cases cited as strengthening the claim were sultan ry. & timber co. _v._ dept. of labor, u.s. ( ); grant smith-porter co. _v._ rohde, u.s. ( ); millers' underwriters _v._ braud, u.s. ( ); ex parte rosengrant, ala. ( so. ), affirmed u.s. ( ); state industrial board of new york _v._ terry & tench co., u.s. ( ); alaska packers asso. _v._ industrial accident commission, u.s. ( ). cases cited against the claim were baizley iron works _v._ span, u.s. ( ); gonsalves _v._ morse dry dock co., u.s. ( ); nogueira _v._ n.y., n.h. & h.r. co., u.s. ( ); northern coal & dock co. _v._ strand, u.s. ( ); employers' liability assurance co. _v._ cook, u.s. ( ). justice black _also_ cites stanley morrison, workmen's compensation and the maritime law, yale l.j. ( ). in the davis case the court was not guilty of exaggeration when it declared that "the very closeness of the cases cited * * * has caused much serious confusion," and went on to picture rather vividly the jurisdictional dilemma of an injured employee who might suffer great financial loss as a result of the delay and expense if he guessed wrong, and might even discover that his claim was "barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere." u.s. , . likewise the dilemma affected employers who might not be protected by contributions to a state fund and at the same time be liable for substantial additional payments. the court had harsh words for the jensen rule but indicated that its reversal would not solve the problem. ibid. . justice black also pointed to parker _v._ motor boat sales, u.s. ( ), where the court, after stating that congress by the longshoremen's act accepted the jensen line of demarcation between state and federal jurisdiction, had proceeded to hold that, in shadowy cases where the claimant was in a twilight zone he was entitled to recover under the state statute in the absence of federal administrative action under the longshoremen's act on the ground of its constitutionality. in brief it would seem that in shadowy cases a claimant may elect either a federal court applying the longshoremen's act or a state forum applying the state compensation law. [ ] u.s. , . [ ] wall. ( ). [ ] ibid. . [ ] ibid. - . [ ] the "lottawanna," wall. , . [ ] in re garnett, u.s. , ( ). [ ] ibid. . [ ] u.s. , ( ), citing butler _v._ boston & savannah s.s. co., u.s. ( ), and in re garnett, u.s. ( ). [ ] u.s. , ( ). [ ] u.s. , ( ), citing o'donnell _v._ great lakes dredge & dock co., u.s. , ( ), and the cases cited therein. [ ] davis _v._ department of labor, u.s. ( ). [ ] commentaries ( d ed., boston, ), § . [ ] dugan _v._ united states, wheat. ( ). [ ] united states _v._ san jacinto tin co., u.s. ( ); united states _v._ beebe, u.s. ( ); united states _v._ american bell tel. co., u.s. ( ). [ ] united states _v._ san jacinto tin co., u.s. ( ). [ ] u.s.c.a. §§ - . the original jurisdiction of the supreme court does not extend to suits brought by the united states against persons or corporations alone. _see also_ revised statutes, §§ , . united states _v._ west virginia, u.s. ( ). [ ] u.s. ( ). [ ] united states _v._ texas, u.s. ( ). [ ] ibid. - . this suit, it may be noted, was specifically authorized by the act of congress of may , , providing for a temporary government for the oklahoma territory to determine the ownership of greer county. stat. , , § . [ ] united states _v._ minnesota, u.s. ( ). for an earlier suit against a state by the united states, _see_ united states _v._ michigan, u.s. ( ). [ ] u.s. , - ( ). [ ] united states _v._ utah, u.s. ( ). [ ] united states _v._ california, u.s. ( ). [ ] united states _v._ louisiana, u.s. ( ); united states _v._ texas, u.s. ( ). [ ] dall. , ( ). [ ] wheat. , ( ). [ ] pet. , ( ). [ ] united states _v._ mclemore, how. ( ); hill _v._ united states, how. , ( ); degroot _v._ united states, wall. , ( ); united states _v._ eckford, wall. , ( ); the siren, wall. , ( ); nichols _v._ united states, wall. , ( ); the davis, wall. , ( ); carr _v._ united states, u.s. , - ( ). "it is also clear that the federal government, in the absence of its consent, is not liable in tort for the negligence of its agents or employees. gibbons _v._ united states, wall. , ( ); peabody _v._ united states, u.s. , ( ); keokuk & hamilton bridge co. _v._ united states, u.s. , ( ). the reason for such immunity as stated by mr. justice holmes in kawananakoa _v._ polyblank, u.s. , ( ), is because 'there can be no legal right as against the authority that makes the law on which the right depends.' _see also_ the western maid, u.s. , ( ). as the housing act does not purport to authorize suits against the united states as such, the question is whether the authority--which is clearly an agency of the united states--partakes of this sovereign immunity. the answer must be sought in the intention of the congress. sloan shipyards case, u.s. , ( ); federal land bank _v._ priddy, u.s. , ( ). this involves a consideration of the extent to which other government-owned corporations have been held liable for their wrongful acts." op. atty. gen. , ( ). [ ] u.s. ( ). [ ] lonergan _v._ united states, u.s. ( ). [ ] united states _v._ n.y. rayon importing co., u.s. ( ). [ ] united states _v._ shaw, u.s. ( ). here it was said that the reasons for sovereign immunity "partake somewhat of dignity and decorum, somewhat of practical administration, somewhat of the political desirability of an impregnable legal citadel where government, as distinct from its functionaries may operate undisturbed by the demands of litigants," ibid. - . the court went on to hold that when the united states took possession of the assets of fleet corporation and assumed its obligations, it did not waive its immunity from suit in a state court on a counterclaim based on the corporation's breach of contract, ibid. . any consent to be sued will not be held to embrace action in the federal courts unless the language giving consent is clear. great northern life ins. co. _v._ read, u.s. ( ). [ ] minnesota _v._ united states, u.s. ( ). the united states was held here to be an indispensable party defendant in a condemnation proceeding brought by a state to acquire a right of way over lands owned by the united states and held in trust for indian allottees. [ ] brady _v._ roosevelt s.s. co., u.s. ( ). [ ] united states _v._ lee, u.s. , - ( ). the principle of sovereign immunity was further disparaged in a brief essay by justice miller on the subject of the rule of law, as follows: "under our system the _people_ * * * are sovereign. their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch. the citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. when he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the united states, should prevent him from using the means which the law gives him for the protection and enforcement of that right." ibid. - . [ ] u.s. ( ). [ ] louisiana _v._ mcadoo, u.s. , ( ). [ ] u.s. ( ). at page justice gray endeavors to distinguish between this and the lee case. it was justice gray who spoke for the dissenters in the lee case. [ ] land _v._ dollar, u.s. , ( ). justice douglas cites for this proposition cunningham _v._ macon & b.r. co., u.s. , ( ); tindal _v._ wesley, u.s. ( ); smith _v._ reeves, u.s. , ( ); scranton _v._ wheeler, u.s. , , ( ); philadelphia co. _v._ stimson, u.s. , , ( ); goltra _v._ weeks, u.s. ( ). this last case actually extended the rule of the lee case and was virtually overruled in larson _v._ domestic & foreign corp., u.s. ( ). [ ] oregon _v._ hitchcock, u.s. ( ); louisiana _v._ garfield, u.s. ( ); new mexico _v._ lane, u.s. ( ); wells _v._ roper, u.s. ( ); morrison _v._ work, u.s. ( ); minnesota _v._ united states, u.s. ( ); mine safety appliances co. _v._ forrestal, u.s. ( ). _see also_ minnesota _v._ hitchcock, u.s. ( ). for a review of the cases dealing with sovereign immunity _see_ joseph d. block, suits against government officers and the sovereign immunity doctrine, harv. l. rev. ( ). [ ] cunningham _v._ macon & b.r. co., u.s. , ( ), quoted by chief justice vinson in the opinion of the court in larson _v._ domestic & foreign corp., u.s. , ( ). [ ] larson _v._ domestic & foreign corp., _supra_, . justice frankfurter's dissent also contains a useful classification of immunity cases and an appendix listing them. [ ] u.s. , ( ). the italics are added. [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. - . this rule was applied in united states ex rel. goldberg _v._ daniels, u.s. ( ), which also involved a sale of government surplus property. after the secretary of the navy rejected the highest bid, plaintiff sought mandamus to compel delivery. the suit was held to be against the united states. _see also_ perkins, secretary of labor _v._ lukens steel co., u.s. ( ), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation of his government's authority on the ground that an agent is answerable only to his principal for misconstruction of instructions, given for the sole benefit of the principal. in the larson case the court not only refused to follow goltra _v._ weeks, u.s. ( ), but in effect overruled it. the goltra case involved an attempt of the government to repossess barges which it had leased under a contract reserving the right to repossess in certain circumstances. a suit to enjoin repossession was held not to be a suit against the united states on the ground that the actions were personal and in the nature of a trespass. [ ] u.s. , - . justice frankfurter, dissenting, would have applied the rule of the lee case. [ ] larson _v._ domestic & foreign corp., u.s. , - ( ). [ ] oregon _v._ hitchcock, u.s. ( ); louisiana _v._ mcadoo, u.s. ( ); wells _v._ roper, u.s. ( ). _see also_ belknap _v._ schild, u.s. ( ); and international postal supply co. _v._ bruce, u.s. ( ). [ ] rickert rice mills _v._ fontenot, u.s. ( ); and tennessee electric power co. _v._ tennessee valley authority, u.s. ( ) which held that one threatened with direct and special injury by the act of an agent of the government under a statute may challenge the constitutionality of the statute in a suit against the agent. [ ] philadelphia co. _v._ stimson, u.s. ( ); waite _v._ macy, u.s. ( ). [ ] united states _v._ lee, u.s. ( ); goltra _v._ weeks, u.s. ( ); ickes _v._ fox, u.s. ( ); land _v._ dollar, u.s. ( ). [ ] u.s. ( ). [ ] federal housing authority _v._ burr, u.s. ( ). nonetheless, the court held that a congressional waiver of immunity in the case of a government corporation did not mean that funds or property of the united states can be levied on to pay a judgment obtained against such a corporation as the result of waiver of immunity. [ ] united states _v._ united states fidelity co., u.s. ( ). [ ] charles warren, the supreme court and disputes between states, bulletin of the college of william and mary, vol. , no. , pp. - ( ). for a more comprehensive treatment of backgrounds as well as the general subject, _see_ charles warren, the supreme court and sovereign states, (princeton, ). [ ] warren, the supreme court and disputes between states, p. . however, only three such suits were brought in this period, - . during the next years, - , at least twenty-nine such suits were brought. ibid. , . [ ] dall. ( ). [ ] rhode island _v._ massachusetts, pet. , ( ). [ ] ibid. - . [ ] ibid. . chief justice taney dissented because of his belief that the issue was not one of property in the soil, but of sovereignty and jurisdiction, and hence political. ibid. - . for different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two states, to which neither state is a party does not come within the original jurisdiction of the supreme court. fowler _v._ lindsay, dall. ( ). [ ] u.s. ( ). [ ] kansas _v._ colorado, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . _see also_ nebraska _v._ wyoming, u.s. ( ), for the restatement of the familiar principle that the power of apportionment among several states of waters of an interstate river where the demands of the users exceeds the supply is a matter of sufficient importance and dignity as to be justiciable in the supreme court. [ ] south dakota _v._ north carolina, u.s. ( ). [ ] virginia _v._ west virginia, u.s. ( ). this case is also significant for justice holmes' statement that, "the case is to be considered in the untechnical spirit proper for dealing with a quasi-international controversy, remembering that there is no municipal code governing the matter, and that this court may be called on to adjust differences that cannot be dealt with by congress or disposed of by the legislature of either state alone." ibid. . [ ] kentucky _v._ indiana, u.s. ( ). [ ] texas _v._ florida et al., u.s. ( ). [ ] pennsylvania and ohio _v._ west virginia, u.s. ( ). [ ] pet. ( ). [ ] wheat. , ( ). [ ] u.s. ( ). [ ] massachusetts _v._ missouri, u.s. , - ( ), citing florida _v._ mellon, u.s. ( ). [ ] u.s. ( ). [ ] u.s. , , citing oklahoma _v._ atchison, t. & s.f.r. co., u.s. , ( ), and oklahoma _v._ cook, u.s. , ( ). _see also_ new hampshire _v._ louisiana, u.s. ( ), which held that a state cannot bring a suit on behalf of its citizens to collect on bonds issued by another state, and louisiana _v._ texas, u.s. ( ), which held that a state cannot sue another to prevent maladministration of quarantine laws. [ ] u.s. , . [ ] ibid. . [ ] the various litigations of virginia _v._ west virginia are to be found in u.s. ( ); u.s. ( ); u.s. ( ); u.s. ( ); u.s. ( ); u.s. ( ); u.s. ( ); u.s. ( ); u.s. ( ). [ ] u.s. , . [ ] ibid. . [ ] ibid. . [ ] warren, the supreme court and sovereign states, . [ ] dall. ( ). [ ] massachusetts _v._ mellon, u.s. ( ); florida _v._ mellon, u.s. ( ); new jersey _v._ sargent, u.s. ( ). [ ] pennsylvania _v._ quicksilver min. co., wall. ( ); california _v._ southern pacific co., u.s. ( ); minnesota _v._ northern securities co., u.s. ( ). [ ] wisconsin _v._ pelican ins. co., u.s. ( ). [ ] wall. ( ). [ ] wall. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] oklahoma _v._. atchison, t. & s.f.r. co., u.s. ( ); oklahoma _v._ cook, u.s. ( ). [ ] wheat. , - ( ). [ ] pennsylvania _v._ quicksilver min. co., wall. ( ). [ ] california _v._ southern pacific co., u.s. ( ); minnesota _v._ northern securities co., u.s. ( ). [ ] wheat. , - . [ ] u.s. ( ). [ ] dall. , - ( ). [ ] u.s. , - . this case also follows the general rule that a corporation chartered by the laws of a state, is a citizen of that state for purposes of federal jurisdiction. [ ] u.s. ( ). [ ] u.s. , - ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). here the court entertained a suit by georgia and enjoined the copper company from discharging noxious gases from their works in tennessee over georgia's territory. [ ] u.s. , - , citing and quoting georgia _v._ tennessee copper co., u.s. , ( ). [ ] u.s. , , citing missouri _v._ illinois, u.s. , - , ( ); virginia _v._ west virginia, u.s. , ( ); georgia _v._ tennessee copper co., u.s. , ( ). [ ] ibid. , . chief justice stone, joined by justices roberts, frankfurter, and jackson dissented on the ground that the suit actually was one for a district court, that a state is without standing to maintain suit for injuries sustained by its citizens and residents for which they may sue in their own behalf, and that as presented the suit was not one in which a court of equity could give effective relief. [ ] cr. , - ( ). [ ] ibid. . [ ] new orleans _v._ winter et al., wheat. ( ). [ ] stat. ( ); u.s.c.a. . [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. - . [ ] ibid. - . [ ] ibid. - . [ ] ibid. . [ ] knox _v._ greenleaf, dall. ( ). [ ] shelton _v._ tiffin, how. ( ). [ ] williamson _v._ osenton, u.s. ( ). [ ] shelton _v._ tiffin, how. ( ). [ ] williamson _v._ osenton, u.s. ( ). [ ] jones _v._ league, how. ( ). [ ] shelton _v._ tiffin, how. ( ). [ ] cr. , ( ). [ ] pet. ( ). [ ] strawbridge _v._ curtiss, cr. ( ). the slocomb case had to be dismissed because two members of the defendant corporation were citizens of the same state as the plaintiffs. [ ] how. ( ). [ ] ibid. . [ ] muller _v._ dows, u.s. , ( ). this fiction had its beginning in marshall _v._ baltimore & ohio r. co., how. , ( ) and attained final approval in st. louis & s.f. ry. co. _v._ james, u.s. , ( ). [ ] john chipman gray, the nature and sources of the law, d ed. (new york, ), . [ ] dodge _v._ woolsey, how. ( ); mechanics' & traders' bank _v._ debolt, how. ( ). [ ] gray, _op. cit._, - . although justice wayne criticized the strawbridge case as going too far, later developments in determining the citizenship of corporations, have enabled the court to restore it to its original status. consequently the rule still requires that to maintain a diversity proceeding all the parties on one side must be citizens of different states from all the parties on the other side. treinies _v._ sunshine mining co., u.s. ( ); city of indianapolis _v._ chase national bank, u.s. ( ). [ ] _see_ southern realty co. _v._ walker, u.s. ( ), where two georgians who conducted all of that business in georgia created a sham corporation in south dakota for the sole purpose of bringing suits in the federal courts which ordinarily would have been brought in the georgia courts. diversity jurisdiction was held not to exist because of collusion. [ ] black and white taxicab & t. co. _v._ brown & yellow taxicab & t. co., _v._ u.s. ( ). [ ] pet. ( ). [ ] pet. . [ ] ibid. . justice story concluded this portion of the opinion as follows: "the law respecting negotiable instruments may be truly declared in the language of cicero, adopted by lord mansfield in luke _v._ lyde, burr. , , to be in great measure, not the law of a single country only, but of the commercial world. _non erit alia lex romae, alia athenis; alia nunc, alia posthac, sed et apud omenes gentes, et omni tempore una eademque lex obtinebit._" ibid. . [ ] _see_ simeon e. baldwin, the american judiciary (new york, ), - . _see also_ justice catron's statement in swift _v._ tyson, pet. , . [ ] the tyson doctrine was extended to wills in lane _v._ vick, how. ( ); to torts in chicago city _v._ robbins, bl. ( ); to real estate titles and the rights of riparian owners in yates _v._ milwaukee, wall. ( ); to mineral conveyances in kuhn _v._ fairmont coal co., u.s. ( ); to contracts in rowan _v._ runnels, how. ( ); and to the right to exemplary or punitive damages in lake shore & m.s.r. co. _v._ prentice, u.s. ( ). by there were kinds of cases in which federal and state courts applied different rules of the common law. _see_ george c. holt, the concurrent jurisdiction of the federal and state courts (new york, ), - . [ ] rowan _v._ runnels, how. ( ); gelpcke _v._ dubuque, wall. ( ). [ ] williamson _v._ berry, how. ( ); pease _v._ peck, how. ( ); watson _v._ tarpley, how. ( ). [ ] lane _v._ vick, how. ( ); williamson _v._ berry, how. ( ); gelpcke _v._ dubuque, wall. ( ). [ ] u.s. , - ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . justice holmes was influenced in part by the article of charles warren, new light on the history of the federal judiciary act of , harv. l. rev. , - ( ), in which mr. warren produced evidence to show that justice story's interpretation in the tyson case was contrary to the intention of the framers of the act. mr. warren did not, however, contend that the tyson rule was unconstitutional. justice holmes was joined in his dissent by justices brandeis and stone. in addition to judicial dissatisfaction with the tyson rule as manifested in dissents, disapproval in congressional quarters resulted in bills by senators walsh and norris in the th and st congresses, s. , th cong., st. sess., s. rept. of committee on the judiciary, march , ; s. , th cong., d. sess., s. rept. , committee on the judiciary, may , ; s. , th cong., st. sess.; s. , st cong., st. sess. [ ] u.s. ( ). [ ] this concept was first used by justice bradley in burgess _v._ seligman, u.s. ( ). [ ] u.s. , . [ ] u.s. ( ). [ ] u.s. , - , - . [ ] ibid. - . [ ] u.s. , - . [ ] ibid. , - . [ ] u.s. ( ). [ ] u.s. ( ). this decision has been thoroughly criticized by arthur l. corbin in the laws of the several states, yale l.j. ( ). _see also_ mitchell wendell, relations between federal and state courts (new york, ), - . this book contains a good account of the operation of the tyson and tompkins rules, pp. - . [ ] u.s. ( ). for other cases applying the rule that decisions of state intermediate courts are binding unless there is convincing evidence that the state law is otherwise, _see_ six companies of california _v._ highway dist., u.s. ( ); stoner _v._ new york life ins. co., u.s. ( ). [ ] vandenbark _v._ owens-illinois co., u.s. ( ). [ ] u.s.c.a. § ; stat. ( ). in , the year of the tompkins decision, the conformity act of ( stat. § ) was superseded; and from that time until the enactment of stat. , the federal courts were guided in diversity cases by the federal rules of civil procedure formulated by the supreme court by virtue of the authority delegated it, in , by stat. . [ ] ruhlin _v._ new york life ins. co., u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] ibid. . justice rutledge wrote a dissent in which justice murphy concurred. justice rutledge objected to the rigid application of a statute of limitations to suits in equity and to the implication that congress could not authorize federal courts to administer equitable relief in accordance with the substantive rights of the parties, notwithstanding state statutes of limitations barring such suits in state courts. in his view, if any change were to be made, it was for congress and not the court to make it. in line with this ruling _see_ ragan _v._ merchants transfer & w. co., u.s. ( ); _also_ cohen _v._ beneficial industrial loan corp., u.s. , ( ). [ ] story, commentaries, § ( d. ed., ). [ ] an interesting case which reached the supreme court under this clause was pawlet _v._ clark, cr. ( ). in his opinion for the court, justice story took occasion to assert that grants of land by a state to a town could not afterwards be repealed so as to divest the town of its rights under the grant. ibid. ; _cf._ trenton _v._ new jersey, u.s. ( ). [ ] the exchange _v._ mcfaddon, cr. ( ); berizzi bros. co. _v._ s.s. pesaro, u.s. ( ); compania espanola _v._ the navemar, u.s. ( ); guaranty trust co. _v._ united states, u.s. , ( ). [ ] principality of monaco _v._ mississippi, u.s. , ( ). [ ] ibid. [ ] the "sapphire," wall. , ( ). [ ] ibid. . this case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the right to bring suit, or to continue one that has been brought. [ ] guaranty trust co. _v._ united states, u.s. , ( ); citing jones _v._ united states, u.s. , ( ); matter of lehigh valley r. co., u.s. ( ). whether a government is to be regarded as the legal representative of a foreign state is, of course, a political question. [ ] guaranty trust co. _v._ united states, u.s. , ( ); citing united states _v._ the thekla, u.s. , , ( ); united states _v._ stinson, u.s. , ( ); the davis, wall. ( ); the siren, wall. , ( ). _see also_ ex parte republic of colombia, u.s. ( ). [ ] guaranty trust co. _v._ united states, u.s. , ( ). among other benefits which the court cites as not extending to foreign states as litigants include exemption from costs and from giving discovery. decisions are also cited to the effect that a sovereign plaintiff "should so far as the thing can be done, be put in the same position as a body corporate." ibid, note , pp. - . [ ] pet. , - ( ). [ ] hodgson & thompson _v._ bowerbank, cr. ( ). [ ] jackson _v._ twentyman, pet. ( ). [ ] susquehanna & wyoming v.r. & c. co. _v._ blatchford, wall. ( ). _see_, however, lacassagne _v._ chapuis, u.s. ( ), which held that a lower federal court had jurisdiction over a proceeding to impeach its former decree, although the parties were new and were both aliens. [ ] browne _v._ strode, cr. ( ). [ ] dall. ( ). for an earlier case where the point of jurisdiction was not raised, _see_ georgia _v._ brailsford, dall. ( ). for subsequent cases prior to , _see_ rhode island _v._ massachusetts, pet. ( ); florida _v._ georgia, how. ( ). [ ] kentucky _v._ dennison, how. , ( ). [ ] cr. ( ). [ ] ibid. . _see also_ wiscart _v._ dauchy, dall. ( ). this exclusive interpretation of article iii posed temporary difficulties for marshall in cohens _v._ virginia, wheat. ( ), where he gave a contrary interpretation to other provisions of the article. the exclusive interpretation as applied to original jurisdiction of the supreme court has been followed in ex parte bollman, cr. ( ); new jersey _v._ new york, pet. ( ); ex parte barry, how. ( ); ex parte vallandigham, wall. , ( ); and ex parte yerger, wall. , ( ). in the curious case of ex parte levitt, petitioner, u.s. ( ), the court was asked to purge itself of justice black on the ground that his appointment to it violated the second clause of section of article i. although it rejected petitioner's application, it refrained from pointing out that it was being asked to assume original jurisdiction contrary to the holding in marbury _v._ madison. [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , ( ). here the court refused to take jurisdiction on the ground that the city of oakland and the oakland water company, a citizen of california, were so situated that they would have to be brought into the case, which would make it then a suit between a state and citizens of another state and its own citizens. the same rule was followed in new mexico _v._ lane, u.s. , ( ); and in louisiana _v._ cummins, u.s. ( ). _see also_ texas _v._ interstate commerce commission, u.s. , ( ). for the original jurisdiction of the supreme court in specific classes of cases _see_ the discussion of suits affecting ambassadors and suits between states, _supra_, pp. , - . [ ] ames _v._ kansas ex rel. johnston, u.s. ( ). [ ] u.s. ( ). [ ] stat. , . [ ] u.s. , . _note also_ the dictum in cohens _v._ virginia, wheat. , - ( ) to the effect that "* * * the original jurisdiction of the supreme court, in cases where a state is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal courts; not to those cases in which an original suit might not be instituted in a federal court. of the last description, is every case between a state and its citizens, and, perhaps every case in which a state is enforcing its penal laws. in such cases, therefore, the supreme court cannot take original jurisdiction." [ ] ohio ex rel. popovici _v._ agler, u.s. ( ). [ ] dall. ( ). justice wilson dissented from this holding and contended that the appellate jurisdiction, as being derived from the constitution, could be exercised without an act of congress or until congress made exceptions to it. [ ] durousseau _v._ united states, cr. ( ). [ ] wall. ( ); wall. ( ). [ ] stat. ( ). [ ] wall. , . the court also took occasion to reiterate the rule that an affirmation of appellate jurisdiction is a negative of all other and stated that as a result acts of congress providing for the exercise of jurisdiction had "come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to * * * it." it continued grandly: "* * * judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the constitution and the laws confer." ibid. , . [ ] _see_ especially the parallel case of ex parte yerger, wall. ( ). for cases following ex parte mccardle, _see_ railroad co. _v._ grant, u.s. , ( ); kurtz _v._ moffitt, u.s. , ( ); cross _v._ burke, u.s. , ( ); missouri _v._ missouri pacific r. co., u.s. , ( ); stephan _v._ united states, u.s. , ( ). _see also_ united states _v._ bitty, u.s. , - ( ), where it was held that there is no right to appeal to the supreme court except as an act of congress confers it. [ ] u.s. ( ). [ ] ibid. . _see also_ barry _v._ mercein, how. , ( ); national exchange bank _v._ peters, u.s. ( ); american construction co. _v._ jacksonville t. & k.w.r. co., u.s. ( ); colorado central consol. min. co. _v._ turck, u.s. ( ); st. louis, i.m. & s.r. co. _v._ taylor, u.s. ( ); luckenbach s.s. co. _v._ united states, u.s. ( ). [ ] wheat. ( ). [ ] ibid. . [ ] ibid. . this recognition, however, is followed by the statement that "the whole judicial power of the united states should be at all times, vested either in an original or appellate form, in some courts created under its authority." [ ] commentaries, §§ - . [ ] stat. , §§ - . [ ] ibid. [ ] ibid. §§ , , , . [ ] ibid. § . [ ] dall. ( ). [ ] ibid. . [ ] ex parte bollman, cr. , ( ). two years later chief justice marshall in bank of united states _v._ deveaux, cr. ( ), held for the court that the right to sue does not imply a right to sue in a federal court unless conferred expressly by an act of congress. [ ] cr. ( ). [ ] ibid. . [ ] ibid. [ ] pet. , - ( ). [ ] how. ( ). [ ] ibid. - . to these sweeping assertions of legislative supremacy justices story and mclean took vigorous exception. they denied the authority of congress to deprive the courts of power and vest it in an executive official because "the right to construe the laws in all matters of controversy is of the very essence of judicial power." in their view the act as interpreted violated the principle of the separation of powers, impaired the independence of the judiciary, and merged the executive and judicial department. dissent of justice mclean, pp. and following. [ ] how. ( ). [ ] ibid. . [ ] rice _v._ m. & n.w.r. co., bl. , ( ); mayor of nashville _v._ cooper, wall. , - ( ); united states _v._ eckford, wall. , ( ); ex parte yerger, wall. , ( ); case of the sewing machine companies, wall. , - ( ); morgan _v._ gay, wall. , ( ); gaines _v._ fuentes, u.s. , ( ); jones _v._ united states, u.s. , ( ); holmes _v._ goldsmith, u.s. , ( ); johnson steel street rail co. _v._ wharton, u.s. , ( ); plaquemines tropical fruit co. _v._ henderson, u.s. , - ( ); stevenson _v._ fain, u.s. , ( ); kentucky _v._ powers, u.s. , ( ); venner _v._ great northern r. co., u.s. , ( ); ladew _v._ tennessee copper co., u.s. , ( ); kline _v._ burke construction co., u.s. , , ( ). _see also_ lauf _v._ e.g. shinner & co., u.s. ( ); federal power commission _v._ pacific power & light co., u.s. ( ). [ ] mayor of nashville _v._ cooper, wall. , - ( ). the rule of cary _v._ curtis and sheldon _v._ sill was restated with emphasis many years later in kline _v._ burke construction co., u.s. , - ( ), where justice sutherland, speaking for the court, proceeded to say to article iii, §§ and : "the effect of these provisions is not to vest jurisdiction in the inferior courts over the designated cases and controversies but to delimit those in respect of which congress may confer jurisdiction upon such courts as it creates. only the original jurisdiction of the supreme court is derived directly from the constitution. every other court created by the general government derives its jurisdiction wholly from the authority of congress. that body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the constitution. * * * the constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of congress to confer it. * * * and the jurisdiction having been conferred may, at the will of congress, be taken away in whole or in part; and if withdrawn without a saving clause all pending cases though cognizable when commenced must fall." [ ] stat. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] _see infra_, pp. - . [ ] u.s.c.a. . [ ] _see_ for example snyder _v._ marks, u.s. ( ); cheatham _v._ united states, u.s. ( ); shelton _v._ platt, u.s. ( ); pacific steam whaling co. _v._ united states, u.s. ( ); dodge _v._ osborn, u.s. ( ). [ ] dodge _v._ brady, u.s. , ( ). [ ] hill _v._ wallace, u.s. ( ); lipke _v._ lederer, u.s. ( ); miller _v._ standard nut margarine co., u.s. , ( ). [ ] enjoining the assessment and collection of federal taxes despite statutory prohibition, harv. l. rev. ( ). [ ] allen _v._ regents of university system of georgia, u.s. , - ( ). [ ] stat. ( ). [ ] lauf _v._ e.g. shinner & co., u.s. ( ); new negro alliance _v._ sanitary grocery co., u.s. . - ( ); milk wagon drivers' union _v._ lake valley farm products co., u.s. , - ( ). [ ] u.s. ( ). virginian r. co. _v._ system federation no. , u.s. ( ), in some ways constitutes an exception to section of the statute by sustaining a mandatory injunction issued against an employer on the petition of employees on the ground that the prohibition of section does not include mandatory injunctions, but "blanket injunctions which are usually prohibitory in form." for other acts of congress limiting the power of the federal courts to issue injunctions _see infra_, pp. - . [ ] wheat. ( ). [ ] how. ( ). [ ] u.s. ( ). [ ] ibid - . _cf._, however, shields _v._ utah, idaho r. co., u.s. ( ). [ ] mayor of nashville _v._ cooper, wall. , ( ); kline _v._ burke construction co., u.s. , , ( ). _see also_ hodgson _v._ bowerbank, cr. , ( ) where chief justice marshall disposed of the effort of british subjects to docket a case in a circuit court, saying, "turn to the article of the constitution of the united states, for the statute cannot extend the jurisdiction beyond the limits of the constitution." [ ] hayburn's case, dall. ( ). [ ] united states _v._ ferriera, how. ( ); gordon _v._ united states, u.s. ( ); muskrat _v._ united states, u.s. ( ). [ ] in addition to the cases cited in note [transcriber's note: reference is to footnote above.], _see_ chicago & s. air lines _v._ waterman s.s. corp., u.s. , - ( ). [ ] in addition to the cases cited in notes , , and [transcriber's note: reference is to footnotes , , and above.] _see_ federal radio commission _v._ general electric co., u.s. , ( ); postum cereal co. _v._ california fig nut co., u.s. ( ); keller _v._ potomac electric power co., u.s. ( ). _see also_ the dissenting opinion of justice rutledge in yakus _v._ united states, u.s. , ( ). [ ] tutun _v._ united states, u.s. ( ), where the court held that the united states is always a possible adverse party to a naturalization petition. [ ] fong yue ting _v._ united states, u.s. ( ), where the court sustained an act of congress requiring the registration of chinese and creating agencies for the expulsion of aliens unlawfully within the country and for the issuance of certificates to those entitled to remain. the act provided for special proceedings in such cases and prescribed the evidence the courts were to receive and the weight to be attached to it. the procedure was held to contain all the elements of a case--"a complainant, a defendant, and a judge--_actor_, _reus_, _et judex_." pp. - . [ ] la abra silver mining co. _v._ united states, u.s. ( ). here the court sustained an act of congress which directed the attorney general to bring a suit on behalf of the united states against the appellants to determine whether an award made by an international claims commission was obtained by fraud. the court of claims was vested with full jurisdiction with appeal to the supreme court to hear the case, decide it, to issue all proper decrees therein, and to enforce them by injunction. the court regarded the money received by the united states from mexico as property of the united states. this together with the interest of congress in national honor in dealing with mexico was sufficient to enable it to authorize a suit for the decision of a question "peculiarly judicial in nature." pp. - . [ ] southern pacific co. _v._ jensen, u.s. ( ). [ ] taylor _v._ carryl, how. ( ). [ ] wheat. ( ). [ ] wheat. ( ). [ ] how. ( ). [ ] for a full account of this episode _see_ warren, supreme court in united states history, ii, - . _see also_ baldwin, the american judiciary, . [ ] pet. , ( ). _see also_ warren, supreme court in united states history, ii, ; and baldwin, _op. cit._, . it was worcester _v._ georgia which allegedly provoked the probably apocryphal comment attributed to president jackson, "'well, john marshall has made his decision, now let him enforce it.'" warren, ibid. . [ ] mast, foos & co. _v._ stover mfg. co., u.s. ( ). [ ] covell _v._ heyman, u.s. ( ). [ ] riehle _v._ margolies, u.s. ( ); harkin _v._ brundage, u.s. ( ); wabash r. co. _v._ adelbert college, u.s. ( ); harkrader _v._ wadley, u.s. ( ); central national bank _v._ stevens, u.s. ( ); shields _v._ coleman, u.s. ( ); moran _v._ sturges, u.s. ( ); krippendorf _v._ hyde, u.s. ( ); covell _v._ heyman, u.s. ( ); watson _v._ jones, wall. ( ); buck _v._ colbath, wall. ( ); freeman _v._ howe, how. ( ); orton _v._ smith, how. ( ); taylor _v._ carryl, how. ( ); peck _v._ jenness, how. ( ). for later cases _see_ toucey _v._ new york life ins. co., u.s. ( ). princess lida of thurn & taxis _v._ thompson, u.s. ( ); brillhart _v._ excess ins. co., u.s. ( ); mandeville _v._ canterbury, u.s. ( ); markham _v._ allen, u.s. ( ); propper _v._ clark, u.s. ( ). [ ] mckim _v._ voorhies, cr. ( ); duncan _v._ darst, how. ( ); united states ex rel. riggs _v._ johnson county, wall. ( ); moran _v._ sturges, u.s. ( ); farmers' loan & trust co. _v._ lake st. elev. r. co., u.s. ( ) [ ] wall. ( ). [ ] princess lida of thurn & taxis _v._ thompson, u.s. ( ). this case rests on the principle of comity that where there are two suits _in rem_ or _quasi in rem_, as they were held to be here, so that the court has possession of property which is the subject of litigation or must have control of it in order to proceed with the cause and grant the relief sought, the jurisdiction of one court must yield to that of the other. the principle, applicable to both federal and state courts, that the court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, was held not to be confined to cases where the property has actually been seized under judicial process, but applies as well to suits brought for marshalling assets, administering trusts, or liquidating estates and to suits of a similar nature, where to give effect to its jurisdiction the court must control the property. [ ] stat. ( ); u.s.c.a. § . in the judicial code an exception is made to proceedings in bankruptcy. [ ] diggs _v._ wolcott, cr. ( ); orton _v._ smith, how. ( ); _see_ especially peck _v._ jenness, how. ( ) where the court held that the prohibition of the act of extended to injunction suits brought against the parties to a state court proceeding as well as to the state court itself. [ ] freeman _v._ howe, how. ( ); julian _v._ central trust co., u.s. ( ); riverdale cotton mills _v._ alabama & georgia mfg. co., u.s. ( ); looney _v._ eastern texas r. co., u.s. ( ). [ ] farmers' loan & trust co. _v._ lake st. elev. r. co., u.s. ( ); riverdale cotton mills _v._ alabama & georgia mfg. co., u.s. ( ); julian _v._ central trust co., u.s. ( ); kline _v._ burke construction co., u.s. ( ). for a discussion of this rule _see_ toucey _v._ new york life ins. co., u.s. , - ( ). [ ] ex parte young, u.s. ( ), is the leading case. [ ] arrowsmith _v._ gleason, u.s. ( ); marshall _v._ holmes, u.s. ( ); simon _v._ southern r. co., u.s. ( ). [ ] french _v._ hay, wall. ( ); dietzsch _v._ huidekoper, u.s. ( ); madisonville traction co. _v._ st. bernard mining co., u.s. ( ). [ ] the earlier cases are root _v._ woolworth, u.s. ( ); prout _v._ starr, u.s. ( ); juilian _v._ central trust co., u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . justice reed, in a dissent in which chief justice stone and justice roberts concurred, also reviewed the authorities. [ ] southern ry. co. _v._ painter, u.s. ( ). [ ] wheat. ( ). [ ] u.s. ( ). _see also_ smyth _v._ ames, u.s. ( ); reagan _v._ farmers' loan & trust co., u.s. ( ). [ ] harkrader _v._ wadley, u.s. ( ); in re sawyer, u.s. ( ). [ ] ex parte young, u.s. , ( ). [ ] ibid. . the young case evoked sharp criticism in congress and led to the enactment of § of the judicial code, prohibiting the issuance of injunctions to restrain enforcement of state laws by a single federal judge, providing for a three-judge court in such cases, limiting the effect of temporary injunctions, and expediting appeals in such cases to the supreme court. act of june , , stat. ; u.s.c.a. § , , . a supplementary act in ( stat. ) amended § of the judicial code providing for the stay of federal proceedings to enjoin state legislation if a suit has been brought in a state court to enforce the legislation until the state court has determined the issues. section was amended again in when the provisions concerning interlocutory injunctions were extended to include permanent injunctions. act of february , , stat. . [ ] prentis _v._ atlantic coast line r. co., u.s. ( ); gilchrist _v._ interborough rapid transit co., u.s. ( ); grubb _v._ public utilities commission, u.s. ( ); beal _v._ missouri pacific r. co., u.s. ( ). [ ] phillips _v._ united states, u.s. , ( ), citing and quoting ex parte collins, u.s. , ( ). [ ] u.s. , , citing moore _v._ fidelity & deposit co., u.s. ( ); smith _v._ wilson, u.s. ( ); oklahoma gas co. _v._ packing co., u.s. ( ); ex parte williams, u.s. ( ); ex parte public national bank, u.s. ( ); rorick _v._ commissioners, u.s. ( ); ex parte bransford, u.s. ( ). [ ] warren, federal and state court interference, harv. l. rev. , ( ). [ ] how. ( ). [ ] ibid. - , - , . [ ] united states _v._ tarble (tarble's case), wall. , - ( ). [ ] stat. , § . [ ] stat. , § ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] rev. stat., § ; u.s.c.a. § . [ ] u.s. ( ). [ ] in re neagle, u.s. ( ). [ ] in re loney, u.s. ( ). [ ] boske _v._ comingore, u.s. ( ). [ ] ohio _v._ thomas, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] harkrader _v._ wadley, u.s. ( ); whitten _v._ tomlinson, u.s. ( ). [ ] frank _v._ mangum, u.s. ( ); tinsley _v._ anderson, u.s. ( ). [ ] maryland _v._ soper, u.s. , , ( ). in addition to the cases cited above _see_ ex parte fonda, u.s. ( ); duncan _v._ mccall, u.s. ( ); new york _v._ eno, . u.s. ( ); baker _v._ grice, u.s. ( ); matter of moran, u.s. ( ); mooney _v._ holohan, u.s. ( ); ex parte hawk, u.s. ( ). compare, however, wade _v._ mayo, u.s. ( ), where it was held that failure of the petitioner to appeal to the supreme court from a conviction sustained by the florida supreme court did not bar relief by _habeas corpus_ because of denial of counsel. in ex parte hawk, u.s. ( ), the rule pertaining to the exhaustion of remedies was applied so as to include a certiorari petition in the supreme court. in adopting a new united states code in ( stat. ) congress added a new section to existing _habeas corpus_ provisions which stipulated that no application for a writ of _habeas corpus_ by a person in custody pursuant to a judgment of a state court shall be granted until the applicant has exhausted the remedies available in the courts of the states and that an applicant shall not be deemed to have exhausted state remedies if he has the right under state law to raise, by any available procedure, the question presented, u.s.c.a. § . this section codified ex parte hawk. [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] houston _v._ moore, wheat. , - ( ). [ ] carriage tax act, stat. ( ); license tax on wine and spirits act, stat. ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] stat. . [ ] stat. ( ). [ ] stat. ( ); stat. ( ); stat. ( ); stat. ( ); stat. ( ); stat. ( ); stat. ( ); stat. ( ); stat. ( ). [ ] stat. . for the trial of federal offenses in state courts _see_ charles warren, federal criminal laws and state courts, harv. l. rev. ( ). [ ] charles warren, federal criminal laws and state courts, harv. l. rev. , - ( ). [ ] justice story dissenting in houston _v._ moore, wheat. , ( ); justice mclean dissenting in united states _v._ bailey, pet. , ( ). [ ] pet. , ( ). [ ] robertson _v._ baldwin, u.s. ( ); dallemagne _v._ moisan, u.s. ( ). _see also_ teal _v._ felton, how. ( ); claflin _v._ houseman, u.s. ( ). this last case proceeds on the express assumption that the state and national governments are part of a single nation and implicity repudiates the idea of separate sovereignties, as set out in prigg _v._ pennsylvania, pet. ( ). [ ] mitchell wendell, relations between the federal and state courts (new york, ), . [ ] stat. ( ). [ ] hoxie _v._ new york, n.h. & h.r. co., conn. ( ). [ ] u.s. , ( ). [ ] brown _v._ western ry. co. of alabama, u.s. ( ). _see_ justice frankfurter's dissent in this case for a summary of rulings to the contrary. [ ] u.s. ( ). [ ] stat. , - , (c). [ ] u.s. , . [ ] ibid. . justice black refers to prigg _v._ pennsylvania, pet. , ( ), and other cases as broadly questioning the power and duty of state courts to enforce federal criminal law. the cases primarily relied upon in the opinion are claflin _v._ houseman, u.s. ( ); mondou _v._ new york, n.h. & h.r. co. (second employers' liability cases), u.s. ( ). [ ] _cf._ doyle _v._ continental ins. co., u.s. ( ), (which upheld a similar wisconsin statute), and security mut. l. ins. co. _v._ prewitt, u.s. ( ); with home ins. co. _v._ morse, wall. ( ); barron _v._ burnside, u.s. ( ); southern p. co. _v._ denton, u.s. ( ); gerling _v._ baltimore & o.r. co., u.s. , ( ); barrow s.s. co. _v._ kane, u.s. , ( ); herndon _v._ chicago, r.i. & p.r. co., u.s. ( ); harrison _v._ st. louis & s.f.r. co., u.s. ( ); donald _v._ philadelphia & r. coal & i. co., u.s. ( ). [ ] u.s. , ( ). [ ] edward iii, stat. , ch. . _see also_ story's commentaries on the constitution of the united states, vol. , - , ( th ed.). [ ] cr. ( ). [ ] ibid. , . [ ] ibid. . [ ] ibid. . [ ] united states _v._ burr, cr. , appx. ( ). [ ] there have been a number of lower court cases in some of which convictions were obtained. as a result of the whiskey rebellion convictions of treason were obtained on the basis of the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. united states _v._ vigol, fed. cas. no. , ( ); united states _v._ mitchell, fed. cas. no. , ( ). after conviction, the defendants were pardoned. _see also_ for the same ruling in a different situation the case of fries, fed. cas. nos. , ( ); , ( ). the defendant was again pardoned after conviction. about a half century later participation in forcible resistance to the fugitive slave law was held not to be a constructive levying of war. united states _v._ hanway, fed. cas. no. , ( ). although the united states government regarded the activities of the confederate states as a levying of war, the president by amnesty proclamation of december , , pardoned all those who had participated on the southern side in the civil war. in applying the captured and abandoned property act of ( stat. ) in a civil proceeding, the court declared that the foundation of the confederacy was treason against the united states. sprott _v._ united states, wall. ( ). _see also_ hanauer _v._ doane, wall. ( ); thorington _v._ smith, wall. ( ); young _v._ united states, u.s. ( ). these four cases bring in the concept of adhering to the enemy and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the captured and abandoned property act by persons who claimed that they had given no aid or comfort to the enemy. these cases are not, therefore, an interpretation of the constitution. [ ] u.s. ( ). [ ] law. ed. - (argument of counsel). [ ] u.s. . [ ] ibid. - . earlier justice jackson had declared that this phase of treason consists of two elements: "adherence to the enemy; and rendering him aid and comfort." a citizen, it was said, may take actions "which do aid and comfort the enemy--* * *--but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." ibid. . justice jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the convention of . actually it comes from the british treason trials act of ( and wm. iii, c. ). [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. , - . justice douglas cites no cases for these propositions. justice murphy in a solitary dissent stated: "but the act of providing shelter was of the type that might naturally arise out of petitioner's relationship to his son, as the court recognizes. by its very nature, therefore, it is a non-treasonous act. that is true even when the act is viewed in light of all the surrounding circumstances. all that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. it is therefore not an overt act of treason, regardless of how unlawful it might otherwise be." ibid. . the following summary, taken from the appendix to the government's brief in cramer _v._ united states, u.s. ( ), and incorporated as note in the court's opinion (pp. - ), contains all the cases in which, prior to kawakita _v._ united states, which is dealt with immediately below, construction of the treason clause has been involved except grand jury charges and cases to which interpretation of the clause was incidental: whiskey rebellion cases: united states _v._ vigol, fed. cas. no. , ( ), united states _v._ mitchell, fed. cas. no. , ( ) (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). house tax case: fries's case, fed. cas. nos. , , , ( , ) (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). the burr conspiracy: ex parte bollman, cr. ( ); united states _v._ burr, fed. cas. nos. , a ( ); , ( ) (conspiracy to levy war held not an overt act of levying war). united states _v._ lee, fed. cas. no. , ( ) (sale of provisions a sufficient overt act; acquittal). united states _v._ hodges, fed. cas no. , ( ) (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the intent; acquittal). united states _v._ hoxie, fed. cas. no. , ( ) (attack of smugglers on troops enforcing embargo is riot and not levying of war). united states _v._ pryor, fed. cas. no. , ( ) (proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy). united states _v._ hanway, fed. cas. no. , ( ) (forcible resistance to execution of fugitive slave law no levying of war). united states _v._ greiner, fed. cas. no. , ( ) (participation as members of state militia company in seizure of a federal fort is a levying of war). united states _v._ greathouse, fed. cas. no. , ( ) (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned). cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the confederacy: hanauer _v._ doane, wall. ( ); carlisle _v._ united states, wall. ( ); sprott _v._ united states, wall. , [transcriber's note: " " is incorrect--case occupies wall. - ( )] ( ); united states _v._ athens armory, fed. cas. no. , ( ) (mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy). united states _v._ cathcart and united states _v._ parmenter, fed. cas. no. , ( ). chenoweth's case (unreported: _see_ ex parte vallandigham, fed. cas. no. , , at ( )) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). case of jefferson davis, fed. cas. no. a ( - ) (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; davis was not tried on the indictment); _see_ warren, supreme court in united states history ( ed.) - ; watson, trial of jefferson davis ( ) yale l.j. . philippine insurrections: united states _v._ magtibay, phil. ( ), united states _v._ de los reyes, phil. ( ) (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); united states _v._ lagnason, phil. ( ) (armed effort to overthrow the government is levying war). united states _v._ fricke, f. ( ) (acts "indifferent" on their face held sufficient overt acts). united states _v._ robinson, f. ( ) (dictum, acts harmless on their face are insufficient overt acts). united states _v._ werner, f. ( ), affirmed in u.s. ( ) (act indifferent on its face may be sufficient overt act). united states _v._ haupt, f. ( d) ( ) (reversal of conviction on strict application of two-witness requirement and other grounds; inferentially approves acts harmless on their face as overt acts). stephan _v._ united states, f. ( d) ( ) (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). united states _v._ cramer, f. ( d) ( ). [ ] u.s. . [ ] ibid. . for citations on the subject of dual nationality, _see_ ibid. note . three dissenters asserted that kawakita's conduct in japan clearly showed he was consistently demonstrating his allegiance to japan. "as a matter of law, he expatriated himself as well as that can be done." ibid. . [ ] ex parte bollman, cr. ( ). [ ] united states _v._ burr, cr. ( ). [ ] cramer _v._ united states, u.s. ( ). [ ] haupt _v._ united states, u.s. ( ). [ ] ex parte bollman, cr. , , ( ). [ ] stat. . this act incidentally did not designate rebellion as treason. [ ] miller _v._ united states, wall. , ( ). [ ] wallach _v._ van riswick, u.s. , ( ). [ ] lord de la warre's case, coke, a. a number of cases dealt with the effect of a full pardon by the president of owners of property confiscated under this act. they held that a full pardon relieved the owner of forfeiture as far as the government was concerned, but did not divide the interest acquired by third persons from the government during the lifetime of the offender. illinois central r. co. _v._ bosworth, u.s. , ( ); knote _v._ united states, u.s. ( ); wallach _v._ van riswick, u.s. , ( ); armstrong's foundry _v._ united states, wall. , ( ). there is no direct ruling on the question of whether only citizens can commit treason. in carlisle _v._ united states, wall. , - ( ), the court declared that aliens while domiciled in this country owe a temporary allegiance to it and may be punished for treason equally with a native-born citizen in the absence of a treaty stipulation to the contrary. this case involved the attempt of certain british subjects to recover claims for property seized under the captured and abandoned property act, stat. ( ) which provided for the recovery of property or its value in suits in the court of claims by persons who had not rendered aid and comfort to the enemy. earlier in united states _v._ wiltberger, wheat. , ( ), which involved a conviction for manslaughter under an act punishing manslaughter and treason on the high seas, chief justice marshall going beyond the necessities of the case stated that treason "is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary." article iv states' relations section . full faith and credit page sources and effect of this provision private international law importance of the constitutional provision acts of and force and effect of same judgments: primary concern of the provision two principal classes of judgments effect to be given in forum state jurisdictional prerequisite judgments in personam jurisdictional question service on foreign corporations service on out-of-state owners of motor vehicles judgments in rem thompson _v._ whitman divorce decrees jurisdictional prerequisite: domicile haddock _v._ haddock emergence of the domicile question williams i and ii cases involving claims for alimony or property arising in forum state recent cases state of the law today: quaere decrees awarding alimony, custody of children collateral attack by child decrees of other types probate decrees adoption decrees garnishment decrees fraud as a defense to suits on foreign judgments penal judgments: types entitled to recognition recognition of rights based upon constitutions, statutes, common law the early rule development of the modern rule transitory actions: death statutes actions upon contract: when governed by law of place of making stockholder-corporation relationship fraternal benefit society--member relationship insurance company, building and loan association--contractual relationships workmen's compensation statutes development of section to date and possibilities evaluation of results scope of powers of congress under section full faith and credit in the federal courts judgments of foreign states section . interstate comity clause . the comity clause sources theories as to its purpose how implemented "citizens of each state" corporations "all privileges and immunities of citizens in the several states" discrimination in private rights access to courts taxation clause . fugitives from justice duty to surrender "fugitive from justice" procedure of removal trial of fugitive after removal clause . fugitives from labor section . new states and government of territory, etc. clause . admission of states doctrine of equality of the states earlier scope of the doctrine citizenship of inhabitants judicial proceedings property rights; united states _v._ texas rights conveyed to private persons before admission of state clause . property and territory; regulatory powers of congress property of the united states methods of disposing public lands power of the states power of congress over territories section . obligations of united states to the states republican form of government protection against domestic violence decline in importance of this guaranty state's relations article iv section . full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. and the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. sources and effect of this provision private international law the historical background of the above section is furnished by that branch of private law which is variously termed "private international law," "conflict of laws," "comity." this comprises a body of rules, based largely on the writings of jurists and judicial decisions, in accordance with which the courts of one country or "jurisdiction" will ordinarily, in the absence of a local policy to the contrary, extend recognition and enforcement to rights claimed by individuals by virtue of the laws or judicial decisions of another country or "jurisdiction." most frequently applied examples of these rules include the following: the rule that a marriage which is good in the country where performed (_lex loci_) is good elsewhere; likewise the rule that contracts are to be interpreted in accordance with the laws of the country where entered into (_lex loci contractus_) unless the parties clearly intended otherwise; also the rule that immovables may be disposed of only in accordance with the law of the country where situated (_lex rei sitae_);[ ] also the converse rule that chattels adhere to the person of their owner and hence are disposable by him, even when located elsewhere, in accordance with the law of his domicile (_lex domicilii_); also the rule that regardless of where the cause arose, the courts of any country where personal service can be got upon the defendant will take jurisdiction of certain types of personal actions, hence termed "transitory," and accord such remedy as the _lex fori_ affords. still other rules, of first importance in the present connection, determine the recognition which the judgments of the courts of one country shall receive from those of another country. importance of the constitutional provision so even had the states of the union remained in a mutual relationship of entire independence, still private claims originating in one would often have been assured recognition and enforcement in the others. the framers of the constitution felt, however, that the rules of private international law should not be left as among the states altogether on a basis of comity, and hence subject always to the overruling local policy of the _lex fori_, but ought to be in some measure at least placed on the higher plane of constitutional obligation. in fulfillment of this intent the section now under consideration was inserted, and congress was empowered to enact supplementary and enforcing legislation. the acts of and congressional legislation under the full faith and credit clause, so far as it is pertinent to adjudication thereunder, is today embraced in section of title of the united states code, which consolidates the acts of may , and of march , .[ ] "the acts of the legislature of any state or territory, or of any country subject to the jurisdiction of the united states, shall be authenticated by having the seals of such state, territory, or country affixed thereto. the records and judicial proceedings of the courts of any state or territory, or of any such country, shall be proved or admitted in any other court within the united states, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. and the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the united states as they have by law or usage in the courts of the state from which they are taken." force and effect of same several points clearly emerge: ( ) the word "effect" is construed as referring to the effect of the records when authenticated, not to the effect of the authentication; ( ) the faith and credit which is required by the rules of private international law is superseded as to "the records and judicial proceedings" of each state by a rule of complete obligation; as to these the local policy of the forum state can validly have no application. on the other hand, ( ) while the act of lays down a rule for the authentication of the statutes of the several states, it says nothing regarding their extraterritorial operation; and ( ) it is similarly silent regarding the common law of the several states. these silences, however, have been repealed, in part, by judicial decision. (_see_ pp. - .) judgments: the primary concern of the provision two principal classes of judgments article iv, section , has had its principal operation in relation to judgments. the cases fall into two groups: first, those in which the judgment involved was offered as a basis of proceedings for its own enforcement outside the state where rendered, as for example, when an action for debt is brought in the courts of state b on a judgment for money damages rendered in state a; secondly, those in which the judgment involved was offered, in conformance with the principle of _res judicata_, in defense in a new or "collateral" proceeding growing out of the same facts as the original suit, as for example, when a decree of divorce granted in state a is offered as barring a suit for divorce by the other party to the marriage in the courts of state b. effect to be given in forum state the english courts and the different state courts in the united states, while recognizing "foreign judgments _in personam_" which were reducible to money terms as affording a basis for actions in debt, originally accorded them generally only the status of _prima facie_ evidence in support thereof, so that the merits of the original controversy could always be opened. when offered in defense, on the other hand, "foreign judgments _in personam_" were ordinarily treated as conclusive, as between parties, of the issues they purported to determine, provided they had been rendered by a court of competent jurisdiction and were not tainted with fraud. and judgments "_in rem_" rendered under the same conditions were regarded as conclusive upon everybody on the theory that, as stated by chief justice marshall, "it is a proceeding _in rem_, to which all the world are parties."[ ] the pioneer case was mills _v._ duryee,[ ] decided in . in an action brought in the circuit court of the district of columbia--the equivalent of a state court for this purpose--on a judgment from a new york court, the defendant endeavored to reopen the whole question of the merits of the original case by a plea of "_nil debet_." it was answered in the words of the act of itself, that such records and proceedings were entitled in each state to the same faith and credit as in the state of origin; and that inasmuch as they were records of a court in the state of origin, and so conclusive of the merits of the case there, they were equally so in the forum state. the court adopted the latter view, saying that it had not been the intention of the constitution merely to reenact the common law--that is, the principles of private international law--as to the reception of foreign judgments, but to amplify and fortify these.[ ] and in hampton _v._ mcconnell[ ] some years later, chief justice marshall went even further, using language which seems to show that he regarded the judgment of a state court as constitutionally entitled to be accorded in the courts of sister states not simply the faith and credit of conclusive evidence, but the validity of a final judgment. when, however, the next important case arose, the court has come under new influences. this was mcelmoyle _v._ cohen,[ ] decided in , in which the issue was whether a statute of limitations of the state of georgia, which applied only to judgments obtained in courts other than those of georgia, could constitutionally bar an action in georgia on a judgment rendered by a court of record of south carolina. declining to follow marshall's lead in hampton _v._ mcconnell, the court held that the constitution was not intended "materially to interfere with the essential attributes of the _lex fori_"; that the act of congress only established a rule of evidence, of conclusive evidence to be sure, but still of evidence only; and that it was necessary, in order to carry into effect in a state the judgment of a court of a sister state, to institute a fresh action in the court of the former, in strict compliance with its laws; and that consequently, when remedies were sought in support of the rights accruing in another jurisdiction, they were governed by the _lex fori_. in accord with this holding it has been further held that foreign judgments enjoy, not the right of priority or privilege or lien which they have in the state where they are pronounced, but only that which the _lex fori_ gives them by its own laws, in their character of foreign judgments.[ ] a judgment of a state court, in a cause within its jurisdiction, and against a defendant lawfully summoned, or against lawfully attached property of an absent defendant, is entitled to as much force and effect against the person summoned or the property attached, when the question is presented for decision in a court in another state, as it has in the state in which it was rendered.[ ] a judgment enforceable in the state where rendered must be given effect in the other state, although the modes of procedure to enforce its collection may not be the same in both states.[ ] if the court has acquired jurisdiction, the judgment is entitled to full faith and credit though the court may not be able to enforce it by execution in the state in which it was rendered, as where the defendant left the state after service upon him and took all his property with him. while the want of power to enforce a judgment or decree may afford a reason against entertaining jurisdiction, it has nothing to do with the validity of a judgment or decree when made.[ ] in the words of the court in a recent case: "a cause of action on a judgment is different from that upon which the judgment was entered. in a suit upon a money judgment for a civil cause of action, the validity of the claim upon which it was founded is not open to inquiry, whatever its genesis. regardless of the nature of the right which gave rise to it, the judgment is an obligation to pay money in the nature of a debt upon a specialty. recovery upon it can be resisted only on the grounds that the court which rendered it was without jurisdiction, * * * or that it has ceased to be obligatory because of payment or other discharge * * * or that it is a cause of action for which the state of the forum has not provided a court * * *"[ ] on the other hand, the clause is not violated when a judgment is disregarded because it is not conclusive of the issues before a court of the forum. conversely, no greater effect can be given than is given in the state where rendered. thus an interlocutory judgment may not be given the effect of a final judgment.[ ] likewise when a federal court does not attempt to foreclose the state court from hearing all matters of personal defense which landowners might plead, a state court may refuse to accept the former's judgment as determinative of the landowners' liabilities.[ ] similarly, though a confession of judgment upon a note, with a warrant of attorney annexed, in favor of the holder, is in conformity with a state law and usage as declared by the highest court of the state in which the judgment is rendered, the judgment may be collaterally impeached upon the ground that the party in whose behalf it was rendered was not in fact the holder.[ ] but a consent decree, which under the law of the state has the same force and effect as a decree _in invitum_, must be given the same effect in the courts of another state.[ ] one result produced by not following hampton _v._ mcconnell is that even nowadays the court is sometimes confronted with the contention that a state need not provide a forum for some particular type of judgment from a sister state, a claim which it has by no means met with clear-cut principles. thus in one case it held that a new york statute forbidding foreign corporations doing a domestic business to sue on causes originating outside the state was constitutionally applicable to prevent such a corporation from suing on a judgment obtained in a sister state.[ ] but in a later case it ruled that a mississippi statute forbidding contracts in cotton futures could not validly close the courts of the state to an action on a judgment obtained in a sister state on such a contract, although the contract in question had been entered into in the forum state and between its citizens.[ ] following the later rather than the earlier precedent, subsequent cases[ ] have held: ( ) that a state may adopt such system of courts and form of remedy as it sees fit, but cannot, under the guise of merely affecting the remedy, deny enforcement of claims otherwise within the protection of the full faith and credit clause when its courts have general jurisdiction of the subject matter and the parties;[ ] ( ) that, accordingly, a forum state, which has a shorter period of limitations than the state in which a judgment was granted and later reviewed, erred in concluding that, whatever the effect of the revivor under the law of the state of origin, it could refuse enforcement of the revived judgment;[ ] ( ) that the courts of one state have no jurisdiction to enjoin the enforcement of judgments at law obtained in another state, when the same reasons assigned for granting the restraining order were passed upon on a motion for new trial in the action at law and the motion denied;[ ] ( ) that the constitutional mandate requires credit to be given to a money judgment rendered in a civil cause of action in another state, even though the forum state would have been under no duty to entertain the suit on which the judgment was founded, inasmuch as a state cannot, by the adoption of a particular rule of liability or of procedure, exclude from its courts a suit on a judgment;[ ] and ( ) that similarly, tort claimants in state a, who obtain a judgment against a foreign insurance company, notwithstanding that, prior to judgment, domiciliary state b appointed a liquidator for the company, vested company assets in him, and ordered suits against the company stayed, are entitled to have such judgment recognized in state b for purposes of determining the amount of their claim, although not for determination of what priority, if any, their claim should have.[ ] moreover, there is no apparent reason why congress, acting on the implications of marshall's words in hampton _v._ mcconnell, should not clothe extrastate judgments of any particular type with the full status of domestic judgments of the same type in the several states.[ ] the jurisdictional prerequisite the second great class of cases to arise under the full faith and credit clause comprises those raising the question whether a judgment for which extrastate operation was being sought, either as a basis of an action or as a defense in one, has been rendered with jurisdiction. records and proceedings of courts wanting jurisdiction are not entitled to credit.[ ] the jurisdictional question arises both in connection with judgments _in personam_ against nonresident defendants upon whom it is alleged personal service was not obtained in the state of origin of the judgment, and in relation to judgments _in rem_ against property or a status alleged not to have been within the jurisdiction of the court which handed down the original decree.[ ] judgments _in personam_ the pioneer case is that of d'arcy _v._ ketchum,[ ] decided in . the question presented was whether a judgment rendered by a new york court under a statute which provided that, when joint debtors were sued and one of them was brought into court on a process, a judgment in favor of the plaintiff would entitle him to execute against all, and so must be accorded full faith and credit in louisiana when offered as the basis of an action in debt against a resident of that state who had not been served by process in the new york action. pressed with the argument that by "the immutable principles of justice" no man's rights should be impaired without his being given an opportunity to defend them, the court ruled that, interpreted in the light of the principles of "international law and comity" as they existed in , the act of congress of that year did not reach the case.[ ] the truth is that the decision virtually amended the act, for had the louisiana defendant ventured to new york, he could, as the constitution of the united states then stood, have been subjected to the judgment of the same extent as the new york defendant who had been personally served. subsequently, this disparity between the operation of a personal judgment in the home state and a sister state has been eliminated, thanks to the adoption of the fourteenth amendment. in divorce cases, however, it still persists in some measure. (_see_ pp. - .) in pennoyer _v._ neff,[ ] decided in , and so under the amendment, the court held that a judgment given in a case in which the state court had endeavored to acquire jurisdiction of a nonresident defendant by an attachment upon property of his within the state and constructive notice to him, had not been rendered with jurisdiction and hence could not afford the basis of an action in the court of another state against such defendant, although it bound him so far as the property attached was concerned, on account of the inherent right of a state to assist its own citizens in obtaining satisfaction of their just claims. nor would such a judgment, the court further indicated, be due process of law to any greater extent in the state where rendered. in the words of a later case, "an ordinary personal judgment for money, invalid for want of service amounting to due process of law, is as ineffective in the state as outside of it."[ ] the jurisdictional question in short, when the subject matter of a suit is merely the determination of the defendant's liability, it is necessary that it should appear from the record that the defendant had been brought within the jurisdiction of the court by personal service of process, or his voluntary appearance, or that he had in some manner authorized the proceeding.[ ] the claim that a judgment was "not responsive to the pleadings" raises the jurisdictional question;[ ] but the fact that a nonresident defendant was only temporarily in the state when he was served in the original action does not vitiate the judgment rendered as the basis of an action in his home state.[ ] also, a judgment rendered in the state of his domicile against a defendant who, pursuant to the statute thereof providing for the service of process on absent defendants, was personally served in another state is entitled to full faith and credit.[ ] also, when the matter of fact or law on which jurisdiction depends was not litigated in the original suit, it is a matter to be adjudicated in the suit founded upon the judgment.[ ] inasmuch as the principle of _res judicata_ applies only to proceedings between the same parties and privies, the plea by defendant in an action based on a judgment that he was no party or privy to the original action raises the question of jurisdiction; and while a judgment against a corporation in one state may validly bind a stockholder in another state to the extent of the par value of his holdings,[ ] an administrator acting under a grant of administration in one state stands in no sort of relation of priority to an administrator of the same estate in another state.[ ] but where a judgment of dismissal was entered in a federal court in an action against one of two joint tortfeasors, in a state in which such a judgment would constitute an estoppel in another action in the same state against the other tort-feasor, such judgment is not entitled to full faith and credit in an action brought against the other tortfeasor in another state.[ ] service on foreign corporations in the court decided lafayette insurance co. _v._ french et al.,[ ] a pioneer case in its general class. here it was held that "where a corporation chartered by the state of indiana was allowed by a law of ohio to transact business in the latter state upon the condition that service of process upon the agent of the corporation should be considered as service upon the corporation itself, a judgment obtained against the corporation by means of such process" ought to receive in indiana the same faith and credit as it was entitled to in ohio.[ ] later cases establish under both the fourteenth amendment and article iv, section , that the cause of action must have arisen within the state obtaining service in this way,[ ] that service on an officer of a corporation, not its resident agent and not present in the state in an official capacity, will not confer jurisdiction over the corporation;[ ] that the question whether the corporation was actually "doing business" in the state may be raised.[ ] on the other hand, the fact that the business was interstate is no objection.[ ] service on out-of-state owners of motor vehicles by analogy to the above cases, it has been held that a state may require nonresident owners of motor vehicles to designate an official within the state as an agent upon whom process may be served in any legal proceedings growing out of their operation of a motor vehicle within the state;[ ] and while these cases arose under the fourteenth amendment alone, unquestionably a judgment validly obtained upon this species of service could be enforced upon the owner of a car through the courts of his home state. judgments _in rem_ in sustaining the challenge to jurisdiction in cases involving judgments _in personam_, the court was in the main making only a somewhat more extended application of recognized principles. in order to sustain the same kind of challenge in cases involving judgments _in rem_ it has had to make law outright. the leading case is thompson _v._ whitman,[ ] decided in . thompson, sheriff of monmouth county, new jersey, acting under a new jersey statute, had seized a sloop belonging to whitman, and by a proceeding _in rem_ had obtained its condemnation and forfeiture in a local court. later, whitman, a citizen of new york, brought an action for trespass against thompson in the united states circuit court for the southern district of new york, and thompson answered by producing a record of the proceedings before the new jersey tribunal. whitman thereupon set up the contention that the new jersey court had acted without jurisdiction inasmuch as the sloop which was the subject matter of the proceedings had been seized outside the county to which, by the statute under which it had acted, its jurisdiction was confined. thompson _v._ whitman as previously explained, the plea of lack of privity cannot be set up in defense in a sister state against a judgment _in rem_. it is, on the other hand, required of a proceeding _in rem_ that the _res_ be within the court's jurisdiction, and this, it was urged, had not been the case in thompson _v._ whitman. could, then, the court consider this challenge with respect to a judgment which was offered not as the basis for an action for enforcement through the courts of a sister state, but merely as a defense in a collateral action? as the law stood in , it apparently could not.[ ] all difficulties, nevertheless, to its consideration of the challenge to jurisdiction in the case were brushed aside by the court. whenever, it said, the record of a judgment rendered in a state court is offered "in evidence" by either of the parties to an action in another state, it may be contradicted as to the facts necessary to sustain the former court's jurisdiction; "and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding the claim that they did exist."[ ] divorce decrees the jurisdictional prerequisite: domicile this however, was only the beginning of the court's lawmaking in cases _in rem_. the most important class of such cases is that in which the respondent to a suit for divorce offers in defense an earlier decree from the courts of a sister state. by the almost universally accepted view prior to a proceeding in divorce was one against the marriage status, i.e., _in rem_, and hence might be validly brought by either party in any state where he or she was _bona fide_ domiciled;[ ] and, conversely, when the plaintiff did not have a _bona fide_ domicile in the state, a court could not render a decree binding in other states even if the nonresident defendant entered a personal appearance.[ ] but in the court discovered, by a vote of five-to-four, a situation in which a divorce proceeding is one _in personam_. haddock _v._ haddock the case referred to is haddock _v._ haddock,[ ] while the earlier rule is illustrated by atherton _v._ atherton,[ ] decided five years previously. in the latter it was held, in the former denied, that a divorce granted a husband without personal service upon the wife, who at the time was residing in another state, was entitled to recognition under the full faith and credit clause and the acts of congress; the difference between the cases consisting solely in the fact that in the atherton case the husband had driven the wife from their joint home by his conduct, while in the haddock case he had deserted her. the court which granted the divorce in atherton _v._ atherton was held to have had jurisdiction of the marriage status, with the result that the proceeding was one _in rem_ and hence required only service by publication upon the respondent. haddock's suit, on the contrary, was held to be as to the wife _in personam_, and so to require personal service upon her, or her voluntary appearance, neither of which had been had; although, notwithstanding this, the decree in the latter case was held to be valid as to the state where obtained on account of the state's inherent power to determine the status of its own citizens. the upshot was a situation in which a man and a woman, when both were in connecticut, were divorced; when both were in new york, were married; and when the one was in connecticut and the other in new york, the former was divorced and the latter married. in atherton _v._ atherton the court had earlier acknowledged that "a husband without a wife, or a wife without a husband, is unknown to the law." emergence of the domicile question the practical difficulties and distresses likely to result from such anomalies were pointed out by critics of the decision at the time. in point of fact, they have been largely avoided, because most of the state courts have continued to give judicial recognition and full faith and credit to one another's divorce proceedings on the basis of the older idea that a divorce proceeding is one _in rem_, and that if the applicant is _bona fide_ domiciled in the state the court has jurisdiction in this respect. moreover, until the second of the williams _v._ north carolina cases[ ] was decided in , there had not been manifested the slightest disposition to challenge judicially the power of the states to determine what shall constitute domicile for divorce purposes. shortly prior thereto, in , the court in davis _v._ davis[ ] rejected contentions adverse to the validity of a virginia decree of which enforcement was sought in the district of columbia. in this case, a husband, after having obtained in the district a decree of separation subject to payment of alimony, established years later a residence in virginia, and sued there for a divorce. personally served in the district, where she continued to reside, the wife filed a plea denying that her husband was a resident of virginia and averred that he was guilty of a fraud on the court in seeking to establish a residence for purposes of jurisdiction. in ruling that the virginia decree, granting to the husband an absolute divorce minus any alimony payment, was enforceable in the district, the court stated that in view of the wife's failure, while in virginia litigating her husband's status to sue, to answer the husband's charges of wilful desertion, it would be unreasonable to hold that the husband's domicile in virginia was not sufficient to entitle him to a divorce effective in the district. the finding of the virginia court on domicile and jurisdiction was declared to bind the wife. davis _v._ davis is distinguishable from the williams _v._ north carolina decisions in that in the former, determination of the jurisdictional prerequisite of domicile was made in a contested proceeding, while in the williams cases it was not. williams i and ii in the williams i and williams ii cases, the husband of one marriage and the wife of another left north carolina, obtained six-week divorce decrees in nevada, married there, and resumed their residence in north carolina where both previously had been married and domiciled. prosecuted for bigamy, the defendants relied upon their nevada decrees; and won the preliminary round of this litigation; that is, williams i,[ ] when a majority of the justices, overruling haddock _v._ haddock, declared that in this case, the court must assume that the petitioners for divorce had a _bona fide_ domicile in nevada, and not that their nevada domicile was a sham. "* * * each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent. there is no constitutional barrier if the form and nature of substituted service meet the requirements of due process." accordingly, a decree granted by nevada to one, who, it is assumed, is at the time _bona fide_ domiciled therein, is binding upon the courts of other states, including north carolina in which the marriage was performed and where the other party to the marriage is still domiciled when the divorce was decreed. in view of its assumptions, which it justified on the basis of an inadequate record, the court did not here pass upon the question whether north carolina had the power to refuse full faith and credit to a nevada decree because it was based on residence rather than domicile; or because, contrary to the findings of the nevada court, north carolina found that no _bona fide_ domicile had been acquired in nevada.[ ] presaging what ruling the court would make when it did get around to passing upon the latter question, justice jackson, dissenting in williams i, protested that "this decision repeals the divorce laws of all the states and substitutes the law of nevada as to all marriages one of the parties to which can afford a short trip there. * * * while a state can no doubt set up its own standards of domicile as to its internal concerns, i do not think it can require us to accept and in the name of the constitution impose them on other states. * * * the effect of the court's decision today--that we must give extraterritorial effect to any judgment that a state honors for its own purposes--is to deprive this court of control over the operation of the full faith and credit and the due process clauses of the federal constitution in cases of contested jurisdiction and to vest it in the first state to pass on the facts necessary to jurisdiction."[ ] notwithstanding that one of the deserted spouses had died since the initial trial and that another had remarried, north carolina, without calling into question the status of the latter marriage began a new prosecution for bigamy; and when the defendants appealed the conviction resulting therefrom, the supreme court, in williams ii,[ ] sustained the adjudication of guilt as not denying full faith and credit to the nevada divorce decree. reiterating the doctrine that jurisdiction to grant divorce is founded on domicile,[ ] a majority of the court held that a decree of divorce rendered in one state may be collaterally impeached in another by proof that the court which rendered the decree lacked jurisdiction (the parties not having been domiciled therein), even though the record of proceedings in that court purports to show jurisdiction.[ ] cases involving claims for alimony or property arising in forum state in esenwein _v._ commonwealth,[ ] decided on the same day as the second williams case, the supreme court also sustained a pennsylvania court in its refusal to recognize an _ex parte_ nevada decree on the ground that the husband who obtained it never acquired a _bona fide_ domicile in the latter state. in this instance, the husband and wife had separated in pennsylvania, where the wife was granted a support order; and after two unsuccessful attempts to win a divorce in that state, the husband departed for nevada. upon the receipt of a nevada decree, the husband thereafter established a residence in ohio, and filed an action in pennsylvania for total relief from the support order. in a concurring opinion, in which he was joined by justices black and rutledge, justice douglas stressed the "basic difference between the problem of marital capacity and the problem of support," and stated that it was "not apparent that the spouse who obtained the decree can defeat an action for maintenance or support in another state by showing that he was domiciled in the state which awarded him the divorce decree," unless the other spouse appeared or was personally served. "the state where the deserted wife is domiciled has a deep concern in the welfare of the family deserted by the head of the household. if he is required to support his former wife, he is not made a bigamist and the offspring of his second marriage are not bastardized." or as succinctly stated by justice rutledge, "the jurisdictional foundation for a decree in one state capable of foreclosing an action for maintenance or support in another may be different from that required to alter the marital status with extraterritorial effect."[ ] three years later, but on this occasion as spokesman for a majority of the court, justice douglas reiterated these views in the case of estin _v._ estin.[ ] even though it acknowledged the validity of an _ex parte_ nevada decree obtained by a husband, new york was held not to have denied full faith and credit to said decree when, subsequently thereto, it granted the wife a judgment for arrears in alimony founded upon a decree of separation previously awarded to her when both she and her husband were domiciled in new york. the nevada decree, issued to the husband after he had resided there a year and upon constructive notice to the wife in new york who entered no appearance, was held to be effective only to change the marital status of both parties in all states of the union but ineffective on the issue of alimony. divorce, in other words, was viewed as being divisible; and nevada, in the absence of acquiring jurisdiction over the wife, was held incapable of adjudicating the rights of the wife in the prior new york judgment awarding her alimony. accordingly, the nevada decree could not prevent new york from applying its own rule of law which, unlike that of pennsylvania,[ ] does permit a support order to survive a divorce decree.[ ] such a result was justified as accommodating the interests of both new york and nevada in the broken marriage by restricting each state to matters of her dominant concern, the concern of new york being that of protecting the abandoned wife against impoverishment. recent cases fears registered by the dissenters in the second williams case that the stability of all divorces might be undermined thereby and that thereafter the court of each forum state, by its own independent determination of domicile, might refuse recognition of foreign decrees were temporarily set at rest by the holding in sherrer _v._ sherrer,[ ] wherein massachusetts, a state of domiciliary origin, was required to accord full faith and credit to a -day florida decree which had been contested by the husband. the latter, upon receiving notice by mail, retained florida counsel who entered a general appearance and denied all allegations in the complaint, including the wife's residence. at the hearing the husband, though present in person and by counsel, did not offer evidence in rebuttal of the wife's proof of her florida residence; and when the florida court ruled that she was a _bona fide_ resident, the husband did not appeal. inasmuch as the findings of the requisite jurisdictional facts, unlike those in the second williams case, were made in proceedings in which the defendant appeared and participated, the requirements of full faith and credit were held to bar him from collaterally attacking such findings in a suit instituted by him in his home state of massachusetts, particularly in the absence of proof that the divorce decree was subject to such collateral attack in a florida court. having failed to take advantage of the opportunities afforded him by his appearance in the florida proceeding, the husband was thereafter precluded from re-litigating in another state the issue of his wife's domicile already passed upon by the florida court. in coe _v._ coe,[ ] embracing a similar set of facts, the court applied like reasoning to reach a similar result. massachusetts again was compelled to recognize the validity of a six-week nevada decree obtained by a husband who had left massachusetts after a court of that state had refused him a divorce and had granted his wife separate support. in the nevada proceeding, the wife appeared personally and by counsel filed a cross-complaint for divorce, admitted the husband's residence, and participated personally in the proceedings. after finding that it had jurisdiction of the plaintiff, defendant, and the subject matter involved, the nevada court granted the wife a divorce, which was valid, final, and not subject to collateral attack under nevada law. the husband married again, and on his return to massachusetts, his ex-wife petitioned the massachusetts court to adjudge him in contempt for failing to make payments for her separate support under the earlier massachusetts decree. inasmuch as there was no intimation that under massachusetts law a decree of separate support would survive a divorce, recognition of the nevada decree as valid accordingly necessitated a rejection of the ex-wife's contention. appearing to revive williams ii, and significant for the social consequences produced by the result decreed therein, is the recent case of rice _v._ rice.[ ] to determine the widowhood status of the party litigants in relation to inheritance of property of a husband who had deserted his first wife in connecticut, had obtained an _ex parte_ divorce in nevada, and after remarriage, had died without ever returning to connecticut, the first wife, joining the second wife and the administrator of his estate as defendants, petitioned a connecticut court for a declaratory judgment. after having placed upon the first wife the burden of proving that the decedent had not acquired a _bona fide_ domicile in nevada, and after giving proper weight to the claims of power by the nevada court, the connecticut court concluded that the evidence sustained the contentions of the first wife; and in so doing, it was upheld by the supreme court. the cases of sherrer _v._ sherrer, u.s. ( ) and coe _v._ coe, u.s. ( ), previously discussed, were declared not to be in point; inasmuch as no personal service was made upon the first wife, nor did she in any way participate in the nevada proceedings. she was not, therefore, precluded from challenging the finding of the nevada court that the decedent was, at the time of the divorce, domiciled in that state.[ ] state of the law today: quaere upon summation one may speculate as to whether the doctrine of divisible divorce, as developed by justice douglas in estin _v._ estin, u.s. ( ), has not become the prevailing standard for determining the enforceability of foreign divorce decrees. if such be the case, it may be tenable to assert that an _ex parte_ divorce, founded upon acquisition of domicile by one spouse in the state which granted it, is effective to destroy the marital status of both parties in the state of domiciliary origin and probably in all other states and therefore to preclude subsequent prosecutions for bigamy, but not to alter rights as to property, alimony, or custody of children in the state of domiciliary origin of a spouse who was neither served nor personally appeared. decrees awarding alimony, custody of children resulting as a by-product of divorce litigation are decrees for the payment of alimony, judgments for accrued and unpaid instalments of alimony, and judicial awards of the custody of children, all of which necessitate application of the full faith and credit clause when extrastate enforcement is sought for them. thus a judgment in state a for alimony in arrears and payable under a prior judgment of separation which is not by its terms conditional, nor subject by the law of state a to modification or recall, and on which execution was directed to issue, is entitled to recognition in the forum state. although an obligation for accrued alimony could have been modified or set aside in state a prior to its merger in the judgment, such a judgment, by the law of state a, is not lacking in finality.[ ] as to the finality of alimony decrees in general, the court had previously ruled that where such a decree is rendered, payable in future instalments, the right to such instalments becomes absolute and vested on becoming due, provided no modification of the decree has been made prior to the maturity of the instalments.[ ] however, a judicial order requiring the payment of arrearages in alimony, which exceeded the alimony previously decreed, is invalid for want of due process, the respondent having been given no opportunity to contest it.[ ] "a judgment obtained in violation of procedural due process," said chief justice stone, "is not entitled to full faith and credit when sued upon in another jurisdiction."[ ] a recent example of a custody case was one involving a florida divorce decree which was granted _ex parte_ to a wife who had left her husband in new york, where he was served by publication. the decree carried with it an award of the exclusive custody of the child, whom the day before the husband had secretly seized and brought back to new york. the court ruled that the decree was adequately honored by a new york court when, in _habeas corpus_ proceedings, it gave the father rights of visitation and custody of the child during stated periods, and exacted a surety bond of the wife conditioned on her delivery of the child to the father at the proper times,[ ] it having not been "shown that the new york court in modifying the florida decree exceeded the limits permitted under florida law. there is therefore a failure of proof that the florida decree received less credit in new york than it had in florida." collateral attack by child a florida divorce decree was also at the bottom of another recent case in which the daughter of a divorced man by his first wife, and his legatee under his will, sought to attack his divorce in the new york courts, and thereby indirectly his third marriage. the court held that inasmuch as the attack would not have been permitted in florida under the doctrine of _res judicata_, it was not permissible under the full faith and credit clause in new york.[ ] on the whole, it appears that the principle of _res judicata_ is slowly winning out against the principle of domicile. decrees of other types probate decrees many judgments, enforcement of which has given rise to litigation, embrace decrees of courts of probate respecting the distribution of estates. in order that a court have jurisdiction of such a proceeding, the decedent must have been domiciled in the state, and the question whether he was so domiciled at the time of his death may be raised in the court of a sister state.[ ] thus, when a court of state a, in probating a will and issuing letters, in a proceeding to which all distributees were parties, expressly found that the testator's domicile at the time of death was in state a, such adjudication of domicile was held not to bind one subsequently appointed as domiciliary administrator c.t.a. in state b, in which he was liable to be called upon to deal with claims of local creditors and that of the state itself for taxes, he having not been a party to the proceeding in state a. in this situation, it was held, a court of state c, when disposing of local assets claimed by both personal representatives, was free to determine domicile in accordance with the law of state c.[ ] similarly, there is no such relation of privity between an executor appointed in one state and an administrator c.t.a. appointed in another state as will make a decree against the latter binding upon the former.[ ] on the other hand, judicial proceedings in one state, under which inheritance taxes have been paid and the administration upon the estate has been closed, are denied full faith and credit by the action of a probate court in another state in assuming jurisdiction and assessing inheritance taxes against the beneficiaries of the estate, when under the law of the former state the order of the probate court barring all creditors who had failed to bring in their demand from any further claim against the executors was binding upon all.[ ] what is more important, however, is that the _res_ in such a proceeding, that is, the estate, in order to entitle the judgment to recognition under article iv, section , must have been located in the state or legally attached to the person of the decedent. such a judgment is accordingly valid, generally speaking, to distribute the intangible property of the decedent, though the evidences thereof were actually located elsewhere.[ ] this is not so, on the other hand, as to tangibles and realty. in order that the judgment of a probate court distributing these be entitled to recognition under the constitution, they must have been located in the state; as to tangibles and realty outside the state, the decree of the probate court is entirely at the mercy of the _lex rei sitae_.[ ] so, the probate of a will in one state, while conclusive therein, does not displace legal provisions necessary to its validity as a will of real property in other states.[ ] adoption decrees that a statute legitimizing children born out of wedlock does not entitle them by the aid of the full faith and credit clause to share in the property located in another state is not surprising, in view of the general principle--to which, however, there are exceptions (_see_ pp. - )--that statutes do not have extraterritorial operation.[ ] for the same reason adoption proceedings in one state are not denied full faith and credit by the law of the sister state which excludes children adopted by proceedings in other states from the right to inherit land therein.[ ] garnishment decrees a proceeding which combines some of the elements of both an _in rem_ and an _in personam_ action is the proceeding in garnishment cases. suppose that a owes b and b owes c, and that the two former live in a different state than c. a, while on a brief visit to c's state, is presented with a writ attaching his debt to b and also a summons to appear in court on a named day. the result of the proceedings thus instituted is that a judgment is entered in c's favor against a to the amount of his indebtedness to b. subsequently a is sued by b in their home state, and offers the judgment, which he has in the meantime paid, in defense. it was argued in behalf of b that a's debt to him had a _situs_ in their home state, and furthermore that c could not have sued b in this same state without formally acquiring a domicile there. both propositions were, however, rejected by the court, which held that the judgment in the garnishment proceedings was entitled to full faith and credit as against c's action.[ ] fraud as a defense to suits on foreign judgments as to whether recognition of a state judgment can be refused by the forum state on other than jurisdictional grounds, there are _dicta_ to the effect that judgments, for which extraterritorial operation is demanded under article iv, section i and acts of congress, are "impeachable for manifest fraud." but unless the fraud affected the jurisdiction of the court, the vast weight of authority is against the proposition. also it is universally agreed that a judgment may not be impeached for alleged error or irregularity,[ ] or as contrary to the public policy of the state where recognition is sought for it under the full faith and credit clause.[ ] previously listed cases indicate, however, that the court has in fact permitted local policy to determine the merits of a judgment under the pretext of regulating jurisdiction.[ ] thus in one case, cole _v._ cunningham,[ ] the court sustained a massachusetts court in enjoining, in connection with insolvency proceedings instituted in that state, a massachusetts creditor from continuing in new york courts an action which had been commenced there before the insolvency suit was brought. this was done on the theory that a party within the jurisdiction of a court may be restrained from doing something in another jurisdiction opposed to principles of equity, it having been shown that the creditor was aware of the debtor's embarrassed condition when the new york action was instituted. the injunction unquestionably denied full faith and credit and commanded the assent of only five justices. penal judgments: types entitled to recognition finally, the clause has been interpreted in the light of the "incontrovertible maxim" that "the courts of no country execute the penal laws of another."[ ] in the leading case of huntington _v._ attrill,[ ] however, the court so narrowly defined "penal" in this connection as to make it substantially synonymous with "criminal," and on this basis held a judgment which had been recovered under a state statute making the officers of a corporation who signed and recorded a false certificate of the amount of its capital stock liable for all of its debts, to be entitled under article iv, section , to recognition and enforcement in the courts of sister states. nor, in general, is a judgment for taxes to be denied full faith and credit in state and federal courts merely because it is for taxes.[ ] recognition of rights based upon constitutions, statutes, common law the early rule as to the extrastate protection of rights which have not matured into final judgments, the full faith and credit clause has never abolished the general principle of the dominance of local policy over the rules of comity.[ ] this was stated by justice nelson in the dred scott case, as follows: "no state, * * *, can enact laws to operate beyond its own dominions, * * * nations, from convenience and comity, * * *, recognizes [sic] and administer the laws of other countries. but, of the nature, extent, and utility, of them, respecting property, or the state and condition of persons within her territories, each nation judges for itself; * * *" he added that it was the same with the states of the union in relation to another. it followed that even though dred had become a free man in consequence of his having resided in the "free" state of illinois, he had nevertheless upon his return to missouri, which had the same power as illinois to determine its local policy respecting rights acquired extraterritorially, reverted to servitude under the laws and judicial decisions of that state.[ ] development of the modern rule in a case decided in , however, the court remarked: "without doubt the constitutional requirement, art. iv, § i, that 'full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,' implies that the public acts of every state shall be given the same effect by the courts of another state that they have by law and usage at home."[ ] and this proposition was later held to extend to state constitutional provisions.[ ] more recently this doctrine has been stated in a very mitigated form, the court saying that where statute or policy of the forum state is set up as a defense to a suit brought under the statute of another state or territory, or where a foreign statute is set up as a defense to a suit or proceedings under a local statute, the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause and thus compelling courts of each state to subordinate its own statutes to those of others, but by appraising the governmental interest of each jurisdiction and deciding accordingly.[ ] obviously this doctrine endows the court with something akin to an arbitral function in the decision of cases to which it is applied. transitory actions: death statutes the initial effort in this direction was made in connection with transitory actions based on statute. earlier, such actions had rested upon the common law, which was fairly uniform throughout the states, so that there was usually little discrepancy between the law under which the plaintiff from another jurisdiction brought his action (_lex loci_) and the law under which the defendant responded (_lex fori_). in the late seventies, however, the states, abandoning the common law rule on the subject, began passing laws which authorized the representatives of a decedent whose death had resulted from injury to bring an action for damages.[ ] the question at once presented itself whether, if such an action was brought in a state other than that in which the injury occurred, it was governed by the statute under which it arose or by the law of the forum state, which might be less favorable to the defendant. nor was it long before the same question presented itself with respect to transitory action _ex contractu_, where the contract involved had been made under laws peculiar to the state where made, and with those laws in view. actions upon contract: when governed by law of place of making in chicago and alton r.r. _v._ wiggins,[ ] referred to above, the court, confronted with the latter form of the question, indicated its clear opinion that in such situations it was the law under which the contract was made, not the law of the forum state, which should govern. its utterance on the point was, however, not merely _obiter_; it was based on an error, namely, the false supposition that the constitution gives "acts" the same extraterritorial operation as the act of does "judicial records and proceedings." notwithstanding which, this dictum is today the basis of "the settled rule" that the defendant in a transitory action is entitled to all the benefits resulting from whatever material restrictions the statute under which plaintiff's right of action originated sets thereto, except that courts of sister states cannot be thus prevented from taking jurisdiction in such cases.[ ] however, a state court does not violate the full faith and credit clause by mere error in construing the law upon which a transitory action from another state depends;[ ] nor is a court of the forum state guilty of a disregard thereof when it entertains a suit based on a statute of another state, albeit the statute in terms limits actions thereunder to courts of the enacting state.[ ] moreover, in actions on contracts made in other states, a state constitutionally may decline to enforce in its courts, as contrary to its own policy, the laws of such states relating to the right to add interest to the recovery as an incidental item of damages.[ ] stockholder--corporation relationship nor is it alone to defendants in transitory actions that the full faith and credit clause is today a shield and a buckler. some legal relationships are so complex, the court holds, that the law under which they were formed ought always to govern them as long as they persist.[ ] one such relationship is that of a stockholder and his corporation. hence, if a question arises as to the liability of the stockholders of a corporation, the courts of the forum state are required by the full faith and credit clause to determine the question in accordance with the constitution, laws and judicial decisions of the corporation's home state.[ ] illustrative applications of the latter rule are to be found in the following cases. a new jersey statute forbidding an action at law to enforce a stockholder's liability arising under the laws of another state, and providing that such liability may be enforced only in equity, and that in such a case the corporation, its legal representatives, all its creditors, and stockholders, should be necessary parties, was held not to preclude an action at law in new jersey by the new york state superintendent of banks against new jersey stockholders in an insolvent new york bank to recover assessments made under the laws of new york.[ ] also, in a suit to enforce double liability, brought in rhode island against a stockholder in a kansas trust company, the courts of rhode island were held to be obligated to extend recognition to the statutes and court decisions of kansas whereunder it is established that a kansas judgment recovered by a creditor against the trust company is not only conclusive as to the liability of the corporation but also an adjudication binding each stockholder therein. the only defenses available to the stockholder are those which he could make in a suit in kansas.[ ] fraternal benefit society--member relationship and the same principle applies to the relationship which is formed when one takes out a policy in a "fraternal benefit society." thus in royal arcanum v. green,[ ] in which a fraternal insurance association chartered under the laws of massachusetts was being sued in the courts of new york by a citizen of the latter state on a contract of insurance made in that state, the court held that the defendant company was entitled under the full faith and credit clause to have the case determined in accordance with the laws of massachusetts and its own constitution and by-laws as these had been construed by the massachusetts courts. nor has the court manifested lately any disposition to depart from this rule. in sovereign camp _v._ bolin[ ] it declared that a state in which a certificate of life membership of a foreign fraternal benefit association is issued, which construes and enforces said certificate according to its own law rather than according to the law of the state in which the association is domiciled denies full faith and credit to the association's charter embodied in the statutes of the domiciliary state as interpreted by the latter's court. "the beneficiary certificate was not a mere contract to be construed and enforced according to the laws of the state where it was delivered. entry into membership of an incorporated beneficiary society is more than a contract; it is entering into a complex and abiding relation and the rights of membership are governed by the law of the state of incorporation. [hence] another state, wherein the certificate of membership was issued, cannot attach to membership rights against the society which are refused by the law of domicile." consistently therewith, the court also held, in order of travelers _v._ wolfe,[ ] that south dakota, in a suit brought therein by an ohio citizen against an ohio benefit society, must give effect to a provision of the constitution of the society prohibiting the bringing of an action on a claim more than six months after disallowance by the society, notwithstanding that south dakota's period of limitation was six years and that its own statutes voided contract stipulations limiting the time within which rights may be enforced. objecting to these results, justice black dissented on the ground that fraternal insurance companies are not entitled, either by the language of the constitution, or by the nature of their enterprise, to such unique constitutional protection. insurance company, building and loan association--contractual relationships whether or not distinguishable by nature of their enterprise, stock and mutual insurance companies and mutual building and loan associations, unlike fraternal benefit societies, have not been accorded the same unique constitutional protection; and, with few exceptions,[ ] have had controversies arising out of their business relationships settled by application of the law of the forum state. in national mutual b. & l. asso. _v._ brahan,[ ] the principle applicable to these three forms of business organization was stated as follows: where a corporation has become localized in a state and has accepted the laws of the state as a condition of doing business there, it cannot abrogate those laws by attempting to make contract stipulations, and there is no violation of the full faith and credit clause in instructing a jury to find according to local law notwithstanding a clause in a contract that it should be construed according to the laws of another state. thus, when a mississippi borrower, having repaid a mortgage loan to a new york building and loan association, sued in a mississippi court to recover, as usurious, certain charges collected by the association, the usury law of mississippi rather than that of new york was held to control. in this case, the loan contract, which was negotiated in mississippi subject to approval by the new york office, did not expressly state that it was governed by new york law.[ ] similarly, when the new york life insurance company, which had expressly stated in its application and policy forms that they would be controlled by new york law, was sued in missouri on a policy sold to a resident thereof, the court of that state was sustained in its application of missouri rather than new york law.[ ] also, in an action in a federal court in texas to collect the amount of a life insurance policy which had been made in new york and later changed by instruments assigning beneficial interest, it was held that questions: ( ) whether the contract remained one governed by the law of new york with respect to rights of assignees, rather than by the law of texas, ( ) whether the public policy of texas permits recovery by one named beneficiary who has no beneficial interest in the life of the insured, and ( ) whether lack of insurable interest becomes material when the insurer acknowledges liability and pays the money into court, were questions of texas law, to be decided according to texas decisions.[ ] consistent with the latter holdings are the following two involving mutual insurance companies. in pink _v._ a.a.a. highway express,[ ] the new york insurance commissioner, as a statutory liquidator of an insolvent auto mutual company organized in new york sued resident georgia policyholders in a georgia court to recover assessments alleged to be due by virtue of their membership in it. the supreme court held that, although by the law of the state of incorporation, policyholders of a mutual insurance company become members thereof and as such liable to pay assessments adjudged to be required in liquidation proceedings in that state, the courts of another state are not required to enforce such liability against local resident policyholders who did not appear and were not personally served in the foreign liquidation proceedings; but are free to decide according to local law the question whether, by entering into the policies, residents became members of the company. again, in state farm ins. _v._ duel,[ ] the court ruled that an insurance company chartered in state a, which does not treat membership fees as part of premiums, cannot plead denial of full faith and credit when state b, as a condition of entry, requires the company to maintain a reserve computed by including membership fees as well as premiums received in all states. were the company's contention accepted, "no state," the court observed, "could impose stricter financial standards for foreign corporations doing business within its borders than were imposed by the state of incorporation." it is not apparent, the court added, that state a has an interest superior to that of state b in the financial soundness and stability of insurance companies doing business in state b,--which is obviously more the language of arbitration than of adjudication, as conventionally regarded. workmen's compensation statutes finally, the relationship of employer and employee, so far as the obligations of the one and the rights of the other under workmen's compensation acts are concerned, has been the subject of similar treatment. in an earlier case,[ ] the cause of action was an injury in new hampshire, resulting in death to a workman who had entered the defendant company's employment in vermont, the home state of both parties. the court held that the case was governed under the full faith and credit clause by the vermont workmen's compensation act, not that of new hampshire. the relationship, it said, "was created by the law of vermont, and so long as that relationship persisted its incidents were properly subject to regulation there."[ ] however, in an unacknowledged departure from this ruling the court has subsequently held that the full faith and credit clause did not preclude california from disregarding a massachusetts workmen's compensation statute and applying its own conflicting act in the case of an injury suffered by a massachusetts employee of a massachusetts employer while in california in the course of his employment.[ ] the earlier case was distinguished as not having decided more than that a state statute, applicable to employer and employee within the state, which provides compensation if the employee is injured while temporarily in another state, will be given full faith and credit in the latter when not obnoxious to its policy. inasmuch as the court in the older decision is reputed to have observed that reliance on the vermont statute, as a defense to the new hampshire suit, was not obnoxious to the policy of new hampshire, it may be possible to reconcile these two cases by stating that a foreign workmen's compensation statute will be recognized when it is invoked as a defense but need not be applied when the plaintiff endeavors to found his suit thereon. later decisions involving the recognition of a foreign workmen's compensation act include the following. in magnolia petroleum co. _v._ hunt[ ] the court ruled that a louisiana employee of a louisiana employer, who is injured on the job in texas and who receives an award under the texas act, which does not grant further recovery to an employee who receives compensation under the laws of another state, cannot obtain additional compensation under the louisiana act. however, a compensation award by state a to a resident employee of a resident employer injured on the job in state b will not preclude state b from awarding added compensation under its own laws, when the compensation statute of state a does not expressly exclude recovery under a law of the state in which the injury occurred and when the state a award incorporated a private settlement contract wherein the employee reserved his rights in state b.[ ] also, the district of columbia workmen's compensation act, which expressly covers an employee of the district employer, "irrespective of the place where the injury occurs," constitutionally may be applied, in the case of injury resulting in death, to a district resident, employed by a district employer, who was assigned to a job at quantico, virginia, and who, for three years prior to his death in virginia, has commuted to the job site from his house in the district.[ ] development of section to date and possibilities evaluation of results thus the court, from according an extrastate operation to statutes and judicial decisions in favor of defendants in transitory actions, proceeded next to confer the same protection upon certain classes of defendants in local actions in which the plaintiff's claim was the outgrowth of a relationship formed extraterritorially. but can the court stop at this point? if it is true, as chief justice marshall once remarked, that "the constitution was not made for the benefit of plaintiffs alone," so also it is true that it was not made for the benefit of defendants alone. the day may come when the court will approach the question of the relation of the full faith and credit clause to the extrastate operation of laws from the same angle as it today views the broader question of the scope of state legislative power. when and if this day arrives, state statutes and judicial decisions will be given such extraterritorial operation as seems reasonable to the court to give them. in short, the rule of the dominance of local policy of the forum state will be superseded by that of judicial review.[ ] the question arises whether the application to date, not by the court alone but by congress and the court, of article iv, section , can be said to have met the expectations of its framers. in the light of some things said at the time of the framing of the clause this may be doubted. the protest was raised against the clause that in vesting congress with power to declare the effect state laws should have outside the enacting state, it enabled the new government to usurp the powers of the states; but the objection went unheeded. the main concern of the convention, undoubtedly, was to render the judgments of the state courts in civil cases effective throughout the union. yet even this object has been by no means completely realized, owing to the doctrine of the court that before a judgment of a state court can be enforced in a sister state, a new suit must be brought on it in the courts of the latter; and the further doctrine that with respect to such a suit, the judgment sued on is only evidence; the logical deduction from which proposition is that the sister state is under no constitutional compulsion to give it a forum. these doctrines were first clearly stated in the mcelmoyle case and flowed directly from the new states' rights premises of the court; but they are no longer in harmony with the prevailing spirit of constitutional construction nor with the needs of the times. also, the clause seems always to have been interpreted on the basis of the assumption that the term "judicial proceedings" refers only to final judgments and does not include intermediate processes and writs; but the assumption would seem to be groundless, and if it is, then congress has the power under the clause to provide for the service and execution throughout the united states of the judicial processes of the several states. scope of powers of congress under section under the present system, suit has ordinarily to be brought where the defendant, the alleged wrongdoer, resides, which means generally where no part of the transaction giving rise to the action took place. what could be more irrational? "granted that no state can of its own volition make its process run beyond its borders * * * is it unreasonable that the united states should by federal action be made a unit in the manner suggested?"[ ] indeed, there are few clauses of the constitution, the merely literal possibilities of which have been so little developed as the full faith and credit clause. congress has the power under the clause to decree the effect that the statutes of one state shall have in other states. this being so, it does not seem extravagant to argue that congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the union, and that no other kind shall. or to speak in more general terms, congress has under the clause power to enact standards whereby uniformity of state legislation may be secured as to almost any matter in connection with which interstate recognition of private rights would be useful and valuable. full faith and credit in the federal courts as we saw earlier, the legislation of congress comprised in section of the revised statutes lays down a rule not merely for the recognition of the records and judicial proceedings of state courts in the courts of sister states, but for their recognition in "every court of the united states," and it further lays down a like rule for the records and proceedings of the courts "of any territory or any country subject to the jurisdiction of the united states." thus the courts of the united states are bound to give to the judgments of the state courts the same faith and credit that the courts of one state are bound to give to the judgments of the courts of her sister states.[ ] so, where suits to enforce the laws of one state are entertained in courts of another on principles of comity, federal district courts sitting in that state may entertain them, and should, if they do not infringe federal law or policy.[ ] however, the refusal of a territorial court in hawaii, having jurisdiction of the action, which was on a policy issued by a new york insurance company, to admit evidence that an administrator had been appointed and a suit brought by him on a bond in the federal court in new york wherein no judgment had been entered, did not violate this clause.[ ] the power to prescribe what effect shall be given to the judicial proceedings of the courts of the united states is conferred by other provisions of the constitution, such as those which declare the extent of the judicial power of the united states, which authorize all legislation necessary and proper for executing the powers vested by the constitution in the government of the united states, and which declare the supremacy of the authority of the national government within the limits of the constitution. as part of its general authority, the power to give effect to the judgment of its courts is coextensive with its territorial jurisdiction.[ ] judgments of foreign states doubtless congress might also by virtue of its powers in the field of foreign relations lay down a mandatory rule regarding recognition of foreign judgments in every court of the united states. at present the duty to recognize judgments even in national courts rests only on comity and is qualified, in the judgment of the supreme court, by a strict rule of parity.[ ] section . the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. the comity clause sources the community of rights among the citizens of the several states guaranteed by this article is traceable to colonial days. it had its origin in the fact that the colonists were all subjects of the same monarch.[ ] after the declaration of independence was signed, the question arose as to how to reconcile the advantages of a common citizenship with a dispersed sovereignty. one element of the solution is to be seen in the fourth of the articles of confederation, which read as follows: "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively * * *" madison, writing in _the federalist_,[ ] adverted to the confusion engendered by use of the different terms "free inhabitants, free citizens," and "people" and by "superadding to 'all privileges and immunities of free citizens--all the privileges of trade and commerce,' * * *" the more concise phraseology of article iv, however, did little to dispel the uncertainty. in the slaughter-house cases,[ ] justice miller suggested that it was to be regarded as the compendious equivalent of the earlier version: "there can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. in the articles of the confederation we have some of these specifically mentioned, and enough perhaps to give some general ideal of the class of civil rights meant by the phrase."[ ] theories as to its purpose first and last, at least four theories have been proffered regarding the purpose of this clause. the first is that the clause is a guaranty to the citizens of the different states of equal treatment by congress--is, in other words, a species of equal protection clause binding on the national government. the second is that the clause is a guaranty to the citizens of each state of all the privileges and immunities of citizenship that are enjoyed in any state by the citizens thereof,--a view which, if it had been accepted at the outset, might well have endowed the supreme court with a reviewing power over restrictive state legislation as broad as that which it later came to exercise under the fourteenth amendment. the third theory of the clause is that it guarantees to the citizen of any state the rights which he enjoys as such even when sojourning in another state, that is to say, enables him to carry with him his rights of state citizenship throughout the union, without embarrassment by state lines. finally, the clause is interpreted as merely forbidding any state to discriminate against citizens of other states in favor of its own. though the first theory received some recognition in the dred scott case,[ ] particularly in the opinion of justice catron,[ ] it is today obsolete. the second was specifically rejected in mckane _v._ durston;[ ] the third, in detroit _v._ osborne.[ ] the fourth has become a settled doctrine of constitutional law.[ ] in the words of justice miller in the slaughter-house cases,[ ] the sole purpose of the comity clause was "to declare to the several states, that whatever these rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction."[ ] it follows that this section has no application in controversies between a state and its own citizens.[ ] it is deemed to be infringed by a hostile discrimination against all nonresidents[ ] but not by such differences of treatment between residents and nonresidents as the nature of the subject matter makes reasonable.[ ] how implemented this clause is self-executory, that is to say, its enforcement is dependent upon the judicial process. it does not authorize penal legislation by congress. federal statutes prohibiting conspiracies to deprive any person of rights or privileges secured by state laws,[ ] or punishing infractions by individuals of the right of citizens to reside peacefully in the several states, and to have free ingress into and egress from such states,[ ] have been held void. citizens of each state a question much mooted before the civil war was whether the term could be held to include free negroes. in the dred scott case,[ ] the court answered it in the negative. "citizens of each state," chief justice taney argued, meant citizens of the united states as understood at the time the constitution was adopted, and negroes were not then regarded as capable of citizenship. the only category of national citizenship added under the constitution comprised aliens, naturalized in accordance with acts of congress.[ ] in dissent, justice curtis not only denied the chief justice's assertion that there were no negro citizens of states in , but further argued that while congress alone could determine what classes of aliens should be naturalized, the several states retained the right to extend citizenship to classes of persons born within their borders who had not previously enjoyed citizenship, and that one upon whom state citizenship was thus conferred became a citizen of the state in the full sense of the constitution.[ ] so far as persons born in the united states, and subject to the jurisdiction thereof are concerned, the question was put at rest by the fourteenth amendment. corporations at a comparatively early date the claim was made that a corporation chartered by a state and consisting of its citizens was entitled to the benefits of the comity clause in the transaction of business in other states. it was argued that the court was bound to look beyond the act of incorporation and see who were the incorporators. if it found these to consist solely of citizens of the incorporating state, it was bound to permit them through the agency of the corporation, to exercise in other states such privileges and immunities as the citizens thereof enjoyed. in bank of augusta _v._ earle[ ] this view was rejected. the supreme court held that the comity clause was never intended "to give to the citizens of each state the privileges of citizens in the several states, and at the same time to exempt them from the liabilities which the exercise of such privileges would bring upon individuals who were citizens of the state. this would be to give the citizens of other states far higher and greater privileges than are enjoyed by the citizens of the state itself."[ ] a similar result was reached in paul _v._ virginia,[ ] but by a different course of reasoning. the court there held that a corporation--in this instance, an insurance company--was "the mere creation of local law" and could "have no legal existence beyond the limits of the sovereignty"[ ] which created it; even recognition of its existence by other states rested exclusively in their discretion. more recent cases have held that this discretion is qualified by other provisions of the constitution, notably the commerce clause and the fourteenth amendment.[ ] by reason of its similarity to the corporate form of organization, a massachusetts trust has been denied the protection of this clause.[ ] all privileges and immunities of citizens in the several states the classical judicial exposition of the meaning of this phrase is that of justice washington in corfield _v._ coryell,[ ] which was decided by him on circuit in . the question at issue was the validity of a new jersey statute which prohibited "any person who is not, at the time, an actual inhabitant and resident in this state" from raking or gathering "clams, oysters or shells" in any of the waters of the state, on board any vessel "not wholly owned by some person, inhabitant of and actually residing in this state. * * * the inquiry is," wrote justice washington, "what are the privileges and immunities of citizens in the several states? we feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this union, * * *"[ ] he specified the following rights as answering this description: "protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. the right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of _habeas corpus_; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; * * *"[ ] after thus defining broadly the private and personal rights which were protected, justice washington went on to distinguish them from the right to a share in the public patrimony of the state. "* * * we cannot accede" the opinion proceeds, "to the proposition * * * that, under this provision of the constitution, the citizens of the several states are permitted to participate in all the rights which belong exclusively to the citizens of any particular state, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such state, the legislature is bound to extend to the citizens of all other states the same advantages as are secured to their own citizens."[ ] the right of a state to the fisheries within its borders he then held to be in the nature of a property right, held by the state "for the use of the citizens thereof;" the state was under no obligation to grant "co-tenancy in the common property of the state, to the citizens of all the other states."[ ] the precise holding of this case was confirmed in mccready _v._ virginia;[ ] the logic of geer _v._ connecticut[ ] extended the same rule to wild game, and hudson county water co. _v._ mccarter[ ] applied it to the running water of a state. in toomer _v._ witsell,[ ] however, the court refused to apply this rule to free-swimming fish caught in the three-mile belt off the coast of south carolina. it held instead that "commercial shrimping in the marginal sea, like other common callings, is within the purview of the privileges and immunities clause" and that a heavily discriminatory license fee exacted from nonresidents was unconstitutional.[ ] universal practice has also established another exception to which the court gave approval by a dictum in blake _v._ mcclung:[ ] "a state may, by rule uniform in its operation as to citizens of the several states, require residence within its limits for a given time before a citizen of another state who becomes a resident thereof shall exercise the right of suffrage or become eligible to office."[ ] discrimination in private rights not only has judicial construction of the comity clause excluded some privileges of a public nature from its protection; the courts have also established the proposition that the purely private and personal rights to which the clause admittedly extends are not in all cases beyond the reach of state legislation which differentiates citizens and noncitizens. broadly speaking, these rights are held subject to the reasonable exercise by a state of its police power, and the court has recognized that there are cases in which discrimination against nonresidents may be reasonably resorted to by a state in aid of its own public health, safety and welfare. to that end a state may restrict the right to sell insurance to persons who have resided within the state for a prescribed period of time.[ ] it may require a nonresident who does business within the state[ ] or who uses the highways of the state[ ] to consent, expressly or by implication, to service of process on an agent within the state. without violating this section, a state may limit the dower rights of a nonresident to lands of which the husband died seized while giving a resident dower in all lands held during the marriage,[ ] or may leave the rights of nonresident married persons in respect of property within the state to be governed by the laws of their domicile, rather than by the laws it promulgates for its own residents.[ ] but a state may not give a preference to resident creditors in the administration of the property of an insolvent foreign corporation.[ ] an act of the confederate government, enforced by a state, to sequester a debt owed by one of its residents to a citizen of another state was held to be a flagrant violation of this clause.[ ] access to courts the right to sue and defend in the courts is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the same extent that it is allowed to its own citizens.[ ] the constitutional requirement is satisfied if the nonresident is given access to the courts of the state upon terms which, in themselves, are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically the same as those accorded to resident citizens.[ ] the supreme court upheld a state statute of limitations which prevented a nonresident from suing in the state's courts after expiration of the time for suit in the place where the cause of action arose,[ ] and another such statute which suspended its operation as to resident plaintiff, but not as to nonresidents, during the period of the defendant's absence from the state.[ ] a state law making it discretionary with the courts to entertain an action by a nonresident of the state against a foreign corporation doing business in the state, was sustained since it was applicable alike to citizens and noncitizens residing out of the state.[ ] a statute permitting a suit in the courts of the state for wrongful death occurring outside the state, only if the decedent was a resident of the state, was sustained, because it operated equally upon representatives of the deceased whether citizens or noncitizens.[ ] taxation a state may not, in the exercise of its taxing power, substantially discriminate between residents and nonresidents. a leading case is ward _v._ maryland,[ ] in which the court set aside a state law which imposed special taxes upon nonresidents for the privilege of selling within the state goods which were produced outside it. likewise, a tennessee statute which made the amount of the annual license tax exacted for the privilege of doing railway construction work dependent upon whether the person taxed had his chief office within or without the state, was found to be incompatible with the comity clause.[ ] in travis _v._ yale and towne mfg. co.,[ ] the court, while sustaining the right of a state to tax income accruing within its borders to nonresidents,[ ] held the particular tax void because it denied to nonresidents exemptions which were allowed to residents. the "terms 'resident' and 'citizen' are not synonymous," wrote justice pitney, "* * * but a general taxing scheme * * * if it discriminates against all nonresidents, has the necessary effect of including in the discrimination those who are citizens of other states; * * *"[ ] where there was no discrimination between citizens and noncitizens, a state statute taxing the business of hiring persons within the state for labor outside the state, was sustained.[ ] this section of the constitution does not prevent a territorial government, exercising powers delegated by congress, from imposing a discriminatory license tax on nonresident fishermen operating within its waters.[ ] however, what at first glance may appear to be a discrimination may turn out not to be when the entire system of taxation prevailing in the enacting state is considered. on the basis of over-all fairness, the court sustained a connecticut statute which required nonresident stockholders to pay a state tax measured by the full market value of their stock, while resident stockholders were subject to local taxation on the market value of that stock reduced by the value of the real estate owned by the corporation.[ ] occasional or accidental inequality to a nonresident taxpayer are not sufficient to defeat a scheme of taxation whose operation is generally equitable.[ ] in an early case the court brushed aside as frivolous the contention that a state violated this clause by subjecting one of its own citizens to a property tax on a debt due from a nonresident secured by real estate situated where the debtor resided.[ ] clause . a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. fugitives from justice duty to surrender although this provision is not in its nature self-executing, and there is no express grant to congress of power to carry it into effect, that body passed a law shortly after the constitution was adopted, imposing upon the governor of each state the duty to deliver up fugitives from justice found in such state.[ ] the supreme court has accepted this contemporaneous construction as establishing the validity of this legislation.[ ] the duty to surrender is not absolute and unqualified; if the laws of the state to which the fugitive has fled have been put in force against him, and he is imprisoned there, the demands of those laws may be satisfied before the duty of obedience to the requisition arises.[ ] in kentucky _v._ dennison[ ] the court held, moreover, that this statute was merely declaratory of a moral duty; that the federal government "has no power to impose on a state officer, as such, any duty whatever, and compel him to perform it; * * *"[ ] and consequently that a federal court could not issue a mandamus to compel the governor of one state to surrender a fugitive to another. in congress plugged the loophole exposed by this decision by making it unlawful for any person to flee from one state to another for the purpose of avoiding prosecution in certain cases.[ ] fugitive from justice to be a fugitive from justice within the meaning of this clause, it is not necessary that the party charged should have left the state after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun. it is sufficient that the accused, having committed a crime within one state and having left the jurisdiction before being subjected to criminal process, is found within another state.[ ] the motive which induced the departure is immaterial.[ ] even if he were brought involuntarily into the state where found by requisition from another state, he may be surrendered to a third state upon an extradition warrant.[ ] a person indicted a second time for the same offense is nonetheless a fugitive from justice by reason of the fact that after dismissal of the first indictment, on which he was originally indicted, he left the state with the knowledge of, or without objection by, state authorities.[ ] but a defendant cannot be extradited if he was only constructively present in the demanding state at the time of the commission of the crime charged.[ ] for the purpose of determining who is a fugitive from justice, the words "treason, felony or other crime" embrace every act forbidden and made punishable by a law of a state,[ ] including misdemeanors.[ ] procedure for removal only after a person has been charged with crime in the regular course of judicial proceedings is the governor of a state entitled to make demand for his return from another state.[ ] the person demanded has no constitutional right to be heard before the governor of the state in which he is found on the question whether he has been substantially charged with crime and is a fugitive from justice.[ ] the constitutionally required surrender is not to be interfered with by _habeas corpus_ upon speculations as to what ought to be the result of a trial.[ ] nor is it proper thereby to inquire into the motives controlling the actions of the governors of the demanding and surrendering states.[ ] matters of defense, such as the running of the statute of limitations, cannot be heard on _habeas corpus_, but must be determined at the trial.[ ] a defendant will, however, be discharged on _habeas corpus_ if he shows by clear and satisfactory evidence that he was outside the demanding state at the time of the crime.[ ] if, however, the evidence is conflicting, _habeas corpus_ is not a proper proceeding to try the question of alibi.[ ] trial of fugitive after removal there is nothing in the constitution or laws of the united states which exempts an offender, brought before the courts of a state for an offense against its laws, from trial and punishment, even though he was brought from another state by unlawful violence,[ ] or by abuse of legal process,[ ] and a fugitive lawfully extradited from another state may be tried for an offense other than that for which he was surrendered.[ ] the rule is different, however, with respect to fugitives surrendered by a foreign government pursuant to treaty. in that case the offender may be tried only "for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."[ ] clause . no person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due. this clause contemplated the existence of a positive unqualified right on the part of the owner of a slave which no state law could in any way regulate, control or restrain. consequently the owner of a slave had the same right to seize and repossess him in another state, as the local laws of his own state conferred upon him, and a state law which penalized such seizure was held unconstitutional.[ ] congress had the power and the duty, which it exercised by the act of february , ,[ ] to carry into effect the rights given by this section,[ ] and the states had no concurrent power to legislate on the subject.[ ] however, a state statute providing a penalty for harboring a fugitive slave was held not to conflict with this clause since it did not affect the right or remedy either of the master or the slave; by it the state simply prescribed a rule of conduct for its own citizens in the exercise of its police power.[ ] section . new states may be admitted by the congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the congress. doctrine of the equality of the states "equality of constitutional right and power is the condition of all the states of the union, old and new."[ ] this doctrine, now a truism of constitutional law, did not find favor in the constitutional convention. that body struck out from this section, as reported by the committee on detail, two sections to the effect that "... new states shall be admitted on the same terms with the original states. but the legislature may make conditions with the new states concerning the public debt which shall be subsisting."[ ] opposing this action, madison insisted that "the western states neither would nor ought to submit to a union which degraded them from an equal rank with the other states."[ ] nonetheless, after further expressions of opinion _pro_ and _con_, the convention voted nine states to two to delete the requirement of equality.[ ] prior to this time, however, georgia and virginia had ceded to the united states large territories held by them, upon condition that new states should be formed therefrom, and admitted to the union on an equal footing with the original states.[ ] with the admission of louisiana in , the principle of equality was extended to states created out of territory purchased from a foreign power.[ ] by the joint resolution of december , , texas "was admitted into the union on an equal footing with the original states in all respects whatever."[ ] again and again, in adjudicating the rights and duties of states admitted after , the supreme court has referred to the condition of equality as if it were an inherent attribute of the federal union.[ ] finally, in , it invalidated a restriction on the change of location of the state capital, which congress had imposed as a condition for the admission of oklahoma, on the ground that congress may not embrace in an enabling act conditions relating wholly to matters under state control.[ ] in an opinion, from which justices holmes and mckenna dissented, justice lurton argued: "the power is to admit 'new states into _this_ union.' 'this union' was and is a union of states, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the united states by the constitution itself. to maintain otherwise would be to say that the union, through the power of congress to admit new states, might come to be a union of states unequal in power, as including states whose powers were restricted only by the constitution, with others whose powers had been further restricted by an act of congress accepted as a condition of admission."[ ] earlier scope of the doctrine until recently, however, the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights.[ ] broadly speaking, every new state is entitled to exercise all the powers of government which belong to the original states of the union.[ ] it acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits except where it has ceded exclusive jurisdiction to the united states.[ ] the legislative authority of a newly admitted state extends over federally owned land within the state, to the same extent as over similar property held by private owners, save that the state can enact no law which would conflict with the constitutional powers of the united states. consequently it has jurisdiction to tax private activities carried on within the public domain, if the tax does not constitute an unconstitutional burden on the federal government.[ ] statutes applicable to territories, e.g., the northwest territory ordinance of , cease to have any operative force when the territory, or any part thereof, is admitted to the union, except as adopted by state law.[ ] when the enabling act contains no exclusion of jurisdiction as to crimes committed on indian reservations by persons other than indians, state courts are vested with jurisdiction.[ ] but the constitutional authority of congress to regulate commerce with indian tribes is not inconsistent with the equality of new states,[ ] and conditions inserted in the new mexico enabling act forbidding the introduction of liquor into indian territory were therefore valid.[ ] citizenship of inhabitants admission of a state on an equal footing with the original states involves the adoption as citizens of the united states of those whom congress makes members of the political community, and who are recognized as such in the formation of the new state.[ ] judicial proceedings whenever a territory is admitted into the union, the cases pending in the territorial court which are of exclusive federal cognizance are transferred to the federal court having jurisdiction over the area; cases not cognizable in the federal courts are transferred to the tribunals of the new state, and those over which federal and state courts have concurrent jurisdiction may be transferred either to the state or federal courts by the party possessing that option under existing law.[ ] where congress neglected to make provision for disposition of certain pending cases in an enabling act for the admission of a state to the union, a subsequent act supplying the omission was held valid.[ ] after a case, begun in a united states court of a territory, is transferred to a state court under the operation of the enabling act and the state constitution, the appellate procedure is governed by the state statutes and procedure.[ ] the new state cannot, without the express or implied assent of congress, enact that the records of the former territorial court of appeals should become records of its own courts, or provide by law for proceedings based thereon.[ ] property rights: united states _v._ texas holding that a "mere agreement in reference to property" involved "no question of equality of status," the supreme court upheld, in stearns _v._ minnesota,[ ] a promise exacted from minnesota upon its admission to the union which was interpreted to limit its right to tax lands held by the united states at the time of admission and subsequently granted to a railroad. the "equal footing" doctrine has had an important effect, however, on the property rights of new states to soil under navigable waters. in pollard _v._ hagan,[ ] the court held that the original states had reserved to themselves the ownership of the shores of navigable waters and the soils under them, and that under the principle of equality the title to the soils of navigable waters passes to a new state upon admission. after refusing to extend the inland-water rule of this case to the three mile marginal belt under the ocean along the coast,[ ] the court applied the principle of the pollard case in reverse in united states _v._ texas.[ ] since the original states had been found not to own the soil under the three mile belt, texas, which concededly did own this soil before its annexation to the united states, was held to have surrendered its dominion and sovereignty over it, upon entering the union on terms of equality with the existing states. to this extent, the earlier rule that unless otherwise declared by congress the title to every species of property owned by a territory passes to the state upon admission[ ] has been qualified. rights conveyed to private persons before admission of a state while the territorial status continues, the united states has power to convey property rights, such as rights in soil below high-water mark along navigable waters,[ ] or the right to fish in designated waters,[ ] which will be binding on the state. but a treaty with an indian tribe which gave hunting rights on unoccupied lands of the united states, which rights should cease when the united states parted with its title to any of the land, was held to be repealed by the admission to the union of the territory in which the hunting lands were situated.[ ] clause . the congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states; and nothing in this constitution shall be so construed as to prejudice any claims of the united states, or of any particular state. property of the united states methods of disposing thereof the constitution is silent as to the methods of disposing of property of the united states. in united states _v._ gratiot,[ ] in which the validity of a lease of lead mines on government lands was put in issue, the contention was advanced that "disposal is not letting or leasing," and that congress has no power "to give or authorize leases." the court sustained the leases, saying "the disposal must be left to the discretion of congress."[ ] nearly a century later this power to dispose of public property was relied upon to uphold the generation and sale of electricity by the tennessee valley authority. the reasoning of the court ran thus: the potential electrical energy made available by the construction of a dam in the exercise of its constitutional powers is property which the united states is entitled to reduce to possession; to that end it may install the equipment necessary to generate such energy. in order to widen the market and make a more advantageous disposition of the product, it may construct transmission lines, and may enter into a contract with a private company for the interchange of electric energy.[ ] public lands no appropriation of public lands may be made for any purpose except by authority of congress.[ ] however, the long-continued practice of withdrawing land from the public domain by executive orders for the purpose of creating indian reservations has raised an implied delegation of authority from congress to take such action.[ ] the comprehensive authority of congress over public lands includes the power to prescribe the times, conditions and mode of transfer thereof, and to designate the persons to whom the transfer shall be made;[ ] to declare the dignity and effect of titles emanating from the united states;[ ] to determine the validity of grants which antedate the government's acquisition of the property;[ ] to exempt lands acquired under the homestead laws from previously contracted debts;[ ] to withdraw land from settlement and to prohibit grazing thereon;[ ] to prevent unlawful occupation of public property and to declare what are nuisances, as affecting such property, and provide for their abatement;[ ] and to prohibit the introduction of liquor on lands purchased and used for an indian colony.[ ] congress may limit the disposition of the public domain to a manner consistent with its views of public policy. a restriction inserted in a grant of public lands to a municipality which prohibited the grantee from selling or leasing to a private corporation the right to sell or sublet water or electric energy supplied by the facilities constructed on such land was held valid.[ ] the power of the state no state can tax public lands of the united states within its borders;[ ] nor can state legislation interfere with the power of congress under this clause or embarrass its exercise.[ ] the question whether title to land which has once been the property of the united states has passed from it must be resolved by the laws of the united states; after title has passed, "that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the united states."[ ] in construing a conveyance by the united states of land within a state, the settled and reasonable rule of construction of the state affords a guide in determining what impliedly passes to the grantee as an incident to land expressly granted.[ ] but a state statute enacted subsequently to a federal grant cannot be given effect to vest in the state rights which either remained in the united states or passed to its grantee.[ ] power of congress over the territories in the territories, congress has the entire dominion and sovereignty, national and local, and has full legislative power over all subjects upon which a state legislature might act.[ ] it may legislate directly with respect to the local affairs of a territory or it may transfer that function to a legislature elected by the citizens thereof,[ ] which will then be invested with all legislative power except as limited by the constitution of the united states and acts of congress.[ ] in , congress prohibited the enactment by territorial legislatures of local or special laws on enumerated subjects.[ ] the constitutional guarantees of private rights are applicable in territories which have been made a part of the united states by congressional action,[ ] but not to unincorporated territories.[ ] alaska is of the former description,[ ] while the status of hawaii appears to be doubtful.[ ] congress may establish, or may authorize the territorial legislature to create, legislative courts whose jurisdiction is derived from statutes enacted pursuant to this section rather than from article iv.[ ] such courts may exercise admiralty jurisdiction despite the fact that such jurisdiction may be exercised in the states only by constitutional courts.[ ] section . the united states shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. a republican form of government it was established in the pioneer case of luther _v._ borden,[ ] that questions arising under this section are political, not judicial, in character, and that "it rests with congress to decide what government is the established one in a state * * * as well as its republican character."[ ] upon congress also rested the duty to restore republican governments to the states which seceded from the union at the time of the civil war. in texas _v._ white[ ] the supreme court declared that the action of the president in setting up provisional governments at the end of the war was justified, if at all, only as an exercise of his powers as commander in chief and that such governments were to be regarded merely as provisional regimes to perform the functions of government pending action by congress. on the ground that the questions were not justiciable in character, the supreme court has refused to consider whether the adoption of the initiative and referendum,[ ] or the delegation of legislative power to other departments of government[ ] is compatible with a republican form of government. this guarantee does not give the supreme court jurisdiction to review a decision of a state court sustaining a determination of an election contest for the office of governor made by a state legislature under the authority of a state constitution.[ ] inasmuch as women were denied the right to vote in most, if not all, of the original thirteen states, it was held, prior to the adoption of amendment xix, that a state government could be challenged under this clause by reason of the fact that it did not permit women to vote.[ ] protection against domestic violence the supreme court also held in luther _v._ borden[ ] that it rested with congress to determine upon the means proper to fulfill the constitutional guarantee of protection to the states against domestic violence. chief justice taney declared that congress might have placed it in the power of a court to decide when the contingency had happened which required the federal government to interfere. instead, congress had, by the act of february , ,[ ] authorized the president to call out the militia in case of insurrection against the government of any state. it followed, said taney, that the president "must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of congress"[ ] and that his determination was not subject to review by the courts. decline in importance of this guaranty with the recognition in the debs case[ ] of the power and duty of the federal government to use "the entire strength of the nation * * * to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the constitution to its care,"[ ] this clause has declined in importance. when that government finds it necessary or desirable to use force to quell domestic violence, its power to protect the property of the united states, to remove obstructions to the united states mails, or to protect interstate commerce from interruption by labor disputes or otherwise, usually will furnish legal warrant for its action, without reference to this provision.[ ] notes [ ] clark _v._ graham, wheat. ( ), is an early case in which the supreme court enforced this rule. [ ] stat. ( ); stat. ( ), r.s. § u.s.c. § . [ ] mankin _v._ chandler & co., brock. , ( ). [ ] cr. ( ). _see_ also everett _v._ everett, u.s. ( ); mutual l. ins. co. _v._ harris, u.s. ( ). [ ] on the same basis, a judgment cannot be impeached either in or out of the state by showing that it was based on a mistake of law. american exp. co. _v._ mullins, u.s. , ( ); fauntleroy _v._ lum, u.s. ( ); hartford l. ins. co. _v._ barber, u.s. ( ); hartford l. ins. co. _v._ ibs, u.s. ( ). [ ] wheat. ( ). [ ] pet. ( ). _see also_ bacon _v._ howard, how. , ( ); bank of ala. _v._ dalton, how. , ( ); great western telegraph co. _v._ purdy, u.s. ( ); christmas _v._ russell, wall. , ( ); wisconsin _v._ pelican insurance co., u.s. , ( ). [ ] cole _v._ cunningham, u.s. , ( ). _see also_ stacy _v._ thrasher, use of sellers, how. , ( ); milwaukee county _v._ white (m.e.) co., u.s. ( ). [ ] chicago & a.r. co. _v._ wiggins ferry co., u.s. , ( ); hanley _v._ donoghue, u.s. , ( ). _see also_ bigelow _v._ old dominion copper min. & s. co., u.s. ( ); green _v._ van buskirk, wall. , ( ); roche _v._ mcdonald, u.s. ( ); ohio _v._ chattanooga boiler & tank co., u.s. ( ). [ ] sistare _v._ sistare, u.s. ( ). [ ] michigan trust co. _v._ ferry, u.s. ( ). _see also_ fall _v._ eastin, u.s. ( ). [ ] milwaukee county _v._ white (m.e.) co., u.s. , - ( ). [ ] board of public works _v._ columbia college, wall. ( ); robertson _v._ pickrell, u.s. , ( ). [ ] kersh lake drainage dist. _v._ johnson, u.s. ( ). _see also_ texas & p.r. co. _v._ southern p. co., u.s. ( ). [ ] national exchange bank _v._ wiley, u.s. , ( ). _see also_ grover & b. sewing-mach. co. _v._ radcliffe, u.s. ( ). [ ] harding _v._ harding, u.s. ( ). the following cases further illustrate the application of the clause when its protection is sought by a defendant. such claim must be specific, wabash r. co. _v._ flannigan, u.s. , ( ). _see also_ american exp. co. _v._ mullins, u.s. ( ). the burden is upon the party making it to establish the failure of a court to give to decrees of a federal court and the court of another state the due effect to which they are entitled. commercial pub. co. _v._ beckwith, u.s. , ( ). however, by defending on the merits, after pleading and relying upon a foreign judgment, a party does not waive the benefits of an alleged estoppel arising from the foreign judgment. harding _v._ harding, u.s. , ( ). nor is a decree of dismissal, not on the merits, a bar to suit in another jurisdiction. swift _v._ mcpherson, u.s. ( ). nor is an entry of discontinuance. in allowing the plaintiff to show that such entry of discontinuance was not intended by the parties as a release and satisfaction of the cause of action, but was the result of a promissory agreement by the defendant which was never complied with, the court in the forum state was not refusing full faith and credit to the judgment. such evidence was properly allowed, not to contradict the legal import of said judgment, but to show the true meaning of the parties to the suit in agreeing upon its discontinuance. jacobs _v._ marks, u.s. , ( ). [ ] anglo-american provision co. _v._ davis provision co., u.s. ( ). [ ] fauntleroy _v._ lum, u.s. ( ). justice holmes, who spoke for the court in both cases, asserted in his opinion in the latter that the new york statute was "directed to jurisdiction," the mississippi statute to "merits," but four justices could not grasp the distinction. [ ] kenney _v._ supreme lodge, u.s. ( ), and cases there cited. holmes again spoke for the court. _see also_ cook, the powers of congress under the full faith and credit clause, yale l.j. , ( ). [ ] broderick _v._ rosner, u.s. ( ), affirmed in hughes _v._ fetter, u.s. ( ). [ ] union national bank _v._ lamb, u.s. ( ); _see also_ roche _v._ mcdonald, u.s. ( ). [ ] embry _v._ palmer, u.s. , ( ). [ ] titus _v._ wallick, u.s. , - ( ). [ ] morris _v._ jones, u.s. ( ). [ ] thus why should not a judgment for alimony be made directly enforceable in sister states instead of merely furnishing the basis of an action in debt? _see_ thompson _v._ thompson, u.s. ( ). [ ] board of public works _v._ columbia college, wall. , ( ). _see also_ spokane & i.e.r. co. _v._ whitley, u.s. ( ); bigelow _v._ old dominion copper min. & s. co., u.s. ( ); brown _v._ fletcher, u.s. ( ); wisconsin _v._ pelican ins. co., u.s. , ( ); huntington _v._ attrill, u.s. , ( ). however a denial of credit, founded upon a mere suggestion of want of jurisdiction and unsupported by evidence, violates the clause. _see also_ rogers _v._ alabama, u.s. , ( ); wells fargo & co. _v._ ford, u.s. ( ). [ ] _see_ cooper _v._ reynolds, wall. ( ). [ ] how. ( ). [ ] justice johnson, dissenting in mills _v._ duryee, cr. ( ), had said: "there are certain eternal principles of justice which never ought to be dispensed with, and which courts of justice never can dispense with but when compelled by positive statute. one of those is, that jurisdiction cannot be justly exercised by a state over property not within the reach of its process, or over persons not owing them allegiance or not subjected to their jurisdiction, by being found within their limits." ibid. . [ ] u.s. ( ). [ ] mcdonald _v._ mabee, u.s. , ( ). _see also_ wetmore _v._ karrick, u.s. ( ). [ ] grover & b. sewing-mach. co. _v._ radcliffe, u.s. ( ). _see also_ brown _v._ fletcher, u.s. ( ); galpin _v._ page, wall. ( ); old wayne mutual life asso. co. _v._ mcdonough, u.s. ( ). [ ] reynolds _v._ stockton, u.s. ( ). [ ] renaud _v._ abbott, u.s. ( ); jaster _v._ currie, u.s. ( ). [ ] milliken _v._ meyer, u.s. , ( ). [ ] adam _v._ saenger, u.s. , ( ). [ ] hancock national bank _v._ farnum, u.s. ( ). [ ] stacy _v._ thrasher, use of sellers, how. , ( ). [ ] bigelow _v._ old dominion copper min. & s. co., u.s. ( ). [ ] how. ( ). [ ] to the same effect is connecticut mut. ins. co. _v._ spratley, u.s. ( ). [ ] simon _v._ southern ky., u.s. ( ). [ ] goldey _v._ morning news, u.s. ( ); riverside mills _v._ menefee, u.s. ( ). [ ] international harvester co. _v._ kentucky, u.s. ( ); riverside mills _v._ menefee, u.s. ( ). [ ] international harvester co. _v._ kentucky, u.s. ( ). [ ] kane _v._ new jersey, u.s. ( ); hess _v._ pawloski, u.s. ( ). limited in wuchter _v._ pizzutti, u.s. ( ). [ ] wall. ( ). [ ] _see_ black, judgments § ( ). [ ] _see also_ simmons _v._ saul, u.s. , ( ). in other words, the challenge to jurisdiction is treated as equivalent to the plea _nul tiel record_, a plea which was recognized even in mills _v._ duryee as always available against an attempted invocation of the full faith and credit clause. what is not pointed out by the court, is that it was also assumed in the earlier case that such a plea could always be rebutted by producing a transcript, properly authenticated in accordance with the act of congress, of the judgment in the original case. _see also_ brown _v._ fletcher, u.s. ( ); german savings society _v._ dormitzer, u.s. , ( ); grover & sewing-mach. co. _v._ radcliffe, u.s. , ( ). [ ] cheever _v._ wilson, wall. ( ). [ ] andrews _v._ andrews, u.s. ( ). _see also_ german savings society _v._ dormitzer, u.s. ( ). [ ] u.s. ( ). _see also_ thompson _v._ thompson, u.s. ( ). [ ] u.s. , ( ). [ ] u.s. ( ); u.s. ( ). [ ] u.s. ( ). [ ] u.s. , - ( ). [ ] ibid. at p. . [ ] u.s. , , , ( ). [ ] u.s. , ( ). [ ] bell _v._ bell, u.s. ( ); andrews _v._ andrews, u.s. ( ). [ ] strong dissents were filed which have influenced subsequent holdings. among these was that of justice rutledge which attacked both the consequences of the decision as well as the concept of jurisdictional domicile on which it was founded. "unless 'matrimonial domicil,' banished in _williams_ i [by the overruling of haddock _v._ haddock], has returned renamed ['domicil of origin'] in _williams_ ii, every decree becomes vulnerable in every state. every divorce, wherever granted, * * *, may now be reexamined by every other state, upon the same or different evidence, to redetermine the 'jurisdictional fact,' always the ultimate conclusion of 'domicil.' * * * "the constitution does not mention domicil. nowhere does it posit the powers of the states or the nation upon that amorphous, highly variable common-law conception. * * * no legal conception, save possibly 'jurisdiction,' * * *, affords such possibilities for uncertain application. * * * apart from the necessity for travel, [to effect a change of domicile, the latter], criterion comes down to a purely subjective mental state, related to remaining for a length of time never yet defined with clarity. * * * when what must be proved is a variable, the proof and the conclusion which follows upon it inevitably take on that character. * * * [the majority have not held] that denial of credit will be allowed, only if the evidence [as to the place of domicile] is different or depending in any way upon the character or the weight of the difference. the test is not different evidence. it is evidence, whether the same or different and, if different, without regard to the quality of the difference, from which an opposing set of inferences can be drawn by the trier of fact 'not unreasonably.' * * * but * * * [the court] does not define 'not unreasonably.' it vaguely suggests a supervisory function, to be exercised when the denial [of credit] strikes its sensibilities as wrong, by some not stated standard. * * * there will be no 'weighing' [of evidence], * * * only examination for sufficiency."--( u.s. , , , , - ( )). no less disposed to prophesy undesirable results from this decision was justice black in whose dissenting opinion justice douglas concurred. "the full faith and credit clause, as now interpreted, has become a disrupting influence. the court in effect states that the clause does not apply to divorce actions, and that states alone have the right to determine what effect shall be given to the decrees of other states. if the court is abandoning the principle that a marriage [valid where made is valid everywhere], a consequence is to subject people to bigamy or adultery prosecutions because they exercise their constitutional right to pass from a state in which they were validly married on to another which refuses to recognize their marriage. such a consequence violates basic guarantees." north carolina's interest was to preserve a bare marital status as to two persons who sought a divorce and two others who had not objected to it. "it is an extraordinary thing for a state to procure a retroactive invalidation of a divorce decree, and then punish one of its citizens for conduct authorized by that decree, when it had never been challenged by either of the people most immediately interested in it." the state here did not sue to protect any north carolina property rights nor to obtain support for deserted families. "i would not permit such an attenuated state interest to override the full faith and credit clause * * *" ( u.s. , - ( )). the unsettling effect of this decision was expressed statistically by justice black as follows: "statistics indicate that approximately five million divorced persons are scattered throughout the forty-eight states. more than % of these divorces were granted in uncontested proceedings. not one of this latter group can now retain any feeling of security in his divorce decree. ever present will be the danger of criminal prosecution and harassment." ibid. - . as to the conclusion that the supreme court as well as the state courts should reach in like situations, justice black asserted that "until congress has commanded a different 'effect' for divorces granted on a short sojourn within a state, we should stay our hands. * * * if we follow that course, north carolina cannot be permitted to disregard the nevada decrees without passing upon the 'faith and credit' which nevada itself would give to them under its own 'law or usage.' * * * for in nevada, even its attorney general could not have obtained a cancellation of the decree * * *." ibid. , . the reader should take note of the effect in some of the above opinions to weigh competing interests against one another and the implication that the court's relation to the full faith and credit clause is that of an arbitral tribunal rather than of a court in the conventional sense of a body whose duty is to maintain an established rule of law. [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). _see also_ the companion case of kreiger _v._ kreiger, u.s. ( ). [ ] esenwein _v._ commonwealth, u.s. , ( ). [ ] because the record, in his opinion, did not make it clear whether new york "law" held that no "_ex parte_" divorce decree could terminate a prior new york separate maintenance decree, or merely that no "_ex parte_" decree of divorce of _another state_ could, justice frankfurter dissented and recommended that the case be remanded for clarification. justice jackson dissented on the ground that under new york law, a new york divorce would terminate the wife's right to alimony; and if the nevada decree is good, it is entitled to no less effect in new york than a local decree. however, for reasons stated in his dissent in the first williams case, u.s. , he would prefer not to give standing to constructive service divorces obtained on short residence. u.s. , - ( ). these two justices filed similar dissents in the companion case of kreiger _v._ kreiger, u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ).--in a dissenting opinion filed in the case of sherrer _v._ sherrer, but applicable also to the case of coe _v._ coe, justice frankfurter, with justice murphy concurring, asserted his inability to accept the proposition advanced by the majority that "regardless of how overwhelming the evidence may have been that the asserted domicile in the state offering bargain-counter divorces was a sham, the home state of the parties is not permitted to question the matter if the form of a controversy had been gone through."-- u.s. , ( ). [ ] u.s. ( ).--of four justices dissenting (black, douglas, rutledge, jackson), justice jackson alone filed a written opinion. to him the decision is "an example of the manner in which, in the law of domestic relations, 'confusion now hath made his masterpiece,'" but for the first williams case and its progeny, the judgment of the connecticut court might properly have held that the rice divorce decree was void for every purpose because it was rendered by a state court which never obtained jurisdiction of the nonresident defendant. "but if we adhere to the holdings that the nevada court had power over her for the purpose of blasting her marriage and opening the way to a successor, i do not see the justice of inventing a compensating confusion in the device of divisible divorce by which the parties are half-bound and half-free and which permits rice to have a wife who cannot become his widow and to leave a widow who was no longer his wife." ibid. , , . [ ] vermont violated the clause in sustaining a collateral attack on a florida divorce decree, the presumption of florida's jurisdiction over the cause and the parties not having been overcome by extrinsic evidence or the record of the case. cook _v._ cook, u.s. ( ). the sherrer and coe cases were relied upon. there seems, therefore, to be no doubt of their continued vitality. [ ] barber _v._ barber, u.s. , ( ). [ ] sistare _v._ sistare, u.s. , ( ). _see also_ barber _v._ barber, how. ( ); lynde _v._ lynde, u.s. , - ( ); bates _v._ bodie, u.s. ( ); audubon _v._ shufeldt, u.s. , ( ); yarbrough _v._ yarbrough, u.s. ( ); loughran _v._ loughran, u.s. ( ). [ ] griffin _v._ griffin, u.s. ( ). [ ] ibid. . an alimony case of a quite extraordinary pattern was that of sutton _v._ leib. on account of the diverse citizenship of the parties, who had once been husband and wife, the case was brought by the latter in a federal court in illinois. her suit was to recover unpaid alimony which was to continue until her remarriage. to be sure, she had, as she confessed, remarried in nevada, but the marriage had been annulled in new york on the ground that the man was already married, inasmuch as his divorce from his previous wife was null and void, she having neither entered a personal appearance nor been personally served. the court, speaking by justice reed, held that the new york annulment of the nevada marriage must be given full faith and credit in illinois, but left illinois to decide for itself the effect of the annulment upon the obligations of petitioner's first husband. sutton _v._ leib, u.s. ( ). [ ] halvey _v._ halvey, u.s. , ( ). [ ] johnson _v._ muelberger, u.s. ( ). [ ] tilt _v._ kelsey, u.s. ( ); burbank _v._ ernst, u.s. ( ). [ ] riley _v._ new york trust company, u.s. ( ). [ ] brown _v._ fletcher, u.s. , ( ). _see also_ stacy _v._ thrasher, use of sellers, how. , ( ); mclean _v._ meek, how. , , ( ). [ ] tilt _v._ kelsey, u.s. ( ). in the case of borer _v._ chapman, u.s. , ( ) involving a complicated set of facts, it was held, in , that a judgment in a probate proceeding, which was merely ancillary to proceedings in another state and which ordered the residue of the estate to be assigned to the legatee and discharged the executor from further liability, did not prevent a creditor, who was not a resident of the state in which the ancillary judgment was rendered, from setting up his claim in the state probate court which had the primary administration of the estate. [ ] blodgett _v._ silberman, u.s. ( ). [ ] kerr _v._ devisees of moon, wheat. ( ); mccormick _v._ sullivant, wheat. ( ); clarke _v._ clarke, u.s. ( ). the controlling principle of these cases is not confined to proceedings in probate. a court of equity "not having jurisdiction of the _res_ cannot affect it by its decree nor by a deed made by a master in accordance with the decree." _see_ fall _v._ eastin, u.s. , ( ). [ ] robertson _v._ pickrell, u.s. , ( ). _see also_ darby _v._ mayer, wheat. ( ); gasquet _v._ fenner, u.s. ( ). [ ] olmsted _v._ olmsted, u.s. ( ). [ ] hood _v._ mcgehee, u.s. ( ). [ ] harris _v._ balk, u.s. ( ). _see also_ chicago, r.i. & pac. ry _v._ sturm, u.s. ( ); king _v._ cross, u.s. , ( ); louisville & n.r. co. _v._ deer, u.s. ( ); baltimore & o.r. co. _v._ hostetter, u.s. ( ). [ ] christmas _v._ russell, wall. ( ); maxwell _v._ stewart, wall. ( ); hanley _v._ donoghue, u.s. ( ); wisconsin _v._ pelican ins. co., u.s. ( ); simmons _v._ saul, u.s. ( ); american express co. _v._ mullins, u.s. ( ). [ ] fauntleroy _v._ lum, u.s. ( ). [ ] anglo-american provision co. _v._ davis provision co., u.s. ( ). [ ] u.s. ( ). [ ] the antelope, wheat. , ( ). _see also_ wisconsin _v._ pelican ins. co., u.s. ( ). [ ] u.s. ( ). _see also_ dennick _v._ r.r. u.s. ( ). [ ] milwaukee county _v._ white (n.e.) co., u.s. ( ). _see also_ moore _v._ mitchell, u.s. ( ). [ ] bank of augusta _v._ earle, pet. , - ( ). _see_ kryger _v._ wilson, u.s. ( ); bond _v._ hume, u.s. ( ). [ ] how. , ( ); bonaparte _v._ tax court, u.s. ( ), where it was held that a law exempting from taxation certain bonds of the enacting state did not operate extraterritorially by virtue of the full faith and credit clause. [ ] chicago & alton r. co. _v._ wiggins ferry, u.s. , ( ). [ ] smithsonian institution _v._ st. john, u.s. ( ). when, in a state court, the validity of an act of the legislature of another state is not in question, and the controversy turns merely upon its interpretation or construction, no question arises under the full faith and credit clause. _see also_ western life indemnity co. _v._ rupp, u.s. ( ), citing glenn _v._ garth, u.s. ( ); lloyd _v._ matthews, u.s. , ( ); banholzer _v._ new york l. ins. co., u.s. ( ); allen _v._ alleghany co., u.s. , ( ); texas & n.o.r. co. _v._ miller, u.s. ( ). _see also_ national mut. bldg. & loan asso. _v._ brahan, u.s. ( ); johnson _v._ new york life ins. co., u.s. , ( ); pennsylvania f. ins. co. _v._ gold issue min. & mill. co., u.s. ( ). [ ] alaska packers asso. _v._ industrial acci. commission, u.s. ( ); bradford electric light co. _v._ clapper, u.s. ( ). [ ] dennick _v._ r.r., u.s. ( ) was the first of the so-called "death act" cases to reach the supreme court. _see also_ stewart _v._ b.& o.r. co., u.s. ( ). even today the obligation of a state to furnish a forum for the determination of death claims arising in another state under the laws thereof appears to rest on a rather precarious basis. in hughes _v._ fetter, u.s. ( ), the court, by a narrow majority, held invalid under the full faith and credit clause a statute of wisconsin which, as locally interpreted, forbade its courts to entertain suits of this nature; and in first national bank _v._ united air lines, u.s. ( ), a like result was reached as to an illinois statute. in both cases the same four justices dissented. [ ] u.s. ( ). [ ] northern pac. r.r. _v._ babcock, u.s. ( ); atchison, t. & s.f.r. co. _v._ sowers, u.s. , ( ). [ ] glenn _v._ garth, u.s. ( ). [ ] tennessee coal co. _v._ george, u.s. ( ). [ ] klaxon co. _v._ stentor, u.s. ( ); john hancock mut. life ins. co. _v._ yates, u.s. ( ) distinguished. [ ] modern woodmen of am. _v._ mixer, u.s. ( ). [ ] converse _v._ hamilton, u.s. ( ); selig _v._ hamilton, u.s. ( ); marin _v._ augedahl, u.s. ( ). [ ] broderick _v._ rosner, u.s. ( ). _see also_ thormann _v._ frame, u.s. , ( ); reynolds _v._ stockton, u.s. , ( ). [ ] hancock nat. bank. _v._ farnum, u.s. ( ). [ ] u.s. ( ); followed in modern woodmen of am. _v._ mixer, u.s. ( ). [ ] u.s. , , ( ). [ ] u.s. , - , ( ). [ ] new york life ins. co. _v._ head, u.s. ( ); aetna life ins. co. _v._ dunken, u.s. ( ). [ ] u.s. ( ). [ ] national mutual b. & l. asso. _v._ brahan, u.s. ( ). [ ] new york life ins. co. _v._ cravens, u.s. ( ). _see also_ american fire ins. co. _v._ king lumber co., u.s. ( ). [ ] griffin _v._ mccoach, u.s. ( ). [ ] u.s. , - ( ). however, a decree of a montana supreme court, insofar as it permitted judgment creditors of a dissolved iowa surety company to levy execution against local assets to satisfy judgment, as against title to such assets of the iowa insurance commissioner as statutory liquidator and successor to the dissolved company, was held to deny full faith and credit to the statutes of iowa.--clark _v._ willard, u.s. ( ). [ ] u.s. , - ( ). [ ] bradford electric co. _v._ clapper, u.s. , ( ). [ ] the court had earlier remarked that "workmen's compensation legislation rests upon the idea of status, not upon that of implied contract." cudahy packing co. _v._ parramore, u.s. , ( ). in contrast to the above cases, _see_ kryger _v._ wilson, u.s. ( ), where it was held that the question whether the cancellation of a land contract was governed by the _lex rei sitae_ or the _lex loci contractus_ was purely a question of local common law; _also_ bond _v._ hume, u.s. ( ). [ ] pacific ins. co. _v._ comm'n., u.s. , , - ( ). [ ] u.s. ( ). [ ] industrial comm'n. _v._ mccartin, u.s. ( ). [ ] cardillo _v._ liberty mutual co., u.s. ( ). [ ] reviewing some of the cases treated in this section, a writer in said: "it appears, then, that the supreme court has quite definitely committed itself to a program of making itself, to some extent, a tribunal for bringing about uniformity in the field of conflicts * * * although the precise circumstances under which it will regard itself as having jurisdiction for this purpose are far from clear." e.m. dodd, the power of the supreme court to review state decisions in the field of conflict of laws ( ), harv. l. rev. - . it can hardly be said that the law has been subsequently clarified on this point. [ ] walter w. cook, the power of congress under the full faith and credit clause ( ), yale l.j. . [ ] cooper _v._ newell, u.s. , ( ). _see also_ wisconsin _v._ pelican ins. co., u.s. , ( ); swift _v._ mcpherson, u.s. ( ); pennington _v._ gibson, how. , ( ); cheever _v._ wilson, wall. , ( ); baldwin _v._ iowa state traveling men's asso., u.s. ( ); american surety co. _v._ baldwin, u.s. ( ); sanders _v._ armour fertilizer works, u.s. ( ). [ ] milwaukee county _v._ white (m.e.) co., u.s. ( ). [ ] equitable l. assur. soc. _v._ brown, u.s. ( ). _see also_ gibson _v._ lyon, u.s. ( ). [ ] embry _v._ palmer, u.s. , ( ). _see also_ northern assur. co. _v._ grand view bldg. asso., u.s. ( ); atchison, t. & s.f.r. co. _v._ sowers, u.s. ( ); knights of pythias _v._ meyer, u.s. , ( ); louisville & n.r. co. _v._ central stockyards co., u.s. ( ); west side belt r. co. _v._ pittsburgh constr. co., u.s. ( ). [ ] no right, privilege, or immunity is conferred by the constitution in respect to judgments of foreign states and nations.--aetna life ins. co. _v._ tremblay, u.s. ( ). in hilton _v._ guyot, u.s. , ( ) where a french judgment offered in defense was held not a bar to the suit. four justices dissented on the ground that "the application of the doctrine of _res judicata_ does not rest in discretion; and it is for the government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary." at the same sitting of the court, an action in a united states circuit court on a canadian judgment was sustained on the same ground of reciprocity. ritchie _v._ mcmullen, u.s. ( ). _see also_ ingenohl _v._ olsen, u.s. ( ), where a decision of the supreme court of the philippine islands was reversed for refusal to enforce a judgment of the supreme court of the british colony of hongkong, which was rendered "after a fair trial by a court having jurisdiction of the parties." in foreign relations of the united states - , will be found a three-cornered correspondence between the state department, the austro-hungarian legation, and the governor of pennsylvania, in which the last named asserts that "under the laws of pennsylvania the judgment of a court of competent jurisdiction in croatia would be respected to the extent of permitting such judgment to be sued upon in the courts of pennsylvania." stowell, _op. cit. supra_ note i, at - . another instance of international cooperation in the judicial field is furnished by letters rogatory. "when letters rogatory are addressed from any court of a foreign country to any district court of the united states, a commissioner of such district court designated by said court to make the examination of the witnesses mentioned in said letters, shall have power to compel the witnesses to appear and depose in the same manner as witnesses may be compelled to appear and testify in courts," u.s.c.a., _supra_ note ii, § . some of the states have similar laws. _see_ moore, digest of international law ( ) - . [ ] david k. watson, the constitution of the united states, vol. ii, ( ). [ ] the federalist no. . [ ] wall. ( ). [ ] ibid. . [ ] scott _v._ sandford, how. ( ). [ ] ibid. , - . [ ] u.s. , ( ). [ ] u.s. ( ). [ ] slaughter-house case, fed. cas. no. ( ); chambers _v._ baltimore & o.r. co., u.s. ( ); whitfield _v._ ohio, u.s. ( ). [ ] wall. ( ). [ ] ibid. . [ ] bradwell _v._ illinois, wall. , ( ). _see also_ cole _v._ cunningham, u.s. ( ). [ ] blake _v._ mcclung, u.s. , ( ); travis _v._ yale & towne mfg. co., u.s. ( ). [ ] la tourette _v._ mcmaster, u.s. ( ); douglas _v._ new york, n.h. & h.r. co., u.s. ( ); _cf._ maxwell _v._ bugbee, u.s. ( ). [ ] united states _v._ harris, u.s. , ( ). _see also_ baldwin _v._ franks, u.s. ( ). [ ] united states _v._ wheeler, u.s. ( ). [ ] scott _v._ sandford, how. ( ) [ ] ibid. - . [ ] ibid. - . [ ] pet. ( ). [ ] ibid. . [ ] wall. ( ). [ ] ibid. . [ ] crutcher _v._ kentucky, u.s. ( ). _see also_ pp. - , - . [ ] hemphill _v._ orloff, u.s. ( ). [ ] fed. cas. no. , , , ( ). [ ] ibid. - . [ ] ibid. . [ ] corfield _v._ coryell, fed. cas. no. , , ( ). [ ] ibid. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . in mullaney _v._ anderson, u.s. ( ) an alaska statute providing for the licensing of commercial fishermen in territorial waters and levying a license fee of $ . on nonresident and only $ . on resident fishermen was held void under art. iv, § on the authority of toomer _v._ witsell, cited above. [ ] u.s. ( ). [ ] ibid. . [ ] la tourette _v._ mcmaster, u.s. ( ). [ ] doherty and co. _v._ goodman, u.s. ( ). [ ] hess _v._ pawloski, u.s. , ( ). [ ] ferry _v._ spokane p. & s.r. co., u.s. ( ), followed in ferry _v._ corbett, u.s. ( ). [ ] conner _v._ elliott, how. , ( ). [ ] blake _v._ mcclung, u.s. , ( ). [ ] williams _v._ bruffy, u.s. , ( ). [ ] chambers _v._ baltimore & o.r. co., u.s. , ( ); mcknett _v._ st. louis & s.f.r. co., u.s. , ( ); miles _v._ illinois c.r. co., u.s. , ( ). [ ] canadian n.r. co. _v._ eggen, u.s. ( ). [ ] ibid. . [ ] chemung canal bank _v._ lowery, u.s. , ( ). [ ] douglas _v._ new york, n.h. & h.r. co., u.s. ( ). [ ] chambers _v._ baltimore & o.r. co., u.s. ( ). [ ] wall. , ( ). _see also_ downham _v._ alexandria, wall. , ( ). [ ] chalker _v._ birmingham & m.w.r. co., u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . _see also_ shaffer _v._ carter, u.s. ( ). [ ] u.s. , - ( ). [ ] williams _v._ fears, u.s. , ( ). [ ] haavik _v._ alaska packers' asso., u.s. ( ). [ ] travelers' ins. co. _v._ connecticut, u.s. , ( ). [ ] maxwell _v._ bugbee, u.s. ( ). [ ] kirtland _v._ hotchkiss, u.s. , ( ). _cf._ colgate _v._ harvey, u.s. ( ) in which discriminatory taxation of bank deposits outside the state owned by a citizen of the state was held to infringe a privilege of national citizenship, in contravention of the fourteenth amendment. the decision in colgate _v._ harvey was overruled in madden _v._ kentucky, u.s. , ( ). [ ] stat. ( ). [ ] roberts _v._ reilly, u.s. , ( ). _see also_ innes _v._ tobin, u.s. ( ). said justice story: "... the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution"; [and again] "... it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby." prigg _v._ pennsylvania, pet. , , - ( ). [ ] taylor _v._ taintor, wall. , ( ). [ ] how. ( ); _cf._ prigg _v._ pennsylvania, pet. , ( ). [ ] how. , ( ). [ ] stat. ( ). [ ] roberts _v._ reilly, u.s. ( ). _see also_ strassheim _v._ daily, u.s. ( ); appleyard _v._ massachusetts, u.s. ( ); ex parte reggel, u.s. , ( ). [ ] drew _v._ thaw, u.s. , ( ). [ ] innes _v._ tobin, u.s. ( ). [ ] bassing _v._ cady, u.s. ( ). [ ] hyatt _v._ new york ex rel. corkran, u.s. ( ). [ ] kentucky _v._ dennison, how. , ( ). [ ] taylor _v._ taintor, wall. , ( ). [ ] kentucky _v._ dennison, how. , ( ); pierce _v._ creecy, u.s. ( ). _see also_ marbles _v._ creecy, u.s. ( ); strassheim _v._ daily, u.s. ( ); re strauss, u.s. , ( ). [ ] munsey _v._ clough, u.s. ( ); pettibone _v._ nichols, u.s. ( ). [ ] drew _v._ thaw, u.s. ( ). [ ] pettibone _v._ nichols, u.s. , ( ). [ ] biddinger _v._ police comr., u.s. ( ). _see also_ rodman _v._ pothier, u.s. ( ). [ ] hyatt _v._ new york ex rel. corkran, u.s. ( ). _see also_ south carolina _v._ bailey, u.s. ( ). [ ] munsey _v._ clough, u.s. , ( ). [ ] ker _v._ illinois, u.s. , ( ); mahon _v._ justice, u.s. , , , ( ). [ ] cook _v._ hart, u.s. , ( ); pettibone _v._ nichols, u.s. , ( ). [ ] lascelles _v._ georgia, u.s. , ( ). [ ] united states _v._ rauscher, u.s. , ( ). [ ] prigg _v._ pennsylvania, pet. , ( ). [ ] stat. ( ). [ ] jones _v._ van zandt, how. , ( ); ableman _v._ booth, how. ( ). [ ] prigg _v._ pennsylvania, pet. , ( ). [ ] moore _v._ illinois, how. , ( ). [ ] escanaba & l.m. transp. co. _v._ chicago, u.s. , ( ). [ ] madison, journal of the debates in the convention which framed the constitution, (hunt's ed., ). [ ] ibid. . [ ] ibid. . [ ] pollard _v._ hagan, how. , ( ). [ ] stat. , ( ). [ ] justice harlan, speaking for the court in united states _v._ texas, u.s. , ( ); stat. . [ ] permoli _v._ new orleans, how. , ( ); mccabe _v._ atchison, t. & s.f.r. co., u.s. ( ); illinois central r. co. _v._ illinois, u.s. , ( ); knight _v._ united land asso., u.s. , ( ); weber _v._ state harbor comrs., wall. , ( ). [ ] coyle _v._ smith, u.s. ( ). [ ] ibid. . [ ] united states _v._ texas, u.s. , ( ); stearns _v._ minnesota, u.s. , ( ). [ ] pollard _v._ hagan, how. , ( ); mccabe _v._ atchison, t. & s.f.r. co., u.s. ( ). [ ] van brocklin _v._ tennessee, u.s. , ( ). [ ] wilson _v._ cook, u.s. ( ). [ ] permoli _v._ new orleans, how. , ( ); sands _v._ manistee river imp. co., u.s. , ( ); _see also_ withers _v._ buckley, how. , ( ); willamette iron bridge co. _v._ hatch, u.s. , ( ); cincinnati _v._ louisville & n.r. co., u.s. ( ); huse _v._ glover, u.s. ,( ). [ ] draper _v._ united states, u.s. ( ) following united states _v._ mcbratney, u.s. ( ). [ ] dick _v._ united states, u.s. ( ); ex parte webb, u.s. ( ). [ ] united states _v._ sandoval, u.s. ( ). [ ] boyd _v._ nebraska, u.s. , ( ). [ ] baker _v._ morton, wall. , ( ). [ ] freeborn _v._ smith, wall. ( ). [ ] john _v._ paullin, u.s. ( ). [ ] hunt _v._ palao, how. ( ). _cf._ benner _v._ porter, how. , ( ). [ ] u.s. , ( ). [ ] how. , ( ). _see also_ martin _v._ waddell, pet. , ( ). [ ] united states _v._ california, u.s. , ( ); united states _v._ louisiana, u.s. ( ). [ ] u.s. , ( ). [ ] brown _v._ grant, u.s. , ( ). [ ] shively _v._ bowlby, u.s. , ( ). _see also_ joy _v._ st. louis, u.s. ( ). [ ] united states _v._ winans, u.s. , ( ); seufert bros. co. _v._ united states, u.s. ( ). a fishing right granted by treaty to indians does not necessarily preclude the application to indians of state game laws regulating the time and manner of taking fish. kennedy _v._ becker, u.s. ( ). but it has been held to be violated by the exaction of a license fee which is both regulatory and revenue-producing. tulee _v._ washington, u.s. ( ). [ ] ward _v._ race horse, u.s. , , ( ). [ ] pet. ( ). [ ] ibid. , . [ ] ashwander _v._ tennessee valley authority, u.s. , - ( ). _see also_ alabama power co. _v._ ickes, u.s. ( ). [ ] united states _v._ fitzgerald, pet. , ( ). _see also_ california _v._ deseret water, oil & irrig. co., u.s. ( ); utah power & light co. _v._ united states, u.s. ( ). [ ] sioux tribe _v._ united states, u.s. ( ); united states _v._ midwest oil co., u.s. , ( ). [ ] gibson _v._ chouteau, wall. , ( ); _see also_ irvine _v._ marshall, how. ( ); emblem _v._ lincoln land co., u.s. , ( ). [ ] bagnell _v._ broderick, pet. , ( ). _see also_ field _v._ seabury, how. , ( ). [ ] tameling _v._ united states freehold & emigration co., u.s. , ( ). _see also_ united states _v._ maxwell land-grant and r. co., u.s. , ( ). [ ] ruddy _v._ rossi, u.s. ( ). [ ] light _v._ united states, u.s. ( ). _see also_ hutchings _v._ low, wall. ( ). [ ] camfield _v._ united states, u.s. , ( ). _see also_ jourdan _v._ barrett, how. ( ); united states _v._ waddell, u.s. ( ). [ ] united states _v._ mcgowan, u.s. ( ). [ ] united states _v._ san francisco, u.s. ( ). [ ] van brocklin _v._ tennessee, u.s. ( ); _cf._ wilson _v._ cook, u.s. ( ). [ ] gibson _v._ chouteau, wall , ( ). _see also_ irvine _v._ marshall, how. ( ); emblem _v._ lincoln land co., u.s. , ( ). [ ] wilcox _v._ jackson ex dem. m'connel, pet. , ( ). [ ] oklahoma _v._ texas, u.s. , ( ). [ ] united states _v._ oregon, u.s. , ( ). [ ] simms _v._ simms, u.s. , ( ). _see also_ united states _v._ mcmillan, u.s. , ( ); el paso & n.e.r. co. _v._ gutierrez, u.s. ( ); first nat. bank _v._ yankton county, u.s. , ( ). [ ] binns _v._ united states, u.s. , ( ). _see also_ serè _v._ pitot, cr. , ( ); murphy _v._ ramsey, u.s. , ( ). [ ] walker _v._ new mexico & s.p.r. co., u.s. , ( ); simms _v._ simms, u.s. , ( ); wagoner _v._ evans, u.s. , ( ). [ ] stat. ( ). [ ] downes _v._ bidwell, u.s. , ( ). _see also_ interstate commerce commission _v._ united states ex rel. humboldt s.s. co., u.s. ( ); church of jesus christ of l.d.s. _v._ united states, u.s. , ( ). [ ] dorr _v._ united states, u.s. , ( ). _see also_ balzac _v._ porto rico, u.s. ( ). [ ] rassmussen _v._ united states, u.s. ( ). [ ] hawaii _v._ mankichi, u.s. ( ); r.m.c. littler, the governance of hawaii, chap. iii ( ). [ ] american ins. co. _v._ canter, pet. , ( ). _see also_ romeu _v._ todd, u.s. , ( ); united states _v._ mcmillan, u.s. , ( ); mcallister _v._ united states, u.s. , ( ); the "city of panama" _v._ phelps, u.s. , ( ); reynolds _v._ united states, u.s. , ( ); hornbuckle _v._ toombs, wall. , ( ); clinton _v._ englebrecht, wall. , ( ). [ ] american ins. co. _v._ canter, pet. , ( ). [ ] how. ( ). [ ] ibid. . _see also_ ohio ex rel. bryant _v._ akron metropolitan park district, u.s. , ( ); mountain timber co. _v._ washington, u.s. , ( ). [ ] wall. , ( ). [ ] pacific states teleph. & teleg. co. _v._ oregon, u.s. ( ); kiernan _v._ portland, u.s. ( ); ohio ex rel. davis _v._ hildebrant, u.s. ( ). [ ] ohio ex rel. bryant _v._ akron metropolitan park district, u.s. , ( ); o'neill _v._ leamer, u.s. ( ); highland farms dairy inc. _v._ agnew, u.s. , ( ); forsyth _v._ hammond, u.s. , ( ). [ ] taylor _v._ beckham, u.s. ( ). _see also_ marshall _v._ dye, u.s. ( ). [ ] minor _v._ happersett, wall. , ( ). [ ] how. ( ). [ ] stat. ( ). [ ] how. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] on the decline in observance of the formalities required by the provision both before and during world war i, _see_ corwin, the president, office and powers ( d ed., ), - . article v mode of amendment page amendment of the constitution scope of the amending power procedure of adoption submission of amendment ratification authentication and proclamation judicial review under article v mode of amendment article v the congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the senate. amendment of the constitution scope of amending power when this article was before the constitutional convention, a motion to insert a provision that "no state shall without its consent be affected in its internal policy" was made and rejected.[ ] a further attempt to impose a substantive limitation on the amending power was made in , when congress submitted to the states a proposal to bar any future amendments which would authorize congress to "interfere, within any state, with the domestic institutions thereof, * * *."[ ] three states ratified this article before the outbreak of the civil war made it academic.[ ] many years later the validity of both the eighteenth and nineteenth amendments was challenged because of their content. the arguments against the former took a wide range. counsel urged that the power of amendment is limited to the correction of errors in the framing of the constitution; that it does not comprehend the adoption of additional or supplementary provisions. they contended further that ordinary legislation cannot be embodied in a constitutional amendment and that congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a state.[ ] the nineteenth amendment was attacked on the narrower ground that a state which had not ratified the amendment would be deprived of its equal suffrage in the senate because its representatives in that body would be persons not of its choosing, i.e., persons chosen by voters whom the state itself had not authorized to vote for senators.[ ] brushing aside these arguments as unworthy of serious attention, the supreme court held both amendments valid. procedure of adoption submission of amendment when madison submitted to the house of representatives the proposals from which the bill of rights evolved, he contemplated that they should be incorporated in the text of the original instrument.[ ] instead the house decided to propose them as supplementary.[ ] it ignored a suggestion that the two houses should first resolve that amendments are necessary before considering specific proposals.[ ] in the national prohibition cases[ ] the supreme court ruled that in proposing an amendment the two houses of congress thereby indicated that they deemed it necessary. that same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the members present--assuming the presence of a quorum--and not a vote of two thirds of the entire membership present and absent.[ ] the approval of the president is not necessary for a proposed amendment.[ ] ratification congress may, in proposing an amendment, set a reasonable time limit for its ratification. two amendments proposed in , one submitted in and one in , were never ratified. in dillon _v._ gloss[ ] the court intimated that proposals which were clearly out of date were no longer open for ratification. however, in coleman _v._ miller,[ ] it refused to pass upon the question whether the proposed child labor amendment, submitted to the states in , was open to ratification thirteen years later. it held this to be a political question which would have to be resolved by congress in the event three fourths of the states ever gave their assent to the proposal. with respect to the eighteenth, twentieth, twenty-first and twenty-second amendments, congress included in the text of these proposed amendments a section stating that the article should be inoperative unless ratified within seven years. in dillon _v._ gloss the court sustained this limitation on the ground that it gave effect to the implication of article v that ratification "must be within some reasonable time after the proposal."[ ] congress has complete freedom of choice between the two methods of ratification recognized by article v--by the legislatures of the states, or conventions in the states. in united states _v._ sprague[ ] counsel advanced the contention that the tenth amendment recognized a distinction between powers reserved to the states and powers reserved to the people, and that state legislatures were competent to delegate only the former to the national government; delegation of the latter required action of the people through conventions in the several states. the eighteenth amendment being of the latter character, the ratification by state legislatures, so the argument ran, was invalid. the supreme court rejected the argument. it found the language of article v too clear to admit of reading any exceptions into it by implication. the term "legislatures" as used in article v means deliberative, representative bodies of the type which in exercised the legislative power in the several states. it does not comprehend the popular referendum which has subsequently become a part of the legislative process in many of the states, nor may a state validly condition ratification of a proposed constitutional amendment on its approval by such a referendum.[ ] in the words of the court: "* * * the function of a state legislature in ratifying a proposed amendment to the federal constitution, like the function of congress in proposing the amendment, is a federal function derived from the federal constitution; and it transcends any limitations sought to be imposed by the people of a state."[ ] authentication and proclamation formerly official notice from a state legislature, duly authenticated, that it had ratified a proposed amendment went to the secretary of state, upon whom it was binding, "being certified by his proclamation, [was] conclusive upon the courts" as against any objection which might be subsequently raised as to the regularity of the legislative procedure by which ratification was brought about.[ ] this function of the secretary, purely ministerial in character, was, however, derived from an act of congress, and was recently transferred to a functionary called administrator of general services.[ ] in dillon _v._ gloss,[ ] the supreme court held that the eighteenth amendment became operative on the date of ratification by the thirty-sixth state, rather than on the later date of the proclamation issued by the secretary of state, and doubtless the same rule holds as to a similar proclamation by the administrator. judicial review under article v prior to , the supreme court had taken cognizance of a number of diverse objections to the validity of specific amendments. apart from holding that official notice of ratification by the several states was conclusive upon the courts,[ ] it had treated these questions as justiciable, although it had uniformly rejected them on the merits. in that year, however, the whole subject was thrown into confusion by the inconclusive decision in coleman _v._ miller.[ ] this case came up on a writ of certiorari to the supreme court of kansas to review the denial of a writ of mandamus to compel the secretary of the kansas senate to erase an endorsement on a resolution ratifying the proposed child labor amendment to the constitution to the effect that it had been adopted by the kansas senate. the attempted ratification was assailed on three grounds: ( ) that the amendment had been previously rejected by the state legislature; ( ) that it was no longer open to ratification because an unreasonable period of time, thirteen years, had elapsed since its submission to the states, and ( ) that the lieutenant governor had no right to cast the deciding vote in the senate in favor of ratification. four opinions were written in the supreme court, no one of which commanded the support of more than four members of the court. the majority ruled that the plaintiffs, members of the kansas state senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. without agreement as to the grounds for their decision, a different majority affirmed the judgment of the kansas court denying the relief sought. four members who concurred in the result had voted to dismiss the writ on the ground that the amending process "is 'political' in its entirety, from submission until an amendment becomes part of the constitution, and is not subject to judicial guidance, control or interference at any point."[ ] whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favor of ratification presented a justiciable controversy was left undecided, the court being equally divided on the point.[ ] in an opinion reported as "the opinion of the court," but in which it appears that only three justices concurred, chief justice hughes declared that the writ of mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the states were political questions which should be left to congress.[ ] on the same day, the court dismissed a writ of certiorari to review a decision of the kentucky court of appeals declaring the action of the kentucky general assembly purporting to ratify the child labor amendment illegal and void. inasmuch as the governor had forwarded the certified copy of the resolution to the secretary of state before being served with a copy of the restraining order issued by the state court, the supreme court found that there was no longer a controversy susceptible of judicial determination.[ ] notes [ ] ii madison, journal of debates in the constitutional convention, - (hunt's ed., ). [ ] cong. globe, ( ). [ ] ames, herman v., proposed amendments to the constitution, ( ). [ ] rhode island _v._ palmer, u.s. , ( ). [ ] leser _v._ garnett, u.s. ( ). [ ] annals of congress - ( ). [ ] ibid. . [ ] ibid. . [ ] rhode island _v._ palmer, u.s. , ( ). [ ] ibid. [ ] hollingsworth _v._ virginia, dall. ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] hawke _v._ smith, u.s. , ( ). [ ] leser _v._ garnett, u.s. , ( ). [ ] leser _v._ garnett, u.s. , ( ). [ ] stat. ( ). [ ] u.s. , ( ). [ ] leser _v._ garnett, u.s. ( ). [ ] u.s. ( ). _cf._ fairchild _v._ hughes, u.s. ( ), wherein the court held that a private citizen could not sue in the federal courts to secure an indirect determination of the validity of a constitutional amendment about to be adopted. [ ] u.s. , ( ). [ ] ibid. , . [ ] ibid. , . [ ] chandler _v._ wise, u.s. ( ). article vi miscellaneous provisions page clause . validity of debts and engagements clause . supremacy of the constitution, etc. national supremacy marshall's interpretation of the clause supremacy clause versus tenth amendment status of the issue today task of the supreme court under the clause federal instrumentalities and the state police power obligation of state courts under the supremacy clause immunity of the federal judicial process effect of laws passed by states in insurrection doctrine of tax exemption mcculloch _v._ maryland applicability of doctrine in re federal securities, etc. taxability of government contractors status of doctrine today ad valorem taxes under doctrine public property and functions fiscal institutions; legislative exemptions atomic energy commission royalties; a judicial anticlimax immunity of lessees of indian lands summation and evaluation clause . oath of office power of congress in respect to oaths national duties of state officers miscellaneous provisions article vi clause . all debts contracted and engagements entered into, before the adoption of this constitution, shall be as valid against the united states under this constitution, as under the confederation. clause . this constitution, and the laws of the united states which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. national supremacy marshall's interpretation of the clause although the supreme court had held prior to marshall's appointment to the bench, that the supremacy clause rendered null and void a state constitutional or statutory provision which was inconsistent with a treaty executed by the federal government,[ ] it was left for him to develop the full significance of the clause as applied to acts of congress. by his vigorous opinions in mcculloch _v._ maryland[ ] and gibbons _v._ ogden[ ] he gave the principle a vitality which survived a century of vacillation under the doctrine of dual federalism. in the former case, he asserted broadly that "the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. this is, we think, the unavoidable consequence of that supremacy which the constitution has declared."[ ] from this he concluded that a state tax upon notes issued by a branch of the bank of the united states was void. in gibbons _v._ ogden, the court held that certain statutes of new york granting an exclusive right to use steam navigation on the waters of the state were null and void insofar as they applied to vessels licensed by the united states to engage in coastwise trade. said the chief justice: "in argument, however, it has been contended, that if a law passed by a state, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by congress in pursuance of the constitution, they affect the subject, and each other, like equal opposing powers. but the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. the nullity of an act, inconsistent with the constitution, is produced by the declaration, that the constitution is the supreme law. the appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the state legislatures as do not transcend their powers, but though enacted in the execution of acknowledged state powers, interfere with, or are contrary to the laws of congress, made in pursuance of the constitution, or some treaty made under the authority of the united states. in every such case, the act of congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it."[ ] supremacy clause versus tenth amendment the logic of the supremacy clause would seem to require that the powers of congress be determined by the fair reading of the express and implied grants contained in the constitution itself, without reference to the powers of the states. for a century after marshall's death, however, the court proceeded on the theory that the tenth amendment had the effect of withdrawing various matters of internal police from the reach of power expressly committed to congress. this point of view was originally put forward in new york _v._ miln,[ ] which was first argued, but not decided, before marshall's death. the miln case involved a new york statute which required the captains of vessels entering new york harbor with aliens aboard to make a report in writing to the mayor of the city, giving certain prescribed information. it might have been distinguished from gibbons _v._ ogden on the ground that the statute involved in the earlier case conflicted with an act of congress, whereas the court found that no such conflict existed in this case. but the court was unwilling to rest its decision on that distinction. speaking for the majority, justice barbour seized the opportunity to proclaim a new doctrine. he wrote: "but we do not place our opinion on this ground. we choose rather to plant ourselves on what we consider impregnable positions. they are these: that a state has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the constitution of the united states. that, by virtue of this, it is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. that all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called _internal police_, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive."[ ] justice story, in dissent, stated that marshall had heard the previous argument and reached the conclusion that the new york statute was unconstitutional.[ ] status of the issue today the conception of a "complete, unqualified and exclusive" police power residing in the states and limiting the powers of the national government was endorsed by chief justice taney ten years later in the license cases.[ ] in upholding state laws requiring licenses for the sale of alcoholic beverages, including those imported from other states or from foreign countries, he set up the supreme court as the final arbiter in drawing the line between the mutually exclusive, reciprocally limiting fields of power occupied by the national and state governments.[ ] this view has, in effect, and it would seem in theory also, been repudiated in recent cases upholding labor relations,[ ] social security,[ ] and fair labor standards acts[ ] passed by congress. task of the supreme court under the clause in applying the supremacy clause to subjects which have been regulated by congress, the primary task of the court is to ascertain whether a challenged state law is compatible with the policy expressed in the federal statute. when congress condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation are federal questions, the answers to which are to be derived from the statute and the policy which it has adopted. to the federal statute and policy, conflicting state law and policy must yield.[ ] but congress in enacting legislation within its constitutional authority will not be deemed to have intended to strike down a state statute to protect the health and safety of the public unless its purpose to do so is clearly manifested.[ ] when the united states performs its functions directly, through its own officers and employees, state police regulations clearly are inapplicable. in reversing the conviction of the governor of a national soldiers' home for serving oleomargarine in disregard of state law, the court said that the federal officer was not "subject to the jurisdiction of the state in regard to those very matters of administration which are thus approved by federal authority."[ ] an employee of the post office department is not required to submit to examination by state authorities concerning his competence and to pay a license fee before performing his official duty in driving a motor truck for transporting the mail.[ ] to arizona's complaint, in a suit to enjoin the construction of boulder dam, that her quasi-sovereignty would be invaded by the building of the dam without first securing approval of the state engineer as required by its laws, justice brandeis replied that, "if congress has power to authorize the construction of the dam and reservoir, wilbur [secretary of the interior] is under no obligation to submit the plans and specifications to the state engineer for approval."[ ] federal instrumentalities and the state police power federal instrumentalities and agencies have never enjoyed the same degree of immunity from state police regulation as from state taxation. the court has looked to the nature of each regulation to determine whether it is compatible with the functions committed by congress to the federal agency. this problem has arisen most often with reference to the applicability of state laws to the operation of national banks. two correlative propositions have governed the decisions in these cases. the first was stated by justice miller in first national bank _v._ kentucky:[ ] "[national banks are] subject to the laws of the state, and are governed in their daily course of business far more by the laws of the state than of the nation. all their contracts are governed and construed by state laws. their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on state law. it is only when the state law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional."[ ] in davis _v._ elmira savings bank,[ ] the court stated the second proposition thus: "national banks are instrumentalities of the federal government, created for a public purpose, and as such necessarily subject to the paramount authority of the united states. it follows that an attempt, by a state, to define their duties or control the conduct of their affairs is absolutely void, wherever such attempted exercise of authority expressly conflicts with the laws of the united states, and either frustrates the purpose of the national legislation or impairs the efficiency of these agencies of the federal government to discharge the duties, for the performance of which they were created."[ ] instructive, too, is a comparison of two other decisions. in the first,[ ] the court held that the fact that the texas and pacific railway company was a corporation organized under a statute of the united states did not remove it from the control of the texas railroad commission as to business done wholly within the state. in the second,[ ] the court vetoed the attempt of maryland to require a post office employee to cease driving a united states motor truck in the transportation of mail over a post road until he should obtain a license by submitting to examination before a state official and paying a fee. "of course," said justice holmes, "an employee of the united states does not secure a general immunity from state law while acting in the course of his employment"; but this time the state went too far. the extent to which states may go in regulating contractors who furnish goods or services to the federal government is not as clearly established as is their right to tax such dealers. in , a closely divided court sustained the refusal of the pennsylvania milk control commission to renew the license of a milk dealer who, in violation of state law, had sold milk to the united states for consumption by troops at an army camp located on land belonging to the state, at prices below the minima established by the commission.[ ] the majority was unable to find in congressional legislation, or in the constitution, unaided by congressional enactment, any immunity from such price-fixing regulations. on the same day, a different majority held that california could not penalize a milk dealer for selling milk to the war department at less than the minimum price fixed by state law where the sales and deliveries were made in a territory which had been ceded to the federal government by the state and were subject to the exclusive jurisdiction of the former.[ ] obligation of state courts under the supremacy clause the constitution, laws and treaties of the united states are as much a part of the law of every state as its own local laws and constitution. their obligation "is imperative upon the state judges, in their official and not merely in their private capacities. from the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. they were not to decide merely according to the laws or constitution of the state, but according to the laws and treaties of the united states--'the supreme law of the land.'"[ ] state courts have both the power and the duty to enforce obligations arising under federal law, unless congress gives the federal courts exclusive jurisdiction. the power of state courts to entertain such suits was affirmed in claflin _v._ houseman[ ] in , thus setting at rest the doubts which had been raised by an early dictum of justice story.[ ] in the claflin case justice bradley asserted on behalf of a unanimous court that: "if an act of congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of congress, by a proper action in a state court. the fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief, because it is subject also to the laws of the united states, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws."[ ] when the supreme court of connecticut held that rights created by the federal employer's liability acts could not be enforced in the courts of that state because the act was contrary to state policy, the supreme court unanimously reversed that decision. said justice van devanter: "the suggestion that the act of congress is not in harmony with the policy of the state, and therefore that the courts of the state are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. when congress, in the exertion of the power confided to it by the constitution, adopted that act, it spoke for all the people and all the states, and thereby established a policy for all. that policy is as much the policy of connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the state."[ ] even if a federal statute is penal in character, a state may not refuse to enforce it if congress allows it to take concurrent jurisdiction. in testa _v._ katt,[ ] the supreme court reversed a holding of rhode island's highest court that, inasmuch as a state need not enforce the penal laws of another jurisdiction, a suit for treble damages for violation of opa regulations could not be maintained in the courts of the state. without determining the nature of the statute, it affirmed once more without dissent that "the policy of the federal act is the prevailing policy in every state."[ ] immunity of the federal judicial process it would seem self-evident that a state court cannot interfere with the functioning of a federal tribunal. but this proposition has not always gone unchallenged. shortly before the civil war, the supreme court of wisconsin, holding the federal fugitive slave law invalid, ordered a united states marshal to release a prisoner who had been convicted of aiding and abetting the escape of a fugitive slave. in a further act of defiance, the state court instructed its clerk to disregard and refuse obedience to the writ of error issued by the united states supreme court. strongly denouncing this interference with federal authority, chief justice taney held that when a state court is advised, on the return of a writ of _habeas corpus_, that the prisoner is in custody on authority of the united states, it can proceed no further.[ ] to protect the performance of its functions against interference by state tribunals, congress may constitutionally authorize the removal to a federal court of a criminal prosecution commenced in a state court against a revenue officer of the united states on account of any act done under color of his office.[ ] in the celebrated case of cunningham _v._ neagle,[ ] a united states marshal who, while assigned to protect justice field, killed the man who had been threatening the life of the latter, was charged with murder by the state of california. invoking the supremacy clause, the supreme court held that a person could not be guilty of a crime under state law for doing what it was his duty to do as an officer of the united states. effect of laws passed by states in insurrection since the efforts of states to depart from the union, if successful, would have been _pro tanto_ a destruction of the constitution,[ ] the ordinances of secession adopted by the confederate states,[ ] and all acts of legislation intended to give effect to such ordinances,[ ] were treated as absolute nullities. the obligation of every state, as a member of the union, and the obligation of every citizen of the state, as a citizen of the united states, remained perfect and unimpaired.[ ] but acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and domestic relations, governing the course of descents, regulating the conveyance of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, were regarded in general as valid when proceeding from an actual, though unlawful government.[ ] the doctrine of tax exemption mcculloch _v._ maryland five years after the decision in mcculloch _v._ maryland that a state may not tax an instrumentality of the federal government, the court was asked to and did reexamine the entire question in osborn _v._ bank of the united states.[ ] in that case counsel for the state of ohio, whose attempt to tax the bank was challenged, put forward two arguments of great importance. in the first place it was "contended, that, admitting congress to possess the power, this exemption ought to have been expressly asserted in the act of incorporation; and, not being expressed, ought not to be implied by the court."[ ] to which marshall replied that: "it is no unusual thing for an act of congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance."[ ] secondly the appellants relied "greatly on the distinction between the bank and the public institutions, such as the mint or the post-office. the agents in those offices are, it is said, officers of government, * * * not so the directors of the bank. the connection of the government with the bank, is likened to that with contractors."[ ] marshall accepted this analogy, but not to the advantage of the appellants. he simply indicated that all contractors who dealt with the government were entitled to immunity from taxation upon such transactions.[ ] thus not only was the decision of mcculloch _v._ maryland reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades. applicability of doctrine _in re_ federal securities, etc. the first significant extension of the doctrine of the immunity of federal instrumentalities from state taxation came in weston _v._ charleston,[ ] where chief justice marshall also found in the supremacy clause a bar to state taxation of obligations of the united states. during the civil war, when congress authorized the issuance of legal tender notes, it explicitly declared that such notes, as well as united states bonds and other securities, should be exempt from state taxation.[ ] a modified version of this section remains on the statute books today.[ ] the right of congress to exempt legal tender notes to the same extent as bonds was sustained in people _v._ board of supervisors[ ] over the objection that such notes circulated as money and should be taxable in the same way as coin. but a state tax on checks issued by the treasurer of the united states for interest accrued upon government bonds was sustained since it did not in any wise affect the credit of the national government.[ ] similarly, the assessment for an _ad valorem_ property tax of an open account for money due under a federal contract,[ ] and the inclusion of the value of united states bonds owned by a decedent, in measuring an inheritance tax,[ ] were held valid, since neither tax would substantially embarrass the power of the united states to secure credit. income from federal securities is also beyond the reach of the state taxing power as the cases now stand.[ ] nor can such a tax be imposed indirectly upon the stockholders on such part of the corporate dividends as corresponds to the part of the corporation's income which is not assessed, i.e., income from tax exempt bonds.[ ] a state may constitutionally levy an excise tax on corporations for the privilege of doing business, and measure the tax by the property or net income of the corporation, including tax exempt united states securities or the income derived therefrom.[ ] the designation of a tax is not controlling.[ ] where a so-called "license tax" upon insurance companies, measured by gross income, including interest on government bonds, was, in effect, a commutation tax levied in lieu of other taxation upon the personal property of the taxpayer, it was still held to amount to an unconstitutional tax on the bonds themselves.[ ] taxation of government contractors in the course of his opinion in osborn _v._ bank of the united states,[ ] chief justice marshall posed the question: "can a contractor for supplying a military post with provisions, be restrained from making purchases within any state, or from transporting the provisions to the place at which the troops were stationed? or could he be fined or taxed for doing so? we have not yet heard these questions answered in the affirmative."[ ] one hundred and thirteen years later, the court did answer the last part of his inquiry in the affirmative. in james _v._ dravo contracting company[ ] it held that a state may impose an occupation tax upon an independent contractor, measured by his gross receipts under contracts with the united states. previously it had sustained a gross receipts tax levied in lieu of a property tax upon the operator of an automobile stage line, who was engaged in carrying the mails as an independent contractor,[ ] and an excise tax on gasoline sold to a contractor with the federal government and used to operate machinery in the construction of levees in the mississippi river.[ ] subsequently it has approved state taxes on the net income of a government contractor,[ ] income[ ] and social security[ ] taxes on the operators of bath houses maintained in a national park under a lease from the united states; sales and use taxes on sales of beverages by a concessionaire in a national park,[ ] and on purchases of materials used by a contractor in the performance of a cost-plus contract with the united states,[ ] and a severance tax imposed on a contractor who severed and purchased timber from lands owned by the united states.[ ] status of doctrine today of a piece with james _v._ dravo contracting co. was the decision in graves _v._ o'keefe,[ ] handed down two years later. repudiating the theory "that a tax on income is legally or economically a tax on its source," the court held that a state could levy a nondiscriminatory income tax upon the salary of an employee of a government corporation. in the opinion of the court, justice stone intimated that congress could not validly confer such an immunity upon federal employees. he wrote: "the burden, so far as it can be said to exist or to affect the government in any indirect or incidental way, is one which the constitution presupposes; and hence it cannot rightly be deemed to be within an implied restriction upon the taxing power of the national and state governments which the constitution has expressly granted to one and has confirmed to the other. the immunity is not one to be implied from the constitution, because if allowed it would impose to an inadmissible extent a restriction on the taxing power which the constitution has reserved to the state governments."[ ] chief justice hughes concurred in the result without opinion. justices butler and mcreynolds dissented and justice frankfurter wrote a concurring opinion in which he reserved judgment as to "whether congress may, by express legislation, relieve its functionaries from their civic obligations to pay for the benefits of the state governments under which they live...."[ ] _ad valorem_ taxes under the doctrine property owned by a federally chartered corporation engaged in private business is subject to state and local _ad valorem_ taxes. this was conceded in mcculloch _v._ maryland,[ ] and confirmed a half century later with respect to railroads incorporated by congress.[ ] similarly, a property tax may be levied against the lands under water which are owned by a person holding a license under the federal water power act.[ ] land conveyed by the united states to a corporation for dry dock purposes was subject to a general property tax, despite a reservation in the conveyance of a right to free use of the dry dock and a provision for forfeiture in case of the continued unfitness of the dry dock for use, or the use of the land for other purposes.[ ] where equitable title has passed to the purchaser of land from the government, a state may tax the equitable owner on the full value thereof, despite the retention of legal title by the government,[ ] but the equitable title passes otherwise.[ ] recently a divided court held that where the government purchased movable machinery and leased it to a private contractor, the lessee could not be taxed on the full value of the equipment.[ ] in the pioneer case of van brocklin _v._ tennessee,[ ] the state was denied the right to sell for taxes lands which the united states owned at the time the taxes were levied, but in which it had ceased to have any interest at the time of sale. nor can a state assess land in the hands of private owners for benefits from a road improvement completed while it was owned by the united states.[ ] public property and functions property owned by the united states is, of course, wholly immune to state taxation.[ ] no state can regulate, by the imposition of an inspection fee, any activity carried on by the united states directly through its own agents and employees.[ ] an early case whose authority is now uncertain held invalid a flat rate tax on telegraphic messages, as applied to messages sent by public officers on official business.[ ] fiscal institutions; legislative exemptions fiscal institutions chartered by congress, their shares and their property, are taxable only with the consent of congress and only in conformity with the restrictions it has attached to its consent.[ ] immediately after the supreme court construed the statute authorizing the states to tax national bank shares as allowing a tax on the preferred shares of such a bank held by the reconstruction finance corporation,[ ] congress passed a law exempting such shares from taxation. the court upheld this measure saying, "when congress authorized the states to impose such taxation, it did no more than gratuitously grant them political power which they theretofore lacked. its sovereign power to revoke the grant remained unimpaired, the grant of the privilege being only a declaration of legislative policy changeable at will."[ ] in pittman _v._ home owners' loan corporation[ ] the court sustained the power of congress under the necessary and proper clause to immunize the activities of the corporation from state taxation; and in federal land bank _v._ bismarck lumber co.,[ ] the like result was reached with respect to an attempt by the state to impose a retail sales tax on a sale of lumber and other building materials to the bank for use in repairing and improving property that had been acquired by foreclosure of mortgages. the state's principal argument proceeded thus: "congress has authority to extend immunity only to the governmental functions of the federal land banks; the only governmental functions of the land banks are those performed by acting as depositaries and fiscal agents for the federal government and providing a market for governmental bonds; all other functions of the land banks are private; petitioner here was engaged in an activity incidental to its business of lending money, an essentially private function; therefore § cannot operate to strike down a sales tax upon purchases made in furtherance of petitioner's lending functions."[ ] the court rejected this argument and invalidated the tax saying: "the argument that the lending functions of the federal land banks are proprietary rather than governmental misconceives the nature of the federal government with respect to every function which it performs. the federal government is one of delegated powers, and from that it necessarily follows that any constitutional exercise of its delegated powers is governmental. * * * it also follows that, when congress constitutionally creates a corporation through which the federal government lawfully acts, the activities of such corporation are governmental."[ ] however, in the absence of federal legislation, a state law laying a percentage tax on the users of safety deposit services, measured by the banks' charges therefor, was held valid as applied to national banks. the tax, being on the user, did not, the court held, impose an intrinsically unconstitutional burden on a federal instrumentality.[ ] the atomic energy commission; "activities" of in the recent case of carson _v._ roane-anderson co.,[ ] the court was confronted with an attempt on the part of tennessee to apply its tax on the use within the state of goods purchased elsewhere to a private contractor for the atomic energy commission and to vendors of such contractors. this, the court held, could not be done under section b of the atomic energy commission act, which provides in part that: "the commission, and the property, activities, and income of the commission, are hereby expressly exempted from taxation in any manner or form by any state, county, municipality, or any subdivision thereof."[ ] the power of exemption, said the court, "stems from the power to preserve and protect functions validly authorized--the power to make all laws necessary and proper for carrying into execution the powers vested in congress."[ ] the term, "activities," as used in the act described, was held to be nothing less "than all of the functions of the commission."[ ] royalties; a judicial anticlimax in the court went so far as to hold that a state could not tax as income royalties for the use of a patent issued by the united states.[ ] this proposition was soon overruled in fox film corp. _v._ doyal,[ ] where a privilege tax based on gross income and applicable to royalties from copyrights was upheld. likewise a state may lay a franchise tax on corporations, measured by the net income from all sources, and applicable to income from copyright royalties.[ ] immunity of lessees of indian lands another line of anomalous decisions conferring tax immunity upon lessees of restricted indian lands was overruled in . the first of these cases, choctaw o. & g.r. co. _v._ harrison,[ ] held that a gross production tax on oil, gas and other minerals was an occupational tax, and, as applied to a lessee of restricted indian lands, was an unconstitutional burden on such lessee, who was deemed to be an instrumentality of the united states. next the court held the lease itself a federal instrumentality immune from taxation.[ ] a modified gross production tax imposed in lieu of all _ad valorem_ taxes was invalidated in two _per curiam_ decisions.[ ] in gillespie _v._ oklahoma[ ] a tax upon the net income of the lessee derived from sales of his share of oil produced from restricted lands also was condemned. finally a petroleum excise tax upon every barrel of oil produced in the state was held inapplicable to oil produced on restricted indian lands.[ ] in harmony with the trend to restricting immunity implied from the constitution to activities of the government itself, the court overruled all these decisions in oklahoma tax comm'n _v._ texas co. and held that a lessee of mineral rights in restricted indian lands was subject to nondiscriminatory gross production and excise taxes, so long as congress did not affirmatively grant them immunity.[ ] summation and evaluation although mcculloch _v._ maryland and gibbons _v._ ogden were expressions of a single thesis--the supremacy of the national government--their development after marshall's death has been sharply divergent. during the period when gibbons _v._ ogden was eclipsed by the theory of dual federalism, the doctrine of mcculloch _v._ maryland was not merely followed but greatly extended as a restraint on state interference with federal instrumentalities. conversely, the court's recent return to marshall's conception of the powers of congress has coincided with a retreat from the more extreme positions taken in reliance upon mcculloch _v._ maryland. today the application of the supremacy clause is becoming, to an ever increasing degree, a matter of statutory interpretation--a determination of whether state regulations can be reconciled with the language and policy of federal enactments. in the field of taxation, the court has all but wiped out the private immunities previously implied from the constitution without explicit legislative command. broadly speaking, the immunity which remains is limited to activities of the government itself, and to that which is explicitly created by statute, e.g., that granted to federal securities and to fiscal institutions chartered by congress. but the term, activities, will be broadly construed. clause . the senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the united states. oath of office power of congress in respect to oaths congress may require no other oath of fidelity to the constitution, but it may superadd to this oath such other oath of office as its wisdom may require.[ ] it may not, however, prescribe a test oath as a qualification for holding office, such an act being in effect an _ex post facto_ law;[ ] and the same rule holds in the case of the states.[ ] national duties of state officers commenting in the federalist no. on the requirement that state officers, as well as members of the state legislatures, shall be bound by oath or affirmation to support this constitution, hamilton wrote: "thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government _as far as its just and constitutional authority extends_; and it will be rendered auxiliary to the enforcement of its laws." the younger pinckney had expressed the same idea on the floor of the philadelphia convention: "they [the states] are the instruments upon which the union must frequently depend for the support and execution of their powers, * * *"[ ] indeed, the constitution itself lays many duties, both positive and negative, upon the different organs of state government,[ ] and congress may frequently add others, provided it does not require the state authorities to act outside their normal jurisdiction. early congressional legislation contains many illustrations of such action by congress. the judiciary act of [ ] left the state courts in sole possession of a large part of the jurisdiction over controversies between citizens of different states and in concurrent possession of the rest. by other sections of the same act state courts were authorized to entertain proceedings by the united states itself to enforce penalties and forfeitures under the revenue laws, while any justice of the peace or other magistrate of any of the states was authorized to cause any offender against the united states to be arrested and imprisoned or bailed under the usual mode of process. even as late as , congress authorized all pecuniary penalties and forfeitures under the laws of the united states to be sued for before any court of competent jurisdiction in the state where the cause of action arose or where the offender might be found.[ ] pursuant also of the same idea of treating state governmental organs as available to the national government for administrative purposes, the act of entrusted the rendition of fugitive slaves in part to national officials and in part of state officials and the rendition of fugitives from justice from one state to another exclusively to the state executives.[ ] certain later acts empowered state courts to entertain criminal prosecutions for forging paper of the bank of the united states and for counterfeiting coin of the united states,[ ] while still others conferred on state judges authority to admit aliens to national citizenship and provided penalties in case such judges should utter false certificates of naturalization--provisions which are still on the statute books.[ ] with the rise of the doctrine of states rights and of the equal sovereignty of the states with the national government, the availability of the former as instruments of the latter in the execution of its power, came to be questioned.[ ] in prigg _v._ pennsylvania,[ ] decided in , the constitutionality of the provision of the act of making it the duty of state magistrates to act in the return of fugitive slaves was challenged; and in kentucky _v._ dennison,[ ] decided on the eve of the civil war, similar objection was leveled against the provision of the same act which made it "the duty" of the chief executive of a state to render up a fugitive from justice upon the demand of the chief executive of the state from which the fugitive had fled. the court sustained both provisions, but upon the theory that the cooperation of the state authorities was purely voluntary. in the prigg case the court, speaking by justice story, said: "* * * state magistrates may, if they choose, exercise the authority, [conferred by the act] unless prohibited by state legislation."[ ] in the dennison case, "the duty" of state executives in the rendition of fugitives from justice was construed to be declaratory of a "moral duty." said chief justice taney for the court: "the act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the executive of the state; nor is there any clause or provision in the constitution which arms the government of the united states with this power. indeed, such a power would place every state under the control and dominion of the general government, even in the administration of its internal concerns and reserved rights. and we think it clear, that the federal government, under the constitution, has no power to impose on a state officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the state, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the state. it is true," the chief justice conceded, "that in the early days of the government, congress relied with confidence upon the co-operation and support of the states, when exercising the legitimate powers of the general government, and were accustomed to receive it, [but this, he explained, was] upon principles of comity, and from a sense of mutual and common interest, where no such duty was imposed by the constitution."[ ] eighteen years later, in ex parte siebold[ ] the court sustained the right of congress, under article i, section , paragraph of the constitution, to impose duties upon state election officials in connection with a congressional election and to prescribe additional penalties for the violation by such officials of their duties under state law. while the doctrine of the holding is expressly confined to cases in which the national government and the states enjoy "a concurrent power over the same subject matter," no attempt is made to catalogue such cases. moreover, the outlook of justice bradley's opinion for the court is decidedly nationalistic rather than dualistic, as is shown by the answer made to the contention of counsel "that the nature of sovereignty is such as to preclude the joint cooperation of two sovereigns, even in a matter in which they are mutually concerned." to this justice bradley replied: "as a general rule, it is no doubt expedient and wise that the operations of the state and national governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. but there is no reason for laying this down as a rule of universal application. it should never be made to override the plain and manifest dictates of the constitution itself. we cannot yield to such a transcendental view of state sovereignty. the constitution and laws of the united states are the supreme law of the land, and to these every citizen of every state owes obedience, whether in his individual or official capacity."[ ] three years earlier the court, speaking also by justice bradley, sustained a provision of the bankruptcy act of giving assignees a right to sue in state courts to recover the assets of a bankrupt. said the court: the statutes of the united states are as much the law of the land in any state as are those of the state; and although exclusive jurisdiction for their enforcement may be given to the federal courts, yet where it is not given, either expressly or by necessary implication, the state courts having competent jurisdiction in other respects, may be resorted to.[ ] the selective service act of [ ] was enforced to a great extent through state "employees who functioned under state supervision";[ ] and state officials were frequently employed by the national government in the enforcement of national prohibition.[ ] nowadays, there is constant cooperation, both in peacetime and in wartime, in many fields between national and state officers and official bodies.[ ] this relationship obviously calls for the active fidelity of both categories of officialdom to the constitution. notes [ ] on the supremacy of treaties over conflicting state law, _see_ pp. - . the supremacy due to treaties has, within recent years, been extended to certain executive agreements. _see_ justice douglas in united states _v._ pink, u.s. ( ). as to the supremacy of congressional legislation implementing the national judicial power, _see_ tennessee _v._ davis, u.s. , - ( ); and ex parte siebold, u.s. ( ). [ ] . wheat. ( ). marshall had anticipated his argument in this case in , in united states _v._ fisher, cr. ( ), in which he upheld the act of asserting for the united states a priority of its claims over those of the states. _see_ chief justice taft's opinion in spokane county _v._ united states, u.s. , ( ), where united states _v._ fisher is followed; _also_ warren, supreme court in united states history, , ff. [ ] wheat. ( ). [ ] wheat. , ( ). [ ] wheat. , - ( ). [ ] pet. ( ). [ ] ibid. . [ ] ibid. . [ ] how. ( ). [ ] ibid. - . [ ] national labor relations board _v._ jones & laughlin steel corporation, u.s. ( ). [ ] steward machine co. _v._ davis, u.s. ( ); helvering _v._ davis, u.s. ( ). [ ] united states _v._ darby, u.s. ( ); _see_ especially ibid. - . [ ] sola electric co. _v._ jefferson electric co., u.s. , ( ); hill _v._ florida, u.s. ( ); _see also_ testa _v._ katt, u.s. , ( ); francis _v._ southern pacific co. u.s. ( ); and bus employers _v._ wisconsin board, u.s. ( ). [ ] southern pacific co. _v._ arizona, u.s. ( ); rice _v._ santa fe elevator co., u.s. , ( ); auto workers _v._ wis. board, u.s. , ( ); united states _v._ burnison, u.s. , - ( ). [ ] ohio _v._ thomas, u.s. , ( ). [ ] johnson _v._ maryland, u.s. ( ). [ ] arizona _v._ california, u.s. , ( ). [ ] wall. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . [ ] reagan _v._ mercantile trust co., u.s. ( ). [ ] johnson _v._ maryland, u.s. , ( ). [ ] penn dairies _v._ milk control comm'n., u.s. ( ). [ ] pacific coast dairy _v._ dept. of agriculture, u.s. ( ). [ ] martin _v._ hunter's lessee, wheat. , ( ). [ ] u.s. ( ). [ ] martin _v._ hunter's lessee, wheat. , ( ). [ ] u.s. , ( ). [ ] mondou _v._ new york, n.h. & h.r. co., u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ableman _v._ booth, how. , ( ), followed in united states _v._ tarble, wall. ( ). [ ] tennessee _v._ davis, u.s. ( ); _see also_ maryland _v._ soper, u.s. ( ). [ ] u.s. ( ). [ ] keith _v._ clark, u.s. , ( ). [ ] white _v._ cannon, wall. , ( ). _see also_ hickman _v._ jones, wall. ( ); dewing _v._ perdicaries, u.s. , ( ). [ ] ford _v._ surget, u.s. , ( ); united states _v._ keehler, wall. , ( ). [ ] texas _v._ white, wall. , ( ). [ ] ibid. . _see also_ horn _v._ lockhart, wall. , ( ); thomas _v._ richmond, wall. , ( ); white _v._ hart, wall. ( ); united states _v._ home ins. co., wall. ( ); taylor _v._ thomas, wall. ( ); and huntington _v._ texas, wall. ( ). [ ] wheat. ( ). [ ] ibid. . [ ] ibid. [ ] ibid. . [ ] ibid. . [ ] pet. ( ), followed in new york ex rel. bank of commerce _v._ comrs. of taxes and assessments, bl. ( ). [ ] stat. ( ). [ ] u.s.c. § ( ). [ ] wall. ( ). [ ] hibernia sav. & l. soc. _v._ san francisco, u.s. , ( ). [ ] smith _v._ davis, u.s. ( ). [ ] plummer _v._ coler, u.s. ( ); blodgett _v._ silberman, u.s. , ( ). [ ] northwestern mutual l. ins. co. _v._ wisconsin, u.s. , ( ). [ ] miller _v._ milwaukee, u.s. ( ). [ ] provident inst. for savings _v._ massachusetts, wall. ( ); society for savings _v._ coite, wall. ( ); hamilton mfg. co. _v._ massachusetts, wall. ( ); home ins. co. _v._ new york, u.s. ( ). [ ] macallen _v._ massachusetts, u.s. , ( ). [ ] northwestern mutual l. ins. co. _v._ wisconsin, u.s. ( ). [ ] wheat. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] alward _v._ johnson, u.s. ( ). [ ] trinityfarm const. co. _v._ grosjean, u.s. ( ). [ ] atkinson _v._ tax commission, u.s. ( ). [ ] superior bath house co. _v._ mccarroll, u.s. ( ). [ ] buckstaff bath house _v._ mckinley, u.s. ( ). [ ] collins _v._ yosemite park & curry co., u.s. ( ). [ ] alabama _v._ king & boozer, u.s. ( ), overruling panhandle oil co. _v._ knox, u.s. ( ) and graves _v._ texas co., u.s. ( ). _see also_ curry _v._ united states, u.s. ( ). [ ] wilson _v._ cook, u.s. ( ). [ ] u.s. ( ), followed in state tax comm'n. _v._ van cott, u.s. ( ). this case overruled by implication dobbins _v._ erie county, pet. ( ) and new york ex rel. rogers _v._ graves, u.s. ( ), which held the income of federal employees to be immune from state taxation. [ ] u.s. , ( ). [ ] ibid. . [ ] wheat. , ( ). [ ] thompson _v._ union p.r. co., wall. , ( ); railroad co. _v._ peniston, wall. , ( ). [ ] susquehanna power co. _v._ state tax comm'n., u.s. ( ). [ ] baltimore shipbuilding & dry dock co. _v._ baltimore, u.s. ( ). [ ] northern p.r. co. _v._ myers, u.s. ( ); new brunswick _v._ united states, u.s. ( ). [ ] irwin _v._ wright, u.s. ( ). [ ] united states _v._ allegheny county, u.s. ( ). [ ] u.s. ( ). [ ] lee _v._ osceola & l. river road improv. dist, u.s. ( ). [ ] clallam county _v._ united states, u.s. ( ). _see also_ cleveland _v._ united states, u.s. , ( ). [ ] mayo _v._ united states, u.s. ( ). [ ] western u. teleg. co. _v._ texas, u.s. , ( ). [ ] des moines nat. bank _v._ fairweather, u.s. , ( ); owensboro nat. bank _v._ owensboro, u.s. , ( ); first nat. bank _v._ adams, u.s. ( ). [ ] baltimore nat. bank _v._ state tax comm'n., u.s. ( ). [ ] maricopa county _v._ valley national bank, u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ibid. ; _cf._ wheat. , - ( ). [ ] colorado nat. bank _v._ bedford, u.s. ( ). [ ] u.s. ( ). [ ] stat. ; u.s.c. § (b). [ ] u.s. , . [ ] ibid. . [ ] long _v._ rockwood, u.s. ( ). [ ] u.s. ( ). [ ] educational films corp. _v._ ward, u.s. ( ). [ ] u.s. ( ). [ ] indian territory illuminating oil co. _v._ oklahoma, u.s. ( ). [ ] howard _v._ gipsy oil co., u.s. ( ); large oil co. _v._ howard, u.s. ( ). [ ] u.s. ( ). [ ] oklahoma tax comm'n _v._ barnsdall refiners, u.s. ( ). [ ] u.s. ( ). justice rutledge, speaking for the court, sketched the history of the immunity of lessees of indian lands from state taxation, which he found to stem from early rulings that tribal lands are themselves immune (the kansas indians, wall. ( ); the new york indians, wall. ( )). one of the first steps taken to curtail the scope of the immunity was shaw _v._ gibson-zahniser oil corp., u.s. ( ), which held that lands outside a reservation, though purchased with restricted indian funds, were subject to state taxation. congress soon upset the decision, however, and its act was sustained in board of county comm'rs _v._ seber, u.s. ( ). [ ] mcculloch _v._ maryland, wheat. , ( ). [ ] ex parte garland, wall. , ( ). [ ] cummings _v._ missouri, wall. , ( ). [ ] the federalist no. , p. ; i farrand records, . [ ] _see_ article i, section iii, paragraph ; section iv, paragraph ; section x; article ii, section i, paragraph ; article iii, section ii, paragraph ; article iv, sections i and ii; article v; amendments xiii, xiv, xv, xvii, and xix. [ ] stat. ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] stat. ( ). [ ] _see_ kent's commentaries, - ( ); stat. , ( ); u.s.c. §§ , ; ibid. § ( ); _also_ holmgren _v._ united states, u.s. ( ). [ ] for the development of opinion especially on the part of state courts, adverse to the validity of the above mentioned legislation, _see_ kent's commentaries, - ( ). [ ] pet. ( ). [ ] how. ( ). [ ] pet. at . [ ] how. at - . [ ] u.s. ( ). [ ] ibid. . [ ] claflin _v._ houseman, u.s. , , ( ); followed in second employers' liability cases, u.s. , - ( ). [ ] stat. ( ). [ ] jane perry clark, the rise of a new federalism, (columbia university press, ). [ ] _see_ james hart in virginia law review, - ( ) discussing president coolidge's order of may , , for prohibition enforcement. [ ] clark, new federalism, cited in note above; [transcriber's note: reference is to footnote , above.] corwin, court over constitution, - (princeton university press, ). article vii ratification article vii the ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same. in general in owings _v._ speed,[ ] the question at issue was whether the constitution of the united states operated upon an act of virginia passed in . the court held it did not, stating in part: "the conventions of nine states having adopted the constitution, congress, in september or october, , passed a resolution in conformity with the opinions expressed by the convention, and appointed the first wednesday in march of the ensuing year as the day, and the then seat of congress as the place, 'for commencing proceedings under the constitution.' "both governments could not be understood to exist at the same time. the new government did not commence until the old government expired. it is apparent that the government did not commence on the constitution being ratified by the ninth state; for these ratifications were to be reported to congress, whose continuing existence was recognized by the convention, and who were requested to continue to exercise their powers for the purpose of bringing the new government into operation. in fact, congress did continue to act as a government until it dissolved on the st of november, by the successive disappearance of its members. it existed potentially until the d of march, the day preceding that on which the members of the new congress were directed to assemble. "the resolution of the convention might originally have suggested a doubt, whether the government could be in operation for every purpose before the choice of a president; but this doubt has been long solved, and were it otherwise, its discussion would be useless, since it is apparent that its operation did not commence before the first wednesday in march * * *" notes [ ] wheat. , - ( ). amendments to the constitution amendments nos. - bill of rights page history ordinance of formulation and adoption of the bill of rights bill of rights and the states: barron _v._ baltimore bill of rights and amendment xiv amendments to the constitution amendments nos. - bill of rights history: the ordinance of while the constitutional convention was engaged in drafting the constitution, the congress of the confederation included in the ordinance for the government of the northwest territory, adopted july , , the following provisions: "it is hereby ordained and declared by the authority aforesaid, that the following articles shall be considered as articles of compact between the original states and the people and states in the said territory and forever remain unalterable, unless by common consent, to wit: "art. . no person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory. "art. . the inhabitants of the said territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. all persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. all fines shall be moderate; and no cruel or unusual punishments shall be inflicted. no man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. and, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, _bona fide_, and without fraud, previously formed. "art. . religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. * * * * * "art. . there shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: * * *"[ ] formulation and adoption of the bill of rights two months later, at the very end of its labors, the constitutional convention rejected, with scant consideration, a proposal by gerry and mason, to prepare a bill of rights.[ ] this omission furnished the principal argument urged against ratification of the constitution. hamilton replied with the following ingenious argument: "* * * bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. * * * it is evident, therefore, that according to their primitive signification, they have no application to the constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations."[ ] the people did not find this line of reasoning persuasive. several states ratified only after washington put forward the suggestion that the desired guarantees could be added by amendment.[ ] no less than amendments were proposed by the states.[ ] shortly after the first congress convened, madison introduced a series of amendments,[ ] designed "to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the declaration of independence were affirmed to be unalienable * * *"[ ] after prolonged debate seventeen proposals were accepted by the house two of which were rejected by the senate. the remainder were reduced to twelve in number, all but two of which were ratified by the requisite number of states.[ ] the bill of rights and the states: barron _v._ baltimore one of the amendments which the senate refused to accept--the one which madison declared to be "the most valuable of the whole list"[ ]--read as follows: "the equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any state."[ ] the demand for assurance of these rights against encroachment by the states would not die. in spite of the deliberate rejection of madison's proposal the contention that the first ten amendments were applicable to the states was repeatedly pressed upon the supreme court. by a long series of decisions, beginning with the opinion of chief justice marshall in barron _v._ baltimore[ ] in , the argument was consistently rejected. nevertheless the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection. expression such as the statement of justice miller in citizens savings and loan association _v._ topeka that: "it must be conceded that there are * * * rights in every free government beyond the control of the states"[ ] probably account for the fact, reported by charles warren that: "in at least twenty cases between and , the court was required to rule upon this point and to reaffirm marshall's decision of , * * *"[ ] the bill of rights and amendment xiv after the adoption of the fourteenth amendment, a fresh attack was launched on that front. the rights assured against encroachment by the federal government were claimed as privileges and immunities which no state may deny to any citizen.[ ] as early as the further contention was made that the procedural safeguards prescribed by these articles are essential ingredients of due process of law.[ ] for many years, the court continued to reject these arguments also, over the vigorous and prophetic dissents of justice harlan. with respect to the due process clause it held that these words have the same meaning in the fourteenth amendment as in the fifth, and hence do not embrace the other rights more specifically enumerated in the latter, there being no superfluous language in the constitution.[ ] in , however, it retreated from this position to the extent of holding that the fifth amendment's explicit guarantee against the taking of private property without just compensation is included in the due process clause of the fourteenth.[ ] later cases have established that the terms, "liberty" and "due process of law" as used in amendment xiv, render available against the states certain fundamental rights guaranteed accused persons in the bill of rights[ ] and the substantive rights which are protected against congress by amendment i.[ ] notes [ ] stat. n. [ ] elliot, the debates in the several state conventions on the adoption of the federal constitution, v, ( ). [ ] the federalist no. . [ ] mclaughlin, a constitutional history of the united states, ( ). [ ] ames, the proposed amendments to the constitution, ( ). [ ] annals of congress, i, , . [ ] monongahela navigation co. _v._ united states, u.s. , ( ). [ ] ames, _op. cit._, , ( ). [ ] annals of congress, , . [ ] ibid. [ ] pet. ( ); lessee of livingston _v._ moore, pet. ( ); permoli _v._ new orleans, how. , ( ); fox _v._ ohio, how. ( ); smith _v._ maryland, how. ( ); withers _v._ buckley, how. ( ); pervear _v._ massachusetts, wall. ( ); twitchell _v._ pennsylvania, wall. ( ). [ ] wall. , ( ). [ ] warren, the new "liberty" under the fourteenth amendment, harv. l. rev., , ( ). [ ] slaughter-house cases, wall. ( ); spies _v._ illinois, u.s. ( ); o'neil _v._ vermont, u.s. ( ); maxwell _v._ dow, u.s. ( ); patterson _v._ colorado, u.s. ( ); twining _v._ new jersey, u.s. ( ). [ ] hurtado _v._ california, u.s. ( ). [ ] ibid. , . [ ] chicago, b. & q.r. co. _v._ chicago, u.s. ( ). [ ] _see_ twining _v._ new jersey, u.s. ( ); adamson _v._ california, u.s. ( ). [ ] _see_ gitlow _v._ new york, u.s. ( ); beauharnais _v._ illinois, u.s. , ( ). amendment religion, free speech, etc. page absorption of amendment i into the fourteenth amendment "an establishment of religion" "no preference" doctrine "wall of separation" doctrine zorach case permissible monetary aids to religion free exercise of religion; dimensions parochial schools free exercise of religion; federal restraints free exercise of religion; state and local restraints free exercise of religion; obligations of citizenship freedom of speech and press blackstonian background effect of amendment i on the common law amendment xiv and blackstone clear and present danger rule, meaning contrasting operation of the common law rule emergence of the clear and present test gitlow and whitney cases acceptance of the clear and present danger test police power and clear and present danger public order public morals picketing and clear and present danger contempt of court and clear and present danger freedom of speech and press in public parks and streets censorship clear and present danger test: judicial diversities taxation federal restraints on freedom of speech and press regulations of business and labor activities regulation of political activities of federal employees legislative protection of the armed forces and the war power loyalty regulations: the douds case the case of the eleven communists subversive organizations recent state legislation loyalty tests group libel censorship of the mails rights of assembly and petition restraints on the right of petition the cruikshank case hague _v._ c.i.o. recent cases lobbying and the right of petition religion, free speech, etc. amendment congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. absorption of amendment i into the fourteenth amendment eventually the long sought protection for certain substantive personal rights was obtained by identifying them with the "liberty" which states cannot take away without due process of law. the shift in the court's point of view was made known quite casually in gitlow _v._ new york,[ ] where, although affirming a conviction for violation of a state statute prohibiting the advocacy of criminal anarchy, it declared that: "for present purposes we may and do assume that freedom of speech and of the press--which are protected by the first amendment from abridgment by congress--are among the fundamental personal rights and 'liberties' protected by the due process clause of the fourteenth amendment from impairment by the states."[ ] this dictum became, two years later, accepted doctrine when the court invalidated a state law on the ground that it abridged freedom of speech contrary to the due process clause of amendment xiv.[ ] subsequent decisions have brought the other rights safeguarded by the first amendment, freedom of religion,[ ] freedom of the press,[ ] and the right of peaceable assembly,[ ] within the protection of the fourteenth. in consequence of this development the cases dealing with the safeguarding of these rights against infringement by the states are included in the ensuing discussion of the first amendment. an establishment of religion the "no preference" doctrine the original proposal leading to the first amendment was introduced into the house of representatives by james madison, and read as follows: "the civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed."[ ] this was altered in the house to read: "congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."[ ] in the senate the above formula was replaced by the following; "congress shall make no law establishing articles of religion."[ ] the conference committee of the two houses adopted the house proposal, but with the neutral term "respecting an establishment," etc., taking the place of the original sweeping ban against any law "establishing religion."[ ] explaining this phraseology, in his commentaries, story asserted that the purpose of the amendment was not to discredit the then existing state establishments of religion, but rather "to exclude from the national government all power to act on the subject." he wrote: "the situation, * * *, of the different states equally proclaimed the policy as well as the necessity of such an exclusion. in some of the states, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. it was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency, if the national government were left free to create a religious establishment. the only security was in extirpating the power. but this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice and the state constitutions; and the catholic and the protestant, the calvinist and the arminian, the jew and the infidel, may sit down at the common table of the national councils without any inquisition into their faith or mode of worship."[ ] for the rest, story contended, the no establishment clause, while it inhibited congress from giving preference to any denomination of the christian faith, was not intended to withdraw the christian religion as a whole from the protection of congress. he said: "probably at the time of the adoption of the constitution, and of the amendment to it now under consideration, the general if not the universal sentiment in america was, that christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. an attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."[ ] as late as cooley expounded the no establishment clause as follows: "by establishment of religion is meant the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others (citing tuck. bl. com. app. ; _id._, app. note g.). it was never intended by the constitution that the government should be prohibited from recognizing religion, * * * where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects."[ ] the "wall of separation" doctrine in president jefferson wrote a letter to a group of baptists in danbury, connecticut in which he declared that it was the purpose of the first amendment to build "a wall of separation between church and state,"[ ] and in reynolds _v._ united states,[ ] the first anti-mormon case, chief justice waite, speaking for the unanimous court, characterized this as "almost an authoritative declaration of the scope and effect of the amendment," one which left congress "free to reach actions which were in violation of social duties or subversive of good order."[ ] recently the court has given jefferson's "almost authoritative" pronouncement a greatly enlarged application. speaking by justice black, a sharply divided court sustained in the right of local authorities in new jersey to provide free transportation for children attending parochial schools,[ ] but accompanied its holding with these warning words, which appear to have had the approval of most of the justices: "the 'establishment of religion' clause of the first amendment means at least this: neither a state nor the federal government can set up a church. neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. no person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations of groups and _vice versa_."[ ] and a year later a nearly unanimous court overturned on the above grounds a "released time" arrangement under which the champaign, illinois board of education agreed that religious instruction should be given in the local schools to pupils whose parents signed "request cards." the classes were to be conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. attendance records were kept and reported to the school authorities in the same way as for other classes; and pupils not attending the religious-instruction classes were required to continue their regular secular studies.[ ] said justice black, speaking for the court: "here not only are the state's tax-supported public school buildings used for the dissemination of religious doctrines. the state also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the state's compulsory public school machinery. this is not separation of church and state."[ ] justice frankfurter presented a concurring opinion for himself and justices jackson, rutledge and burton. "we are all agreed," it begins, "that the first and fourteenth amendments have a secular reach far more penetrating in the conduct of government than merely to forbid an 'established church.'"[ ] what ensues is a well documented account of the elimination of sectarianism from the american school system which is reinterpreted as a fight for the secularization of public supported education.[ ] facing then the emergence of the "released time" expedient,[ ] justice frankfurter characterizes it as a "conscientious attempt to accommodate the allowable functions of government and the special concerns of the church within the framework of our constitution."[ ] elsewhere in his opinion he states: "of course, 'released time' as a generalized conception, undefined by differentiating particularities, is not an issue for constitutional adjudication. * * * the substantial differences among arrangements lumped together as 'released time' emphasize the importance of detailed analysis of the facts to which the constitutional test of separation is to be applied. how does 'released time' operate in champaign?"[ ] and again: "we do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as 'released time,' present situations differing in aspects that may well be constitutionally crucial. different forms which 'released time' has taken during more than thirty years of growth include programs which, like that before us, could not withstand the test of the constitution; others may be found unexceptionable."[ ] justice jackson added further reservations of his own as follows: "we should place some bounds on the demands for interference with local schools that we are empowered or willing to entertain. * * * it is important that we circumscribe our decision with some care."[ ] in a dissenting opinion justice reed took exception to the extended meaning given to the words "an establishment of religion." "the phrase 'an establishment of religion,'" said he, "may have been intended by congress to be aimed only at a state church. when the first amendment was pending in congress in substantially its present form, 'mr. madison said, he apprehended the meaning of the words to be, that congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship god in any manner contrary to their conscience.' passing years, however, have brought about the acceptance of a broader meaning, although never until today, i believe, has this court widened its interpretation to any such degree as holding that recognition of the interest of our nation in religion, through the granting, to qualified representatives of the principal faiths, of opportunity to present religion as an optional, extracurricular subject during released school time in public school buildings, was equivalent to an establishment of religion."[ ] he further pointed out that "the congress of the united states has a chaplain for each house who daily invokes divine blessings and guidance for the proceedings. the armed forces have commissioned chaplains from early days. they conduct the public services in accordance with the liturgical requirements of their respective faiths, ashore and afloat, employing for the purpose property belonging to the united states and dedicated to the services of religion. under the servicemen's readjustment act of , eligible veterans may receive training at government expense for the ministry in denominational schools. the schools of the district of columbia have opening exercises which 'include a reading from the bible without note or comment, and the lord's prayer.'"[ ] the zorach case; the mccollum case limited in a decision handed down july , the new york court of appeals, one judge dissenting, sustained the "released time" program of that state, distinguishing it from the one condemned in the mccollum case as follows: "in the new york city program there is neither supervision nor approval of religious teachers and no solicitation of pupils or distribution of cards. the religious instruction must be outside the school building and grounds. there must be no announcement of any kind in the public schools relative to the program and no comment by any principal or teacher on the attendance or non-attendance of any pupil upon religious instruction. all that the school does besides excusing the pupil is to keep a record--which is not available for any other purpose--in order to see that the excuses are not taken advantage of and the school deceived, which is, of course, the same procedure the school would take in respect of absence for any other reason."[ ] on appeal this decision was sustained by the supreme court, six justices to three.[ ] said justice douglas, speaking for the majority: "we are a religious people whose institutions presuppose a supreme being. we guarantee the freedom to worship as one chooses. we make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. we sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. when the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. for it then respects the religious nature of our people and accommodates the public service to their spiritual needs. to hold that it may not would be to find in the constitution a requirement that the government show a callous indifference to religious groups. that would be preferring those who believe in no religion over those who do believe. government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. but we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. the government must be neutral when it comes to competition between sects. it may not thrust any sect on any person. it may not make a religious observance compulsory. it may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. but it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. no more than that is undertaken here."[ ] a few weeks earlier, moreover, the court had indicated an intention to scrutinize more closely the basis of its jurisdiction in this class of cases. this occurred in a case in which the question involved was the validity of a new jersey statute which requires the reading at the opening of each public school day of five verses of the old testament.[ ] the court held that appellant's interest as taxpayers was insufficient to constitute a justiciable case or controversy, while as to the alleged rights of the child involved the case had become moot with her graduation from school.[ ] permissible monetary aids to religion in the court held that an agreement between the district of columbia and the directors of a hospital chartered by congress for erection of a building and treatment of poor patients at the expense of the district was valid despite the fact that the members of the corporation belonged to a monastic order or sisterhood of a particular church.[ ] it has also sustained a contract made at the request of indians to whom money was due as a matter of right, under a treaty, for the payment of such money by the commissioner of indian affairs for the support of indian catholic schools.[ ] in the use of public funds to furnish nonsectarian textbooks to pupils in parochial schools of louisiana was sustained,[ ] and in , as we have seen, the case of public funds for the transportation of pupils attending such schools in new jersey.[ ] in the former of these cases the court cited the state's interest in secular education even when conducted in religious schools; in the latter its concern for the safety of school children on the highways; and the national school lunch act,[ ] which aids all school children attending tax-exempt schools can be similarly justified. the most notable financial concession to religion, however, is not to be explained in this way, the universal practice of exempting religious property from taxation. this unquestionably traces back to the idea expressed in the northwest ordnance that government has an interest in religion as such. free exercise of religion: dimensions the first amendment "was intended to allow every one under the jurisdiction of the united states to entertain such notions respecting his relations to his maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. the oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of (this) amendment."[ ] "the constitutional inhibition of legislation on the subject of religion has a double aspect. on the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. on the other hand, it safeguards the free exercise of the chosen form of religion. thus the amendment embraces two concepts,--freedom to believe and freedom to act. the first is absolute, but in the nature of things, the second cannot be."[ ] parochial schools the society of sisters, an oregon corporation, was empowered by its charter to care for orphans and to establish and maintain schools and academies for the education of the youth. systematic instruction and moral training according to the tenets of the roman catholic church was given in its establishments along with education in the secular branches. by an oregon statute, effective september , , it was required that every parent, or other person having control or charge or custody of a child between eight and sixteen years send him "to a public school for the period of time a public school shall be held during the current year" in the district where the child resides; and failure so to do was declared a misdemeanor. the district court of the united states for oregon enjoined the enforcement of the statute and the supreme court unanimously sustained its action,[ ] holding that the measure unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control--a liberty protected by the fourteenth amendment. while the first amendment was not mentioned in the court's opinion, the subsequent absorption of its religious clauses into the fourteenth amendment seems to make the case relevant to the question of their proper interpretation. free exercise of religion: federal restraints religious belief cannot be pleaded as a justification for an overt act made criminal by the law of the land. "laws are made for the government of action, and while they cannot interfere with mere religious belief and opinions, they may with practices."[ ] to permit a man to excuse conduct in violation of law on the ground of religious belief "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."[ ] it does not follow that "because no mode of worship can be established or religious tenets enforced in this country, therefore any tenets, however destructive of society, may be held and advocated, if asserted, to be a part of the religious doctrine of those advocating and practicing them * * * whilst legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so-called can be tolerated. crime is not the less odious because sanctioned by what any particular sect may designate as religion."[ ] accordingly acts of congress directed against either the practice of the advocacy of polygamy by members of a religious sect which sanctioned the practice, were held valid.[ ] but when, in the ballard case,[ ] decided in , the promoters of a religious sect, whose founder had at different times identified himself as saint germain, jesus, george washington, and godfre ray king, were convicted of using the mails to defraud by obtaining money on the strength of having supernaturally healed hundreds of persons, they found the court in a softened frame of mind. although the trial judge, carefully discriminating between the question of the truth of defendants' pretensions and that of their good faith in advancing them, had charged the jury that it could pass on the latter but not the former, this caution did not avail with the court, which contrived on another ground ultimately to upset the verdict of "guilty." the late chief justice stone, speaking for himself and justices roberts and frankfurter, dissented: "i cannot say that freedom of thought and worship includes freedom to procure money by making knowingly false statements about one's religious experiences."[ ] free exercise of religion: state and local restraints the mormon church cases were decided prior to the emergence of the clear and present danger doctrine dealt with below. in its consideration of cases stemming from state and local legislation the court has endeavored at times to take account of this doctrine, with the result that its decisions have followed a somewhat erratic course. the leading case is cantwell _v._ connecticut.[ ] here three members of the sect calling itself jehovah's witnesses were convicted under a statute which forbade the unlicensed soliciting of funds on the representation that they were for religious or charitable purposes, and also on a general charge of breach of the peace by accosting in a strongly catholic neighborhood two communicants of that faith and playing to them a phonograph record which grossly insulted the christian religion in general and the catholic church in particular. both convictions were held to violate the constitutional guarantees of speech and religion, the clear and present danger rule being invoked in partial justification of the holding, although it is reasonably inferable from the court's own recital of the facts that the listeners to the phonograph record exhibited a degree of self-restraint rather unusual under the circumstances. two weeks later the court, as if to "compensate" for its zeal in the cantwell case, went to the other extreme, and urging the maxim that legislative acts must be presumed to be constitutional, sustained the state of pennsylvania in excluding from its schools children of the jehovah's witnesses, who in the name of their beliefs refused to salute the flag.[ ] the subsequent record of the court's holdings in this field is somewhat variable. a decision in june, , sustaining the application to vendors of religious books and pamphlets of a nondiscriminatory license fee[ ] was eleven months later vacated and formally reversed;[ ] shortly thereafter a like fate overtook the decision in the "flag salute" case.[ ] in may, , the court found that an ordinance of the city of struthers, ohio, which made it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature, was violative of the constitution when applied to distributors of leaflets advertising a religious meeting.[ ] but eight months later it sustained the application of massachusetts' child labor laws in the case of a nine year old girl who was permitted by her legal custodian to engage in "preaching work" and the sale of religious publications after hours.[ ] however, in saia _v._ new york[ ] decided in , the court held, by a vote of five justices to four, that an ordinance of the city of lockport, new york, which forbade the use of sound amplification devices except with the permission of the chief of police was unconstitutional as applied in the case of a jehovah's witness who used sound equipment to amplify lectures in a public park on sunday, on religious subjects. but a few months later the same court, again dividing five-to-four, sustained a trenton, new jersey ordinance which banned from that city's streets all loud speakers and other devices which emit "loud and raucous noises."[ ] the latest state of the doctrine on this particular topic is represented by three cases, all decided the same day. in one the conviction of a baptist minister for conducting religious services in the streets of new york city without first obtaining a permit from the city police commissioner was overturned,[ ] a permit having been refused him on the ground that he had in the past ridiculed other religious beliefs thereby stirring strife and threatening violence. justice jackson dissented, quoting mr. bertrand russell to prove that "too little liberty brings stagnation, and too much brings chaos. the fever of our times," he suggested, "inclines the court today to favor chaos."[ ] in the second, the court upset the conviction of a group of jehovah's witnesses in maryland for using a public park without first obtaining a permit.[ ] the third case,[ ] which had nothing to do with religion, affords an interesting foil to the other two. it is dealt with in another connection.[ ] free exercise of religion: obligations of citizenship in the court rejected as too unsound to require more than a mere statement the argument that the selective service act was repugnant to the first amendment as establishing or interfering with religion, by reason of the exemptions granted ministers of religion, theological students and members of sects whose tenets exclude the moral right to engage in war.[ ] the opposite aspect of this problem was presented in hamilton _v._ regents.[ ] there a california statute requiring all male students at the state university to take a course in military science and tactics was assailed by students who claimed that military training was contrary to the precepts of their religion. this act did not require military service, nor did it peremptorily command submission to military training. the obligation to take such training was imposed only as a condition of attendance at the university. in these circumstances, all members of the court concurred in the judgment sustaining the statute. no such unanimity of opinion prevailed in in re summers,[ ] where the court upheld the action of a state supreme court in denying a license to practice law to an applicant who entertained conscientious scruples against participation in war. the license was withheld on the premise that a conscientious belief in nonviolence to the extent that the believer would not use force to prevent wrong, no matter how aggravated, made it impossible for him to swear in good faith to support the state constitution. the supreme court held that the state's insistence that an officer charged with the administration of justice take such an oath and its interpretation of that oath to require a willingness to perform military service, did not abridge religious freedom. in a dissenting opinion in which justices douglas, murphy and rutledge concurred, justice black said, "i cannot agree that a state can lawfully bar from a semipublic position a well-qualified man of good character solely because he entertains a religious belief which might prompt him at some time in the future to violate a law which has not yet been and may never be enacted."[ ] freedom of speech and press the blackstonian background "the liberty of the press," says blackstone, "is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure from criminal matter when published. every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. to subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. but to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects."[ ] effect of amendment i on the common law blackstone was declaring the common law of his day, and it was no intention of the framers of amendment i to change that law. "the historic antecedents of the first amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. the massachusetts constitution of guaranteed free speech; yet there are records of at least three convictions for political libels obtained between and . the pennsylvania constitution of and the delaware constitution of expressly imposed liability for abuse of the right of free speech. madison's own state put on its books in a statute confining the abusive exercise of the right of utterance. and it deserves to be noted that in writing to john adams' wife, jefferson did not rest his condemnation of the sedition act of on his belief in unrestrained utterance as to political matter. the first amendment, he argued, reflected a limitation upon federal power, leaving the right to enforce restrictions on speech to the states.[ ] * * * 'the law is perfectly well settled,' this court said over fifty years ago, 'that the first ten amendments to the constitution, commonly known as the bill of rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our english ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. in incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.'[ ] that this represents the authentic view of the bill of rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years."[ ] amendment xiv and blackstone nor was the adoption of amendment xiv thought to alter the above described situation until a comparatively recent date. said justice holmes, speaking for the court in : "we leave undecided the question whether there is to be found in the fourteenth amendment a prohibition similar to that in the first. but even if we were to assume that freedom of speech and freedom of the press were protected from abridgment on the part not only of the united states but also of the states, still we should be far from the conclusion that the plaintiff in error would have us reach. in the first place, the main purpose of such constitutional provisions is 'to prevent all such _previous restraints_ upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. commonwealth _v._ blanding, pick. , , ; respublica _v._ oswald, dallas , . the preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. this was the law of criminal libel apart from statute in most cases, if not in all. commonwealth _v._ blanding, _ubi sup._; bl. comm. ."[ ] this appears to be an unqualified endorsement of blackstone. but, as justice holmes remarks in the same opinion, "there is no constitutional right to have all general propositions of law once adopted remain unchanged."[ ] as late as justice pitney, speaking for the court, said: "neither the fourteenth amendment nor any other provision of the constitution of the united states imposes upon the states any restriction about 'freedom of speech' or the 'liberty of silence' * * *"[ ] the clear and present danger rule, meaning the rule requires that before an utterance can be penalized by government it must, ordinarily, have occurred "in such circumstances or have been of such a nature as to create a clear and present danger" that it would bring about "substantive evils" within the power of government to prevent.[ ] the question whether these conditions exist is one of law for the courts, and ultimately for the supreme court, in enforcement of the first and/or the fourteenth amendment;[ ] and in exercise of its power of review in these premises the court is entitled to review broadly findings of facts of lower courts, whether state or federal.[ ] contrasting operation of the common law rule in davis _v._ beason,[ ] decided in , the question at issue was the constitutionality of a statute of the territory of idaho, providing that "no person who is a bigamist or polygamist, or who teaches, advices, counsels or encourages any person or persons to become bigamists or polygamists or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law, either as a rite or ceremony of such order, organization or association, or otherwise, is permitted to vote at any election, or to hold any position or office of honor, trust or profit within this territory." a unanimous court held this enactment to be within the legislative powers which congress had conferred on the territory and not to be open to any constitutional objection. said justice field for the court: "bigamy and polygamy are crimes by the laws of all civilized and christian countries. they are crimes by the laws of the united states, and they are crimes by the laws of idaho. they tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. to extend exemption from punishment for such crimes would be to shock the moral judgment of the community. to call their advocacy a tenet of religion is to offend the common sense of mankind. if they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counselling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases."[ ] no talk here about the necessity for showing that the prohibited teaching, counselling, advising, etc., must be shown to have occurred in circumstances creating a clear and present danger of its being followed. in fox _v._ washington,[ ] decided in , the question at issue was the constitutionality of a washington statute denouncing "the wilful printing, circulation, etc., of matter advocating or encouraging the commission of any crime or breach of the peace or which shall tend to encourage or advocate disrespect for law or any court or courts of justice." the state supreme court had assumed that the case was governed by the guarantees of the united states constitution of freedom of speech, and especially by the fourteenth amendment, and its decision sustaining the statute was upheld by the supreme court on the same assumption, in the case of a person indicted for publishing an article encouraging and inciting what the jury had found to be a breach of state laws against indecent exposure. again, one notes the total absence of any reference to the clear and present danger rule. but not all state enactments survived judicial review prior to the adoption of the clear and present danger test. in the court disallowed a kansas statute which, as interpreted by the highest state court, made punishable the joining of an organization teaching the inevitability of "the class struggle";[ ] three years later it upset a california statute which forbade in all circumstances the carrying of a red flag as a symbol of opposition to government;[ ] and years after that it upset a conviction under an oregon statute for participating in a meeting held under the auspices of an organization which was charged with advocating violence as a political method, although the meeting itself was orderly and did not advocate violence.[ ] in none of these cases was the clear and present danger test mentioned. emergence of the clear and present test in schenck _v._ united states[ ] appellants had been convicted of conspiracy to violate the espionage act of june , [ ] "by causing and attempting to cause insubordination, etc., in the military and naval forces of the united states, and to obstruct the recruiting and enlistment service of the united states, when the united states was at war with the german empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the act of may , , a document set forth and alleged to be calculated to cause such insubordination and obstruction." affirming the conviction, the court, speaking by justice holmes said: "it well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in patterson _v._ colorado.[ ] * * * we admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. but the character of every act depends upon the circumstances in which it is done. * * * the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. it does not even protect a man from an injunction against uttering words that have all the effect of force. * * * the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. it is a question of proximity and degree."[ ] one week later two other convictions under the same act were affirmed, with justice holmes again speaking for the unanimous court. in frohwerk _v._ united states[ ] he said: "with regard to the argument [on the constitutional question] we think it necessary to add to what has been said in schenck _v._ united states, * * *, only that the first amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. robertson _v._ baldwin, u.s. , . we venture to believe that neither hamilton nor madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of congress would be an unconstitutional interference with free speech."[ ] in debs _v._ united states[ ] he referred to "the natural and intended effect" and "probable effect"[ ] of the condemned speech (straight common law). when, moreover, a case arose in which the dictum in the schenck case might have influenced the result, the court, seven justices to two, declined to follow it. this was in abrams _v._ united states,[ ] in which the court affirmed a conviction for spreading propaganda "obviously intended to provoke and to encourage resistance to the united states in the war." justices holmes and brandeis dissented on the ground that the utterances did not create a clear and imminent danger[ ] of substantive evils. and the same result was reached in schaefer _v._ united states,[ ] again over the dissent of justices holmes and brandeis, the court saying that: "the tendency of the articles and their efficacy were enough for the offense * * *."[ ] the gitlow and whitney cases gitlow was convicted under a new york statute making it criminal to advocate, advise or teach the duty, necessity or propriety of overturning organized government by force or violence.[ ] since there was no evidence as to the effect resulting from the circulation of the manifesto for which he was convicted and no contention that it created any immediate threat to the security of the state, the court was obliged to reach a clear cut choice between the common law test of dangerous tendency and the clear and present danger test. it adopted the former and sustained the conviction, saying "by enacting the present statute the state has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil, that they may be penalized in the exercise of its police power. that determination must be given great weight * * * that utterances inciting to the overthrow of organized government by unlawful means present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion is clear. such utterances, by their very nature, involve danger to the public peace and to the security of the state. they threaten breaches of the peace and ultimate revolution. and the immediate danger is none the less and substantial because the effect of a given utterance cannot be accurately foreseen. the state cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale."[ ] justice sanford distinguished the schenck case by asserting that its "general statement" was intended to apply only to cases where the statute "merely prohibits certain acts involving the danger of substantive evil without any reference to language itself,"[ ] and has no application "where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character."[ ] two years later, in whitney _v._ california,[ ] upon evidence which tended to establish the existence of a conspiracy to commit certain serious crimes, the conviction was sustained unanimously. in a concurring opinion in which justice holmes joined, justice brandeis restated the test of clear and present danger to include the intent to create such danger: "but, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral. that the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent has been settled. _see_ schenck _v._ united states, u.s. , . * * *, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. if there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."[ ] acceptance of the clear and present danger test ten years later, in herndon _v._ lowry,[ ] a narrowly divided court drew a distinction between the prohibition by law of specific utterances which the legislators have determined have a "dangerous tendency" to produce substantive evil and the finding by a jury to that effect, and on this basis reversed the conviction of a communist organizer under a state criminal syndicalism statute, with the intimation that where it is left to a jury to determine whether particular utterances are unlawful, the test of clear and present danger must be applied.[ ] finally, in thornhill _v._ alabama,[ ] the court went the full length in invalidating a state law against picketing because[ ] "* * * no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter." the same term, again invoking the clear and present danger formula, it reversed a conviction for the common law offense of inciting a breach of the peace by playing, on a public street, a phonograph record attacking a religious sect.[ ] the police power and clear and present danger public order prior to the court's ratification of the clear and present danger test it had held that while on the one hand, peaceful and orderly opposition to government by legal means may not be inhibited, and that the constitution insures the "maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means,"[ ] yet on the other hand, the state may punish those who abuse their freedom of speech by utterances tending to incite to crime,[ ] or to endanger the foundations of organized government or to threaten its overthrow by unlawful means.[ ] the impact of the clear and present danger test upon these principles is well illustrated by a holding in by a sharply divided court, that a chicago ordinance which, as judicially interpreted, was held to permit punishment for breach of the peace for speech which "stirs the public to anger, invites disputes, (or) brings about a condition of unrest" was an undue and unlawful restriction on the right of free speech.[ ] reversing a conviction under the ordinance, justice douglas wrote: "a function of free speech under our system of government is to invite dispute. it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. speech is often provocative and challenging. it may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. that is why freedom of speech, though not absolute * * * is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."[ ] finding that the ordinance as thus construed was unconstitutional, the majority did not enter into a consideration of the facts of the particular case. dissenting, justice jackson dwelt at length upon the evidence which showed that a riot had actually occurred and that the speech in question had in fact provoked a hostile mob, incited a friendly one, and threatened violence between the two. conceding the premises of the majority opinion, he argued nevertheless that: "because a subject is legally arguable, however, does not mean that public sentiment will be patient of its advocacy at all times and in all manners. * * * a great number of people do not agree that introduction to america of communism or fascism is even debatable. hence many speeches, such as that of terminiello, may be legally permissible but may nevertheless in some surroundings be a menace to peace and order. when conditions show the speaker that this is the case, as it did here, there certainly comes a point beyond which he cannot indulge in provocations to violence without being answerable to society."[ ] early in the court itself endorsed this position in feiner _v._ new york.[ ] here was sustained the conviction of a speaker who in addressing a crowd including a number of negroes, through a public address system set up on the sidewalk, asserted that the negroes "should rise up in arms and fight for their rights," called a number of public officials, including the president, "bums," and ignored two police requests to stop speaking. the court took cognizance of the findings by the trial court and two reviewing state courts that danger to public order was clearly threatened.[ ] public morals but the police power extends also to the public morals. in winters _v._ new york[ ] the question at issue was the constitutionality of a state statute making it an offense "to print, publish, or distribute, or to possess with intent to distribute, any printed matter principally made up of criminal views, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime," and construed by the state courts "as prohibiting such massing of accounts of deeds of bloodshed and lust as to incite to crimes against the person." a divided court, justices to , following the third argument of the case before it, set the act aside on the ground that, as construed, it did not define the prohibited acts in such a way as to exclude those which are a legitimate exercise of the constitutional freedom of the press; and further, that it failed to set up an ascertainable standard of guilt.[ ] a few weeks earlier the court had vacated a judgment of the supreme court of utah affirming convictions on a charge of conspiring to "commit acts injurious to public morals" by counseling, advising and practicing plural marriage.[ ] four members of the court thought that the cause should be remanded in order to give the state supreme court opportunity to construe that statute and a fifth agreed with this result without opinion. justice rutledge, speaking for himself and justices douglas and murphy, dissented on the ground that the utah court had already construed the statute to authorize punishment for exercising the right of free speech. he said: "the utah statute was construed to proscribe any agreement to advocate the practice of polygamy. thus the line was drawn between discussion and advocacy. the constitution requires that the statute be limited more narrowly. at the very least the line must be drawn between advocacy and incitement, and even the state's power to punish incitement may vary with the nature of the speech, whether persuasive or coercive, the nature of the wrong induced, whether violent or merely offensive to the mores, and the degree of probability that the substantive evil actually will result."[ ] picketing and clear and present danger closely allied to the problem of dangerous utterances is the resort to picketing as a means of communication and persuasion in labor disputes. in such cases, the evils feared by the legislature usually arise, not out of the substance of the communications, but from the manner in which they are made. applying the test of clear and present danger in thornhill _v._ alabama[ ] and carlson v. california,[ ] the court invalidated laws against peaceful picketing, including the carrying of signs and banners. it held that: "the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the constitution" and may be abridged only where "the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion."[ ] shortly thereafter a divided court ruled that peaceful picketing may be enjoined where the labor dispute has been attended by violence on a serious scale.[ ] speaking for the majority on this occasion, justice frankfurter asserted that "utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force * * * (and) was not meant to be sheltered by the constitution."[ ] for a brief period strangers to the employer were accorded an almost equal freedom of communication by means of picketing.[ ] subsequent cases, however, have recognized that "while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech."[ ] without dissent the court has held that a state may enjoin picketing designed to coerce the employer to violate state law by refusing to sell ice to nonunion peddlers,[ ] by interfering with the right of his employees to decide whether or not to join a union,[ ] or by choosing a specified proportion of his employees from one race, irrespective of merit.[ ] by close divisions, it also sustained the right of a state to forbid the "conscription of neutrals" by the picketing of a restaurant solely because the owner had contracted for the erection of a building (not connected with the restaurant and located some distance away) by a contractor who employed nonunion men;[ ] or the picketing of a shop operated by the owner without employees to induce him to observe certain closing hours.[ ] in this last case justice black distinguished thornhill _v._ alabama and other prior cases by saying, "no opinions relied on by petitioners assert a constitutional right in picketers to take advantage of speech or press to violate valid laws designed to protect important interests of society * * * it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. * * * such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society."[ ] by the same token, a state anti-closed shop law does not infringe freedom of speech, of assembly or of petition;[ ] neither does a "cease and desist" order of a state labor relations board directed against work stoppages caused by the calling of special union meetings during working hours.[ ] but, by a vote of five justices to four--the five, however, being unable to agree altogether among themselves--a state may not require labor organizers to register,[ ] although, as justice roberts pointed out for the dissenters, "other paid organizers, whether for business or for charity could be required thus to identify themselves."[ ] contempt of court and clear and present danger one area in which the clear and present danger rule has undoubtedly enlarged freedom of utterance beyond common law limits is that of discussion of judicial proceedings. in the supreme court speaking by justice holmes refused to review the conviction of an editor for contempt of court in publishing articles and cartoons criticizing the action of the court in a pending case.[ ] it took the position that even if freedom of the press was protected against abridgment by the state, a publication tending to obstruct the administration of justice was punishable, irrespective of its truth. in recent years the court not only has taken jurisdiction of cases of this order but has scrutinized the facts with great care and has not hesitated to reverse the action of state courts. bridges _v._ california[ ] is the leading case. enlarging upon the idea that clear and present danger is an appropriate guide in determining whether comment on pending cases can be punished, justice black said: "we cannot start with the assumption that publications of the kind here involved actually do threaten to change the nature of legal trials, and that to preserve judicial impartiality, it is necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases. we must therefore turn to the particular utterances here in question and the circumstances of their publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify summary punishment."[ ] speaking on behalf of four dissenting members, justice frankfurter objected: "a trial is not a 'free trade in ideas,' nor is the best test of truth in a courtroom 'the power of the thought to get itself accepted in the competition of the market.' * * * we cannot read into the fourteenth amendment the freedom of speech and of the press protected by the first amendment and at the same time read out age-old means employed by states for securing the calm course of justice. the fourteenth amendment does not forbid a state to continue the historic process of prohibiting expressions calculated to subvert a specific exercise of judicial power. so to assure the impartial accomplishment of justice is not an abridgment of freedom of speech or freedom of the press, as these phases of liberty have heretofore been conceived even by the stoutest libertarians. in act, these liberties themselves depend upon an untrammeled judiciary whose passions are not even unconsciously aroused and whose minds are not distorted by extrajudicial considerations."[ ] in pennekamp _v._ florida,[ ] a unanimous court held that criticism of judicial action already taken, although the cases were still pending on other points, did not create a danger to fair judicial administration of the "clearness and immediacy necessary to close the doors of permissible public comment"[ ] even though the state court held and the supreme court assumed that "the petitioners deliberately distorted the facts to abase and destroy the efficiency of the court."[ ] and in craig _v._ harney,[ ] a divided court held that publication, while a motion for a new trial was pending, of an unfair report of the facts of a civil case, accompanied by intemperate criticism of the judge's conduct was protected by the constitution. said justice douglas, speaking for the majority: "the vehemence of the language used is not alone the measure of the power to publish for contempt. the fires which it kindles must constitute an imminent, and not merely a likely, threat to the administration of justice. the danger must not be remote or even probable; it must immediately imperil."[ ] freedom of speech and press in public parks and streets notable also is the protection which the court has erected in recent years for those who desire to use the streets and the public parks as theatres of discussion, agitation, and propaganda dissemination. in the court unanimously sustained an ordinance of the city of boston which provided that "no person shall, in or upon any of the public grounds, make any public address," etc., "except in accordance with a permit of the mayor,"[ ] quoting with approval the following language from the decision of the massachusetts supreme judicial court in the same case. "for the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in the house. when no proprietary right interferes the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. so it may take the less step of limiting the public use to certain purposes."[ ] forty-two years later this case was distinguished in hague _v._ c.i.o.[ ] (_see_ p. .) and in in saia _v._ new york[ ] an ordinance forbidding the use of sound amplification devices by which sound is cast directly upon the streets and public places, except with permission of the chief of police, for the exercise of whose discretion no standards were prescribed, was held unconstitutional as applied to one seeking leave to amplify religious lectures in a public park. the decision was a five-to-four holding; and eight months later a majority, comprising the former dissenters and the chief justice, held it to be a permissible exercise of legislative discretion to bar sound trucks, with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of a municipality.[ ] conversely, it was within the power of the public utilities commission of the district of columbia, following a hearing and investigation, to issue an order permitting the capital transit company, despite the protest of some of its patrons, to receive and amplify on its street cars and buses radio programs consisting generally of % music, % announcements, and % commercial advertising. neither operation of the radio service nor the action of the commission permitting it was precluded by the first and fifth amendments.[ ] under still unoverruled decisions an ordinance forbidding any distribution of circulars, handbills, advertising, or literature of any kind within the city limits without permission of the city manager is an unlawful abridgment of freedom of the press.[ ] so also are ordinances which forbid, without exception, any distributions of handbills upon the streets.[ ] even where such distribution involves a trespass upon private property in a company owned town,[ ] or upon government property in a defense housing development,[ ] it cannot be stopped. the passing out of handbills containing commercial advertising may, however, be prohibited; this is true even where such handbills may contain some matter which, standing alone would be immune from the restriction.[ ] a municipal ordinance forbidding any person to ring door bells, or otherwise summon to the door the occupants of any residence, for the purpose of distributing to them circulars or handbills was held to infringe freedom of speech and of the press as applied to a person distributing advertisements of a religious meeting.[ ] but an ordinance forbidding door to door peddling or canvassing unless it is invited or requested by the occupant of a private residence is valid.[ ] censorship freedom from previous restraints has never been regarded as absolute. the principle that words having the quality of verbal acts might be enjoined by court order was established in gompers _v._ bucks stove and range co.;[ ] and in near _v._ minnesota[ ] the court, speaking through chief justice hughes, even while extending blackstone's condemnation of censorship to a statute which authorized the enjoining of publications alleged to be persistently defamatory, criticized it as being in some respects too sweeping. indeed, the distinction between prevention and punishment appears to have played little or no part in determining when picketing may be forbidden in labor disputes.[ ] in chaplinsky _v._ new hampshire[ ] and board of education _v._ barnette,[ ] the opinions indicated that the power of government is measured by the same principles in both situations. in the former justice murphy asserted: "there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. these include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. it has been well observed that such are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."[ ] to like effect, in board of education _v._ barnette, justice jackson set it down as "a commonplace that censorship or suppression of expression of opinion is tolerated by our constitution only when the expression presents a clear and present danger of action of a kind the state is empowered to prevent and punish."[ ] it is significant that the cases which have sanctioned previous restraints upon the utterances of particular persons have involved restraint by judicial, not administrative action. the prime objective of the ban on previous restraints was to outlaw censorship accomplished by licensing. "the struggle for the freedom of the press was primarily directed against the power of the licensor. it was against that power that john milton directed his assault by his 'appeal for the liberty of unlicensed printing.' and the liberty of the press became initially a right to publish '_without_ a license what formerly could be published only _with one_'."[ ] even today, a licensing requirement will bring judicial condemnation more surely than any other form of restriction. except where the authority of the licensing officer is so closely limited as to leave no room for discrimination against utterances he does not approve,[ ] the supreme court has struck down licensing ordinances, even in respect of a form of communication which may be prohibited entirely.[ ] in the case of radio broadcasting, however, where physical limitations make it impossible for everyone to utilize the medium of communication, the court has thus far sanctioned a power of selective licensing;[ ] while with respect to moving pictures it has until very recently held the states' power to license, and hence to censor, films intended for local exhibition to be substantially unrestricted, this being "a business pure and simple, originated and conducted for profit," and "not to be regarded, ... as part of the press of the country or as organs of public opinion."[ ] this doctrine was laid down in , but in , in speaking for the court, in united states _v._ paramount pictures,[ ] justice douglas indicated a very different position, saying: "we have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the first amendment."[ ] in the so-called "miracle case,"[ ] in which it was held that under the first and fourteenth amendments, a state may not place a prior restraint on the showing of a motion picture film on the basis of the censor's finding that it is "sacrilegious," a word of uncertain connotation, this point of view becomes the doctrine of the court and the mutual films case is pronounced "overruled" so far as it is out of harmony with the instant holding.[ ] the clear and present danger test: judicial diversities in the course of decisions enforcing this test of state action with respect to freedom of speech and press, diversity of opinion has appeared among the justices upon three closely related topics: first, as to the restrictive force of the test; second, as to the constitutional status of freedom of speech and press; third, as to the kind of speech which the constitution is concerned to protect. on the first point the following passage from justice black's opinion in bridges _v._ california[ ] is pertinent: "what finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. they do no more than recognize a minimum compulsion of the bill of rights. for the first amendment does not speak equivocally. it prohibits any law 'abridging the freedom of speech or of the press.' it must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."[ ] with this should be compared the following words from justice frankfurter's concurring opinion in pennekamp _v._ florida,[ ] which involved a closely similar issue to the one dealt with in the bridges case: "'clear and present danger' was never used by mr. justice holmes to express a technical legal doctrine or to convey a formula for adjudicating cases. it was a literary phrase not to be distorted by being taken from its context. in its setting it served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our constitution. when those other attributes of a democracy are threatened by speech, the constitution does not deny power to the states to curb it."[ ] the second question, in more definite terms, is whether freedom of speech and press occupies a "preferred position" in the constitutional hierarchy of values so that legislation restrictive of it is presumptively unconstitutional. an important contribution to the affirmative view on this point is the following passage from an opinion of justice cardozo written in : "one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. * * * so it has come about that the domain of liberty, withdrawn by the fourteenth amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. the extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that even in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts."[ ] touching on the same subject a few months later, chief justice stone suggested that: "there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the fourteenth." and again: "it is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the fourteenth amendment than are most other types of legislation."[ ] but the strongest assertion of this position occurs in justice rutledge's opinion for a sharply divided court in thomas _v._ collins.[ ] he says: "the case confronts us again with the duty our system places on this court to say where the individual's freedom ends and the state's power begins. choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the first amendment. * * * that priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. and it is the character of the right, not of the limitation, which determines what standard governs the choice. * * * for these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. the rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. these rights rest on firmer foundation. accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. it is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly. it was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. all these, though not identical, are inseparable. they are cognate rights."[ ] this was . four years later the controlling wing of the court, in sustaining a local ordinance, endorsed a considerably less enthusiastic appraisal of freedom of speech and press. thus while alluding to "the preferred position of freedom of speech in a society that cherishes liberty for all," justice reed went on to say, that this "does not require legislators to be insensible to claims by citizens to comfort and convenience. to enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself."[ ] and justice frankfurter denied flatly the propriety of the phrase "preferred position," saying: "this is a phrase that has uncritically crept into some recent opinions of this court. i deem it a mischievous phrase, if it carries the thought, which it may subtly imply, that any law touching communication is infected with presumptive invalidity. it is not the first time in the history of constitutional adjudication that such a doctrinaire attitude has disregarded the admonition most to be observed in exercising the court's reviewing power over legislation, 'that it is a constitution we are expounding,' m'culloch _v._ maryland, wheat. , . i say the phrase is mischievous because it radiates a constitutional doctrine without avowing it. clarity and candor in these matters, so as to avoid gliding unwittingly into error, make it appropriate to trace the history of the phrase 'preferred position.'"[ ] which justice frankfurter then proceeded to do. justice jackson also protested: "we cannot," he said, "give some constitutional rights a preferred position without relegating others to a deferred position."[ ] the third question concerns the quality and purpose of the speech which the constitution aims to protect. in , justice douglas speaking for a divided court returned the following robustious answer to this question: "* * * a function of free speech under our system of government is to invite dispute. it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. speech is often provocative and challenging. it may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. that is why freedom of speech, though not absolute, chaplinsky _v._ new hampshire, supra, pp. - , is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."[ ] but early in justice jackson, in a dissenting opinion, urges the court to review its entire position in the light of the proposition that "the purpose of constitutional protection of freedom of speech is to foster peaceful interchange of all manner of thoughts, information and ideas," that "its policy is rooted in faith of the force of reason."[ ] he considers that the court has been striking "rather blindly at permit systems which indirectly may affect first amendment freedom." he says: "cities throughout the country have adopted the permit requirement to control private activities on public streets and for other purposes. the universality of this type of regulation demonstrates a need and indicates widespread opinion in the profession that it is not necessarily incompatible with our constitutional freedoms. is everybody out of step but this court? * * * it seems hypercritical to strike down local laws on their faces for want of standards when we have no standards. and i do not find it required by existing authority. i think that where speech is outside of constitutional immunity the local community or the state is left a large measure of discretion as to the means for dealing with it."[ ] this diversity of viewpoint on the court touching the above questions became of importance when, recently, the court was faced with the problem of the relation of freedom of speech to the enumerated powers of the national government, in contrast to the indefinite residual powers of the states. taxation the supreme court, citing the fact that the american revolution "really began when * * * that government (of england) sent stamps for newspaper duties to the american colonies" has been alert to the possible uses of taxation as a method of suppressing objectionable publications.[ ] persons engaged in the dissemination of ideas are, to be sure, subject to ordinary forms of taxation in like manner as other persons.[ ] with respect to license or privilege taxes, however, they stand on a different footing. their privilege is granted by the constitution and cannot be withheld by either state or federal government. hence a license tax measured by gross receipts for the privilege of engaging in the business of publishing advertising in any newspaper or other publication was held invalid[ ] and flat license fees levied and collected as a pre-condition to the sale of religious books and pamphlets have also been set side.[ ] federal restraints on freedom of speech and press regulations of business and labor activities the application to newspapers of the anti-trust laws,[ ] the national labor relations act,[ ] or the fair labor standards act,[ ] does not abridge the freedom of the press. in gompers _v._ bucks stove and range co.,[ ] the supreme court unanimously held that a court of equity may enjoin continuance of a boycott, despite the fact that spoken or written speech was used as an instrumentality by which the boycott was made effective. "in the case of an unlawful conspiracy, the agreement to act in concert when the signal is published gives the words 'unfair,' 'we don't patronize,' or similar expressions, a force not inhering in the words themselves, and therefore exceeding any possible right of speech which a single individual might have. under such circumstances they become what have been called 'verbal acts,' and as much subject to injunction as the use of any other force whereby property is unlawfully damaged."[ ] a cognate test has been applied in determining when communications by an employer constitute an unfair labor practice which may be forbidden or penalized under the national labor relations act without infringing freedom of speech. in labor board _v._ virginia power co.,[ ] the court held that the sanctions of the act might be imposed upon an employer for the protection of his employees, where his conduct "though evidenced in part by speech, * * * (amounted) to coercion within the meaning of the act."[ ] in the opinion of the court, justice murphy stated, "the mere fact that language merges into a course of conduct does not put that whole course without the range of otherwise applicable administrative power. in determining whether the company actually interfered with, restrained, and coerced its employees, the board has a right to look at what the company has said, as well as what it has done."[ ] but the constitutionality of legislation prohibiting the publication by corporations and unions in the regular course of conducting their affairs of periodicals advising their members, stockholders or customers of danger or advantage to their interest from the adoption of measures or the election to office of men espousing such measures has been declared by the court to be open to gravest doubt.[ ] regulation of political activities of federal employees the leading case touching this subject is ex parte curtis, decided seventy years ago.[ ] here was sustained an act of congress which prohibited, under penalties, certain categories of officers of the united states from requesting, giving to, or receiving from, any other officer, money or property or other thing of value for political purposes.[ ] two generations later was enacted the so-called hatch act[ ] which, while making some concessions to freedom of expression on matters political by employees of the government, forbids their active participation in political management and political campaigns. the act was sustained against objections based on the bill of rights;[ ] while an amendment to it the effect of which is to diminish the amount of a federal grant-in-aid of the construction of highways in a state which fails to remove from office "one found by the united states civil service commission to have taken active part in political management or in political campaigns while a member of the state highway commission," was held not to violate amendment x.[ ] legislation protective of the armed forces and of the war power the federal government may punish utterances which obstruct its recruiting or enlistment service, cause insubordination in the armed forces, encourage resistance to government in the prosecution of war, or impede the production of munitions and other essential war material.[ ] the only issue which has divided the court with regard to such speech has been the degree of danger which must exist before it may be punished. the recent decision in dennis _v._ united states diminishes, if it does not eliminate, this issue.[ ] loyalty regulations: the douds cases "section (h) of the labor management relations act requires, as a condition of a union's utilizing the opportunities afforded by the act, each of its officers to file an affidavit with the national labor relations board ( ) that he is not a member of the communist party or affiliated with such party, and ( ) that he does not believe in, and is not a member of or supports any organization that believes in or teaches the overthrow of the united states government by force or by any illegal or unconstitutional methods." the statute also makes it a criminal offense to make willfully or knowingly any false statement in such an affidavit.[ ] in american communications association, c.i.o. et al. _v._ douds[ ] five of the six justices participating sustained the requirement ( ) and three justices sustained the requirement ( ) against the objection that the act exceeded congress's power over interstate commerce and infringed freedom of speech and the rights of petition and assembly; and in osman _v._ douds[ ] the same result was reached by a court in which only justice clark did not participate. in the end only justice black condemned requirement ( ), while the court was evenly divided as to requirement ( ). in the course of his opinion for the controlling wing of the court, chief justice vinson said: "the attempt to apply the term, 'clear and present danger,' as a mechanical test in every case touching first amendment freedoms, without regard to the context of its application, mistakes the form in which an idea was cast for the substance of the idea * * * the question with which we are here faced is not the same one that justices holmes and brandeis found convenient to consider in terms of clear and present danger. government's interest here is not in preventing the dissemination of communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced. its interest is in protecting the free flow of commerce from what congress considers to be substantial evils of conduct that are not the products of speech at all. * * * the contention of petitioner * * * that this court must find that political strikes create a clear and present danger to the security of the nation or of widespread industrial strife in order to sustain § (h) similarly misconceives the purpose that phrase was intended to serve. in that view, not the relative certainty that evil conduct will result from speech in the immediate future, but the extent and gravity of the substantive evil must be measured by the 'test' laid down in the _schenck case_."[ ] in thus balancing the gravity of the interest protected by legislation from harmful speech against the demands of the clear and present danger rule the court paved the way for its decision a year later in dennis _v._ united states. the case of the eleven communists dennis _v._ united states[ ] involves the following legislation: "section . (a) it shall be unlawful for any person-- "( ) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the united states by force or violence, or by the assassination of any officer of any such government; "( ) with the intent to cause the overthrow or destruction of any government in the united states, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the united states by force or violence; "( ) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the united states by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof. "(b) for the purposes of this section, the term 'government in the united states' means the government of the united states, the government of any state, territory, or possession of the united states, the government of the district of columbia, or the government of any political subdivision of any of them."[ ] the trial court had ruled that clause ( ) of the act qualified both the other clauses; and this construction was endorsed by the supreme court. the judgment of the court sustaining the convictions against objections raised under amendment i was supported by three different opinions. chief justice vinson, speaking also for justices reed, burton and minton emphasized the substantial character of the government's interest in preventing its own overthrow by force. "indeed," said he, "this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected."[ ] the opinion continues: "if, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase 'clear and present danger' of the utterances bringing about the evil within the power of congress to punish. obviously, the words cannot mean that before the government may act, it must wait until the _putsch_ is about to be executed, the plans have been laid and the signal is awaited. if government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the government is required. the argument that there is no need for government to concern itself, for government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. for that is not the question. certainly an attempt to overthrow the government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for congress to prevent. the damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success or the immediacy of a successful attempt."[ ] the chief justice concluded this part of his opinion by quoting from chief judge learned hand's opinion for the circuit court of appeals in the same case, as follows: "'in each case [courts] must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.'"[ ] in short, if the evil legislated against is serious enough, advocacy of it in order to be punishable does not have to be attended by a clear and present danger of success. but at this point the chief justice appears to recoil from this abrupt dismissal of the clear and present danger formula for the more serious cases, and he makes a last moment effort to rescue the babe that he has tossed out with the bathwater. he says: "as articulated by chief judge hand, it is as succinct and inclusive as any other we might devise at this time. it takes into consideration those factors which we deem relevant, and relates their significances. more we cannot expect from words. likewise, we are in accord with the court below, which affirmed the trial court's finding that the requisite danger existed. the mere fact that from the period to petitioners' activities did not result in an attempt to overthrow the government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. the formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. and this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. it is the existence of the conspiracy which creates the danger."[ ] his final position seems to be that, after all, the question is one for judicial discretion. "when facts are found that establish the violation of a statute, the protection against conviction afforded by the first amendment is a matter of law. the doctrine that there must be a clear and present danger of a substantive evil that congress has a right to prevent is a judicial rule to be applied as a matter of law by the courts."[ ] justice frankfurter's lengthy concurring opinion premises "the right of a government to maintain its existence--self preservation." this, he says, is "the most pervasive aspect of sovereignty," citing the federalist no. , and certain cases.[ ] a little later he raises the question, "but how are competing interests to be assessed?" and answers: "full responsibility for the choice cannot be given to the courts. courts are not representative bodies. they are not designed to be a good reflex of a democratic society. their judgment is best informed, and therefore most dependable, within narrow limits. their essential quality is detachment, founded on independence. history teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the congress. the nature of the power to be exercised by this court has been delineated in decisions not charged with the emotional appeal of situations such as that now before us. we are to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it."[ ] but a difficulty exists, to wit, in the clear and present danger doctrine. he says: "in all fairness, the argument [of defendants] cannot be met by reinterpreting the court's frequent use of 'clear' and 'present' to mean an entertainable 'probability.' in giving this meaning to the phrase 'clear and present danger,' the court of appeals was fastidiously confining the rhetoric of opinions to the exact scope of what was decided by them. we have greater responsibility for having given constitutional support, over repeated protests, to uncritical libertarian generalities. nor is the argument of the defendants adequately met by citing isolated cases. * * * the case for the defendants requires that their conviction be tested against the entire body of our relevant decisions."[ ] turning then to the cases justice frankfurter exclaims at last: "i must leave to others the ungrateful task of trying to reconcile all these decisions."[ ] the nearest precedent was gitlow _v._ new york.[ ] here "we put our respect for the legislative judgment in terms which, if they were accepted here, would make decision easy. * * * but it would be disingenuous to deny that the dissent in _gitlow_ has been treated with the respect usually accorded a decision."[ ] but the case at bar was a horse of a different color. "in contrast, there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security,"[ ] which seems to be in essential agreement with the position of the chief justice and his three associates. justice frankfurter concludes with a homily on the limitations which the nature of judicial power imposes, on the power of judicial review. he says: "can we then say that the judgment congress exercised was denied it by the constitution? can we establish a constitutional doctrine which forbids the elected representatives of the people to make this choice? can we hold that the first amendment deprives congress of what it deemed necessary for the government's protection? to make validity of legislation depend on judicial reading of events still in the womb of time--a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations--is to charge the judiciary with duties beyond its equipment. we do not expect courts to pronounce historic verdicts on bygone events. even historians have conflicting views to this day on the origin and conduct of the french revolution. it is as absurd to be confident that we can measure the present clash of forces and their outcome as to ask us to read history still enveloped in clouds of controversy. * * * the distinction which the founders drew between the court's duty to pass on the power of congress and its complementary duty not to enter directly the domain of policy is fundamental. but in its actual operation it is rather subtle, certainly to the common understanding. our duty to abstain from confounding policy with constitutionality demands preceptive humility as well as self-restraint in not declaring unconstitutional what in a judge's private judgment is unwise and even dangerous."[ ] justice jackson's opinion emphasizes the conspiratorial element of the case, and is flatfooted in rejecting the 'clear and present danger' test for this type of case. he writes: "the 'clear and present danger' test was an innovation by mr. justice holmes in the _schenck case_, reiterated and refined by him and mr. justice brandeis in later cases, all arising before the era of world war ii revealed the subtlety and efficacy of modernized revolutionary techniques used by totalitarian parties. in those cases, they were faced with convictions under so-called criminal syndicalism statutes aimed at anarchists but which, loosely construed, had been applied to punish socialism, pacifism, and left-wing ideologies, the charges often resting on far-fetched inferences which, if true, would establish only technical or trivial violations. they proposed 'clear and present danger' as a test for the sufficiency of evidence in particular cases. i would save it, unmodified, for application as a 'rule of reason' in the kind of case for which it was devised. when the issue is criminality of a hot-headed speech on a street corner, or circulation of a few incendiary pamphlets or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of substantive evil or a harmless letting off of steam. it is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. the test applies and had meaning where a conviction is sought to be based on a speech or writing which does not directly or explicitly advocate a crime but to which such tendency is sought to be attributed by construction or by implication from external circumstances. the formula in such cases favors freedoms that are vital to our society, and, even if sometimes applied too generously, the consequences cannot be grave. but its recent expansion has extended, in particular to communists, unprecedented immunities. unless we are to hold our government captive in a judge-made verbal trap, we must approach the problem of a well-organized, nation-wide conspiracy, such as i have described, as realistically as our predecessors faced the trivialities that were being prosecuted until they were checked with a rule of reason. i think reason is lacking for applying that test to this case."[ ] and again, "what really is under review here is a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy. with due respect to my colleagues, they seem to me to discuss anything under the sun except the law of conspiracy. one of the dissenting opinions even appears to chide me for 'invoking the law of conspiracy.' as that is the case before us, it may be more amazing that its reversal can be proposed without even considering the law of conspiracy. the constitution does not make conspiracy a civil right. the court has never before done so and i think it should not do so now. conspiracies of labor unions, trade associations, and news agencies have been condemned, although accomplished, evidenced and carried out, like the conspiracy here, chiefly by letter-writing, meetings, speeches and organization. indeed, this court seems, particularly in cases where the conspiracy has economic ends, to be applying its doctrines with increasing severity. while i consider criminal conspiracy a dragnet device capable of perversion into an instrument of injustice in the hands of a partisan or complacent judiciary, it has an established place in our system of law, and no reason appears for applying it only to concerted action claimed to disturb interstate commerce and withholding it from those claimed to undermine our whole government. * * *"[ ] the dissenters were justices black and douglas. the former reiterated his position in bridges _v._ california; the latter italicized justice brandeis' dictum in the whitney case: "if there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."[ ] the answer would seem to be that education had not in fact prevented the formation of the conspiracy for entering into which the eleven defendants were convicted. if that be deemed a danger at all, it was certainly a clear and present one. both dissenters, in fact, ignore the conspiracy element. subversive organizations in a series of cases[ ] in which certain organizations sued the attorney general for declaratory or injunctive relief looking to the deletion of their names from a list of organizations designated by him to be subversive, the court reversed holdings of the courts below which had denied relief. two justices thought the order not within the president's executive order no. , which lays down a procedure for the determination of the loyalty of federal employees or would-be-employees. justice black thought the attorney general had violated amendment i and that the president's order constituted a bill of attainder. he and justices frankfurter and jackson also held that the attorney general had violated due process of law in having failed to give the petitioners notice and hearing. justice reed, with the concurrence of the chief justice and justice minton, dissented, asserting that the action of the court constituted an interference with the discretion of the executive in the premises. recent state legislation loyalty tests the decision in dennis _v._ united states,[ ] taken in conjunction with those in the two douds[ ] cases, put the clear and present danger rule on the defensive in the field of federal legislation. substantially contemporaneous holdings in the field of state action may reflect a similar trend. in garner _v._ los angeles board,[ ] the court sustained the right of a municipality to bar from employment persons who advise, advocate, or teach the violent overthrow of the government, or who are members of, or become affiliated with any group doing so, and to exact a loyalty oath of its employees. in adler _v._ board of education[ ] the court sustained the civil service law of new york as implemented by the so-called feinberg law of .[ ] the former makes ineligible in any public school any member of an organization advocating the overthrow of government by force, violence, or any unlawful means. the feinberg law requires the board of regents of the state ( ) to adopt and enforce rules for the removal of ineligible persons; ( ) to promulgate a list of banned organizations; ( ) to make membership in any such organization prima facie evidence of disqualification for employment in the public schools. referring to the garner case above, justice minton, for the court, said: "we adhere to that case. a teacher works in a sensitive area in the schoolroom. there he shapes the attitude of young minds towards the society in which they live. in this, the state has a vital concern. it must preserve the integrity of the schools. that the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. one's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty. from time immemorial, one's reputation has been determined in part by the company he keeps. in the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate."[ ] group libel in in beauharnais _v._ illinois[ ] the court sustained an illinois statute which makes it a crime to exhibit in a public place any publication which "portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion" or which "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy." the act was treated by the state supreme court as a form of criminal libel, with the result that defense by truth of the utterance was not under illinois law available unless the publication was also shown to have been made "with good motives and with justifiable ends." so construed, the court held, the act did not violate liberty of speech and press as guaranteed to the states by amendment xiv. said justice frankfurter: "if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a state power to punish the same utterance directed at a defined group, unless we can say that this is a wilful and purposeless restriction unrelated to the peace and well-being of the state."[ ] pointing then to illinois' bad record in the matter of race riots, he continued: "in the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. 'there are limits to the exercise of these liberties [of speech and of the press]. the danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. these and other transgressions of those limits the states appropriately may punish.' * * * it is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. it would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a state, for us to deny that the illinois legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. this being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved."[ ] censorship of the mails: fraud order by legislation adopted in and congress has specified certain conditions upon which a publication shall be admitted to the valuable second-class mailing privilege, one of which provides as follows: except as otherwise provided by law, the conditions upon which a publication shall be admitted to the second-class are as follows: "* * * _fourth._ it must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers; * * * nothing herein contained shall be so construed as to admit to the second-class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."[ ] in hannegan _v._ esquire, inc.,[ ] the court sustained an injunction against an order of the postmaster general which suspended a permit to esquire magazine on the ground that it did not "contribute to the public good and the public welfare." said justice douglas for the court: "* * * a requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system. the basic values implicit in the requirements of the fourth condition can be served only by uncensored distribution of literature. from the multitude of competing offerings the public will pick and choose. what seems to one to be trash may have for others fleeting or even enduring values. but to withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official. the validity of the obscenity laws is recognized that the mails may not be used to satisfy all tastes, no matter how perverted. but congress has left the postmaster general with no power to prescribe standards for the literature or the art which a mailable periodical disseminates."[ ] in donaldson _v._ read magazine,[ ] however, the court sustained a court order forbidding the delivery of mail and money orders to a magazine conducting a puzzle contest which the postmaster-general had found to be fraudulent. freedom of the press, said the court, does not include the right to raise money by deception of the public. the rights of assembly and petition the right of petition took its rise from the modest provision made for it in chapter of magna carta ( ).[ ] to this meagre beginning parliament itself and its procedures in the enactment of legislation, the equity jurisdiction of the lord chancellor, and proceedings against the crown by "petition of right" are all in some measure traceable. thus, while the king summoned parliament for the purpose of supply, the latter--but especially the house of commons--petitioned the king for a redress of grievances as its price for meeting the financial needs of the monarch; and as it increased in importance it came to claim the right to dictate the form of the king's reply, until in commons boldly declared themselves to be "as well assenters as petitioners." two hundred and fifty years later, in , commons further resolved that every commoner in england possessed "the inherent right to prepare and present petitions" to it "in case of grievance," and of commons "to receive the same" and to judge whether they were "fit" to be received. finally chapter of the bill of rights of asserted the right of the subjects to petition the king and "all commitments and prosecutions for such petitioning to be illegal."[ ] historically, therefore, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if amendment i read; "the right of the people peaceably to assemble" _in order to_ "petition the government."[ ] today, however, the right of peaceable assembly is, in the language of the court, "cognate to those of free speech and free press and is equally fundamental * * * [it] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions,--principles which the fourteenth amendment embodies in the general terms of its due process clause. * * * the holding of meetings for peaceable political action cannot be proscribed. those who assist in the conduct of such meetings cannot be branded as criminals on that score. the question * * * is not as to the auspices under which the meeting is held but as to its purposes; not as to the relation of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the constitution protects."[ ] furthermore, the right of petition has expanded. it is no longer confined to demands for "a redress of grievances," in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interests and prosperity of the petitioners, and of their views on politically contentious matters. restraints on the right of petition the right of petition recognized by amendment i first came into prominence in the early 's, when petitions against slavery in the district of columbia began flowing into congress in a constantly increasing stream, which reached its climax in the winter of . finally on january , , the house adopted as a standing rule: "that no petition, memorial, resolution, or other paper praying the abolition of slavery in the district of columbia, or any state or territories of the united states in which it now exists, shall be received by this house, or entertained in any way whatever." thanks to the efforts of john quincy adams this rule was repealed five years later, after adams' death.[ ] for many years now the rules of the house of representatives have provided that members having petitions to present may deliver them to the clerk and the petitions, except such as, in the judgment of the speaker, are of an obscene or insulting character, shall be entered on the journal and the clerk shall furnish a transcript of such record to the official reporters of debates for publication in the record.[ ] even so petitions for the repeal of the espionage and sedition laws and against military measures for recruiting resulted, in world war i, in imprisonment.[ ] processions for the presentation of petitions in the united states have not been particularly successful. in general coxey of ohio organized armies of unemployed to march on washington and present petitions, only to see their leaders arrested for unlawfully walking on the grass of the capitol. the march of the veterans on washington in demanding bonus legislation was defended as an exercise of the right of petition. the administration, however, regarded it as a threat against the constitution and called out the army to expel the bonus marchers and burn their camps. for legal regulation of lobbying activities, _see_ below. the cruikshank case the right of assembly was first passed upon by the supreme court in in the famous case of united states _v._ cruikshank et al.[ ] the case arose on indictments under section of the so-called enforcement act of may , ,[ ] which read as follows: "that if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the united states, or because of his having exercised the same, such persons shall be held guilty of felony, etc." the indictments charged the defendants with having deprived certain citizens of their right to assemble together peaceably with other citizens "for a peaceful and lawful purpose." the court held that this language was insufficient inasmuch as it did not specify that the attempted assembly was for a purpose connected with the national government. as to the right of assembly the court, speaking by chief justice waite, went on to declare: "the right of the people peaceably to assemble for the purpose of petitioning congress for a redress of grievances, or for anything else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the united states. the very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. if it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the united states. such, however, is not the case. the offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever."[ ] hague _v._ committee of industrial organization in this case[ ] the question at issue was the validity of a jersey city ordinance requiring the obtaining of a permit for a public assembly in or upon the public streets, highways, public parks, or public buildings of the city and authorizing the director of public safety, for the purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to issue a permit when after investigation of all the facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a permit. two justices held that in the circumstances of the case the ordinance violated the right of certain citizens of the united states to assemble to discuss certain privileges which they enjoyed as such, to wit, their rights and privileges under the national labor relations act.[ ] said justice roberts, expressing this point of view: "the privilege of a citizen of the united states to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. we think the court below was right in holding the ordinance quoted in note void upon its face. it does not make comfort or convenience in the use of streets or parks the standard of official action. it enables the director of safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' it can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. but uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right."[ ] two other justices invoked also the due process clause of amendment xiv, thereby claiming the right of assembly for aliens as well as citizens. said justice stone, who expressed this view: "i think respondents' right to maintain it does not depend on their citizenship and cannot rightly be made to turn on the existence or non-existence of a purpose to disseminate information about the national labor relations act. it is enough that petitioners have prevented respondents from holding meetings and disseminating information whether for the organization of labor unions or for any other lawful purpose."[ ] both justices were in agreement that freedom of speech and freedom of assembly were claimable only by natural persons, and not by corporations.[ ] two justices dissented on the basis of davis _v._ massachusetts.[ ] recent cases in bridges _v._ california[ ] it was held that a telegram addressed to the secretary of labor strongly criticizing the action of a state court in a pending case was privileged under this amendment as an exercise of the right of petition. in thomas _v._ collins[ ] a statute requiring registration before solicitation of union membership was found to violate the right of peaceable assembly. but a closely divided court subsequently sustained an order of a state employment relations board forbidding work stoppages by the calling of special union meetings during working hours.[ ] finally, a divided court held june , , that a combination to break up by force and threats of force of a meeting called for the purpose of adopting a resolution against the marshall plan did not afford a right of action against the conspirators under the ku klux act of april , .[ ] while the complaint alleged that the conspiracy was entered into for the purpose of depriving the plaintiffs as citizens of the united states of their right "peaceably to assemble for the purpose of discussing and communicating upon national public issues," the ku klux act was found not to extend to violations of that right except by state acts depriving persons of their rights under the fourteenth amendment. but the court, perhaps significantly, left open the question whether congress can protect such rights against private action. "it is not for this court," remarked justice jackson sententiously, "to compete with congress or attempt to replace it as the nation's law-making body."[ ] lobbying and the right of petition today lobbying is frequently regarded as the most important expression of the right of petition. during the last half century lobbying has reached tremendous proportions; and there have been four congressional investigations of such activities, the latest by a committee of the house of representatives. meantime, in congress passed the federal regulation of lobbying act, under which more than , lobbyists have registered and organizations report lobbying contributions and expenditures.[ ] recently doubts have been cast upon the constitutionality of this statute by two decisions of lower federal courts sitting in the district of columbia. according to the district court therein, to subject a person, whose "principal purpose * * * is to aid" in the defeat or passage of legislation and who violates this act by failing to file a detailed accounting, to a penalty entailing a three-year prohibition from lobbying is to deprive such person of his constitutional rights of freedom of speech and petition.[ ] insofar as congress legitimately may regulate lobbying, its powers in relation thereto have been declared not to extend to "indirect lobbying by the pressure of public opinion on the congress." the latter was deemed to be "the healthy essence of the democratic process."[ ] notes [ ] u.s. ( ). [ ] ibid. . [ ] fiske _v._ kansas, u.s. ( ). [ ] cantwell _v._ connecticut, u.s. ( ). [ ] near _v._ minnesota, u.s. ( ). [ ] de jonge _v._ oregon, u.s. ( ). [ ] annals of congress, ( - ). [ ] records of the united states senate, sept. , , united states archives, cited in appellees brief in mccollum _v._ board of education, u.s. ( ). [ ] ibid. [ ] ibid. [ ] joseph story, commentaries on the constitution, § ( ). [ ] ibid. § . [ ] principles of constitutional law, - , d ed. ( ). [ ] saul k. padover, the complete jefferson, - ( ). [ ] u.s. ( ). [ ] ibid. . in his d inaugural address jefferson expressed a very different, and presumably more carefully considered, opinion upon the purpose of amendment i: "in matters of religion, i have considered that its free exercise is placed by the constitution independent of the powers of of the general government." this was said three years after the danbury letter. messages and papers of the presidents, (richardson ed. ). [ ] everson _v._ board of education, u.s. ( ). [ ] ibid. , . [ ] mccollum _v._ board of education, u.s. ( ). [ ] ibid. . [ ] u.s. , ( ). [ ] ibid. - . justice frankfurter's principal figure in the fight against sectarianism is horace mann, who was secretary of the massachusetts board of education, - . mann, however, strongly resented the charge that he was opposed to religious instruction in the public schools. "it is true that mr. mann stood strongly for a 'type of school with instruction adapted to democratic and national ends.' but it is not quite just to him to contrast this type of school with the school adapted to religious ends, without defining terms. horace mann was opposed to sectarian doctrinal instruction in the schools, but he repeatedly urged the teaching of the elements of religion common to all of the christian sects. he took a firm stand against the idea of a purely secular education, and on one occasion said he was in favor of religious instruction 'to the extremest verge to which it can be carried without invading those rights of conscience which are established by the laws of god, and guaranteed to us by the constitution of the state.' at another time he said that he regarded hostility to religion in the schools as the greatest crime he could commit. lest his name should go down in history as that of one who had attempted to drive religious instruction from the schools, he devoted several pages in his final report--the twelfth--to a statement in which he denied the charges of his enemies." raymond b. culver, horace mann on religion in the massachusetts public schools, ( ). [ ] u.s. , ff. ( ). [ ] ibid. . [ ] ibid. - . [ ] ibid. . [ ] ibid. , . [ ] u.s. . [ ] ibid., , . [ ] zorach _v._ clauson, n.y. , - ; n.e. d ( ). [ ] zorach _v._ clauson, u.s. ( ). [ ] ibid., pp. - . justices black, frankfurter, and jackson dissented. [ ] doremus _v._ board of education, u.s. ( ). [ ] three dissenters, speaking through justice douglas, argued that, since the new jersey supreme court had taken the case and decided it on its merits, the united states supreme court was bound to do the same. ibid. - . [ ] bradfield _v._ roberts, u.s. ( ). [ ] quick bear _v._ leupp, u.s. ( ). [ ] cochran _v._ louisiana state board of education, u.s. ( ). [ ] everson _v._ board of education, u.s. ( ). [ ] u.s.c.a. §§ - ; stat. ( ). [ ] davis _v._ benson, u.s. , ( ). [ ] cantwell _v._ connecticut, u.s. , , ( ). [ ] pierce _v._ society of sisters of holy names, u.s. ( ). [ ] reynolds _v._ united states, u.s. , ( ). [ ] ibid. . [ ] davis _v._ beason, u.s. , ( ). [ ] reynolds _v._ united states u.s. ( ); davis _v._ beason, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] minersville school dist. _v._ gobitis, u.s. ( ). [ ] jones _v._ opelika, u.s. ( ). [ ] jones _v._ opelika, u.s. ( ); murdock _v._ pennsylvania, u.s. ( ). [ ] board of education _v._ barnette, u.s. ( ). on the same day the court held that a state may not forbid the distribution of literature urging and advising, on religious grounds, that citizens refrain from saluting the flag. taylor _v._ mississippi, u.s. ( ). [ ] martin _v._ struthers, u.s. ( ). [ ] prince _v._ massachusetts, u.s. ( ). [ ] u.s. ( ). [ ] kovacs _v._ cooper, u.s. ( ). [ ] kunz _v._ new york, u.s. ( ). [ ] ibid. . [ ] niemotko _v._ maryland, u.s. ( ). [ ] feiner _v._ new york, u.s. ( ). [ ] _see_ p. . [transcriber's note: there is no mention of the feiner case on p. .] [ ] arver _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). _cf._ girouard _v._ united states, u.s. ( ) holding "an alien who is willing to take the oath of allegiance and to serve in the army as a non-combatant but who, because of religious scruples, is unwilling to bear arms in defense of this country may be admitted to citizenship * * *", overruling united states _v._ schwimmer, u.s. ( ) and united states _v._ macintosh, u.s. ( ). [ ] u.s. , ( ). [ ] commentaries, vol. iv, - . [ ] justice frankfurter in dennis _v._ united states, u.s. , - ( ). [ ] ibid. ; citing robertson _v._ baldwin, u.s. , ( ). [ ] ibid. ; citing gompers _v._ united states, u.s. , ( ). "while the courts have from an early date taken a hand in crystallizing american conceptions of freedom of speech and press into law, it is scarcely in the manner or to the extent which they are frequently assumed to have done. the great initial problem in this realm of constitutional liberty was to get rid of the common law of 'seditious libel' which operated to put persons in authority beyond the reach of public criticism. the first step in this direction was taken in the famous, or infamous, sedition act of , which admitted the defense of truth in prosecution brought under it, and submitted the general issue of defendant's guilt to the jury. but the substantive doctrine of 'seditious libel' the act of still retained, a circumstance which put several critics of president adams in jail, and thereby considerably aided jefferson's election as president in . once in office, nevertheless, jefferson himself appealed to the discredited principle against partisan critics. writing his friend governor mckean of pennsylvania in anent such critics, jefferson said: 'the federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked in an opposite direction; that is by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. * * * this is a dangerous state of things, and the press ought to be restored to its credibility if possible. the restraints provided by the laws of the states are sufficient for this, if applied. and i have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. not a general prosecution, for that would look like persecution; but a selected one.' works (ford ed., ), ix - . "in the _memorial edition_ of jefferson's works this letter is not included; nor apparently was it known to the honorable josephus daniels, whose enthusiastic introduction to one of these volumes makes jefferson out to have been the father of freedom of speech and press in this country, if not throughout the world. the sober truth is that it was that archenemy of jefferson and of democracy, alexander hamilton, who made the greatest single contribution toward rescuing this particular freedom as a political weapon from the coils and toils of the common law, and that in connection with one of jefferson's 'selected prosecutions.' i refer to hamilton's many-times quoted formula in the croswell case in : 'the liberty of the press is the right to publish with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individuals.' people _v._ croswell, johns (ny) . equipped with this brocard our state courts working in co-operation with juries, whose attitude usually reflected the robustiousness of american political discussion before the civil war, gradually wrote into the common law of the states the principle of 'qualified privilege,' which is a notification to plaintiffs in libel suits that if they are unlucky enough to be officeholders or office seekers, they must be prepared to shoulder the almost impossible burden of showing defendant's 'special malice.' cooley, _constitutional limitations_, chap. xii: samuel a. dawson, _freedom of the press, a study of the doctrine of 'qualified privilege'_ (columbia univ. press, )." edward s. corwin, _liberty against government_. - fn. (l.s.u. press, ). [ ] patterson _v._ colorado, u.s. , ( ). [ ] ibid. [ ] prudential ins. co. _v._ cheek, u.s. , ( ). [ ] schenck _v._ united states, u.s. ( ); and _see_ below. [transcriber's note: reference is to footnote , below.] [ ] _see_ justice brandeis concurring opinion in whitney _v._ california, u.s. ( ); and cases reviewed below. [ ] fiske _v._ kansas, u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] fiske _v._ kansas, u.s. ( ). [ ] stromberg _v._ california, u.s. ( ). [ ] de jonge _v._ oregon, u.s. ( ). [ ] u.s. ( ). [ ] stat. , . [ ] u.s. , ( ). [ ] u.s. , - ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] ibid. . it should be noted that justice holmes couples with his invocation of the clear and present danger test in his dissent in this case the contention that rightly construed the act of congress involved (the espionage act of may , ; stat. ) required that defendant's intent be specifically proved. he wrote: "i am aware of course that the word intent as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. even less than that will satisfy the general principle of civil and criminal liability. a man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. but, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. it may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless to aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. it seems to me that this statute must be taken to use its words in a strict and accurate sense." u.s. at - . in the holmes-pollock letters this is the main point discussed by the two correspondents regarding the abrams case; the clear and present danger doctrine is not mentioned. holmes-pollock letters, , , , , - , , . [ ] u.s. ( ). [ ] ibid. . _see also_ to the same effect: pierce _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] ibid. . [ ] ibid. . justice holmes presented a dissenting opinion for himself and justice brandeis which contains a curious note of fatalism. he said: "if what i think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. it is said that this manifesto was more than a theory, that it was an incitement. every idea is an incitement. it offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. the only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. eloquence may set fire to reason. but whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. if, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." ibid. . [ ] u.s. ( ). [ ] ibid. , . apparently this means that the ultimate test of the constitutionality of legislation restricting freedom of utterance is whether there is still sufficient time to educate the utterers out of their mistaken frame of mind, and the final say on this necessarily recondite matter rests with the supreme court! justice brandeis also asserts ( u.s. at ) that there is a distinction between "advocacy" and "incitement," but fails to adduce any supporting authority. [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] ibid. . [ ] cantwell _v._ connecticut, u.s. , ( ). [ ] stromberg _v._ california, u.s. , ( ). [ ] fox _v._ washington, u.s. , ( ). [ ] gitlow _v._ new york, u.s. ( ). [ ] terminiello _v._ chicago, u.s. ( ). [ ] ibid. . [ ] ibid. . dissenting opinions were written by chief justice vinson, justice frankfurter (with whom justices jackson and burton concurred) and justice jackson, (with whom justice burton agreed). [ ] u.s. ( ). [ ] ibid. - . anent this finding, justice douglas, in his dissent, declared that: "public assemblies and public speech occupy an important role in american life. one high function of the police is to protect these lawful gatherings so that the speakers may exercise their constitutional rights. when unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. * * * but those extravagances * * *, do not justify penalizing the speaker by depriving him of the platform or by punishing him for his conduct. * * * if * * * the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. police censorship has all the vices of the censorship from city halls which we have repeatedy [sic] struck down."--ibid. - . [ ] u.s. ( ). [ ] ibid. - . [ ] musser _v._ utah, u.s. ( ). [ ] ibid. . this dissent probably marks the climax of the clear and present danger doctrine. "on march , , members of the vice squad of the philadelphia police department, at the direction of inspector craig ellis, head of the vice squad, commenced a series of mass raids upon book stores and booksellers in philadelphia. inspector ellis gave his men a list of books that in his opinion were obscene, and directed them to seize the books wherever found. fifty-four booksellers were raided, and nearly twelve hundred copies of the books were confiscated. "these raids were remarkable not only because of the scale on which they were conducted, but in several other respects. first, they were directed in major part against books written by authors in the forefront of american literature and published by some of the leading publishers in america. second, the raids were conducted and the books were confiscated without warrants of search or seizure or court order of any kind. third, the list of books to be seized was compiled by inspector ellis and a patrolman in his office, without consultation with the district attorney's office or the obtaining of any legal opinion as to whether the books were obscene under the pennsylvania statute. "for once the publishers took the offensive. houghton mifflin company, publisher of _raintree county_, alfred a. knopf, inc., publisher of _never love a stranger_, and the vanguard press, inc., publisher of books by james t. farrell and calder willingham among those seized, commenced actions in the federal district court in philadelphia to restrain further police seizures of these books and to recover damages from the police officers for their unlawful acts. in these two actions the authors harold robbins and james t. farrell, as well as charles praissman, a courageous bookseller whose stores had been raided, joined the publishers as parties plaintiff. the district attorney of philadelphia countered by commencing criminal proceedings against five of the booksellers whose stores had been raided, and on june , the grand jury, upon presentation of the district attorney, indicted the booksellers on a charge of having violated the pennsylvania statute prohibiting the sale of obscene books. "in the meantime the federal court cases brought by the publishers has come to trial before judge guy k. bard, and at the conclusion of the trials judge bard had enjoined further seizures of the plaintiff's books, as well as police invasion of praissman's stores or seizure of his books without a warrant. at the time of this writing, the federal court cases have not been finally decided. "on january , the criminal cases came on for trial before judge curtis bok of the pennsylvania court of quarter sessions. the defendants pleaded not guilty and waived trial by jury. they stipulated that at the times and places mentioned in the indictments they had had possession of the books for the purpose of offering them for sale to the public. the books were then placed in evidence, and the prosecution rested its case. the defendants 'demurred to the evidence,' the effect of which was to raise the issue of whether the court, in the light of the constitutional guaranty of freedom of the press, could hold, beyond a reasonable doubt, that the books before it were obscene within the meaning of the pennsylvania obscenity statute." introductory note to a republication by alfred knopf inc. of judge bok's opinion in commonwealth _v._ gordon _et al._, d & c (pa.) ( ). on march , judge bok sustained the demurrers and entered judgment in favor of the defendants. the opinion which accompanies his judgment pivots in part on the clear and present danger rule. it reads: "the only clear and present danger to be prevented by section that will satisfy both the constitution and the current customs of our era is the imminence of the commission of criminal behavior resulting from the reading of a book. publication alone can have no such automatic effect." this obviously overlooks the primary purpose of governmental interference with the distribution of "obscene literature," namely to protect immature minds from contamination. dealing with this point judge bok protests against putting "the entire reading public at the mercy of the adolescent mind." should, on the other hand, the adolescent mind be put at the mercy of the uninhibited reading tastes of an elderly federal judge? [ ] u.s. ( ). [ ] u.s. ( ). [ ] thornhill _v._ alabama, u.s. , , ( ). [ ] drivers union _v._ meadowmoor co., u.s. ( ); _see also_ hotel and restaurant employees' alliance _v._ board, u.s. ( ). [ ] drivers union _v._ meadowmoor co., u.s. , ( ). [ ] american federation of labor _v._ swing, u.s. ( ); bakery and pastry drivers _v._ wohl, u.s. ( ); cafeteria employees union _v._ gus angelos, u.s. ( ). [ ] teamsters union _v._ hanke, u.s. , ( ). [ ] giboney _v._ empire storage co., u.s. ( ). [ ] building service union _v._ gazzam, u.s. ( ). [ ] hughes _v._ superior court, u.s. ( ). [ ] carpenters union _v._ ritter's cafe, u.s. , ( ). [ ] giboney _v._ empire storage co., u.s. ( ). [ ] ibid. , , citing fox _v._ washington, u.s. , , which predates any suggestion of the clear and present danger formula. _see_ above. [transcriber's note: reference is to section contrasting operation of the common law rule, above.] [ ] lincoln union _v._ northwestern co., u.s. ( ); a.f. of l. _v._ american sash co., ibid., . [ ] auto workers _v._ wis. board, u.s. ( ). in teamsters union _v._ hanke, u.s. ( ), injunctions by state courts against picketing of a self-employer's place of business to compel him to adopt a union shop were sustained. [ ] thomas _v._ collins, u.s. ( ). [ ] ibid. . [ ] patterson _v._ colorado, u.s. ( ). _cf._ toledo newspaper co. _v._ united states, u.s. ( ) in which the court affirmed a judgment imposing a fine for contempt of court on an editor who had criticized the action of a federal judge in a pending case. the majority held that such conviction did not violate the first amendment. justices holmes and brandeis dissented on the ground that the proceedings did not come within the applicable federal statute, but did not discuss the constitutional issue. this decision was overruled in nye _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ibid. , . [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . [ ] davis _v._ massachusetts, u.s. ( ). [ ] ibid. . [ ] u.s. , , ( ). [ ] u.s. ( ). [ ] kovacs _v._ cooper, u.s. ( ). [ ] public utilities commission _v._ pollak, u.s. ( ). the decision overruled the united states court of appeals for the district of columbia. here judge edgerton, speaking for himself and two associates, said: "exploitation of this audience through assault on the unavertible sense of hearing is a new phenomenon. it raises 'issues that were not implied in the means of communication known or contemplated by franklin and jefferson and madison.' but the bill of rights, as appellants say in their brief, can keep up with anything an advertising man or an electronics engineer can think of. * * * "if transit obliged its passengers to read what it liked or get off the car, invasion of their freedom would be obvious. transit obliges them to hear what it likes or get off the car. freedom of attention, which forced listening destroys, is a part of liberty essential to individuals and to society. the supreme court has said that the constitutional guarantee of liberty 'embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties * * *.' one who is subjected to forced listening is not free in the enjoyment of all his faculties." he quoted with approval justice reed's statement in kovacs _v._ cooper, "the right of free speech is guaranteed every citizen that he may reach the minds of willing listeners."-- f. d , ( ). [ ] lovell _v._ griffin, u.s. ( ); schneider _v._ state, u.s. ( ); largent _v._ texas, u.s. ( ). [ ] schneider _v._ state, u.s. ( ); jamison _v._ texas, u.s. ( ). [ ] marsh _v._ alabama, u.s. ( ). [ ] tucker _v._ texas, u.s. ( ). [ ] valentine _v._ chrestensen, u.s. ( ). [ ] martin _v._ struthers, u.s. ( ). [ ] breard _v._ alexandria, u.s. ( ). [ ] u.s. , ( ). _see_ below. [transcriber's note: reference is to section federal restraints on freedom of speech and press, above.] [ ] near _v._ minnesota, u.s. ( ). [ ] drivers union _v._ meadowmoor co., u.s. ( ); carpenters union _v._ ritter's cafe, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , , ( ). [ ] u.s. , ( ). [ ] lovell _v._ griffin, u.s. , ( ). [ ] chaplinsky _v._ new hampshire, u.s. ( ); cox _v._ new hampshire, u.s. ( ). [ ] lovell _v._ griffin, u.s. ( ); hague _v._ c.i.o., u.s. , ( ); schneider _v._ state, u.s. ( ); cantwell _v._ connecticut, u.s. ( ); largent _v._ texas, u.s. ( ); thomas _v._ collins, u.s. , ( ); saia _v._ new york, u.s. ( ). [ ] radio comm'n _v._ nelson bros. co., u.s. ( ); communications comm'n. _v._ n.b.c., u.s. ( ). [ ] mutual film corp. _v._ ohio indus'l comm., u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] joseph burstyn, inc. _v._ wilson, u.s. ( ). [ ] ibid. . justice frankfurter, concurring for himself and justices jackson and burton, elaborates upon the vagueness of connotation of the new york court's use of the word "sacrilegious." _see_ appendix to his opinion, ibid. - . justice reed, in his concurring opinion, suggests that the court will now have the duty of examining "the facts of the refusal of a license in each case to determine whether the principles of the first amendment have been honored." ibid. - . [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. - . [ ] palko _v._ connecticut, u.s. , ( ). [ ] united states _v._ carolene products co., u.s. , , fn. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] kovacs _v._ cooper, u.s. , ( ). [ ] ibid. . [ ] brinegar _v._ united states, u.s. , ( ). [ ] terminiello _v._ chicago, u.s. , ( ). [ ] kunz _v._ new york, u.s. , . [ ] ibid. . in a footnote justice jackson points to the peculiarly protected position of the court today, thanks to ch. , public law , st congress, approved august , . this makes it unlawful to "make any harangue or oration, or utter loud, threatening, or abusive language in the supreme court building or grounds." § . it also forbids display of any "flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." § . moreover, it authorizes the marshal to "prescribe such regulations approved by the chief justice of the united states, as may be deemed necessary for the adequate protection of the supreme court building and grounds and of persons and property therein, and for the maintenance of suitable grounds." § . violation of these provisions or regulations is an offense punishable by fine and imprisonment. [ ] grosjean _v._ american press co., u.s. , ( ). [ ] ibid. . [ ] ibid. [ ] murdock _v._ pennsylvania, u.s. ( ); jones _v._ opelika, u.s. ( ); follett _v._ mccormick, u.s. ( ). [ ] associated press _v._ united states, u.s. ( ). a newspaper publisher who enjoyed a substantial monopoly of mass distribution of news was enjoined from refusing advertising from persons advertising over a competing radio station. the court sustained the injunction against the objection that it violated freedom of the press, holding that appellant was guilty of attempting to monopolize interstate commerce. lorain journal _v._ united states, u.s. ( ). [ ] associated press _v._ labor board, u.s. , ( ). [ ] okla. press pub. co. _v._ walling, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid: . [ ] ibid. . [ ] united states _v._ c.i.o., u.s. ( ). [ ] u.s. ( ). [ ] stat. § ( ). [ ] stat. ( ). [ ] united public workers _v._ mitchell, u.s. ( ). [ ] oklahoma _v._ united states civil serv. comm., u.s. ( ). [ ] schenck _v._ united states, u.s. ( ); frohwerk _v._ united states, u.s. ( ); debs _v._ united states, u.s. ( ); abrams _v._ united states, u.s. ( ); schaefer _v._ united states, u.s. ( ); pierce _v._ united states, u.s. ( ); _cf._ gilbert _v._ minnesota u.s. ( ); hartzel _v._. united states, u.s. ( ). [ ] u.s. ( ). [ ] stat. , ( ); "taft-hartley act." [ ] u.s. ( ). [ ] u.s. ( ). answering in the objection of a pensioner to the terms of an act under which he received his pension from the government, the court answered: "pensions are the bounties of the government, which congress has the right to give, withhold, distribute or recall, at its discretion." united states _v._ teller, u.s. , . can it be doubted that congress has power to repeal at any time the protection which present legislation affords organized labor? [ ] u.s. , , ( ). [ ] dennis _v._ united states, u.s. ( ). [ ] stat. ( ). [ ] u.s. , . [ ] ibid. . [ ] ibid. ; citing f. ( d) at . [ ] u.s. , - . [ ] ibid. . [ ] u.s. , - . [ ] ibid. . [ ] ibid. - . [ ] u.s. , . [ ] u.s. ( ). [ ] u.s. , . [ ] ibid. . [ ] ibid. - . [ ] u.s. , - . [ ] ibid. . [ ] u.s. , ; citing u.s. , - . [ ] anti-fascist committee _v._ mcgrath, u.s. ( ) heads the list. [ ] u.s. ( ). [ ] u.s. ; ibid. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] new york laws, , c. . [ ] u.s. , . justice frankfurter dissented on jurisdictional grounds. justices black and douglas attacked the merits of the decision. said the latter: "what happens under this law is typical of what happens in a police state. teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. a pall is cast over the classrooms. there can be no real academic freedom in that environment. where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. supineness and dogmatism take the place of inquiry. a 'party line'--as dangerous as the 'party line' of the communists--lays hold. it is the 'party line' of the orthodox view, of the conventional thought, of the accepted approach. a problem can no longer be pursued with impunity to its edges. fear stalks the classroom. the teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. a deadening dogma takes the place of free inquiry. instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin." ibid. . [ ] u.s. ( ). [ ] ibid. . [ ] ibid, - _passim_. justice douglas, dissenting, urged the "absolute" character of freedom of speech and deplored recent cases in which, he asserted, the court "has engrafted the right of regulation onto the first amendment by placing in the hands of the legislative branch the right to regulate 'within reasonable length' the right of free speech. this to me is an ominous and alarming trend." ibid. . justices black, reed and jackson also dissented. justice jackson's dissenting opinion is characteristically paradoxical: "an illinois act, construed by its supreme court to be a 'group libel' statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the negro race. he answers that, as applied, the act denies a liberty secured to him by the due process clause of the fourteenth amendment. what is the liberty which that clause underwrites? the spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this amendment underlies this, as it has many another, division of the court. all agree that the fourteenth amendment does confine the power of the state to make printed words criminal. whence we are to derive metes and bounds of the state power is a subject to the confusion of which, i regret to say, i have contributed--comforted in the acknowledgment, however, by recalling that this amendment is so enigmatic and abstruse that judges more experienced than i have had to reverse themselves as to its effect on state power. the thesis now tendered in dissent is that the 'liberty' which the due process clause of the fourteenth amendment protects against denial by the states is the literal and identical 'freedom of speech or of the press' which the first amendment forbids only congress to abridge. the history of criminal libel in america convinces me that the fourteenth amendment did not 'incorporate' the first, that the powers of congress and of the states over this subject are not of the same dimensions, and that because congress probably could not enact this law it does not follow that the states may not." ibid. - . proceeding from this position, justice jackson is able, none the less, to dissent from the court's judgment. _cf._ chief justice stone's position in united states _v._ carolene products co., u.s. , at - , note ( ). [ ] stat. , ( ); stat. ( ). [ ] u.s. ( ). [ ] ibid. . justice frankfurter, while concurring, apparently thought that the question of congress's power in the premises was not involved. ibid. - . on this broader question, _see_ p. . (the postal clause). [ ] u.s. ( ); public clearing house _v._ coyne, u.s. ( ). [ ] here it is recited in part: "that if we, our justiciary, our bailiffs, or any of our officers, shall in any circumstances have failed in the performance of them toward any person, or shall have broken through any of these articles of peace and security, and the offence be notified to four barons chosen out of the five-and-twenty before mentioned, the said four barons shall repair to us, or our justiciary, if we are out of the realm, and laying open the grievance, shall petition to have it redressed without delay." [ ] encyclopedia of the social sciences, ff, "petition, right of" (new york, ). [ ] united states _v._ cruikshank, u.s. , ( ) reflects this older view. [ ] de jonge _v._ oregon, u.s. , , ( ). _see also_ herndon _v._ lowry, u.s. ( ). [ ] for the details of adams' famous fight on "the gag rule," _see_ andrew c. mclaughlin, a constitutional history of the united states, pp. - , appleton-century-crofts, inc., new york ( ). [ ] rules and manual united states house of representatives ( ), eighty-first congress, by lewis deschler, parliamentarian, united states government printing office, washington ( ), pp. - . [ ] united states _v._ baltzer, report of the attorney general, , p. . [ ] u.s. ( ). [ ] stat. ( ). [ ] u.s. , - ( ). at a later point in its opinion the court used the following language: "every republican government is in duty bound to protect all its citizens in the enjoyment of an equality of right. that duty was originally assumed by the states; and it still remains there. the only obligation resting upon the united states is to see that the states do not deny the right. this the amendment guarantees, but no more. the power of the national government is limited to the enforcement of this guaranty." ibid. . these words have reference, quite clearly, to counts of the indictment alleging acts of the conspirators denying "equal protection of the laws" "to persons of color," congress's power to protect which is derived from amendment xiv and is confined as the court says, to protection against state acts. the above quoted words have, however, caused confusion. _see_ pp. - . [ ] hague _v._ c.i.o., u.s. ( ). [ ] stat. ( ). [ ] u.s. , - ( ). [ ] ibid. . [ ] "as to the american civil liberties union, which is a corporation, it cannot be said to be deprived of the civil rights of freedom of speech and of assembly, for the liberty guaranteed by the due process clause is the liberty of natural, not artificial, persons. northwestern nat. l. ins. co. _v._ riggs, u.s. , ; western turf asso. _v._ greenberg, u.s. , ;" u.s. , ( ). _see also_ ibid. . [ ] u.s. ( ). this case was treated above, at p. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] auto workers _v._ wis. board, u.s. ( ). [ ] collins _v._ hardyman, u.s. ( ); stat. , u.s.c. § ( ). [ ] u.s. , ( ). [ ] u.s.c. §§ - . _see also:_ general interim report of the house select committee on lobbying activities, eighty-first congress, second session, created pursuant to h. res. , october , , united states government printing office, washington ( ): _see also_ encyclopedia of the social sciences , "lobbying." [ ] national association of manufacturers _v._ mcgrath, f. supp. ( ). upon review, the supreme court vacated this judgment as moot.-- u.s. , . [ ] rumely _v._ united states, f. d , - ( ). amendment bearing arms amendment a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. the protection afforded by this amendment prevents infringement by congress of the right to bear arms for a lawful purpose, but does not apply to such infringement by private citizens. for this reason an indictment under the enforcement act of ,[ ] charging a conspiracy to prevent negroes from bearing arms for lawful purposes was held defective.[ ] a state statute which forbids bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, does not abridge the right of the people to keep and bear arms.[ ] in the absence of evidence tending to show that possession or use of a shotgun having a barrel of less than inches in length has some reasonable relationship to the preservation or efficiency of a well regulated militia, the court refused to hold invalid a provision in the national firearms act[ ] against the transportation of unregistered shotguns in interstate commerce.[ ] notes [ ] stat. ( ). [ ] united states _v._ cruikshank, u.s. , ( ). [ ] presser _v._ illinois, u.s. , ( ). [ ] stat. ( ). [ ] united states _v._ miller, u.s. ( ). amendment quartering soldiers amendment no soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. "this amendment seems to have been thought necessary. it does not appear to have been the subject of judicial exposition; and it is so thoroughly in accord with all our ideas, that further comment is unnecessary."[ ] notes [ ] miller, samuel f., the constitution ( ), page . amendment searches and seizures page coverage of the amendment necessity, sufficiency and effect of warrants records, reports and subpoenas search and seizure incidental to arrest search of vehicles use of evidence searches and seizures amendment the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. coverage of the amendment this amendment denounces only such searches and seizures as are "unreasonable," and is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner to conserve public interests as well as the rights of individuals.[ ] it applies only to governmental action, not to the unlawful acts of individuals in which the government has no part.[ ] it has no reference to civil proceedings for the recovery of debts; consequently, a distress warrant issued by the solicitor of the treasury under an act of congress is not forbidden, though issued without support of an oath or affirmation.[ ] but the amendment is applicable to search warrants issued under any statute, including revenue and tariff laws.[ ] security "in their persons, houses, papers and effects" is assured to the people by this article. not only the search of a dwelling, but also of a place of business,[ ] a garage,[ ] or a vehicle,[ ] is limited by its provisions. but open fields are not covered by the term "house"; they may be searched without a warrant.[ ] a sealed letter deposited in the mails may not be opened by the postal authorities without the sanction of a magistrate.[ ] the subpoena of private papers is subject to its test of reasonableness.[ ] retention for use as evidence of a letter voluntarily written by a prisoner, which, without threat or coercion, came into the possession of prison officials under the practice and discipline of the institution, is not prohibited.[ ] where officers demand admission to private premises in the name of the law, their subsequent explorations are searches within the meaning of the constitution, even though the occupant opens the door to admit them.[ ] a peremptory demand by federal officers that a person suspected of crime open a locked room and hand over ration coupons kept there was held not to amount to a seizure in view of the fact that the coupons were government property which the custodian was under a duty to surrender.[ ] neither wiretapping,[ ] nor the use of a detectaphone to listen to a conversation in an adjoining room,[ ] nor interrogation under oath by a government official of a person lawfully in confinement[ ] is within the purview of this article. nor does it apply to statements made by an accused on his own premises to an "undercover agent" whose identity was not suspected and who had on his person a radio transmitter which communicated the statements to another agent outside the building.[ ] said justice jackson for the court: "petitioner relies on cases relating to the more common and clearly distinguishable problems raised where tangible property is unlawfully seized. such unlawful seizure may violate the fourth amendment, even though the entry itself was by subterfuge or fraud rather than force. but such decisions are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods."[ ] but narcotics seized in a hotel room during absence of the owner, in the course of a search without warrant for either search or arrest, were not adducible as evidence against the owner, who, however, was not entitled to have them returned since they were legal contraband.[ ] necessity, sufficiency and effect of warrants a warrant of commitment by a justice of the peace must state a good cause certain and be supported by oath.[ ] a notary public is not authorized to administer oaths in federal criminal proceedings; hence a warrant based on affidavits verified before a notary is invalid.[ ] a warrant of the senate for attachment of a person who ignored a subpoena from a senate committee is supported by oath within the requirement of this amendment when based upon the committee's report of the facts of the contumacy, made on the committee's own knowledge and having the sanction of the oath of office of its members.[ ] a belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search without a warrant.[ ] a warrant issued upon an information stating only that "affiant has good reason to believe and does believe" that defendant has contraband materials in his possession is clearly bad under the fourth amendment.[ ] it is enough, however, if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that the offense charged had been committed.[ ] the requirement of the fourth amendment that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. as to what is to be taken nothing is left to the discretion of the officer executing the warrant.[ ] private papers of no pecuniary value, in which the sole interest of the federal government is their value as evidence against the owner in a contemplated criminal prosecution, may not be taken from the owner's house or office under a search warrant.[ ] records, reports and subpoenas since the common law did not countenance compulsory self incrimination, many years passed before the supreme court was called upon to interpret the constitutional provisions bearing upon the privilege against such testimonial compulsion. not until boyd _v._ united states[ ] did it have to meet the issue; there, pursuant to an act of congress, a court had issued an order in a proceeding for the forfeiture of goods for fraudulent nonpayment of customs duties, requiring the claimant to produce in court his invoices covering the goods, on pain of having the allegation taken as confessed against him. the order and the statute which authorized it were held unconstitutional in a notable opinion by justice bradley, as follows: "breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is [forbidden] * * * in this regard the fourth and fifth amendments run almost into each other."[ ] thus the case established three propositions of far-reaching significance: ( ) that a compulsory production of the private papers of the owner in such a suit was a search and seizure within the meaning of the fourth amendment;[ ] ( ) that in substance such seizure compelled him to be a witness against himself in violation of amendment v,[ ] and ( ) that, because it was a violation of the fifth amendment, it was also an _unreasonable_ search and seizure under the fourth.[ ] only natural persons can resist the subpoena of private papers on the ground of self incrimination.[ ] even an individual cannot refuse to produce records which are in his custody on the plea that they might incriminate the owner or himself where the documents belong to a corporation,[ ] or to a labor union.[ ] a bankrupt can be compelled to turn over records which are part of his estate.[ ] papers already in the custody of a united states court in consequence of their having been used by the owner himself as evidence on another proceeding may be used before a grand jury as a basis for an indictment for perjury.[ ] a corporation may challenge an order for the production of records if it is unreasonable on grounds other than self incrimination, i.e., if it is too sweeping,[ ] if the information sought is not relevant to any lawful inquiry,[ ] or if it represents "a fishing expedition" in quest of evidence of crime.[ ] in oklahoma press pub. co. _v._ walling,[ ] the question of the protection afforded by the constitution against the subpoena of corporate records was thoroughly reviewed. justice rutledge summarized the court's views in the following words: "* * * the fifth amendment affords no protection by virtue of the self incrimination provision, whether for the corporation or for its officers; and the fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. the gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable. * * * it is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. it is enough that the investigation be for a lawfully authorized purpose, within the power of congress to command. * * * the requirement of 'probable cause, supported by oath or affirmation,' literally applicable in the case of a warrant is satisfied, in that of an order for production, by the court's determination that the investigation is authorized by congress, is for a purpose congress can order, and the documents sought are relevant to the inquiry. beyond this the requirement of reasonableness, including particularity in 'describing the place to be searched, and the persons or things to be seized,' also literally applicable to warrant, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry."[ ] as a means of enforcing a valid statute, the government may require any person subject thereto "to keep a record showing whether he has in fact complied with it,"[ ] and to submit that record to inspection by government officers.[ ] it may also compel the filing of returns disclosing the amount of tax liability,[ ] and of reports under oath showing instances where employees have worked in excess of hours of labor permitted by law.[ ] without violating either the fourth or fifth amendments, a judicial decree enjoining illegal practices under the antitrust act may provide that the department of justice shall be given access to all records and documents of the corporation relating to the matter covered by the decree.[ ] the supreme court has intimated, however, that record keeping requirements must be limited to data which are relevant to the effective administration of the law.[ ] search and seizure incidental to arrest the right to search the person upon arrest has long been recognized[ ] but authority to search the premises upon which the arrest is made has been approved only in recent years. in agnello _v._ united states,[ ] the supreme court asserted that: "the right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."[ ] books and papers used to carry on a criminal enterprise, which are in the immediate possession and control of a person arrested for commission of an offense in the presence of the officers may be seized when discovered in plain view during a search of the premises following the arrest.[ ] the lawful arrest of persons at their place of business does not justify a search of desks and files in the offices where the arrest is made and seizure of private papers found thereon.[ ] a search which is unlawfully undertaken is not made valid by the evidence of crime which it brings to light.[ ] by a five to four decision in harris _v._ united states[ ] the court sustained, as an incident to a lawful arrest, a five hour search by four federal officers of every nook and cranny of a four-room apartment. it also upheld the seizure of papers unrelated to the crime for which the arrest was made, namely, selective service registration cards which were discovered in a sealed envelope in the bottom of a bureau drawer. in justification of this conclusion, chief justice vinson wrote: "here the agents entered the apartment under the authority of lawful warrants of arrest. neither was the entry tortious nor was the arrest which followed in any sense illegal. * * * the search was not a general exploration but was specifically directed to the means and instrumentalities by which the crimes charged had been committed, particularly the two canceled checks of the mudge oil company. * * * if entry upon the premises be authorized and the search which follows be valid, there is nothing in the fourth amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated."[ ] in a dissenting opinion in which justices murphy and rutledge concurred, justice frankfurter challenged the major premises announced by the court. "to derive from the common law right to search the person as an incident of his arrest the right of indiscriminate search of all his belongings, is to disregard the fact that the constitution protects [against] both unauthorized arrest and unauthorized search. authority to arrest does not dispense with the requirement of authority to search. * * * but even if the search was reasonable, it does not follow that the seizure was lawful. if the agents had obtained a warrant to look for the canceled checks, they would not be entitled to seize other items discovered in the process. * * * the court's decision achieves the novel and startling result of making the scope of search without warrant broader than an authorized search."[ ] a more limited search in connection with an arrest was held valid in united states _v._ rabinowitz.[ ] in that case, government officers, armed with a valid warrant for arrest, had arrested respondent in his one-room office which was open to the public. thereupon, over his objection, they searched the desk, safe and file cabinets in the office for about an hour and a half and seized forged and altered stamps. justice minton assigned five reasons for holding that the search and seizure was reasonable: "( ) the search and seizure were incident to a valid arrest; ( ) the place of the search was a business room to which the public, including the officers, was invited; ( ) the room was small and under the immediate and complete control of respondent; ( ) the search did not extend beyond the room used for unlawful purposes; ( ) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars' tools, lottery tickets or counterfeit money."[ ] this decision also overruled an intermediate case, trupiano _v._ united states,[ ] whereby the practical effect of the harris decision had been circumscribed by a ruling that even where a valid arrest is made, a search without a warrant is not permissible if the circumstances make it feasible to procure a warrant in advance. search of vehicles the fourth amendment has been construed "* * *, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where is it not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * * the measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."[ ] where officers have reasonable grounds for searching an automobile which they are following, a search of the vehicle immediately after it has been driven into an open garage is valid.[ ] the existence of reasonable cause for searching an automobile does not, however, warrant the search of an occupant thereof, although the contraband sought is of a character which might be concealed on the person.[ ] use of evidence to remove the temptation to ignore constitutional restraints on search and seizure, evidence obtained in violation thereof is made inadmissible against an accused in federal courts.[ ] this is contrary to the practice prevailing in the majority of states and has been severely criticized as a matter of principle.[ ] the court has intimated recently that the federal exclusionary rule is not a command of the fourth amendment, but merely a judicially created rule of evidence which congress could overrule. in wolf _v._ colorado,[ ] it ruled that while that amendment is binding on the states, it does not prevent state courts from admitting evidence obtained by illegal search. with respect to the federal rule, justice frankfurter said: "* * * though we have interpreted the fourth amendment to forbid the admission of such evidence, a different question would be presented if congress, under its legislative powers, were to pass a statute purporting to negate the _weeks_ doctrine. we would then be faced with the problem of the respect to be accorded the legislative judgment on an issue as to which, in default of that judgment, we have been forced to depend upon our own."[ ] this rule does not prevent the use of evidence unlawfully obtained by individuals,[ ] or by state officers,[ ] unless federal agents had a part in the unlawful acquisition,[ ] or unless the arrest and search were made for an offense punishable only by federal law.[ ] a search is deemed to be "a search by a federal official if he had a hand in it; * * * [but not] if evidence secured by state authorities is turned over to the federal authorities on a silver platter. the decisive factor * * * is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. it is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. so long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it."[ ] samples of illicit goods constituting part of a quantity seized by federal officials under a valid search warrant may be used as evidence, whether or not the officers become civilly liable as trespassers _ab initio_, by reason of the fact that they unlawfully destroyed the remainder of the goods at the time the seizure was made.[ ] in silver thorne lumber co. _v._. united states,[ ] the court refused to permit the government to subpoena corporate records of which it had obtained knowledge by an unlawful search. to permit "knowledge gained by the government's own wrong" to be so used would do violence to the bill of rights.[ ] but a defendant in a civil antitrust suit may be required to produce records which had been previously subpoenaed before a grand jury, despite the fact that the grand jury was illegally constituted because women were excluded from the panel.[ ] where government agents lawfully obtained knowledge of the contents of a cancelled check during examination of the records of a government contractor, the admission of such check in evidence was held not to be an abuse of discretion even if the seizure of the check itself was deemed illegal.[ ] the seizure of papers under a writ of replevin issued in a civil suit between private persons does not violate the fourth and fifth amendments.[ ] notes [ ] carroll _v._ united states, u.s. , , ( ). [ ] burdeau _v._ mcdowell, u.s. , ( ). [ ] den ex dem. murray _v._ hoboken land & improv. co., how. , ( ). [ ] nathanson _v._ united states, u.s. , ( ) [ ] gouled _v._ united states, u.s. ( ). [ ] taylor _v._ united states, u.s. ( ). [ ] carroll _v._ united states, u.s. ( ). [ ] hester _v._ united states, u.s. ( ). [ ] ex parte jackson, u.s. , ( ). [ ] boyd _v._ united states, u.s. ( ); hale _v._ henkel, u.s. ( ). [ ] stroud _v._ united states, u.s. , ( ). [ ] amos _v._ united states, u.s. ( ); johnson _v._ united states, u.s. ( ). [ ] davis _v._ united states, u.s. ( ). [ ] olmstead _v._ united states, u.s. ( ). _cf._ nardone _v._ united states, u.s. ( ); u.s. ( ). [ ] goldman _v._ united states, u.s. ( ). [ ] bilokumsky _v._ tod, u.s. , ( ). [ ] on lee _v._ united states, u.s. ( ). [ ] ibid. . four justices dissented, relying in the main on the dissent in the olmstead case, which came later to be adopted by congress. _see_ note above. [transcriber's note: reference is to footnote , above.] [ ] united states _v._ jeffers, u.s. ( ). [ ] ex parte burford, cr. ( ). [ ] albrecht _v._ united states, u.s. ( ). [ ] mcgrain _v._ daugherty, u.s. , , ( ). [ ] agnello _v._ united states, u.s. ( ). [ ] byars _v._ united states, u.s. , ( ). [ ] steele _v._ united states, no. , u.s. , , ( ); dumbra _v._ united states, u.s. , ( ). [ ] marron _v._ united states, u.s. , ( ). [ ] gouled _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ibid. , . [ ] ibid. . [ ] ibid. . [ ] hale _v._ henkel, u.s. , ( ); essgee co. _v._ united states, u.s. ( ). _cf._ interstate commerce commission _v._ baird, u.s. , ( ). [ ] wilson _v._ united states, u.s. ( ). _see also_ wheeler _v._ united states, u.s. ( ); grant _v._ united states, u.s. ( ). [ ] united states _v._ white, u.s. ( ). [ ] re fuller, u.s. ( ). _see also_ mccarthy _v._ arndstein, u.s. , ( ). [ ] perlman _v._ united states, u.s. ( ). [ ] hale _v._ henkel, u.s. , ( ). [ ] oklahoma press pub. co. _v._ walling, u.s. , ( ). [ ] federal trade commission _v._ american tobacco co. u.s. , - ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] united states _v._ darby, u.s. , ( ). [ ] shapiro _v._ united states, u.s. , ( ). [ ] flint _v._ stone tracy co., u.s. , ( ). [ ] baltimore & o.r. co. _v._ interstate commerce comm'n., u.s. ( ). [ ] united states _v._ bausch & l. optical co., u.s. , ( ). _cf._ united states _v._ morton salt co., u.s. ( ). [ ] shapiro _v._ united states, u.s. , ( ); oklahoma press pub. co. _v._ walling, u.s. , ( ). [ ] weeks _v._ united states, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] marron _v._ united states, u.s. ( ). [ ] go-bart importing co. _v._ united states, u.s. ( ); united states _v._ lefkowitz, u.s. ( ). [ ] byars _v._ united states, u.s. ( ); johnson _v._ united states, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] ibid. . separate dissenting opinions were written by justices murphy and jackson. [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ); mcdonald _v._ united states, u.s. ( ) is also overruled in effect, although it was not mentioned in the court's opinion. [ ] carroll _v._ united states, u.s. , - ( ). husty _v._ united states, u.s. ( ); brinegar _v._ united states, u.s. ( ). [ ] scher _v._ united states, u.s. ( ). [ ] united states _v._ di re, u.s. ( ). [ ] weeks _v._ united states, u.s. ( ). this case was a virtual repudiation of adams _v._ new york, u.s. , ( ). there the supreme court had ruled that in criminal proceedings in a state court the use of private papers obtained by unlawful search and seizure "was no violation of the constitutional guaranty of privilege from unlawful search or seizure." it added: "nor do we think the accused was compelled to incriminate himself." [ ] wolf _v._ colorado, u.s. , , ( ); wigmore on evidence ( d ed.) § ( ). [ ] u.s. ( ). [ ] ibid. . [ ] burdeau _v._ mcdowell, u.s. ( ). [ ] byars _v._ united states, u.s. , ( ). [ ] ibid. ; lustig _v._ united states, u.s. ( ). [ ] gambino _v._ united states, u.s. ( ). [ ] lustig _v._ united states, u.s. , , ( ). [ ] mcguire _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] united states _v._ wallace & tiernan co., u.s. ( ). [ ] zap _v._ united states, u.s. ( ). [ ] american tobacco co. _v._ werckmeister, u.s. , ( ). amendment rights of persons page rights of accused persons the grand jury clause double jeopardy self-incrimination source of the clause due process of law source and evolution of the meaning of the term scope of the guaranty procedural due process general criminal prosecutions notice and hearing evidence and presumption in judicial proceedings administrative proceedings fair hearing judicial review aliens deportation substantive due process discrimination deprivation of liberty deprivation of property retroactive legislation sustained retroactive legislation disallowed bankruptcy legislation right to sue the government congressional police measures the postal service regulation of public utilities regulation of railroads taxation retroactive taxes governance of the indians the national eminent domain power scope of power alien property public use rights for which compensation must be made when property is taken navigable waters just compensation interest enforcement of right to compensation rights of persons amendment no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. rights of accused persons the grand jury clause within the meaning of this article a crime is made "infamous" by the quality of the punishment which may be imposed.[ ] the court has recognized that: "what punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another."[ ] imprisonment in a state prison or penitentiary, with or without hard labor,[ ] or imprisonment at hard labor in the workhouse of the district of columbia,[ ] falls within this category. the pivotal question is whether the offense is one for which the court is authorized to award such punishment; the sentence actually imposed is immaterial. when an accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.[ ] thus, an act which authorizes imprisonment at hard labor for one year, as well as deportation, of chinese aliens found to be unlawfully within the united states, creates an offense which can be tried only upon indictment.[ ] counterfeiting,[ ] fraudulent alteration of poll books,[ ] fraudulent voting,[ ] and embezzlement[ ] have been declared to be infamous crimes. it is immaterial how congress has classified the offense.[ ] an act punishable by a fine of not more than $ , or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of "petty offenses."[ ] a person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument. a change in the indictment deprives the court of the power to try the accused.[ ] there is no constitutional requirement that an indictment be presented by a grand jury in a body; an indictment delivered by the foreman in the absence of the other grand jurors is valid.[ ] the words "when in actual service in time of war or public danger" apply to the militia only. all persons in the regular army or navy are subject to court martial rather than indictment or trial by jury, at all times.[ ] the exception of "cases arising in the land or naval forces" was not aimed at trials of offenses against the laws of war. its objective was to authorize trial by court martial of the members of the armed forces for all that class of crimes which under the fifth and sixth amendments might otherwise have been deemed triable in the civil court. either citizen or alien enemy belligerents may be tried by a military commission for offenses against the laws of war.[ ] double jeopardy by the common law not only was a second punishment for the same offense prohibited, but a second trial was forbidden whether or not the accused had suffered punishment, or had been acquitted or convicted.[ ] this clause embraces all cases wherein a second prosecution is attempted for the same violation of law, whether felony or misdemeanor.[ ] seventy-five years ago a closely divided court held that the protection against double jeopardy prevented an appeal by the government after a verdict of acquittal.[ ] a judgment of acquittal on the ground of the bar of the statute of limitations is a protection against a second trial,[ ] as is also a general verdict of acquittal upon an issue of not guilty to an indictment which was not challenged as insufficient before the verdict.[ ] where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized either punishment, but not both, it could not, after the fine had been paid, during the same term of court, change its judgment by sentencing the defendant to imprisonment.[ ] but where a statute carried a minimum mandatory sentence of both a fine and imprisonment, the imposition of the minimum fine five hours after the court had erroneously sentenced the defendant to imprisonment only did not amount to double jeopardy.[ ] whether or not the discontinuance of a trial without a verdict bars a second trial depends upon the circumstances of each case.[ ] discharge of a jury because it is unable to reach an agreement[ ] or because of the disqualification of a juror[ ] does not preclude a second trial. where, after a demurrer to the indictment was overruled, a jury was impaneled and witnesses sworn, the discharge of the jury to permit the defendant to be arraigned did not bar a trial before a new jury.[ ] the withdrawal of charges after a trial by a general court martial had begun, because the tactical situation brought about by the rapid advance of the army made continuance of the trial impracticable, did not bar a trial before a second court martial.[ ] an accused is not put in jeopardy by preliminary examination and discharged by the examining magistrate,[ ] by an indictment which is quashed,[ ] nor by arraignment and pleading to the indictment.[ ] in order to bar prosecution, a former conviction must be pleaded.[ ] a plea of former jeopardy must be upon a prosecution for the same identical offense.[ ] the test of identity of offenses is whether the same evidence is required to sustain them; if not, the fact that both charges relate to one transaction does not make a single offense where two are defined by the statutes.[ ] where a person is convicted of a crime which includes several incidents, a second trial for one of those incidents puts him twice in jeopardy.[ ] congress may impose both criminal and civil sanctions with respect to the same act or omission,[ ] and may separate a conspiracy to commit a substantive offense from the commission of the offense and affix to each a different penalty.[ ] a conviction for the conspiracy may be had though the subsequent offense was not completed.[ ] separate convictions under different counts charging a monopolization and a conspiracy to monopolize trade, in an indictment under the sherman antitrust act, do not amount to double jeopardy.[ ] in united states _v._ national association of real estate boards,[ ] the court held that an acquittal in a criminal suit charging violation of the sherman act does not prevent the issuance of an injunction against future violations. it distinguished but did not overrule an early case which held that where an issue as to the existence of a fact or act had been tried in a criminal proceeding instituted by the united states, a judgment of acquittal, was conclusive in a subsequent proceeding _in rem_ involving the same matter.[ ] a civil action to recover taxes which were in fact penalties for violation of another statute was held to be punitive in character and barred by a prior conviction of the defendant for a criminal offense involving the same transaction.[ ] in contrast, the additional income tax imposed when a fraudulent return is filed, was found to be a civil sanction designed to protect the revenue, which might be assessed after acquittal of the defendant for the same fraud.[ ] a forfeiture proceeding for defrauding the government of a tax on alcohol diverted to beverage uses is a proceeding _in rem_, rather than a punishment for a criminal offense, and may be prosecuted after a conviction of conspiracy to violate the statute imposing the tax.[ ] in an early case, the court asserted that since robbery on the high seas is considered an offense within the criminal jurisdiction of all nations, the plea of _autre fois acquit_ would be good in any civilized state, though resting on a prosecution instituted in the courts of any other civilized state.[ ] it has held, however, that where the same act is an offense against both the state and federal governments, its prosecution and punishment by both governments is not double jeopardy.[ ] a contumacious witness is not twice subjected to jeopardy for refusing to testify before a committee of the united states senate, by being punished for contempt of the senate and also indicted for a misdemeanor for such refusal.[ ] self-incrimination source of the clause "nor shall be compelled in any criminal case to be a witness against himself." the source of this clause was the maxim that "no man is bound to accuse himself (_nemo tenetur prodere_--or _accusare seipsum_)," which was brought forward in england late in the sixteenth century in protest against the inquisitorial methods of the ecclesiastical courts. at that time the common law itself permitted accused defendants to be questioned. what the advocates of the maxim meant was merely that a person ought not to be put on trial and compelled to answer questions to his detriment unless he had first been properly accused, i.e., by the grand jury. but the idea once set going gained headway rapidly, especially after , when it came to have attached to it most of its present-day corollaries.[ ] under the clause a _witness_ in any proceeding whatsoever in which testimony is legally required may refuse to answer any question, his answer to which might be used against him in a future criminal proceeding, or which might uncover further evidence against him.[ ] the witness must explicitly claim his constitutional immunity or he will be considered to have waived it;[ ] but he is not the final judge of the validity of his claim.[ ] the privilege exists solely for the protection of the witness himself, and may not be claimed for the benefit of third parties.[ ] the clause does not impair the obligation of a witness to testify if a prosecution against him is barred by lapse of time, by statutory enactment, or by a pardon;[ ] but the effect of a mere tender of pardon by the president remains uncertain.[ ] a witness may not refuse to answer questions on the ground that he would thereby expose himself to prosecution by a state.[ ] conversely, the admission against a defendant in a federal court of testimony given by him in a state court under a statute of immunity is valid.[ ] if an accused takes the stand in his own behalf, he must submit to cross-examination;[ ] while if he does not, it is by no means certain that the trial judge in a federal court may not, without violation of the clause, draw the jury's attention to the fact.[ ] neither does the amendment preclude the admission in evidence against an accused of a confession made while in the custody of officers, if the confession was made freely, voluntarily, and without compulsion or inducement of any sort.[ ] but in mcnabb _v._ united states the court[ ] reversed a conviction in a federal court, based on a confession obtained by questioning the defendants for prolonged periods in the absence of friends and counsel and without their being brought before a commissioner or judicial officer, as required by law. without purporting to decide the constitutional issue, justice frankfurter's opinion urged the duty of the court, in supervising the conduct of the lower federal courts, to establish and maintain "civilized standards of procedure and evidence."[ ] an individual who has acquired income by illicit means is not excused from making out an income tax return because he might thereby expose himself to a criminal prosecution by the united states. "he could not draw a conjurer's circle around the whole matter," said justice holmes, "by his own declaration that to write any word upon the government blank would bring him into danger of the law."[ ] but a witness called to testify before a federal grand jury as to his relations with the communist party cannot, in view of existing legislation touching the subject, be compelled to answer.[ ]he clause does not require the exclusion of the body of an accused as evidence of his identity;[ ] but the introduction into evidence against one who was being prosecuted by a state for illegal possession of morphine of two capsules which he had swallowed and had then been forced by the police to disgorge, was held to violate due process of law.[ ] a bankrupt is not deprived of his constitutional right not to testify against himself by an order requiring him to surrender his books to a duly authorized receiver.[ ] he may not object to the use of his books and papers as incriminating evidence against him while they are in the custody of the bankruptcy court;[ ] nor may he condition their delivery by requiring a guaranty that they will not be used as incriminating evidence.[ ] the filing of schedules by a bankrupt does not waive his right to refuse to answer questions pertaining to them when to do so may incriminate him.[ ] a disclosure, not amounting to an actual admission of guilt or of incriminating facts, does not deprive him of the privilege of stopping short in his testimony whenever it may fairly tend to incriminate him.[ ] the rule against self-incrimination may be invoked by a bankrupt (in the absence of any statute affording him complete immunity) when being examined concerning his estate.[ ] the privilege of witnesses, being a purely personal one, may not be claimed by an agent or officer of a corporation either in its behalf or in his own behalf as regards books and papers of the corporation;[ ] and the same rule holds in the case of the custodian of the records of a labor union;[ ] nor does the communist party enjoy any immunity as to its books and records.[ ] finally, this amendment, in connection with the interdiction of the fourth amendment against unreasonable searches and seizures, protects an individual from the compulsory production of private papers which would incriminate him.[ ] the scope of this latter privilege was, however, greatly narrowed by the decision in shapiro _v._ united states.[ ] there, by a five-to-four majority, the court held that the privilege against self incrimination does not extend to books and records which an individual is required to keep to evidence his compliance with lawful regulations. a conviction for violation of opa regulations was affirmed, as against the contention that the prosecution was barred because the accused had been compelled over claim of constitutional immunity to produce records he was required to keep under applicable opa orders. after construing the statutory immunity as inapplicable to the case, chief justice vinson disposed of the constitutional objections by asserting that "the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.'"[ ] due process of law source and evolution of the meaning of the term the phrase "due process of law" comes from chapter of edw. iii ( ), which reads: "no man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." this statute, in turn, harks back to the famous chapter of magna carta (issue of ), where the king promises that "no free man (_nullus liber homo_) shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land (_per legem terrae_)." coke in part ii of his institutes, which was the source from which the founders of the american constitutional system derived their understanding of the matter, equates the term "by law of the land" with "by due process of law," which he in turn defines as "by due process of the common law," that is "by the indictment or presentment of good and lawful men * * * or by writ original of the common law."[ ] the significance of both terms was therefore purely procedural; the term "writ original of the common law" referring to the writs on which civil actions were brought into the king's courts; and this is the significance they clearly have in the state constitutions. in the earlier of such instruments the term "law of the land" was the form preferred, but following the adoption of amendment v "due process of law" became the vogue with constitution draftsmen. some state constitutions even today employ both terms. whichever phraseology is used always occurs in close association with other safeguards of accused persons, just as does the clause here under discussion in amendment v. as a limitation, therefore, on legislative power the due process clause originally operated simply to place certain procedures, and especially the grand jury-petit jury process, beyond its reach, but this did not remain its sole importance or its principal importance.[ ] today the due process clause in amendment v, in amendment xiv, and in the state constitutions is important chiefly, not as consecrating certain procedures, but as limiting the substantive content of legislation. thus one of the grounds on which chief justice taney, in his opinion in the dred scott case, stigmatized the missouri compromise as unconstitutional was that an act of congress which deprived "a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the united states, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law";[ ] and sixty-six years later the court held the district of columbia minimum wage act for women and minors to be void under the due process clause of amendment v, not on account of any objection to the methods by which it was to be enforced but because of the content of the act--its substantive requirements.[ ] and it is because of this extension of the term "due process of law" beyond the procedural field that the court has been asked to pass upon literally hundreds of state enactments since about on the representation that they invaded the "liberty" or property rights of certain persons "unreasonably." in short, this development of the meaning of "due process of law" came in time to furnish one of the principal bases of judicial review, and indeed it still remains such so far as state legislation is concerned. _see_ pp. - . scope of guaranty this clause is a restraint on congress as well as on the executive and judicial powers of the national government; it cannot be so construed as to leave congress free to make any process it chooses "due process of law."[ ] all persons within the territory of the united states are entitled to its protection, including corporations,[ ] aliens,[ ] and presumptively citizens seeking readmission to the united states.[ ] it is effective in the district of columbia[ ] and in territories which are part of the united states,[ ] but it does not apply of its own force to unincorporated territories.[ ] nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the united states.[ ] procedural due process general the words "due process of law" do not necessarily imply a proceeding in a court of justice,[ ] or a plenary suit and trial by jury in every case where personal or property rights are involved. "in all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts."[ ] proceedings for contempt of court[ ] or to disbar an attorney[ ] may be determined by a court without a jury trial. for persons in the military or naval services of the united states,[ ] trial by military tribunals is due process. this principle extends to persons who commit offenses while undergoing punishment inflicted by court martial; as military prisoners they are still subject to military law.[ ] criminal prosecutions the due process clause supplements the specific procedural guaranties enumerated in the sixth amendment and in preceding clauses of the fifth amendment for the protection of persons accused of crime. the court has relied upon this provision in holding that an accused shall plead, or be ordered to plead, or a plea of not guilty be entered for him before his trial proceeds;[ ] and in ruling that if the accused is in custody he must be personally present at every stage of the trial where his substantial rights may be affected by the proceedings against him.[ ] it is not within the power of the accused or his attorney to waive such right. inasmuch as proceedings for criminal contempt do not constitute a criminal prosecution, it is immaterial if proceedings are held in the absence of the defendant; the requirement of due process of law is satisfied by suitable notice and opportunity to be heard.[ ] notice and hearing due process of law signifies a right to be heard. a decree _pro confesso_ entered against a defendant after striking his answer from the files for contempt of court is void.[ ] a man may, however, consent to be bound by a judgment in a case in which he has no right to participate.[ ] accordingly, due process of law was held not to be denied to a surety on an undertaking for the release of attached property when the undertaking required the parties to submit to the jurisdiction of the court and to agree to abide by the judgment in relation to the property attached.[ ] where, in a suit for specific performance of a contract, evidence admitted without objection at the trial established all the facts necessary for application of the formula specified by the contract, the appellate court which rejected the trial court's interpretation of the contract did not infringe the right to a hearing by entering judgment without remanding the case for a new trial.[ ] after a state court, in proceedings designed _inter alia_ to invalidate certain releases, rendered judgment without a special finding on the exact point, a federal court did not deny due process in a subsequent proceeding by treating such judgment as conclusive on the validity of the releases.[ ] since proceedings in bankruptcy are in the nature of proceedings _in rem_, personal notice to creditors is not required; creditors are bound by the proceedings in distribution on notice by publication and mail.[ ] where a statute providing for a public improvement levied an assessment against abutting property it was held to be "conclusive alike of the question of the necessity of the work and of the benefits as against abutting property."[ ] notice to the property owner is not necessary to sustain the assessment. on the other hand, when the legislature submits these questions to a commission or other officers the inquiry becomes judicial and the property owner is entitled to notice or an opportunity to be heard. notice by publication is sufficient.[ ] evidence and presumption in judicial proceedings error in the admission of evidence or the entry of an erroneous judgment after a full hearing does not constitute a denial of due process.[ ] a statute authorizing cancellation of naturalization certificates for fraud and providing that the taking up of permanent residence abroad within five years after naturalization shall be _prima facie_ evidence of lack of intention to become a permanent resident of the united states at the time of applying for citizenship was found not to be so unreasonable as to deny due process of law.[ ] likewise, it was held reasonable for congress to enact that a defendant who was discovered to be in possession of opium should be required to assume the burden of proving that he had not obtained it through illegal importation.[ ] but a presumption that a firearm or ammunition in the possession of a person convicted of a crime of violence was transported or received in violation of law was held invalid because there was no rational connections between the facts proved and that presumed.[ ] administrative proceedings with respect to action taken by administrative agencies the court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding so long as a hearing is held before the final order becomes effective.[ ] in bowles _v._ willingham,[ ] it sustained orders fixing maximum rents issued without a hearing at any stage, saying "* * * where congress has provided for judicial review after the regulations or orders have been made effective it has all that due process under the war emergency requires."[ ] but where, after consideration of charges brought against an employer by a complaining union, the national labor relations board undertook to void an agreement between an employer and another independent union, the latter was entitled to notice and an opportunity to participate in the proceedings.[ ] although a taxpayer must be afforded a fair opportunity for hearing in connection with the collection of taxes,[ ] collection by distraint of personal property is lawful if the taxpayer is allowed a hearing thereafter.[ ] "a fair hearing" when the constitution requires a hearing it requires a fair one, held before a tribunal which at least meets currently prevailing standards of impartiality.[ ] an opportunity must be given not only to present evidence, but also to know the claims of the opposing party and to meet them. those who are brought into contest with the government in a quasi-judicial proceeding aimed at control of their activities are entitled to be fairly advised of what the government proposes and to be heard upon the proposal before the final command is issued.[ ] but a variance between the charges and findings will not invalidate administrative proceedings where the record shows that at no time during the hearing was there any misunderstanding as to the basis of the complaint.[ ] the mere admission of evidence which would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency.[ ] a provision that such a body shall not be controlled by rules of evidence does not, however, justify orders without a foundation in evidence having rational probative force. mere uncorroborated hearsay does not constitute the substantial evidence requisite to support the findings of the agency.[ ] while the court has recognized that in some circumstances a "fair hearing" implies a right to oral argument,[ ] it refuses to lay down a general rule that would cover all cases.[ ] it says: "certainly the constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised. equally certainly it has left wide discretion to congress in creating the procedures to be followed in both administrative and judicial proceedings, as well as in their conjunction."[ ] judicial review to the extent that constitutional rights are involved, due process of law imports a judicial review of the action of administrative or executive officers. this proposition is undisputed so far as questions of law are concerned, but the extent to which the courts should and will go in reviewing determinations of fact has been a highly controversial issue. in st. joseph stock yards co. _v._ united states,[ ] the supreme court held that upon review of an order of the secretary of agriculture establishing maximum rates for services rendered by a stock yard company, due process required that the court exercise its independent judgment upon the facts to determine whether the rates were confiscatory.[ ] subsequent cases sustaining rate orders of the federal power commission have not dealt explicitly with this point.[ ] the court has said simply that a person assailing such an order "carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."[ ] there has been a division of opinion in the supreme court as to what extent, if at all, the proceedings before military tribunals should be reviewed by the courts for the purpose of determining compliance with the due process clause. in in re yamashita[ ] the majority denied a petition for certiorari and petitions for writs of _habeas corpus_ to review the conviction of a japanese war criminal by a military commission sitting in the philippine islands. it held that since the military commission, in admitting evidence to which objection was made, had not violated any act of congress, a treaty or a military command defining its authority, its ruling on evidence and on the mode of conducting the proceedings were not reviewable by the courts. without dissent, the supreme court in hiatt _v._ brown[ ] reversed the judgment of a lower court which had discharged a prisoner serving a sentence imposed by a court-martial, because of errors whereby the respondent had been deprived of due process of law. the supreme court held that the court below had erred in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate's report, the sufficiency of the evidence to sustain respondent's conviction, the adequacy of the pre-trial investigation, and the competence of the law member and defense counsel. in summary, justice clark wrote: "in this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. the correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision."[ ] again in johnson _v._ eisentrager[ ] the supreme court overruled a lower court decision, which, in reliance upon the dissenting opinion in the yamashita case, had held that the due process clause required that the legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of _habeas corpus_. aliens to aliens who have never been naturalized or acquired any domicile or residence in the united states, the decision of an executive or administrative officer, acting within powers expressly conferred by congress, as to whether or not they shall be permitted to enter the country, is due process of law.[ ] the complete authority of congress in the matter of admission of aliens justifies delegation of power to executive officers to enforce the exclusion of aliens afflicted with contagious diseases by imposing upon the owner of the vessel bringing any such alien into the country, a money penalty, collectible before and as a condition of the grant of clearance.[ ] if the person seeking admission claims american citizenship, the decision of the secretary of labor may be made final, but it must be made after a fair hearing, however summary, and must find adequate support in the evidence. a decision based upon a record from which relevant and probative evidence has been omitted is not a fair hearing.[ ] where the statute made the decision of an immigration inspector final unless an appeal was taken to the secretary of the treasury, a person who failed to take such an appeal did not, by an allegation of citizenship, acquire a right to a judicial hearing on _habeas corpus_.[ ] deportation deportation proceedings are not criminal prosecutions within the meaning of the bill of rights. the authority to deport is drawn from the power of congress to regulate the entrance of aliens and impose conditions upon the performance of which their continued liberty to reside within the united states may be made to depend. findings of fact reached by executive officers after a fair, though summary deportation hearing may be made conclusive.[ ] in wong yang sung _v._ mcgrath,[ ] however, the court intimated that a hearing before a tribunal which did not meet the standards of impartiality embodied in the administrative procedure act[ ] might not satisfy the requirements of due process of law. to avoid such constitutional doubts, the court construed the law to disqualify immigration inspectors as presiding officers in deportation proceedings. except in time of war, deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process which may be corrected on _habeas corpus_.[ ] in contrast with the decision in united states _v._ ju toy[ ] that a person seeking entrance to the united states was not entitled to a judicial hearing on his claim of citizenship, a person arrested and held for deportation is entitled to a day in court if he denies that he is an alien.[ ] a closely divided court has ruled that in time of war the deportation of an enemy alien may be ordered summarily by executive action; due process of law does not require the courts to determine the sufficiency of any hearing which is gratuitously afforded to the alien.[ ] substantive due process discrimination almost all legislation involves some degree of classification whereby its operation is directed to particular categories of persons, things, or events; and it is partly in recognition of this fact that amendment fourteen forbids the states to deny to persons within their jurisdiction "equal protection of the laws." but this restriction does not rule out classifications that are "reasonable"; and the due process of law clause of amendment five is at least as tolerant of legislative classifications, which would have to be arbitrarily and unreasonably discriminatory to incur its condemnation.[ ] in fact, it does not appear that the court has up to this time ever held an act of congress unconstitutional on this ground. thus it has sustained a law imposing greater punishment for an offense involving rights and property of the united states than for a like offense involving the rights of property of a private person.[ ] likewise, a requirement that improved property in the district of columbia be connected with the city sewage system, with different sanctions for residents and nonresidents was upheld over the argument that the classification was arbitrary.[ ] the allowance to injured seamen of a choice between several measures of redress without any corresponding right in their employer was held not to deny due process of law.[ ] differences of treatment accorded marketing cooperatives in milk marketing orders issued by the secretary of agriculture[ ] and the selection of a limited number of tobacco markets for compulsory grading of tobacco[ ] have also been sustained. the priority of a federal tax lien against property passing at death, may, without offending the due process clause, be different from that which attaches to property transferred _inter vivos_ in contemplation of death.[ ] there are indications, however, that the court may be prepared to go further than it has in the past in condemning discrimination as a denial of due process of law. relying upon public policy and its supervisory authority over federal courts, it has reached results similar to those arrived at under the equal protection clause of the fourteenth amendment, in refusing to enforce restrictive covenants in the district of columbia,[ ] and in reversing a judgment of a federal district court because of the exclusion of day laborers from the jury panel;[ ] and in steele _v._ louisville & n.r. co.[ ] the railway labor act was construed to require a collective bargaining representative to act for the benefit of all members of the craft without discrimination on account of race. chief justice stone indicated that any other construction would raise grave constitutional doubts,[ ] while in a concurring opinion, justice murphy asserted unequivocally that the act would be inconsistent with the fifth amendment if the bargaining agent, acting under color of federal authority, were permitted to discriminate against any of the persons he was authorized to represent.[ ] deprivation of liberty in consequence of the explicit assurances of individual liberty contained in other articles of the bill of rights, the clause in the fifth amendment forbidding the deprivation of "liberty" without due process of law has been invoked chiefly in resistance to measures alleged to abridge liberty of contract. the two leading cases which held legislation unconstitutional on this ground have, however, both been overturned in recent years. adair _v._ united states,[ ] which invalidated an act of congress prohibiting any interstate carrier from threatening an employee with loss of employment if he joined a labor union, was overruled in substance by phelps dodge corp. _v._ national labor relations board.[ ] adkins _v._ children's hospital,[ ] in which a minimum wage law for the district of columbia was found to be an unwarranted abridgment of the liberty of contract, was expressly repudiated by west coast hotel co. _v._ parrish.[ ] numerous other statutes--antitrust laws,[ ] acts limiting hours of labor,[ ] prohibiting advance of wages to seamen,[ ] making carriers liable for injuries suffered by employees irrespective of previous contractual arrangements,[ ] requiring employers to bargain collectively with employees[ ] and fixing prices of commodities[ ] have been sustained against attack on this ground. interpreting statutes which made the guaranty of due process of law applicable to hawaii and the philippine islands, the court enjoined enforcement of an act of the territory of hawaii which prohibited maintenance of foreign-language schools except upon written permit and payment of a fee based upon attendance,[ ] and held unconstitutional a philippine statute which prohibited chinese merchants from keeping any accounts in chinese.[ ] deprivation of property retroactive legislation sustained federal regulation of future action, based upon rights previously acquired by the person regulated, is not prohibited by the constitution. so long as the constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. accordingly, rent regulations were sustained as applied to prevent execution of a judgment of eviction rendered by a state court before the enabling legislation was passed.[ ] an order by an area rent director reducing an unapproved rental and requiring the landlord to refund the excess previously collected, was held, with one dissenting vote, not to be the type of retroactivity which is condemned by law.[ ] the retroactive effect of a new principle announced by a decision of an administrative tribunal has been likened to the effect of judicial decisions in cases of first impression. in securities comm'n. _v._ chenery corp.,[ ] the supreme court sustained a decision of the commission which refused to approve a plan of reorganization for a public utility holding company so long as the preferred stock purchased by the management was treated on a parity with other preferred stock even though the purchase of such stock, when made, did not conflict with any law or rule of the commission. in the exercise of its comprehensive powers over revenue, finance and currency, congress may make treasury notes legal tender in payment of debts previously contracted[ ] and may invalidate provisions in private contracts calling for payment in gold coin.[ ] an award of additional compensation under the longshoremen's and harbor workers' compensation act,[ ] made pursuant to a private act of congress passed after expiration of the period for review of the original award, directing the commission to review the case and issue a new order, was held valid against the employer and insurer.[ ] the application of a statute providing for tobacco marketing quotas, to a crop planted prior to its enactment, was held not to deprive the producers of property without due process of law since it operated, not upon production, but upon the marketing of the product after the act was passed.[ ] the validation by statute of a prior mortgage of personal property invalid because improperly recorded, did not deny due process of law to a judgment creditor seeking to levy an attachment on the mortgaged property.[ ] nor was property taken without due process of law by a statute of new mexico territory, permitting disseisin of real property to ripen into title after ten years.[ ] an order of the military governor of porto rico reducing the period during which the possession of real estate must continue, to permit an _ex parte_ conversion of an entry of possessory title into record ownership was construed to apply only where there still remained a reasonable opportunity for the true owners to contest the claim. the court said that any other construction would permit a taking of property without due process of law.[ ] rights created by statute are subject to qualification by congress; benefits conferred gratuitously may be redistributed or withdrawn at any time.[ ] where congress provided, in granting lands to a railroad, that such land could be resold only to actual settlers, at a price not exceeding $ . per acre, it could constitutionally, for breach of performance, resume title to the lands while assuring the railroad the equivalent of its interest.[ ] an act making an appropriation for a private claim which restricted the attorney's fees payable therefrom to twenty per cent was valid although inconsistent with a prior contract with the claimant allowing a larger fee.[ ] statutory restrictions on compensation for services in connection with veterans' pensions or insurance have been upheld.[ ] an increase in the penalty for production of wheat in excess of quota was not invalid as applied retroactively to wheat already planted, where congress concurrently authorized a substantial increase in the amount of the loan which might be made to cooperating farmers upon stored "farm marketing excess wheat."[ ] retroactive legislation disallowed the due process clause has been successfully invoked to defeat retroactive invasion or destruction of property rights in a few cases. a revocation by the secretary of the interior of previous approval of plats and papers showing that a railroad was entitled to land under a grant was held void as an attempt to deprive the company of its property without due process of law.[ ] the exception of the period of federal control from the time limit set by law upon claims against carriers for damages caused by misrouting of goods, was read as prospective only because the limitation was an integral part of the liability, not merely a matter of remedy, and would violate the fifth amendment if retroactive.[ ] rights against the united states arising out of contract are protected by the fifth amendment; hence a statute abrogating contracts of war risk insurance was held unconstitutional as applied to outstanding policies.[ ] bankruptcy legislation the bankruptcy power of congress is subject to the fifth amendment. a statute which authorized a court to stay proceedings for the foreclosure of a mortgage for five years, the debtor to remain in possession at a reasonable rental, with the option of purchasing the property at its appraised value at the end of the stay, was held unconstitutional because it deprived the creditor of substantial property rights acquired prior to the passage of the act.[ ] a modified law, under which the stay was subject to termination by the court, and which continued the right of the creditor to have the property sold to pay the debt was sustained.[ ] without violation of the due process clause, the sale of collateral under the terms of a contract may be enjoined, if such sale would hinder the preparation or consummation of a proposed railroad reorganization, provided the injunction does no more than delay the enforcement of the contract.[ ] a provision that claims resulting from rejection of an unexpired lease should be treated as on a parity with provable debts, but limited to an amount equal to three years rent, was held not to amount to a taking of property without due process of law, since it provided a new and more certain remedy for a limited amount, in lieu of an existing remedy inefficient and uncertain in result.[ ] a right of redemption allowed by state law upon foreclosure of a mortgage was unavailing to defeat a plan for reorganization of a debt or corporation where the trial court found that the claims of junior lienholders had no value.[ ] right to sue the government a right to sue the government on a contract is a privilege, not a property right protected by the constitution.[ ] the right to sue for recovery of taxes paid may be conditioned upon an appeal to the commissioner and his refusal to refund.[ ] there was no denial of due process when congress took away the right to sue for recovery of taxes, where the claim for recovery was without substantial equity, having arisen from the mistake of administrative officials in allowing the statute of limitations to run before collecting the tax.[ ] the denial to taxpayers of the right to sue for refund of processing and floor taxes collected under a law subsequently held unconstitutional, and the substitution of a new administrative procedure for the recovery of such sums, was held valid.[ ] congress may cut off the right to recover taxes illegally collected by ratifying the imposition and collection thereof, where it could lawfully have authorized such exactions prior to their collection.[ ] congressional police measures numerous regulations of a police nature, imposed under powers specifically granted to the federal government, have been sustained over objections based on the due process clause. congress may require the owner of a vessel on which alien seamen suffering from specified diseases are brought into the country to bear the expense of caring for such persons.[ ] it may prohibit the transportation in interstate commerce of filled milk,[ ] or the importation of convict made goods into any state where their receipt, possession or sale is a violation of local law.[ ] it may require employers to bargain collectively with representatives of their employees chosen in a manner prescribed by statute, to reinstate employees discharged in violation of law,[ ] and to permit use of a company owned hall for union meetings.[ ] it may enforce continuance of the relationship of employer and employee in the event of a strike as a consequence of, or in connection with, a current labor dispute.[ ] the fact that property subject to rent control in time of war suffers a decrease in value does not make such restriction offensive to the due process clause.[ ] the postal service in its complete control over the postal service congress may exclude lottery advertisements or any other matter objectionable on grounds of public policy.[ ] an order requiring return to the senders of all letters addressed to a concern engaged in a fraudulent enterprise, or to its officers as such was held reasonable and valid because an order limited to matter obviously connected with the enterprise would be a practical nullity.[ ] such an order may be issued by the postmaster general "upon evidence satisfactory to him,"[ ] but if issued under a "mistake of law" as to what facts may properly be deemed to constitute fraud, it will be enjoined by the courts.[ ] a hearing upon revocation of second-class mailing privileges by an assistant postmaster general upon notice, at which relator was heard and evidence received was due process.[ ] congressional regulation of public utilities inasmuch as congress, in giving federal agencies jurisdiction over various public utilities, usually has prescribed standards substantially identical with those by which the supreme court has tested the validity of state action, the review of their orders seldom has turned on constitutional issues. in two cases, however, maximum rates for stockyard companies prescribed by the secretary of agriculture were sustained only after detailed consideration of numerous items excluded from the rate base or from operating expenses, apparently on the assumption that error with respect to any such item would render the rates confiscatory and void.[ ] a few years later, in federal power commission _v._ hope natural gas co.,[ ] the court adopted an entirely different approach. it took the position that the validity of the commission's order depended upon whether the impact or total effect of the order is just and reasonable, rather than upon the method of computing the rate base. rates which enable a company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed cannot be condemned as unjust and unreasonable even though they might produce only a meager return in a rate base computed by the "present fair value" method.[ ] orders prescribing the form and contents of accounts kept by public utility companies,[ ] and statutes requiring a private carrier to furnish information for valuing its property to the interstate commerce commission[ ] have been sustained against the objection that they were arbitrary and invalid. an order of the secretary of commerce directed to a single common carrier by water requiring it to file a summary of its books and records pertaining to its rates was held not to violate the fifth amendment.[ ] congressional regulation of railroads legislation or administrative orders pertaining to railroads have been challenged repeatedly under the due process clause but seldom with success. orders of the interstate commerce commission establishing through routes and joint rates have been sustained,[ ] as has its division of joint rates to give a weaker group of carriers a greater share of such rates where the proportion allotted to the stronger group was adequate to avoid confiscation.[ ] the recapture of one half of the earnings of railroads in excess of a fair net operating income, such recaptured earnings to be available as a revolving fund for loans to weaker roads, was held valid on the ground that any carrier earning an excess held it as trustee.[ ] an order enjoining certain steam railroads from discriminating against an electric railroad by denying it reciprocal switching privileges did not violate the fifth amendment even though its practical effect was to admit the electric road to a part of the business being adequately handled by the steam roads.[ ] similarly, the fact that a rule concerning the allotment of coal cars operated to restrict the use of private cars did not amount to a taking of property.[ ] railroad companies were not denied due process of law by a statute forbidding them to transport in interstate commerce commodities which have been manufactured, mined or produced by them.[ ] an order approving a lease of one railroad by another, upon condition that displaced employees of the lessor should receive partial compensation for the loss suffered by reason of the lease[ ] is consonant with due process of law. a law prohibiting the issuance of free passes was held constitutional even as applied to abolish rights created by a prior agreement whereby the carrier bound itself to issue such passes annually for life, in settlement of a claim for personal injuries.[ ] occasionally, however, regulatory action has been held invalid under the due process clause. an order issued by the interstate commerce commission relieving short line railroads from the obligation to pay the usual fixed sum per day rental for cars used on foreign roads, for a space of two days was arbitrary and invalid.[ ] a retirement act which made eligible for pensions all persons who had been in the service of any railroad within one year prior to the adoption of the law, counted past unconnected service of an employee toward the requirement for a pension without any contribution therefor, and treated all carriers as a single employer and pooled their assets, without regard to their individual obligations, was held unconstitutional.[ ] taxation in laying taxes, the federal government is less narrowly restricted by the fifth amendment than are the states by the fourteenth. it may tax property belonging to its citizens, even if such property is never situated within the jurisdiction of the united states,[ ] or the income of a citizen resident abroad, which is derived from property located at his residence.[ ] the difference is explained by the fact that the protection of the federal government follows the citizen wherever he goes, whereas the benefits of state government accrue only to persons and property within the state's borders. the supreme court has said that, in the absence of an equal protection clause, "a claim of unreasonable classification or inequality in the incidence or application of a tax raises no question under the fifth amendment, * * *"[ ] it has sustained, over charges of unfair differentiation between persons, a graduated income tax;[ ] a higher tax on oleomargarine than on butter;[ ] an excise tax on "puts" but not on "calls";[ ] a tax on the income of businesses operated by corporations but not on similar enterprises carried on by individuals;[ ] an income tax on foreign corporations, based on their income from sources within the united states, while domestic corporations are taxed on income from all sources;[ ] a tax on foreign-built but not upon domestic yachts;[ ] a tax on employers of eight or more persons, with exemptions for agricultural labor and domestic service;[ ] a gift tax law embodying a plan of graduations and exemptions under which donors of the same amount might be liable for different sums;[ ] an alaska statute imposing license taxes only on nonresident fisherman;[ ] an act which taxed the manufacture of oil and fertilizer from herring at a higher rate than similar processing of other fish or fish offal;[ ] an excess profits tax which defined "invested capital" with reference to the original cost of the property rather than to its present value;[ ] and an undistributed profits tax in the computation of which special credits were allowed to certain taxpayers;[ ] an estate tax upon the estate of a deceased spouse in respect of the moiety of the surviving spouse where the effect of the dissolution of the community is to enhance the value of the survivor's moiety.[ ] retroactive taxes a gift tax cannot be imposed on gifts consummated before the taxing statute was adopted.[ ] a conclusive presumption that gifts made within two years of death were made in contemplation of death was condemned as arbitrary and capricious even with respect to subsequent transfers.[ ] a tax may be made retroactive for a short period to include profits made while it was in process of enactment. a special income tax on profits realized by the sale of silver, retroactive for days, which was approximately the period during which the silver purchase bill was before congress, was held valid.[ ] an income tax law, made retroactive to the beginning of the calendar year in which it was adopted, was found constitutional as applied to the gain from the sale, shortly before its enactment, of property received as a gift during the year.[ ] retroactive assessment of penalties for fraud or negligence,[ ] or of an additional tax on the income of a corporation used to avoid a surtax on its shareholders,[ ] does not deprive the taxpayer of property without due process of law. an additional excise tax imposed upon property still held for sale, after one excise tax had been paid by a previous owner, does not violate the due process clause.[ ] a transfer tax measured in part by the value of property held jointly by a husband and wife, including that which comes to the joint tenancy as a gift from the decedent spouse, is valid,[ ] as is the inclusion in the gross income of the settler of income accruing to a revocable trust during any period when he had power to revoke or modify it.[ ] governance of the indians the power of congress in virtue of its wardship over indians extends to a restriction on alienation of indian lands even after a particular indian has been granted citizenship.[ ] but rights of tax exemption accruing to indian allotments under an act of congress, which have become vested, are protected by this amendment against repeal.[ ] one who was duly enrolled as a member of the chickasaw nation acquired valuable rights which the secretary of the interior could not strike down without notice and hearing.[ ] an act authorizing suit against allottees of indian property as a class, for the value of services in securing the allotments, which provided for notice upon the governor of the tribe and designated the attorney general to defend the suit, was consonant with due process.[ ] where the statute which created a tribal council for the osage indians, to be elected by the tribe, at the same time vested the secretary of the interior with discretion to remove a member without notice or hearing, there was no denial of due process of law since the right to elect was united in its creation with the right of removal.[ ] a statute of the choctaw nation providing for the forfeiture and sale of buildings erected on their lands, was held to be unenforceable without giving the builder an opportunity to be heard.[ ] the national eminent domain power scope of power being an incident of sovereignty, the right of eminent domain requires no constitutional recognition. the requirement of just compensation is merely a limitation upon the exercise of a preexisting power[ ] to which all private property is subject.[ ] this prerogative of the national government can neither be enlarged nor diminished by a state.[ ] whenever lands in a state are needed for a public purpose, congress may authorize that they be taken, either by proceedings in the courts of the state, with its consent, or by proceedings in the courts of the united states, with or without any consent or concurrent act of the state.[ ] the facts that land included in a federal reservoir project is owned by a state, or that its taking may impair the tax revenue of the state, that the reservoir will obliterate part of the state's boundary and interfere with the state's own project for water development and conservation, constitute no barrier to the condemnation of the land by the united states under its superior power of eminent domain.[ ] alien property there is no constitutional prohibition against confiscation of enemy property.[ ] congress may authorize seizure and sequestration through executive channels of property believed to be enemy owned if adequate provision is made for return in case of mistake.[ ] an alien friend is entitled to the protection of the fifth amendment against a taking of property for public use without just compensation.[ ] the fact that property of our citizens may be confiscated in that alien's country does not subject the alien friend's property to confiscation here.[ ] public use the extent to which private property shall be taken for public use rests wholly in the legislative discretion.[ ] whether the courts have power to review a determination of the lawmakers that a particular use is a public use was left in doubt by the decision in united states ex rel. t.v.a. _v._ welch.[ ] speaking for the majority, justice black declared: "we think that it is the function of congress to decide what type of taking is for a public use * * *"[ ] in a concurring opinion in which chief justice stone joined, justice reed took exception to that portion of the opinion, insisting that whether or not a taking is for a public purpose is a judicial question.[ ] justice frankfurter interpreted the controlling opinion as recognizing the doctrine that "whether a taking is for a public purpose is not a question beyond judicial competence."[ ] all agreed that the condemnation of property which had been isolated by the flooding of a highway, to avoid the expense of constructing a new highway, was a lawful public purpose. previous cases have held that the preservation for memorial purposes of the line of battle at gettysburg was a public use for which private property could be taken by condemnation;[ ] that where establishment of a reservoir involved flooding part of a town, the united states might take nearby property for a new townsite and the fact that there might be some surplus lots to be sold did not deprive the transaction of its character as taking for public use.[ ] rights for which compensation must be made the franchise of a private corporation is property which cannot be taken for public use without compensation. upon condemnation of a lock and dam belonging to a navigation company, the government was required to pay for the franchise to take tolls as well as for the tangible property.[ ] letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property for which compensation must be made when the government uses the patent.[ ] the frustration of a private contract by the requisitioning of the entire output of a steel manufacturer is not a taking for which compensation is required.[ ] where, however, the government requisitioned from a power company all of the electric power which could be produced by use of the water diverted through its intake canal, thereby cutting off the supply of a lessee which had a right, amounting to a corporeal hereditament under state law, to draw a portion of that water, the latter was awarded compensation for the rights taken.[ ] an order requiring the removal or alteration of a bridge over a navigable river, to abate the obstruction to navigation, is not a taking of property within the meaning of the constitution.[ ] the exclusion, from the amount to be paid to the owners of condemned property, of the value of improvements made by the government under a lease, was held constitutional.[ ] an undertaking to reduce the menace from flood damages which was inevitable but for the government's work does not constitute the government a taker of all lands not fully protected; the government does not owe compensation under the fifth amendment to every landowner whom it fails to or cannot protect.[ ] when property is taken according to the legal tender cases,[ ] the requirement of just compensation for property taken for public use refers only to direct appropriation and not to consequential injuries resulting from the exercise of lawful power. this formula leaves open the question as to whether injuries are "consequential" merely. recent doctrine embodies a more definite test. in united states _v._ dickinson,[ ] the supreme court held that property is "taken" within the meaning of the constitution "when inroads are made upon the owner's use of it to an extent that, as between private parties, a servitude has been acquired either by an agreement or in course of time."[ ] where the noise and glaring lights of planes landing at or leaving an airport leased to the united states, flying below the navigable air space as defined by congress, interfere with the normal use of a neighboring farm as a chicken farm, there is such a taking as to give the owner a constitutional right to compensation.[ ] that the government had imposed a servitude on land adjoining its fort so as to constitute a taking within the law of eminent domain may be found from the facts that it had repeatedly fired the guns of the fort across the land and had established a fire control service there.[ ] a corporation chartered by congress to construct a tunnel and operate railway trains therein was held liable for damages in the suit by an individual whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking of private property.[ ] navigable waters riparian ownership is subject to the power of congress to regulate commerce. when damage results consequentially from an improvement of a navigable river, it is not a taking of property, but merely the exercise of a servitude to which the property is always subject.[ ] what constitutes a navigable river within the purview of the commerce clause often involves sharply disputed issues of fact and of law. in the leading case of the daniel ball[ ] the court laid down the rule that: "those rivers must be regarded as public navigable rivers in law which are navigable in fact. and they are navigable in fact when they are used, or are susceptible of being used, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[ ] in , over the dissent of two justices, the court held that the phrase "natural and ordinary condition" refers to volume of water, the gradients and the regularity of the flow. it further held that in determining the navigable character of a river it is proper to consider "the feasibility of interstate use after reasonable improvements which might be made."[ ] a few months later it decided unanimously that congress may exercise the power of eminent domain in connection with the construction of a dam and reservoir on the nonnavigable stretches of a river in order to preserve or promote commerce on the navigable portions.[ ] the government does not have to compensate a riparian owner for cutting off his access to navigable waters by changing the course of the stream in order to improve navigation.[ ] where submerged land under navigable waters of a bay are planted with oysters, the action of the government in dredging a channel across the bay in such a way as to destroy the oyster bed is not a "taking" of property in the constitutional sense.[ ] the determination by congress that the whole flow of a stream should be devoted to navigation does not take any private property rights of a water power company which holds a revocable permit to erect dams and dykes for the purpose of controlling the current and using the power for commercial purposes.[ ] the interest of a riparian owner in keeping the level of a navigable stream low enough to maintain a power head for his use was not one for which he was entitled to be compensated when the government raised the level by erecting a dam to improve navigation.[ ] inasmuch as a riparian owner has no private property in the flow of the stream, a license to maintain a hydroelectric dam, may, without offending the fifth amendment, contain a provision giving the united states an option to acquire the property at a value assumed to be less than its fair value at the time of taking.[ ] where the government erects dams and other obstructions across a river, causing an overflow of water which renders the property affected unfit for agricultural use and deprives it of all value, there is taking of property for which the government is under an implied contract to make just compensation.[ ] the construction of locks and for "canalizing" a river, which cause recurrent overflows, impairing but not destroying the value of the land amounts to a partial taking of property within the meaning of the fifth amendment;--the fee remains in the owner, subject to an easement in the united states to overflow it as often as may necessarily result from the operation of the lock and dam for purposes of navigation.[ ] compensation has been awarded for the erosion of land by waters impounded by a government dam,[ ] and for the destruction of the agricultural value of land located on a nonnavigable tributary of the mississippi river, which as a result of the continuous maintenance of the river's level at high water mark, was permanently invaded by the percolation of the waters, and its drainage obstructed.[ ] when the construction of locks and dams raised the water in a nonnavigable creek to about one foot below the crest of an upper milldam, thus preventing the drop in the current necessary to run the mill, there was a taking of property in the constitutional sense.[ ] a contrary conclusion was reached with respect to the destruction of property of the owner of a lake through the raising of the lake level as a consequence of an irrigation project, where the result to the lake owner's property could not have been foreseen.[ ] just compensation if only a portion of a single tract is taken, the owner's compensation includes any element of value arising out of the relation of the part taken to the entire tract.[ ] thus, where the taking of a strip of land across a farm closed a private right of way, an allowance was properly made for value of the easement.[ ] on the other hand, if the taking has in fact benefited the owner, the benefit may be set off against the value of the land condemned.[ ] but there may not be taken into account any supposed benefit which the owner may receive in common with all from the public use to which the property is appropriated.[ ] where congress condemned certain lands for park purposes, setting off resulting benefits against the value of property taken, and by subsequent act directed the erection of a fire-station house therein, it was held that property was not thereby taken without just compensation.[ ] the constitution does not require payment of consequential damages to other property of the owner consisting of separate tracts adjoining that affected by the taking.[ ] just compensation means the full and perfect equivalent, in money, of the property taken.[ ] the owner's loss, not the taker's gain is the measure of such compensation.[ ] where the property has a determinable market value, that is the normal measure of recovery.[ ] market value is "what a willing buyer would pay in cash to a willing seller."[ ] it may reflect not only the use to which the property is presently devoted but also that to which it may be readily converted.[ ] but the value of the property to the government for its particular use is not a criterion.[ ] in two recent cases the court held that the owners of cured pork[ ] and black pepper[ ] which was requisitioned by the government during the war could recover only the o.p.a. ceiling price for those commodities, despite findings of the court of claims that the replacement cost of the meat exceeded its ceiling price, and that the pepper had a "retention value" in excess of that price. by a five-to-four decision it ruled that the government was not obliged to pay the market value of a tug where such value had been enhanced as a consequence of the government's urgent war time needs.[ ] consequential damages such as destruction of a business,[ ] the expense of moving fixtures and personal property from the premises, or the loss of goodwill which inheres in the location of the land, are not recoverable when property is taken in fee.[ ] but a different principle obtains where only a temporary occupancy is assumed. if a portion of a long term lease is taken, damage to fixtures is allowed in addition to the value of the occupancy, and the expenses of moving, storage charges, and the cost of preparing the space for occupancy by the government are proper elements to be considered in determining the fair rental value of the premises for the period taken.[ ] these elements are not taken into account in fixing compensation for condemnation of leaseholds for the remainder of their term.[ ] in kimball laundry co. _v._ united states,[ ] the court by a close division held that when the united states condemned a laundry plant for temporary occupancy, evidence should have been received concerning the diminution in the value of its business due to destruction of its trade routes, and compensation allowed for any demonstrable loss of going-concern value. in united states _v._ pewee coal co.,[ ] involving another temporary seizure by the government, a similarly divided court sustained the court of claims in awarding the company compensation for losses attributable to increased wage payments by the government. four justices thought no such loss had been shown. interest ordinarily property is taken under a condemnation suit upon the payment of the money award by the condemner and no interest accrues.[ ] if, however, the property is taken in fact before payment is made, just compensation includes an increment which, to avoid use of the term "interest," the court has called "an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking."[ ] if the owner and the government enter into a contract which stipulates the purchase price for lands to be taken, with no provision for interest, the fifth amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed.[ ] where property of a citizen has been mistakenly seized by the government, converted into money and invested, the owner is entitled, in recovering compensation, to an allowance for the use of his property.[ ] enforcement of right to compensation when a taking of private property has been ordered, the question of just compensation is judicial.[ ] the compensation to be paid may be ascertained by any appropriate tribunal capable of estimating the value of the property. whether the tribunal shall be created directly by congress or one already established by the state shall be adopted for the occasion, is a matter of legislative discretion.[ ] the estimate of just compensation is not required to be made by a jury, but may be entrusted to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury.[ ] the federal courts may take jurisdiction of an action in ejectment by a citizen against officers of the government, to recover property of which he has been deprived by force and which has been converted to the use of the government without lawful authority and without just compensation.[ ] where property is taken by the united states in the exercise of the power of eminent domain, but without condemnation proceedings, the owner may, under the tucker act, bring suit for just compensation in the court of claims or in a district court sitting as a court of claims.[ ] the fifth amendment does not require that compensation shall actually be paid in advance of the taking[ ] but the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed.[ ] in time of war or immediate public danger private property may be impressed into public service without the consent of the owner, but such taking raises an implied promise on the part of the united states to reimburse the owner.[ ] an objection that an act of congress providing for condemnation of land for a public purpose limited the aggregate amount to be expended was rejected, since the limitation did not affect the right of property holders in the event of condemnation.[ ] notes [ ] ex parte wilson, u.s. ( ). [ ] ibid. . [ ] mackin _v._ united states, u.s. , ( ). [ ] united states _v._ moreland, u.s. ( ). [ ] ex parte wilson, u.s. , ( ). [ ] wong wing _v._ united states, u.s. , ( ). [ ] ex parte wilson, u.s. ( ). [ ] mackin _v._ united states, u.s. ( ). [ ] parkinson _v._ united states, u.s. ( ). [ ] united states _v._ dewalt, u.s. ( ). [ ] ex parte wilson, u.s. , ( ). [ ] duke _v._ united states, u.s. ( ). [ ] ex parte bain, u.s. , ( ). [ ] breese _v._ united states, u.s. ( ). [ ] johnson _v._ sayre, u.s. , ( ). [ ] ex parte quirin, u.s. , , ( ). [ ] ex parte lange, wall. , ( ). [ ] ibid. , . [ ] kepner _v._ united states, u.s. ( ). this case arose under the act of congress of july , ( stat. ) for the temporary civil government of the philippine islands. to the same effect are united states _v._ sanges, u.s. , ( ), and united states _v._ evans, u.s. ( ), both cases arising within the united states. [ ] united states _v._ oppenheimer, u.s. ( ). [ ] united states _v._ ball, u.s. , ( ). [ ] ex parte lange, wall. ( ). [ ] bozza _v._ united states, u.s. ( ). [ ] wade _v._ hunter, u.s. , ( ). [ ] united states _v._ perez, wheat. ( ); logan _v._ united states, u.s. , ( ). [ ] simmons _v._ united states, u.s. ( ); thompson _v._ united states, u.s. ( ). [ ] lovato _v._ new mexico, u.s. ( ). [ ] wade _v._ hunter, u.s. ( ). [ ] collins _v._ loisel, u.s. ( ). [ ] taylor _v._ united states, u.s. , ( ). [ ] bassing _v._ cady, u.s. , - ( ). [ ] united states _v._ wilson, pet. , ( ). [ ] burton _v._ united states, u.s. ( ); united states _v._ randenbush, pet. , ( ). [ ] morgan _v._ devine, u.s. ( ). _see also_ carter _v._ mcclaughry, u.s. ( ); albrecht _v._ united states, u.s. ( ). [ ] ex parte nielsen, u.s. , ( ). [ ] helvering _v._ mitchell, u.s. ( ). [ ] pinkerton _v._ united states, u.s. ( ); united states _v._ bayer, u.s. ( ). [ ] pinkerton _v._ united states, u.s. ( ). [ ] american tobacco co. _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] coffey _v._ united states, u.s. ( ). [ ] united states _v._ la franca, u.s. ( ). [ ] helvering _v._ mitchell, u.s. ( ). [ ] waterloo distilling corp. _v._ united states, u.s. ( ). [ ] united states _v._ furlong, wheat. , ( ). [ ] united states _v._ lanza, u.s. ( ); jerome _v._ united states, u.s. ( ). [ ] in re chapman, u.s. , ( ). [ ] see generally j.h. wigmore, evidence in trials at common law, § ( nd ed., ); also edward s. corwin, the supreme court's construction of the self-incrimination clause, michigan law review, - , - ( ). [ ] mccarthy _v._ arndstein, u.s. , ( ). _see also_ boyd _v._ united states, u.s. ( ); counselman _v._ hitchcock, u.s. ( ); brown _v._ walker, u.s. ( ). [ ] rogers _v._ united states, u.s. , ( ); united states _v._ monia, u.s. , ( ). [ ] hoffman _v._ united states, u.s. , ( ); mason _v._ united states, u.s. , ( ). [ ] rogers _v._ united states, u.s. , ( ); united states _v._ murdock, u.s. , ( ). [ ] brown _v._ walker, u.s. , - ( ). [ ] _cf._ burdick _v._ united states, u.s. ( ); and biddle _v._ perovich, u.s. ( ). [ ] united states _v._ murdock, u.s. , ( ). [ ] feldman _v._ united states, u.s. ( ). [ ] brown _v._ walker, u.s. ( ); johnson _v._ united states, u.s. ( ). [ ] _cf._ twining _v._ new jersey, u.s. ( ). however, a defendant in a prosecution by the united states enjoys a statutory right to have the jury instructed that his failure to testify creates no presumption against him. u.s.c. ; bruno _v._ u.s., u.s. ( ). _see also_ u.s. at . [ ] pierce _v._ united states, u.s. ( ); wilson _v._ united states, u.s. ( ); united states _v._ mitchell, u.s. ( ). [ ] u.s. ( ). [ ] _ibid._, . in upshaw _v._ united states, u.s. ( ), a sharply divided court found the mcnabb case inapplicable to a case in which respondent, while under arrest for assault with intent to rape, was brought, by extended questioning, to confess having previously committed murder in an attempt to rape. [ ] sullivan _v._ united states, u.s. , ( ). [ ] blau _v._ united states, u.s. ( ). _see also_ blau _v._ united states, u.s. ( ); rogers _v._ united states, u.s. ( ); dennis _v._ united states, u.s. ( ). [ ] holt _v._ united states, u.s. ( ). [ ] rochin _v._ california, u.s. ( ). [ ] re harris, u.s. , ( ). [ ] dier _v._ banton, u.s. ( ). [ ] re fuller, u.s. ( ). [ ] arndstein _v._ mccarthy, u.s. ( ). [ ] mccarthy _v._ arndstein, u.s. ( ). [ ] mccarthy _v._ arndstein, u.s. ( ). [ ] hale _v._ henkel, u.s. ( ); wilson _v._ united states, u.s. ( ); oklahoma press pub. co. _v._ walling, u.s. ( ). [ ] united states _v._ white, u.s. ( ). [ ] rogers _v._ united states, u.s. , ( ). [ ] _see_ pp. - _ante_. [ ] u.s. ( ). [ ] ibid. . in a dissenting opinion justice frankfurter argued: "the underlying assumption of the court's opinion is that all records which congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become 'public' records in the sense that they fall outside the constitutional protection of the fifth amendment. the validity of such a doctrine lies in the scope of its implications. the claim touches records that may be required to be kept by federal regulatory laws, revenue measures, labor and census legislation in the conduct of business which the understanding and feeling of our people still treat as private enterprise, even though its relations to the public may call for governmental regulation, including the duty to keep designated records.... if congress by the easy device of requiring a man to keep the private papers that he has customarily kept can render such papers 'public' and nonprivileged, there is little left to either the right of privacy or the constitutional privilege." ibid. . [ ] the institutes, part , - ( ). [ ] on the above _see_ especially justice harlan's dissenting opinion in hurtado _v._ california, u.s. , ( ); _also_ den ex dem. murray _v._ hoboken land & improvement co., how. , ( ); twining _v._ new jersey, u.s. ( ); _also_ corwin, liberty against government (louisiana state university press), chap. iii. [ ] scott _v._ sandford, how. , ( ). [ ] adkins _v._ children's hospital, u.s. ( ). _see also_ adair _v._ united states, u.s. ( ); and lochner _v._ new york, u.s. ( ). [ ] den ex dem. murray _v._ hoboken land & improvement co., how. , ( ). [ ] union p.r. co. _v._ united states (sinking fund cases), u.s. , ( ). [ ] wong wing _v._ united states, u.s. , ( ). [ ] united states _v._ ju toy, u.s. , ( ); _cf._ quon quon poy _v._ johnson, u.s. ( ). [ ] wight _v._ davidson, u.s. , ( ). [ ] lovato _v._ new mexico, u.s. , ( ). [ ] public utility comrs. _v._ ynchausti & co., u.s. , ( ). [ ] johnson _v._ eisentrager, u.s. ( ); _cf._ in re yamashita, u.s. ( ). both decisions were reached by a divided court. in the yamashita case, justices rutledge and murphy dissented on the ground that the due process clause applies to every human being, including enemy belligerents. [ ] davidson _v._ new orleans, u.s. , ( ). public clearing house _v._ coyne, u.s. , ( ). [ ] ex parte wall, u.s. , ( ). [ ] interstate commerce commission _v._ brimson, u.s. , ( ); cooke _v._ united states, u.s. , ( ). [ ] ex parte wall, u.s. ( ). [ ] reaves _v._ ainsworth, u.s. , ( ). _see also_ ex parte reed, u.s. ( ); johnson _v._ sayre, u.s. ( ); mullan _v._ united states, u.s. ( ); united states ex rel. creary _v._ weeks, u.s. ( ). [ ] kahn _v._ anderson, u.s. ( ). [ ] crain _v._ united states, u.s. , ( ). [ ] hopt _v._ utah, u.s. , ( ). [ ] blackmer _v._ united states, u.s. , ( ). [ ] hovey _v._ elliott, u.s. , ( ). [ ] beall _v._ new mexico ex rel. griffin, wall. ( ). [ ] united surety co. _v._ american fruit product co., u.s. ( ). [ ] helis _v._ ward, u.s. ( ). [ ] fayerweather _v._ ritch, u.s. ( ). [ ] hanover nat. bank _v._ moyses, u.s. , ( ). [ ] parsons _v._ district of columbia, u.s. ( ). [ ] wright _v._ davidson, u.s. ( ). [ ] jones _v._ buffalo creek coal & coke co., u.s. ( ). [ ] luria _v._ united states, u.s. ( ). [ ] yee hem _v._ united states, u.s. ( ). [ ] tot _v._ united states, u.s. ( ). [ ] opp cotton mills _v._ administrator, u.s. , , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] consolidated edison co. _v._ national labor relations board, u.s. ( ). [ ] central of georgia r. co. _v._ wright, u.s. , , , ( ); lipke _v._ lederer, u.s. , ( ). [ ] phillips _v._ comr. of internal revenue, u.s. ( ). _cf._ springer _v._ united states, u.s. , ( ); and passavant _v._ united states, u.s. ( ). [ ] wong yang sung _v._ mcgrath, u.s. , ( ). [ ] morgan _v._ united states, u.s. , - ( ). [ ] national labor relations board _v._ mackay co., u.s. , - ( ). [ ] western paper makers' chemical co. _v._ united states, u.s. ( ). _see also_ united states _v._ abilene & s.r. co., u.s. , ( ). [ ] consolidated edison co. _v._ national labor relations board, u.s. , - ( ). [ ] londoner _v._ denver, u.s. ( ). [ ] federal communications commission _v._ wjr, u.s. , - ( ). [ ] ibid. . "the requirements imposed by the guaranty [of due process of law] are not technical, nor is any particular form of procedure necessary." inland empire council _v._ millis, u.s. , ( ). _see_ administrative procedure act, stat. ( ); u.s.c. §§ - . [ ] u.s. ( ). [ ] ibid. - . justices brandeis, stone and cardozo, while concurring in the result, took exception to this proposition. [ ] federal power commission _v._ natural gas pipeline co., u.s. , ( ); federal power commission _v._ hope natural gas co., u.s. ( ). [ ] federal power commission _v._ hope natural gas co., u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). justices black, douglas and burton dissented. [ ] united states _v._ ju toy, u.s. , ( ). _see also_ yamataya _v._ fisher, u.s. , ( ). _cf._ united states ex rel. knauff _v._ shaughnessy, u.s. ( ). [ ] oceanic steam navig. co. _v._ stranahan, u.s. ( ). [ ] kwock jan fat _v._ white, u.s. , ( ). _see also_ chin yow _v._ united states, u.s. ( ). [ ] united states _v._ sing tuck, u.s. ( ). _see also_ quon quon poy _v._ johnson, u.s. , ( ). [ ] zakonaite _v._ wolf, u.s. ( ). [ ] u.s. ( ). [ ] stat. ( ); u.s.c. § _et seq._ ( ). [ ] united states ex rel. vajtauer _v._ comr. of immigration, u.s. , ( ). _see also_ mahler _v._ eby, u.s. , ( ). [ ] u.s. ( ). [ ] ng fung ho _v._ white, u.s. , ( ). [ ] ludecke _v._ watkins, u.s. ( ). three of the four dissenting justices, justices douglas, murphy and rutledge, argued that even an enemy alien could not be deported without a fair hearing. [ ] steward machine co. _v._ davis, u.s. , - ( ); currin _v._ wallace, u.s. , ( ); sunshine anthracite coal co. _v._ adkins, u.s. , ( ); detroit bank _v._ united states, u.s. , , ( ). [ ] hill _v._ united states ex rel. weiner, u.s. , ( ). [ ] district of columbia _v._ brooke, u.s. ( ). [ ] panama r. co. _v._ johnson, u.s. , ( ). [ ] united states _v._ rock royal co-operative, u.s. , , ( ). [ ] currin _v._ wallace, u.s. ( ). [ ] detroit bank _v._ united states, u.s. ( ). [ ] hurd _v._ hodge, u.s. ( ). [ ] thiel _v._ southern pacific co., u.s. ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] ibid. , . _cf._ the following sentence from the concurring opinion of justice jackson in railway express agency, inc. _v._ new york, u.s. , ( ): "i regard it as a salutary doctrine that cities, states and the federal government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation." [ ] u.s. , ( ). [ ] u.s. , ( ). [ ] u.s. , ( ). [ ] u.s. , ( ). [ ] addyston pipe and steel co. _v._ united states, u.s. , ( ). [ ] baltimore & o.r. co. _v._ interstate commerce commission, u.s. ( ); wilson _v._ new, u.s. ( ); ellis _v._ united states, u.s. ( ). _see also_ united states _v._ garbish, u.s. ( ). [ ] patterson _v._ the "eudora," u.s. ( ). [ ] philadelphia, b. & w.r. co. _v._ schubert, u.s. ( ). [ ] texas & n.o.r. co. _v._ brotherhood of railway & s.s. clerks, u.s. ( ); virginian r. co. _v._ system federation, u.s. , ( ); national labor relations board _v._ jones & laughlin steel corp., u.s. ( ). [ ] highland _v._ russell car & snow plow co., u.s. , ( ); united states _v._ rock royal co-operative, u.s. ( ); sunshine anthracite coal co. _v._ adkins, u.s. ( ); bowles _v._ willingham, u.s. ( ). [ ] farrington _v._ tokushige, u.s. ( ). [ ] yu cong eng _v._ trinidad, u.s. , ( ). [ ] fleming _v._ rhodes, u.s. , ( ). [ ] woods _v._ stone, u.s. ( ). [ ] u.s. , ( ). [ ] knox _v._ lee, wall. , ( ). [ ] norman _v._ baltimore & o.r. co., u.s. ( ). [ ] stat. ( ), u.s.c. _et seq._ ( ). [ ] paramino lumber co. _v._ marshall, u.s. ( ). [ ] mulford _v._ smith, u.s. ( ). [ ] mcfaddin _v._ evans-snider-buel co., u.s. ( ). [ ] montoya _v._ gonzales, u.s. ( ). [ ] ochoa _v._ hernandez y morales, u.s. ( ). [ ] united states ex rel. burnett _v._ teller, u.s. , ( ). [ ] oregon & c.r. co. _v._ united states, u.s. ( ). [ ] capital trust co. _v._ calhoun, u.s. ( ). [ ] frisbie _v._ united states, u.s. ( ); _see also_ margolin _v._ united states, u.s. ( ); hines _v._ lowrey, u.s. ( ). [ ] wickard _v._ filburn, u.s. ( ). [ ] noble _v._ union river logging r. co., u.s. ( ). [ ] danzer co. _v._ gulf & s.i.r. co., u.s. ( ). [ ] lynch _v._ united states, u.s. , ( ). _see also_ perry _v._ united states, u.s. ( ). [ ] louisville joint stock land bank _v._ radford, u.s. ( ). [ ] wright _v._ mountain trust co., u.s. ( ). [ ] continental illinois nat. bank & trust co. _v._ chicago r.i. & p.r. co., u.s. ( ). [ ] kuehner _v._ irving trust co., u.s. ( ). [ ] re church street bldg. corp., u.s. ( ). [ ] lynch _v._ united states, u.s. , ( ). [ ] dodge _v._ osborn, u.s. ( ). [ ] graham _v._ goodcell, u.s. ( ). [ ] anniston mfg. co. _v._ davis, u.s. ( ). [ ] united states _v._ heinszen & co., u.s. , ( ). [ ] united states _v._ new york & c. mail s.s. co., u.s. ( ). [ ] united states _v._ carolene products co., u.s. ( ); carolene products co. _v._ united states, u.s. ( ). [ ] kentucky whip collar co. _v._ illinois c.r. co., u.s. ( ). [ ] virginian r. co. _v._ system federation, u.s. , ( ); national labor relations board _v._ jones & laughlin steel corp., u.s. ( ). [ ] national labor relations board _v._ stowe spinning co., u.s. ( ). [ ] national labor relations board _v._ mackay co., u.s. ( ). [ ] woods _v._ miller, u.s. , ( ). _see also_ bowles _v._ willingham, u.s. ( ). [ ] ex parte jackson, u.s. ( ). [ ] public clearing house _v._ coyne, u.s. ( ); sustained in donaldson _v._ read magazine, u.s. ( ). [ ] u.s. , - . [ ] american school of magnetic healing _v._ mcannulty, u.s. ( ). [ ] united states ex rel. milwaukee social democratic pub. co. _v._ burleson, u.s. ( ). [ ] st. joseph stock yards co. _v._ united states, u.s. ( ); denver union stock yards co. _v._ united states, u.s. ( ). [ ] u.s. ( ). the result of this case had been foreshadowed by the opinion of justice stone in federal power commission _v._ natural gas pipeline co., u.s. , ( ) to the effect that the commission was not bound to the use of any single formula or combination of formulas in determining rates. [ ] u.s. , , ( ). [ ] american telephone & telegraph co. _v._ united states, u.s. ( ); united states _v._ new york telephone co., u.s. ( ); northwestern electric co. _v._ federal power commission, u.s. ( ). [ ] valvoline oil co. _v._ united states, u.s. ( ); champlin refining co. _v._ united states, u.s. ( ). [ ] isbrandtsen-moller co. _v._ united states, u.s. , ( ). [ ] st. louis s.w. ry. co. _v._ united states, u.s. , ( ). [ ] akron c. & y.r. co. _v._ united states, u.s. ( ). [ ] dayton-goose creek r. co. _v._ united states, u.s. , , ( ). [ ] chicago, i. & l.r. co. _v._ united states, u.s. ( ). _cf._ seaboard air line r. co. _v._ united states, u.s. ( ). [ ] united states _v._ berwind-white coal mine co., u.s. , ( ). [ ] united states ex rel. attorney general _v._ delaware & hudson co., u.s. , , , ( ). [ ] united states _v._ lowden, u.s. ( ). [ ] louisville & n.r. co. _v._ mottley, u.s. ( ). [ ] chicago, r.i. & p.r. co. _v._ united states, u.s. ( ). [ ] railroad retirement board _v._ alton r. co., u.s. ( ). [ ] united states _v._ bennett, u.s. , ( ). [ ] cook _v._ tait, u.s. ( ). [ ] helvering _v._ lerner stores corp., u.s. , ( ). [ ] brushaber _v._ union p.r. co., u.s. , ( ). [ ] mccray _v._ united states, u.s. , ( ). [ ] treat _v._ white, u.s. ( ). [ ] flint _v._ stone tracy co., u.s. ( ). [ ] national paper & type co. _v._ bowers, u.s. ( ). [ ] billings _v._ united states, u.s. , ( ). [ ] steward machine co. _v._ davis, u.s. ( ); helvering _v._ davis, u.s. ( ). [ ] bromley _v._ mccaughn, u.s. ( ). [ ] haavik _v._ alaska packers' association, u.s. ( ). [ ] alaska fish salting & by-products co. _v._ smith, u.s. ( ). [ ] la belle iron works _v._ united states, u.s. ( ). [ ] helvering _v._ northwest steel mills, u.s. ( ). [ ] fernandez _v._ wiener, u.s. ( ); _cf._ coolidge _v._ long, u.s. ( ). [ ] untermeyer _v._ anderson, u.s. ( ). _see also_ blodgett _v._ holden, u.s. ( ); nichols _v._ coolidge, u.s. ( ). [ ] heiner _v._ donnan, u.s. ( ). [ ] united states _v._ hudson, u.s. ( ). _see also_ stockdale _v._ insurance companies, wall. , , ( ); brushaber _v._ union pac. r.r., u.s. , ( ); lynch _v._ hornby, u.s. , ( ). [ ] cooper _v._ united states, u.s. ( ); _see also_ reinecke _v._ smith, u.s. ( ). [ ] helvering _v._ mitchell, u.s. ( ). [ ] helvering _v._ nat. grocery co., u.s. ( ). [ ] patton _v._ brady, u.s. ( ). [ ] tyler _v._ united states, u.s. ( ); united states _v._ jacobs, u.s. ( ). [ ] reinecke _v._ smith, u.s. ( ). [ ] tiger _v._ western investment co., u.s. ( ). _see also_ brader _v._ james, u.s. ( ); williams _v._ johnson, u.s. ( ); lone wolf _v._. hitchcock, u.s. ( ). [ ] choate _v._ trapp, u.s. ( ). _see also_ english _v._ richardson, u.s. ( ). [ ] garfield _v._ united states, u.s. ( ). _see also_ united states ex rel. turner _v._ fisher, u.s. ( ). [ ] winton _v._ amos, u.s. ( ). [ ] united states ex rel. brown _v._ lane, u.s. ( ). [ ] walker _v._ mcloud, u.s. , ( ); carpenter _v._ shaw, u.s. ( ). [ ] united states _v._ jones, u.s. , ( ); united states _v._ carmack, u.s. , ( ). [ ] united states _v._ lynah, u.s. , ( ). [ ] kohl _v._ united states, u.s. , ( ). [ ] chappell _v._ united states, u.s. , ( ). [ ] oklahoma _v._ atkinson co., u.s. , ( ). [ ] united states _v._ chemical foundation, u.s. , ( ). _see also_ brown _v._ u.s., cr. ( ); page (miller) _v._ united states, wall. , ( ); woodson _v._ deutsche g. & s.s.v. roessler, u.s. ( ); united states _v._ dunnington, u.s. ( ); cummings _v._ deutsche bank, u.s. ( ). [ ] stoehr _v._ wallace, u.s. , ( ). [ ] silesian-american corp. _v._ clark, u.s. ( ); becker steel co. _v._ cummings, u.s. ( ). [ ] russian volunteer fleet _v._ united states, u.s. ( ), followed in guessefeldt _v._ mcgrath, u.s. ( ). [ ] shoemaker _v._ united states, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ibid. - ; citing united states _v._ gettysburg electric r. co., u.s. , ( ); rindge co. _v._ los angeles county, u.s. , ( ); old dominion land co. _v._ united states, u.s. , ( ); cincinnati _v._ vester, u.s. , ( ). [ ] u.s. , - . [ ] united states _v._ gettysburg electric r. co., u.s. ( ). [ ] brown _v._ united states, u.s. ( ). [ ] monongahela nav. co. _v._ united states, u.s. , ( ). [ ] james _v._ campbell, u.s. , ( ). _see also_ hollister _v._ benedict & b. mfg. co., u.s. , ( ). [ ] omnia commercial co. _v._ united states, u.s. ( ). [ ] international paper co. _v._ united states, u.s. ( ). [ ] hannibal bridge co. _v._ united states, u.s. , ( ). [ ] old dominion land co. _v._ united states, u.s. ( ). [ ] united states _v._ sponenbarger, u.s. ( ). [ ] wall. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] united states _v._ causby, u.s. ( ). [ ] portsmouth harbor land & hotel co. _v._ united states, u.s. ( ). _cf._ portsmouth harbor land & hotel co. _v._ united states, u.s. ( ); peabody _v._ united states, u.s. ( ). [ ] richards _v._ washington terminal co., u.s. ( ). [ ] gibson _v._ united states, u.s. , , ( ). [ ] wall. ( ). [ ] ibid. . [ ] united states _v._ appalachian electric power co., u.s. , , ( ). [ ] oklahoma _v._ atkinson co., u.s. , ( ). [ ] united states _v._ commodore park, inc., u.s. ( ). [ ] lewis blue point oyster cultivation co. _v._ briggs, u.s. ( ). [ ] united states _v._ chandler-dunbar co., u.s. ( ). [ ] united states _v._ willow river power co., u.s. ( ). [ ] united states _v._ appalachian electric power co., u.s. , ( ). [ ] united states _v._ lynah, u.s. ( ). _see also_ jacobs _v._ united states, u.s. ( ). [ ] united states _v._ cress, u.s. , , ( ). [ ] united states _v._ dickinson, u.s. ( ). [ ] united states _v._ kansas city ins. co., u.s. ( ). [ ] united states _v._ cress, u.s. ( ). [ ] horstmann co. _v._ united states, u.s. ( ). [ ] bauman _v._ ross, u.s. ( ); sharp _v._ united states, u.s. , - , ( ). [ ] united states _v._ welch, u.s. ( ). [ ] bauman _v._ ross, u.s. ( ). [ ] monongahela nav. co. _v._ united states, u.s. , ( ). [ ] reichelderfer _v._ quinn, u.s. , ( ). [ ] sharp _v._ united states, u.s. ( ). [ ] monongahela nav. co. _v._ united states, u.s. , ( ). [ ] united states ex rel. t.v.a. _v._ powelson, u.s. , ( ); united states _v._ miller, u.s. , ( ). [ ] united states ex rel. t.v.a. _v._ powelson, u.s. , ( ); united states _v._ new river collieries co., u.s. ( ). [ ] united states _v._ miller, u.s. , ( ). _see also_ olson _v._ united states, u.s. ( ). _cf._ kimball laundry co. _v._ united states, u.s. ( ). [ ] boom co. _v._ patterson, u.s. ( ); mccandless _v._ united states, u.s. ( ). [ ] united states _v._ chandler-dunbar co., u.s. ( ). [ ] united states _v._ john j. felin & co., u.s. ( ). [ ] united states _v._ commodities trading corp., u.s. ( ). [ ] united states _v._ cors, u.s. , ( ). in united states _v._ toronto nav co., u.s. ( ) the court reversed a decision of the court of claims which based an award for an obsolete great lakes car ferry in part on a capitalization of its prior earnings, and in part on isolated sales of similar vessels used between florida and cuba. [ ] mitchell _v._ united states, u.s. ( ). [ ] united states _v._ general motors corp., u.s. , ( ). [ ] ibid. - . [ ] united states _v._ petty motor co., u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] danforth _v._ united states, u.s. , ( ). [ ] united states _v._ klamath indians, u.s. , ( ); jacobs _v._ united states, u.s. , ( ). [ ] albrecht _v._ united states, u.s. ( ). [ ] henkels _v._ sutherland, u.s. ( ). _see also_ phelps _v._ united states, u.s. ( ). [ ] monongahela nav. co. _v._ united states, u.s. , ( ). [ ] united states _v._ jones, u.s. , ( ). [ ] bauman _v._ ross, u.s. , ( ). [ ] united states _v._ lee, u.s. , ( ). [ ] jacobs _v._ united states, u.s. ( ); united states _v._ great falls mfg. co., u.s. ( ). [ ] hurley _v._ kincaid, u.s. ( ). [ ] cherokee nation _v._ southern kansas r. co., u.s. , ( ). [ ] united states _v._ russell, wall. ( ). [ ] shoemaker _v._ united states, u.s. , ( ). amendment rights of accused in criminal prosecutions page coverage of the amendment offenses against the united states trial by jury impartial jury place of trial definition of crime right of confrontation assistance of counsel rights of accused in criminal prosecutions amendment in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. coverage of the amendment criminal prosecutions in the district of columbia[ ] and in incorporated territories[ ] must conform to this amendment, but those in unincorporated territories need not.[ ] for this purpose, alaska was held to be an incorporated territory even before the organization of its territorial government.[ ] in in re ross[ ] the requirements of this amendment were held to cover only citizens and others within the united states or who are brought to the united states for trial for alleged offenses committed elsewhere, not to citizens residing or temporarily sojourning abroad.[ ] accordingly, laws passed to carry into effect treaties granting extraterritorial rights were not rendered unconstitutional by the fact that they did not secure to an accused the right to trial by jury. offenses against the united states there are no common law offenses against the united states. only those acts which congress has forbidden, with penalties for disobedience of its command, are crimes.[ ] as used in the constitution the word "crime" embraces only offenses of a serious character. petty offenses may be proceeded against summarily in any tribunal legally constituted for that purpose.[ ] the nature of the act and the severity of punishment prescribed determine whether an offense is serious or petty. a penalty of $ for a violation, not necessarily involving moral delinquency, of a revenue statute indicates only a petty offense.[ ] the unlawful sale of the unused portion of railway excursion tickets without a license, is at most an infringement of local police regulations; and its moral quality is relatively inoffensive; it may therefore be tried without a jury.[ ] but a charge of driving an automobile recklessly, so as to endanger life and property, is a "grave offense" for which a jury trial is requisite.[ ] a conspiracy to invade the rights of another person also falls in that category.[ ] actions to recover penalties imposed by act of congress,[ ] deportation proceedings[ ] and contempt proceedings[ ] for violation of an injunction have been held not to be criminal prosecutions. only a prosecution which is technically criminal in its nature falls within the purview of amendment vi.[ ] the concept of a criminal prosecution is much narrower than that of a "criminal case" under the fifth amendment.[ ] trial by jury the trial by jury required by the constitution includes all the essential elements of jury trial which were recognized in this country and in england when the constitution was adopted;[ ] a jury must consist of twelve men, neither more nor less;[ ] the trial must be held in the presence and under the superintendence of a judge having power to instruct the jurors as to the law and advise them in respect of the facts,[ ] and the verdict must be unanimous.[ ] but the requirement of a jury trial is not jurisdictional; it is a privilege which the defendant may waive with the consent of the government and the approval of the court. there is no distinction between a complete waiver of a jury and a consent to be tried by less than twelve men.[ ] when a person is charged with more than one crime, the right to a speedy trial does not require that he be first tried on the earliest indictment; no constitutional right is violated by removing him to another jurisdiction for trial on a later indictment.[ ] impartial jury "* * *, the guarantee of an impartial jury to the accused in a criminal prosecution, * * *, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged. * * * to accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the constitution."[ ] the qualification of government employees to serve on juries in the district of columbia has been the principal source of controversy concerning the meaning of the phrase "impartial jury." in , the supreme court decided, on common law grounds, that such employees were disqualified in criminal proceedings instituted by the government.[ ] as the proportion of public to private employees increased, this decision created difficulties in securing properly qualified jurors. to meet the situation, congress removed the disqualification by statute in . in united states _v._ wood,[ ] the act was held valid as applied in a criminal prosecution for theft from a private corporation. by a narrow majority the court has subsequently held that government employees as a class are not disqualified by an implied bias against a person accused of violating the federal narcotics statutes,[ ] nor against an officer of the communist party charged with willful failure to appear before a congressional committee in compliance with a subpoena.[ ] in both cases, the way was left open for a defendant to establish the disqualification of federal employees by adducing proof of actual bias. the constitution does not require congress to allow peremptory challenge to jurors in criminal cases. consequently the contention that several defendants being tried together on a charge of conspiracy were denied a trial by an impartial jury because each was not allowed the full statutory number of peremptory challenges was without merit.[ ] it is good ground for challenge for cause that a juror has formed an opinion as to the issue to be tried. but every opinion which a juror may entertain does not necessarily disqualify him. upon the trial of the issue of fact raised by such a challenge, the court must determine whether the nature and strength of the opinion are such as in law necessary to raise the presumption of partiality.[ ] a member of the socialist party is not denied any constitutional right by being tried by a jury composed exclusively of members of other parties and of property owners.[ ] place of trial an accused cannot be tried in one district under an indictment showing that the offense was committed in another;[ ] the locality in which the offense is charged to have been committed determines the place and court of trial.[ ] in a prosecution for conspiracy, the accused may be tried in any state and district where an overt act was performed.[ ] where a united states senator was indicted for agreeing to receive compensation for services to be rendered in a proceeding before a government department, and it appeared that a tentative arrangement for such services was made in illinois and confirmed in st. louis, the defendant was properly tried in st. louis, although he was not physically present in missouri when notice of ratification was dispatched.[ ] the offense of obtaining transportation of property in interstate commerce at less than the carrier's published rates,[ ] or the sending of excluded matter through the mails,[ ] may be made triable in any district through which the forbidden transportation is conducted. by virtue of a presumption that a letter is delivered in the district to which it is addressed, the offense of scheming to defraud a corporation by mail was held to have been committed in that district although the letter was posted elsewhere.[ ] the constitution does not require any preliminary hearing before issuance of a warrant for removal of an accused to the court having jurisdiction of the charge.[ ] the assignment of a district judge from one district to another, conformably to statute, does not create a new judicial district whose boundaries are undefined nor subject the accused to trial in a district not established when the offense with which he is charged was committed.[ ] for offenses against federal laws not committed within any state, congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as congress may designate.[ ] the place of trial may be designated by statute after the offense has been committed.[ ] definition of crime the effect of the clause entitling an accused to know the nature and cause of the accusation against him commences with the statutes fixing or declaring offenses. it adopts the general rule of the common law that such statutes are not to be construed to embrace offenses which are not within their intention and terms. under this clause it is necessary that a crime "be in some way declared by the legislative power"; it "cannot be constructed by the courts from any supposed intention of the legislature which the statute fails to state."[ ] a criminal statute which is so vague that it leaves the standard of guilt to the "variant views of the different courts and juries which may be called on to enforce it"[ ] cannot be squared with this provision. thus it was held, in the united states v. cohen grocery co.,[ ] that a statute making it unlawful "for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" was unconstitutional because it was not "adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them."[ ] but a provision of the immigration act[ ] which makes it a felony for an alien against whom a specified order of deportation is pending to "willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure" is not, on its face, void for indefiniteness.[ ] an important aspect of this problem was presented, but not definitely settled, in screws _v._ united states.[ ] there state law enforcement officers had been convicted of violating a federal law making it a crime for anyone acting under color of any law willfully to deprive anyone of rights secured by the constitution of the united states.[ ] the indictment charged that in beating to death a man whom they had just arrested, these officers had deprived him of life without due process of law. the defendant claimed that the statute was unconstitutional insofar as it made criminal acts in violation of the due process clause, because that concept was too vague to supply an ascertainable standard of guilt.[ ] four opinions were written in the supreme court, no one of which obtained the concurrence of a majority of the justices. to "avoid grave constitutional questions" four members construed the word "willfully" as "connoting a purpose to deprive a person of a specific constitutional right,"[ ] and held that such "requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the act from any charge of unconstitutionality on the grounds of vagueness."[ ] justices murphy and rutledge considered the statute to be sufficiently definite with respect to the offense charged and thought it unnecessary to anticipate doubts that might arise in other cases.[ ] however, to prevent a stalemate, justice rutledge voted with the four members who believed the case should be reversed to be tried again on their narrower interpretation of the statute. justices roberts, frankfurter and jackson found the act too indefinite to be rescued by a restrictive interpretation. with respect to the effect of the requirement of willfulness, they said: "if a statute does not satisfy the due-process requirement of giving decent advance notice of what it is which, if happening, will be visited with punishment, so that men may presumably have an opportunity to avoid the happening * * *, then 'willfully' bringing to pass such an undefined and too uncertain event cannot make it sufficiently definite and ascertainable. 'willfully' doing something that is forbidden, when that something is not sufficiently defined according to the general conceptions of requisite certainty in our criminal law, is not rendered sufficiently definite by that unknowable having been done 'willfully.' it is true also of a statute that it cannot lift itself up by its bootstraps."[ ] in williams _v._ united states,[ ] however, it was held by a sharply divided court that § did not err for vagueness where the indictment made it clear that the constitutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[ ] statutes prohibiting the coercion of employers to hire unneeded employees,[ ] establishing minimum wages and maximum hours of service for persons engaged in the production of goods for interstate commerce,[ ] forbidding undue or unreasonable restraints of trade,[ ] making it unlawful to build fires near any forest or inflammable material,[ ] banning the receipt of contributions by members of congress from federal employees for any political purpose,[ ] or penalizing the copying or taking of documents connected with the national defense, with intent, or reason to believe that they are to be used to the injury of the united states or to the advantage of a foreign nation,[ ] have been held to be sufficiently definite to be constitutional. a provision penalizing excessive charges in connection with loans from the home owners loan corporation was not rendered indefinite by the exception of "ordinary fees for services actually rendered,"[ ] nor was a statute forbidding misstatement of the quantity of the contents of a package wanting in certainty by reason of a proviso permitting "reasonable variations."[ ] the constitutional right to be informed of the nature and cause of the accusation entitles the defendant to insist that the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge.[ ] no indictment is sufficient if it does not allege all of the ingredients which constitute the crime. where the language of a statute is, according to the natural import of the words, fully descriptive of the offense, it is sufficient if the indictment follows the statutory phraseology;[ ] but where the elements of the crime have to be ascertained by reference to the common law or to other statutes, it is not sufficient to set forth the offense in the words of the statute; the facts necessary to bring the case within the statutory definition must also be alleged.[ ] if an offense cannot be accurately and clearly described without an allegation that the accused is not within an exception contained in the statutes, an indictment which does not contain such allegation is defective.[ ] despite the omission of obscene particulars, an indictment in general language is good if the unlawful conduct is so described so as reasonably to inform the accused of the nature of the charge sought to be established against him.[ ] the constitution does not require the government to furnish a copy of the indictment to an accused.[ ] right of confrontation the right of confrontation did not originate in the sixth amendment; it was a common law right having recognized exceptions. the purpose of the constitutional provision was to preserve that right, but not to broaden it or wipe out the exceptions.[ ] the amendment does not accord a right to be apprised of the names of witnesses who appeared before a grand jury.[ ] it does not preclude the admission of dying declarations,[ ] nor of the stenographic report of testimony given at a former trial by a witness since deceased.[ ] an accused who is instrumental in concealing a witness cannot complain of the admission of evidence to prove what that witness testified at a former trial on a different indictment.[ ] if the absence of the witness is chargeable to the negligence of the prosecution, rather than to the procurement of the accused, evidence given in a preliminary hearing before a united states commissioner cannot be used at the trial.[ ] a statute which declared that the judgment of conviction against the principal felons should be conclusive evidence, in a prosecution against persons to whom they had transferred property, that the property had been stolen or embezzled from the united states, was held to contravene this clause.[ ] assistance of counsel the sixth amendment withholds from the federal courts, in all criminal proceedings, the power to deprive an accused of his life or liberty unless he has waived, or waives, the assistance of counsel.[ ] since deportation proceedings are not criminal in character, the admission of testimony given by the alien during investigation prior to arrest did not render the hearing unfair, despite the fact that he had not been advised of his right to have counsel or to decline to answer questions as to his alienage.[ ] the right to counsel is violated where, over the defendant's objection, the court requires his counsel to represent a co-defendant whose interest may possibly conflict with his;[ ] likewise where the trial judge decided, without notice to a defendant and without his presence, that the latter had consented to be represented by counsel who also represented another defendant in the same case.[ ] the right may be waived by a defendant whose education qualifies him to make an intelligent choice.[ ] a sentence imposed upon a plea of guilty is invalid if such plea was entered through deception or coercion of the prosecuting attorney, or in reliance upon erroneous advice given by a lawyer in the employ of the government, where the defendant did not have the assistance of counsel and had not understandingly waived the right to such assistance.[ ] notes [ ] callan _v._ wilson, u.s. ( ). [ ] reynolds _v._ united states, u.s. ( ). _see also_ lovato _v._ new mexico, u.s. ( ). [ ] balzac _v._ porto rico, u.s. , - ( ). [ ] rassmussen _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] united states _v._ hudson & goodwin, cr. , ( ); united states _v._ coolidge, wheat. ( ); united states _v._ britton, u.s. , ( ); united states _v._ eaton, u.s. , ( ). [ ] callan _v._ wilson, u.s. , ( ). [ ] schick _v._ united states, u.s. , ( ). [ ] district of columbia _v._ clawans, u.s. ( ). [ ] district of columbia _v._ colts, u.s. ( ). [ ] callan _v._ wilson, u.s. ( ). [ ] oceanic navigation co. _v._ stranahan, u.s. ( ); hepner _v._ united states, u.s. ( ); united states _v._ regan, u.s. ( ). [ ] united states ex rel. turner _v._ williams, u.s. , ( ); zakonaite _v._ wolf, u.s. ( ). [ ] in re debs, u.s. , ( ); gompers _v._ united states, u.s. ( ); myers _v._ united states, u.s. ( ). [ ] united states _v._ zucker, u.s. , ( ). [ ] counselman _v._ hitchcock, u.s. , ( ). [ ] patton _v._ united states, u.s. ( ). [ ] thompson _v._ utah, u.s. , ( ); rassmussen _v._ united states, u.s. ( ). [ ] capital traction co. _v._ hof, u.s. , ( ). [ ] maxwell _v._ dow, u.s. , ( ); andres _v._ united states, u.s. ( ). [ ] patton _v._ united states, u.s. ( ). [ ] beavers _v._ haubert, u.s. ( ). [ ] callan _v._ wilson, u.s. , ( ). [ ] crawford _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] frazier _v._ united states, u.s. ( ). [ ] dennis _v._ united states, u.s. ( ). [ ] stilson _v._ united states, u.s. , ( ). [ ] reynolds _v._ united states, u.s. ( ). [ ] ruthenberg _v._ united states, u.s. ( ). [ ] salinger _v._ loisel, u.s. ( ). [ ] beavers _v._ henkel, u.s. , ( ). [ ] brown _v._ elliott, u.s. ( ); hyde _v._ united states, u.s. ( ); haas _v._ henkel, u.s. ( ). [ ] burton _v._ united states, u.s. ( ). [ ] armour packing co. _v._ united states, u.s. ( ). [ ] united states _v._ johnson, u.s. , ( ). [ ] hagner _v._ united states, u.s. , ( ). [ ] hughes _v._ gault, u.s. ( ). _cf._ tinsley _v._ treat, u.s. ( ); beavers _v._ henkel, u.s. , ( ). [ ] lamar _v._ united states, u.s. ( ). [ ] jones _v._ united states, u.s. , ( ); united states _v._ dawson, how. , ( ). [ ] cook _v._ united states, u.s. , ( ). _see also_ united states _v._ socony-vacuum oil co., u.s. , - ( ); _also_ united states _v._ johnson, u.s. ( ). [ ] united states _v._ potter, f. , ( ). _see also_ viereck _v._ united states, u.s. ( ); kraus bros. _v._ united states, u.s. , ( ). [ ] united states _v._ cohen grocery co., f. , ( ), affirmed u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s.c. § (c). [ ] united states _v._ spector, u.s. ( ). [ ] u.s. ( ). [ ] section of the criminal code; u.s.c. § . [ ] u.s. , , . [ ] ibid. . [ ] ibid. . [ ] ibid. , . [ ] ibid. . [ ] u.s. ( ). [ ] _see also_ koehler et al. _v._ united states, u.s. ( ). [ ] united states _v._ petrillo, u.s. ( ). [ ] united states _v._ darby, u.s. , ( ). [ ] nash _v._ united states, u.s. ( ). [ ] united states _v._ alford, u.s. ( ). [ ] united states _v._ wurzbach, u.s. ( ). [ ] gorin _v._ united states, u.s. ( ). [ ] kay _v._ united states, u.s. ( ). [ ] united states _v._ shreveport grain & elevator co., u.s. ( ). [ ] united states _v._ cruikshank, u.s. , , ( ); united states _v._ simmons, u.s. ( ); bartell _v._ united states, u.s. ( ); burton _v._ united states, u.s. ( ). [ ] potter _v._ united states, u.s. , ( ). [ ] united states _v._ carll, u.s. ( ). [ ] united states _v._ cook, wall. , ( ). [ ] rosen _v._ united states, u.s. , ( ). [ ] united states _v._ van duzee, u.s. , ( ). [ ] salinger _v._ united states, u.s. , ( ). [ ] wilson _v._ united states, u.s. ( ). [ ] kirby _v._ united states, u.s. , ( ); robertson _v._ baldwin, u.s. , ( ). [ ] mattox _v._ united states, u.s. , ( ). [ ] reynolds _v._ united states, u.s. , ( ). [ ] motes _v._ united states, u.s. ( ). [ ] kirby _v._ united states, u.s. ( ). [ ] johnson _v._ zerbst, u.s. , ( ). [ ] united states ex rel. bilokumsky _v._ tod, u.s. ( ). [ ] glasser _v._ united states, u.s. ( ). [ ] united states _v._ hayman, u.s. ( ). [ ] adams _v._ united states, u.s. ( ). [ ] walker _v._ johnston, u.s. ( ); von moltke _v._ gillies, u.s. ( ). _see also_ united states ex rel. mccann _v._ adams, u.s. ( ). amendment civil trials page trial by jury in civil cases origin and purpose of the amendment trial by jury, elements of, preserved to what courts and cases applicable cases not governed by the amendment restrictive force of the amendment judge and jury line drawn by the common law directed verdicts waiver of right of trial by jury appeals from state courts to the supreme court civil trials amendment in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the united states, than according to the rules of the common law. trial by jury in civil cases origin and purpose of the amendment late in the federal convention it was moved that a clause be inserted in article iii, section of the draft constitution to read "* * * and a trial by jury shall be preserved as usual in civil cases." the proposal failed when it was pointed out that the make-up and powers of juries differed greatly in different states and that a uniform provision for all states was impossible.[ ] the objection evidently anticipated that in cases falling to their jurisdiction on account of the diversity of citizenship of the parties, the federal courts would conform their procedure to the laws of the several states.[ ] the omission, however, raised an objection to the constitution which "was pressed with an urgency and zeal * * * well-nigh preventing its ratification."[ ] nor was the agitation assuaged by hamilton's suggestion in the federalist that congress would have ample power, in establishing the lower federal courts and in making "exceptions" to the supreme court's appellate jurisdiction, to safeguard jury trial in civil cases according to the standards of the common law.[ ] his argument bore fruit, nevertheless, in the seventh amendment, whereby, in the words of the court, the right of trial by jury is preserved as it "existed under the english common law when the amendment was adopted."[ ] trial by jury, elements of, preserved "trial by jury," in the sense of amendment vii, "is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence."[ ] a further requisite is "that there shall be a unanimous verdict of the twelve jurors in all federal courts where a jury trial is held."[ ] assuming such a jury, the amendment has for its primary purpose the preservation of "* * * the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court."[ ] but the amendment "does not exact the retention of old forms of procedure" nor does it "prohibit the introduction of new methods of ascertaining what facts are in issue * * *" or new rules of evidence.[ ] to what courts and cases applicable amendment vii governs only courts which sit under the authority of the united states,[ ] including courts in the territories[ ] and the district of columbia.[ ] it does not apply to a state court even when it is enforcing a right created by federal statute.[ ] its coverage is "* * * limited to rights and remedies peculiarly legal in their nature, and such as it was proper to assert in courts of law and by the appropriate modes and proceedings of courts of law."[ ] the term "common law" is used in contradistinction to suits in which equitable rights alone were recognized at the time of the framing of the amendment and equitable remedies were administered.[ ] hence it does not apply to cases where recovery of money damages is incident to equitable relief even though damages might have been recovered in an action at law.[ ] nor does it apply to cases in admiralty and maritime jurisdiction, in which the trial is by a court without a jury.[ ] nor does it reach statutory proceedings unknown to the common law, such as an application to a court of equity to enforce an order of an administrative body.[ ] cases not governed by the amendment omission of a jury has been upheld in the following instances on the ground that the suit in question was not a suit at common law within the meaning of the seventh amendment; ( ) suits to enforce claims against the united states.[ ] ( ) suit authorized by territorial law against a municipality, based upon a moral obligation only.[ ] ( ) suit to cancel a naturalization certificate for fraud.[ ] ( ) order of deportation of an alien.[ ] ( ) assessment of damages in patent infringement suit.[ ] ( ) longshoremen's and harbor workers' compensation act.[ ] ( ) jurisdiction of bankruptcy court to examine into reasonableness of fees paid by person for legal services in contemplation of bankruptcy.[ ] ( ) final decision of customs appraisers in regard to value of imports.[ ] it has been further held that there was no infringement of the constitutional right to trial by jury in the following circumstances: ( ) a territorial statute requiring specific answers to special interrogations, in addition to a general verdict.[ ] ( ) a rule of a district of columbia court authorizing judgment by default in an action _ex contractu_, on failure to show by affidavit a good defense.[ ] ( ) a federal court's observance of a state statute making a certified copy of a coroner's verdict _prima facie_ evidence of the facts stated.[ ] ( ) a federal statute ( stat. ) giving _prima facie_ effect to findings of the interstate commerce commission.[ ] ( ) an order of a district of columbia court appointing an auditor in a law case to examine books and papers, make computations, hear testimony, and render a report which will serve as _prima facie_ evidence of the facts found and conclusions reached, unless rejected by the court.[ ] ( ) a decree of the supreme court enjoining, in the exercise of its original jurisdiction, the state of louisiana from continuing to trespass upon lands under the ocean beyond its coasts and requiring the state to account for the money derived from that area.[ ] restrictive force of the amendment but the absolute right to a trial of the facts by a jury may not be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action or during its pendency. such aid in the federal courts must be sought in separate proceedings.[ ] federal statutes from revised statutes (§ ) through the judicial code (§ ), prohibiting courts of the united states to sustain suits in equity where the remedy is complete at law, serve to guard the right of trial by jury, and should be liberally construed.[ ] so also should equity rule , requiring the answer to a bill in equity to state any counterclaim arising out of the same transaction; such rule was not intended to change the line between law and equity, and must be construed as referring to equitable counterclaims only.[ ] nor may the distinction between law and equity, so far as federal courts are concerned, be obliterated by state legislation.[ ] so, where state law, in advance of judgment, treated the whole proceeding upon a simple contract, including determination of validity and of amount due, as an equitable proceeding, it brought the case within the federal equity jurisdiction on removal. ascertainment of plaintiff's demand being properly by action at law, however, the fact that the equity court had power to summon a jury on occasion did not afford an equivalent of the right of trial by jury secured by the seventh amendment.[ ] but where state law gives an equitable remedy, such as to quiet title to land, the federal courts will enforce it if it does not obstruct the rights of the parties as to trial by jury.[ ] an order of the court of claims attempting to reinstate a dismissed case in violation of plaintiff's right to dismiss violates the latter's right to trial by jury and may be corrected by mandamus.[ ] judge and jury line drawn by the common law as was noted above, the primary purpose of the amendment was to preserve the historic line separating the province of the jury from that of the judge, without at the same time preventing procedural improvement which did not transgress this line. elucidating this formula, the court has achieved the following results: it is constitutional for a federal judge, in the course of trial, to express his opinion upon the facts, provided all questions of fact are ultimately submitted to the jury;[ ] to call the jury's attention to parts of the evidence he deems of special importance,[ ] being careful to distinguish between matters of law and matters of opinion in relation thereto;[ ] to inform the jury when there is not sufficient evidence to justify a verdict, that such is the case;[ ] to direct the jury, after plaintiff's case is all in, to return a verdict for the defendant on the ground of the insufficiency of the evidence;[ ] to set aside a verdict which in his opinion is against the law or the evidence, and order a new trial;[ ] to refuse defendant a new trial on the condition, accepted by plaintiff, that the latter remit a portion of the damages awarded him;[ ] but not, on the other hand, to deny plaintiff a new trial on the converse condition, although defendant accepted it.[ ] directed verdicts in the court held, in slocum _v._ new york life insurance company,[ ] that where upon the evidence a federal trial court, sitting in new york, ought to have directed a verdict for one party but the jury found for the other contrary to the evidence, the amendment rendered it improper for a federal appeals court to order, in accordance with new york practice, the entry of a judgment contrary to the verdict; that the only course open to either court was to order a new trial. while plainly in accordance with the common law as it stood in , the decision was five-to-four and was subjected to a heavy fire of professional criticism urging the convenience of the thing and the theory of the capacity of the common law for growth.[ ] it has, moreover, been impaired, if not completely undermined by certain more recent holdings. in the first of these,[ ] in which the same justice spoke for the court as in the slocum case, it was held that a trial court had the right to enter a judgment on the verdict of the jury for the plaintiff after overruling a motion by defendant for dismissal on the ground of insufficient evidence. the court owned that its ruling was out of line with some of its expressions in the slocum case.[ ] in the second case[ ] the court sustained a united states district court in arkansas, in an action between parties of diverse citizenship, in rejecting a motion by defendant for dismissal and peremptorily directing a verdict for the plaintiff. the supreme court held that there was ample evidence to support the verdict and that the trial court, in following arkansas procedure, had acted consistently with the federal conformity act.[ ] in the third case,[ ] which involved an action against the government for benefits under a war risk insurance policy which had been allowed to lapse, the trial court directed a verdict for the government on the ground of the insufficiency of the evidence and was sustained in so doing by both the circuit court of appeals and the supreme court. three justices, speaking by justice black, dissented in an opinion in which it is asserted that "today's decision marks a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the seventh amendment."[ ] that the court should experience occasional difficulty in harmonizing the idea of preserving the historic common law covering the relations of judge and jury with the notion of a developing common law is not surprising. waiver of right of trial by jury parties have a right to enter into a stipulation waiving a jury and submitting the case to the court upon an agreed statement of facts, even without any legislative provision for waiver.[ ] "* * * congress has, by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. revised statutes sections , ."[ ] this statutory provision for a written stipulation, however, does not preclude other kinds of waivers.[ ] but every reasonable presumption should be indulged against a waiver.[ ] none is to be implied from a request for a directed verdict.[ ] appeals from state courts to the supreme court the last clause of amendment vii is not restricted in its application to suits at common law tried before juries in united states courts. it applies equally to a case tried before a jury in a state court and brought to the united states supreme court on appeal.[ ] notes [ ] farrand, records, . [ ] _see_ federal conformity act, u.s.c.a. § . [ ] story, commentaries on the constitution, § . [ ] federalist, nos. and . [ ] baltimore & c. line _v._ redman, u.s. , ( ); parsons _v._ bedford, pet. , - ( ). [ ] capital traction co. _v._ hof, u.s. , , ( ). here it was held that a civil trial before a justice of the peace in the district of columbia, although by a jury of twelve men, was not a jury trial in the sense of amendment vii. [ ] maxwell _v._ dow, u.s. , ( ). _see also_ american publishing co. _v._ fisher, u.s. ( ); springville _v._ thomas, u.s. ( ); andres _v._ united states, u.s. , ( ). [ ] baltimore & c. line _v._ redman, u.s. , ( ); walker _v._ new mexico, & s.p.r. co., u.s. , ( ); gasoline products co. _v._ champlin ref. co., u.s. , - ( ); dimick _v._ schiedt, u.s. , , - ( ). [ ] gasoline products co. _v._ champlin ref. co., u.s. , ( ); ex parte peterson, u.s. , ( ). [ ] pearson _v._ yewdall, u.s. , ( ). _see also_ edwards _v._ elliott, wall. , ( ); justices of the sup. ct. _v._ united states ex rel. murray, wall. , ( ); walker _v._ sauvinet, u.s. ( ); st. louis & k.c. land co. _v._ kansas city, u.s. ( ). [ ] webster _v._ reid, how. , ( ); kennon _v._ gilmer, u.s. , ( ). [ ] capital traction co. _v._ hof, u.s. , ( ). [ ] minneapolis & st. l.r. co. _v._ bombolis, u.s. ( ), which involved the federal employers liability act of . the ruling is followed in four other cases in the same volume. _see_ ibid. , , and . [ ] shields _v._ thomas, how. , ( ). [ ] parsons _v._ bedford, pet. , ( ); barton _v._ barbour, u.s. , ( ). [ ] clark _v._ wooster, u.s. , ( ); pease _v._ rathbun-jones eng. co., u.s. , ( ). [ ] parsons _v._ bedford, above; waring _v._ clarke, how. , ( ). _see also_ the "sarah," wheat. , ( ), and cases there cited. [ ] labor board _v._ jones & laughlin, u.s. , ( ). _see also_ interstate commerce commission _v._ brimson, u.s. , ( ); yakus _v._ united states, u.s. , ( ). [ ] mcelrath _v._ united states, u.s. , ( ). _see also_ galloway _v._ united states, u.s. , ( ). [ ] guthrie nat. bank _v._ guthrie, u.s. , ( ). _see also_ united states _v._ realty co., u.s. , ( ); jefferson city gaslight co. _v._ clark, u.s. , ( ). [ ] luria _v._ united states, u.s. , ( ). [ ] gee wah lee _v._ united states, f. ( d) ( ); certiorari denied, u.s. ( ). [ ] filer & s. co. _v._ diamond iron works, f. ( ); certiorari denied, u.s. ( ). [ ] crowell _v._ benson, u.s. , ( ). [ ] in re wood and henderson, u.s. ( ). [ ] auffmordt _v._ hedden, u.s. , ( ). [ ] walker _v._ new mexico & s.p.r. co., u.s. , ( ). [ ] fidelity & d. co. _v._ united states, u.s. , ( ). [ ] jensen _v._ continental life ins. co., f. ( d) ( ), certiorari denied, u.s. ( ). [ ] meeker _v._ lehigh valley r. co., u.s. , ( ). [ ] ex parte peterson, u.s. ( ). [ ] united states _v._ louisiana, u.s. ( ). [ ] scott _v._ neely, u.s. , ( ). _see also_ bennett _v._ butterworth, how. ( ); hipp _v._ babin, how. , ( ); lewis _v._ cocks, wall. , ( ); killian _v._ ebbinghaus, u.s. , ( ); buzard _v._ houston, u.s. , ( ). [ ] schoenthal _v._ irving trust co., u.s. , ( ). [ ] american mills co. _v._ american surety co., u.s. , ( ). _see also_ stamey _v._ united states, f. ( d) ( ). [ ] thompson _v._ central ohio r. co., wall. ( ). [ ] whitehead _v._ shattuck, u.s. ( ); buzard _v._ houston, u.s. ( ); greeley _v._ lowe, u.s. , ( ). [ ] clark _v._ smith, pet. ( ); holland _v._ challen, u.s. ( ); reynolds _v._ crawfordsville first nat. bank, u.s. ( ); chapman _v._ brewer, u.s. ( ); cummings _v._ merchants nat. bank, u.s. , ( ); united states _v._ landram, u.s. ( ); more _v._ steinbach, u.s. ( ). _cf._ re simons, u.s. ( ). [ ] ex parte skinner & eddy corp., u.s. , ( ). [ ] vicksburg & m.r. co. _v._ putnam, u.s. , ( ); united states _v._ reading railroad, u.s. , ( ). [ ] u.s. ; where are cited carver _v._ jackson ex dem. astor et al., pet. , ( ); magniac _v._ thompson, pet. , ( ); mitchell _v._ harmony, how. , ( ); transportation line _v._ hope, u.s. , ( ). [ ] games _v._ dunn, pet. , ( ). [ ] sparf _v._ united states, u.s. , - ( ); pleasants _v._ fant, wall. , ( ); randall _v._ baltimore & ohio r.r. co., u.s. , ( ); meehan _v._ valentine, u.s. , ( ); coughran _v._ bigelow, u.s. ( ). [ ] treat mfg. co. _v._ standard steel & iron co., u.s. ( ); randall _v._ baltimore & ohio r.r. co., u.s. , ( ) and cases there cited. [ ] capital traction co. _v._ hof, u.s. , ( ). [ ] arkansas land & cattle co. _v._ mann, u.s. , ( ). [ ] dimick _v._ schiedt, u.s. , - ( ). [ ] u.s. ( ). [ ] _see_ austin wakeman scott, fundamentals of procedure in actions at law ( ), and articles there cited. [ ] baltimore & c. line _v._ redman, u.s. ( ). [ ] ibid. . [ ] lyon _v._ mutual benefit assn., u.s. ( ). [ ] u.s.c.a. § . [ ] galloway _v._ united states, u.s. ( ). [ ] ibid. . as a matter of fact, the case being a claim against the united states need not have been tried by a jury except for the allowance of congress. [ ] henderson's distilled spirits, wall. , ( ). _see also_ rogers _v._ united states, u.s. , ( ); parsons _v._ armor, pet. ( ); campbell _v._ boyreau, how. ( ). [ ] baylis _v._ travelers' ins. co., u.s. , ( ), holding it error for a judge, in absence of any waiver, to find the facts and render judgment thereon. [ ] duignan _v._ united states, u.s. , ( ), holding jury trial waived by an appearance and participation in the trial without demanding a jury. [ ] hodges _v._ easton, u.s. , ( ). [ ] aetna insurance co. _v._ kennedy, u.s. ( ). [ ] _see_ justices of the sup. ct. _v._ united states ex rel. murray, wall. ( ); chicago, b. & q.r. co. _v._ chicago, u.s. , ( ). amendment bail, fines, and other punishment for crime page excessive bail excessive fines cruel and unusual punishments punishment for crime amendment excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. when the bill of rights was being debated in congress, two members took exception to this proposal. one "objected to the words 'nor cruel and unusual punishment,' the import of them being too indefinite."[ ] another leveled a similar criticism at the entire amendment; "what is meant by the terms excessive bail? who are to be the judges? what is understood by excessive fines? it lies with the court to determine. no cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? if a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind."[ ] excessive bail a united states district court fixed the bail of twelve persons who were arrested on charge of conspiring to violate the smith act[ ] at $ , each. this was on the theory advanced by the government that each petitioner was a pawn in a conspiracy and in obedience to a superior would flee the jurisdiction, a theory to support which no evidence was introduced. the court held that bail set before trial at a figure higher than reasonably calculated to assure the presence of defendant at his trial is "excessive" in the sense of the eighth amendment, and that the case of each defendant must be determined on its merits. bail of larger amount than that usually fixed for serious crimes must be justified by evidence to the point.[ ] but the power of the attorney general, under § of the internal security act of ,[ ] to hold in custody without bail, at his discretion, pending determination as to their deportability, aliens who are members of the communist party of the united states, is not unconstitutional.[ ] excessive fines the supreme court has had little to say with reference to excessive fines or bail. in an early case it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fine was apparent on the face of the record.[ ] in a dissenting opinion in united states ex rel. milwaukee publishing co. _v._ burleson,[ ] justice brandeis intimated that the additional mailing costs incurred by a newspaper to which the second-class mailing privilege had been denied constituted, in effect, a fine for a past offense which, since it was made to grow indefinitely each day, was an unusual punishment interdicted by the constitution.[ ] cruel and unusual punishments the ban against "cruel and unusual punishment" has received somewhat greater attention. in wilkerson _v._ utah[ ] the court observed that: "difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted, but it is safe to affirm that punishments of torture, ... and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the constitution."[ ] shooting as a mode of executing the death penalty was sustained over the objection that it was cruel and unusual. a partially successful effort has been made to enlarge the concept of unusual punishment to cover penalties which shock the sense of justice by their absolute or relative severity. justice field pointed the way for this development in his dissenting opinion in o'neil _v._ vermont,[ ] wherein the majority refused to apply the eighth amendment to a state. with the concurrence of two other justices he wrote that the amendment was directed "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged."[ ] eighteen years later a divided court condemned a philippine statute prescribing fine and imprisonment of from twelve to twenty years for entry of a known false statement in a public record, on the ground that the gross disparity between this punishment and that imposed for other more serious fines made it cruel and unusual, and as such, repugnant to the bill of rights.[ ] no constitutional infirmity was discovered in a measure punishing as a separate offense each act of placing a letter in the mails in pursuance of a single scheme to defraud.[ ] notes [ ] annals of congress ( ). [ ] ibid. [ ] u.s.c. §§ , . [ ] stack _v._ boyle, u.s. ( ). [ ] u.s.c.a. § (a) ( ); stat. . [ ] carlson _v._ landon, u.s. ( ). [ ] ex parte watkins, pet. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. , . [ ] weems _v._ united states, u.s. , , ( ). [ ] badders _v._ united states, u.s. ( ). _cf._ donaldson _v._ read magazine, u.s. , ( ). amendment rights retained by the people amendment the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. the only right which the supreme court has explicitly acknowledged as protected by this amendment is the right to engage in political activity. that recognition was accorded by way of _dictum_ in united public workers _v._ mitchell, where the powers of congress to restrict the political activities of federal employees was sustained.[ ] an argument that the competition of the tva in selling electricity at rates lower than those previously charged by private companies serving the area amounted to an indirect regulation of the rates of those companies and a destruction of the liberty said to be guaranteed by the ninth amendment to the people of the states to acquire property and employ it in a lawful business, was summarily rejected.[ ] previously the court had upheld the right of the tva to sell electricity, saying that the ninth amendment did not withdraw the right expressly granted by section of article iv to dispose of property belonging to the united states.[ ] notes [ ] u.s. , ( ). [ ] tennessee electric power co. _v._ t.v.a., u.s. , , ( ). [ ] ashwander _v._ t.v.a., u.s. , , ( ). _see also_ the language of justice chase in calder _v._ bull, dall. , ( ); and of justice miller for the court in loan asso. _v._ topeka, wall. , - ( ). amendment reserved state powers page scope and purpose the taxing power the commerce power police power state activities and instrumentalities reserved state powers amendment the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. scope and purpose "the tenth amendment was intended to confirm the understanding of the people at the time the constitution was adopted, that powers not granted to the united states were reserved to the states or to the people. it added nothing to the instrument as originally ratified * * *."[ ] that this provision was not conceived to be a yardstick for measuring the powers granted to the federal government or reserved to the states was clearly indicated by its sponsor, james madison, in the course of the debate which took place while the amendment was pending concerning hamilton's proposal to establish a national bank. he declared that: "interference with the power of the states was no constitutional criterion of the power of congress. if the power was not given, congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the constitutions of the states."[ ] nevertheless, for approximately a century, from the death of marshall until , the tenth amendment was frequently invoked to curtail powers expressly granted to congress, notably the powers to regulate interstate commerce, to enforce the fourteenth amendment and to lay and collect taxes. the first, and logically the strongest, effort to set up the tenth amendment as a limitation on federal power was directed to the expansion of that power by virtue of the necessary and proper clause. in mcculloch _v._ maryland,[ ] the attorney-general of maryland cited the charges made by the enemies of the constitution that it contained "* * * a vast variety of powers, lurking under the generality of its phraseology, which would prove highly dangerous to the liberties of the people, and the rights of the states, * * *" and he cited the adoption of the tenth amendment to allay these apprehensions, in support of his contention that the power to create corporations was reserved by that amendment to the states.[ ] stressing the fact that this amendment, unlike the cognate section of the articles of confederation, omitted the word "expressly" as a qualification of the powers granted to the national government, chief justice marshall declared that its effect was to leave the question "whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument."[ ] the taxing power not until after the civil war was the idea that the reserved powers of the states comprise an independent qualification of otherwise constitutional acts of the federal government actually applied to nullify, in part, an act of congress. this result was first reached in a tax case--collector _v._ day.[ ] holding that a national income tax, in itself valid, could not be constitutionally levied upon the official salaries of state officers, justice nelson made the sweeping statement that "* * * the states within the limits of their powers not granted, or, in the language of the tenth amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the states."[ ] in , collector _v._ day was expressly overruled.[ ] nevertheless, the problem of reconciling state and national interests still confronts the court occasionally, and was elaborately considered in new york _v._ united states,[ ] where, by a vote of six-to-two, the court upheld the right of the united states to tax the sale of mineral waters taken from property owned by a state. speaking for four members of the court, chief justice stone justified the tax on the ground that "the national taxing power would be unduly curtailed if the state, by extending its activities, could withdraw from it subjects of taxation traditionally within it."[ ] justices frankfurter and rutledge found in the tenth amendment "* * * no restriction upon congress to include the states in levying a tax exacted equally from private persons upon the same subject matter."[ ] justices douglas and black dissented, saying: "if the power of the federal government to tax the states is conceded, the reserved power of the states guaranteed by the tenth amendment does not give them the independence which they have always been assumed to have."[ ] the commerce power a year before collector _v._ day was decided, the court held invalid, except as applied in the district of columbia and other areas over which congress has exclusive authority, a federal statute penalizing the sale of dangerous illuminating oils.[ ] the court did not refer to the tenth amendment. instead, it asserted that the "* * * express grant of power to regulate commerce among the states has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate states; except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested."[ ] similarly, in the employers' liability cases,[ ] an act of congress making every carrier engaged in interstate commerce liable to "any" employee, including those whose activities related solely to intrastate activities, for injuries caused by negligence, was held unconstitutional by a closely divided court, without explicit reliance on the tenth amendment. not until it was confronted with the child labor law, which prohibited the transportation in interstate commerce of goods produced in establishments in which child labor was employed, did the court hold that the state police power was an obstacle to adoption of a measure which operated directly and immediately upon interstate commerce. in hammer _v._ dagenhart,[ ] five members of the court found in the tenth amendment a mandate to nullify this law as an unwarranted invasion of the reserved powers of the states. this decision was expressly overruled in united states _v._ darby.[ ] during the twenty years following hammer _v._ dagenhart, a variety of measures designed to regulate economic activities, directly or indirectly, were held void on similar grounds. excise taxes on the profits of factories in which child labor was employed,[ ] on the sale of grain futures on markets which failed to comply with federal regulations,[ ] on the sale of coal produced by nonmembers of a coal code established as a part of a federal regulatory scheme,[ ] and a tax on the processing of agricultural products, the proceeds of which were paid to farmers who complied with production limitations imposed by the federal government,[ ] were all found to invade the reserved powers of the states. in schechter poultry corporation _v._ united states[ ] the court, after holding that the commerce power did not extend to local sales of poultry, cited the tenth amendment to refute the argument that the existence of an economic emergency justified the exercise of what chief justice hughes called "extraconstitutional authority."[ ] in the court came full circle in its exposition of this amendment. having returned to the position of john marshall four years earlier when it sustained the social security[ ] and national labor relations acts,[ ] it explicitly restated marshall's thesis in upholding the fair labor standards act in united states _v._ darby.[ ] speaking for a unanimous court, chief justice stone wrote: "the power of congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution.' * * * that power can neither be enlarged nor diminished by the exercise or non-exercise of state power. * * * it is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. * * * our conclusion is unaffected by the tenth amendment which * * * states but a truism that all is retained which has not been surrendered."[ ] police power but even prior to not all measures taken to promote objectives which had traditionally been regarded as the responsibilities of the states had been held invalid. in hamilton _v._ kentucky distilleries co.,[ ] a unanimous court, speaking by justice brandeis, upheld "war prohibition", saying: "that the united states lacks the police power, and that this was reserved to the states by the tenth amendment, is true. but it is none the less true that when the united states exerts any of the powers conferred upon it by the constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a state of its police power."[ ] and in a series of cases, which today seem irreconcilable with hammer _v._ dagenhart, it sustained federal laws penalizing the interstate transportation of lottery tickets,[ ] of women for immoral purposes,[ ] of stolen automobiles,[ ] and of tick-infested cattle.[ ] it affirmed the power of congress to punish the forgery of bills of lading purporting to cover interstate shipments of merchandise,[ ] to subject prison made goods moved from one state to another to the laws of the receiving state,[ ] and to regulate prescriptions for the medicinal use of liquor as an appropriate measure for the enforcement of the eighteenth amendment.[ ] but while congress might thus prevent the use of the channels of interstate commerce to frustrate state law, it could not itself, the court held, undertake to punish a violation of that law by discriminatory taxation; and in united states _v._ constantine,[ ] a grossly disproportionate excise tax imposed on retail liquor dealers carrying on business in violation of local law was held unconstitutional. state activities and instrumentalities today it is apparent that the tenth amendment does not shield the states nor their political subdivisions from the impact of the authority affirmatively granted to the federal government. it was cited to no avail in case _v._ bowles,[ ] where a state officer was enjoined from selling timber on school lands at a price in excess of the maximum prescribed by the office of price administration. when california violated the federal safety appliance act in the operation of the state belt railroad as a common carrier in interstate commerce it was held liable for the statutory penalty.[ ] at the suit of the attorney general of the united states, the sanitary district of chicago was enjoined from diverting water from lake michigan in excess of a specified rate. on behalf of a unanimous court, justice holmes wrote: "this is not a controversy among equals. the united states is asserting its sovereign power to regulate commerce and to control the navigable waters within its jurisdiction. * * * there is no question that this power is superior to that of the states to provide for the welfare or necessities of their inhabitants."[ ] some years earlier, in a suit brought by kansas to prevent colorado from using the waters of the arkansas river for irrigation, the attorney general of the united states had unsuccessfully advanced the claim that the federal government had an inherent legislative authority to deal with the matter. in a petition to intervene in the suit he had taken the position, as summarized by the supreme court, that "the national government * * * has the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the accessible waters. * * * all legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that state; consequently all powers which are national in their scope must be found vested in the congress of the united states."[ ] the petition to intervene was dismissed on the ground that the authority claimed for the federal government was incompatible with the tenth amendment; but this could hardly happen today.[ ] under its superior power of eminent domain, the united states may condemn land owned by a state even where the taking will interfere with the state's own project for water development and conservation.[ ] the rights reserved to the states are not invaded by a statute which requires a reduction in the amount of a federal grant-in-aid of the construction of highways upon failure of a state to remove from office a member of the state highway commission found to have violated federal law by participating in a political campaign.[ ] federal legislation frequently has been challenged as an unconstitutional interference with the prerogative of the states to control the entities they create, but the attack has been successful only once, in hopkins federal savings and loan association _v._ cleary.[ ] there an act of congress authorizing the conversion of state building and loan associations without state consent was found to contravene the tenth amendment. thirty years earlier, in northern securities co. _v._ united states,[ ] a closely divided court had ruled that this amendment was no barrier to the application of the sherman antitrust act to prevent one corporation from restraining commerce by means of stock ownership in two competing corporations. it announced the general proposition that: "no state can, by merely creating a corporation, or in any other mode, project its authority into other states, and across the continent, so as to prevent congress from exerting the power it possesses under the constitution over interstate and international commerce, or so as to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by congress for such commerce. it cannot be said that any state may give a corporation, created under its laws, authority to restrain interstate or international commerce against the will of the nation as lawfully expressed by congress. every corporation created by a state is necessarily subject to the supreme law of the land."[ ] even a charter contract between a state and an intrastate railroad, limiting the rates of the latter, is no barrier to enforcement of an order of the interstate commerce commission requiring an increase in local rates to remove a discrimination against interstate commerce.[ ] an order of the federal power commission prescribing the methods of keeping the accounts of an electric company was sustained over the objection that it violated the reserved right of the states under the tenth amendment.[ ] a similar objection to the levy of a special surtax on any corporation formed or availed of to prevent the imposition of a surtax upon its shareholders was rejected, since the taxing statute did not limit in any way the power of the corporations to declare or withhold dividends as permitted by state law.[ ] likewise, the court held that the failure to allow a credit against the undistributed profits tax for earnings which could not be distributed under state law did not infringe the reserved power of the state over its corporate offspring.[ ] notes [ ] united states _v._ sprague, u.s. , ( ). [ ] ii annals of congress ( ). [ ] wheat. ( ). [ ] ibid. . [ ] ibid. . [ ] wall. ( ). [ ] ibid. . [ ] graves _v._ o'keefe, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] ibid. . [ ] ibid. . [ ] united states _v._ dewitt, wall. ( ). [ ] ibid. . [ ] u.s. ( ). _see also_ keller _v._ united states, u.s. ( ). [ ] u.s. ( ). [ ] u.s. , , ( ). [ ] bailey _v._ drexel furniture co., u.s. , , ( ). [ ] hill _v._ wallace, u.s. ( ). _see also_ trusler _v._ crooks, u.s. ( ). [ ] carter _v._ carter coal co., u.s. ( ). [ ] united states _v._ butler, u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] steward machine co. _v._ davis, u.s. ( ); helvering _v._ davis, u.s. ( ). [ ] national labor relations board _v._ jones & laughlin steel corp., u.s. ( ). [ ] u.s. ( ). _see also_ united states _v._ carolene products co., u.s. , ( ); case _v._ bowles, u.s. , ( ). [ ] u.s. , , , ( ). _see also_ fernandez _v._ wiener, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] champion _v._ ames, u.s. ( ). [ ] hoke _v._ united states, u.s. ( ). [ ] brooks _v._ united states, u.s. ( ). [ ] thornton _v._ united states, u.s. ( ). [ ] united states _v._ ferger, u.s. ( ). [ ] kentucky whip & collar co. _v._ illinois c.r. co., u.s. ( ). [ ] everhard's breweries _v._ day, u.s. ( ). [ ] u.s. ( ). the civil rights act of , which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances was found to exceed the powers conferred on congress by the thirteenth and fourteenth amendments, and hence to be an unlawful invasion of the powers reserved to the states by the tenth--civil rights cases, u.s. , ( ). [ ] u.s. , ( ). [ ] united states _v._ california, u.s. ( ). [ ] sanitary district of chicago _v._ united states, u.s. , , ( ). [ ] kansas _v._ colorado, u.s. , , ( ). [ ] _see_ united states _v._ appalachian electric power co., u.s. ( ). [ ] oklahoma _v._ atkinson co., u.s. , ( ). [ ] oklahoma _v._ united states civil service commission, u.s. , - ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] new york _v._ united states, u.s. ( ). [ ] northwestern electric co. _v._ federal power commission, u.s. ( ). _see also_ federal power commission _v._ east ohio gas company, u.s. ( ). [ ] helvering _v._ national grocery co., u.s. ( ). [ ] helvering _v._ northwest steel mills, u.s. ( ). amendment suits against states page purpose and early interpretation expansion of state immunity suits against state officials: two categories mandamus proceedings early limitation on injunction proceedings injunction proceedings today: ex parte young tort action against state officials suits to recover taxes consent of state to be sued waiver of immunity suits against states amendment the judicial power of the united states shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the united states by citizens of another state, or by citizens or subjects of any foreign state. purpose and early interpretation the action of the supreme court in accepting jurisdiction of a suit against a state by a citizen of another state in , in chisholm _v._ georgia[ ] provoked such angry reactions in georgia and such anxieties in other states that at the first meeting of congress after this decision what became the eleventh amendment was proposed by an overwhelming vote and ratified with "vehement speed."[ ] the earliest decisions interpretative of the amendment were three by chief justice marshall. in cohens _v._ virginia,[ ] speaking for the court, he held that the prosecution of a writ of error to review a judgment of a state court, alleged to be in violation of the constitution or laws of the united states, "does not commence or prosecute a suit against the state," but continues one commenced by the state. the contrary holding would have virtually repealed the th section of the judiciary act of (_see_ p. ), and brought something like anarchy in its wake. in osborn _v._ bank of the united states,[ ] decided three years later, the court laid down two rules, one of which has survived and the other of which was soon abandoned. the latter was the holding that a suit is not one against a state unless the state is a party to the record.[ ] this rule the court was forced to repudiate seven years later in governor of georgia _v._ madrazo,[ ] in which it was conceded that the suit had been brought against the governor solely in his official capacity and with the design of forcing him to exercise his official powers. it is now a well-settled rule that in determining whether a suit is prosecuted against a state "the court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit."[ ] the other, more successful rule was that a state official possesses no official capacity when acting illegally and hence can derive no protection from an unconstitutional statute of a state.[ ] expansion of state immunity subsequent cases giving the amendment a restrictive effect are those holding that counties and municipalities are suable in the federal courts;[ ] and that government corporations of the state are not immune when suable under the law which created them.[ ] meantime other cases have expanded the prohibitions of the amendment to include suits brought against a state by its own citizens,[ ] by a foreign state,[ ] by a federally chartered corporation,[ ] or by a state as an agent of its citizens to collect debts owed them by another state.[ ] these rulings are based on the premise expressed in hans _v._ louisiana[ ] that the amendment "actually reversed the decision" in chisholm _v._ georgia and, as chief justice hughes indicated in monaco _v._ mississippi,[ ] had the effect of prohibiting any suit against a state without its consent except when brought by the united states[ ] or another state. suits against state officials: two categories most of the cases involving the eleventh amendment and those creating the greatest difficulties are suits brought against state officials. such suits are governed by the same rules and principles as pertain to the immunity of the united states itself from suits,[ ] with the result that the rules of governmental immunity from suit generally are grounded on decisions arising under both article iii and the eleventh amendment without distinction as to whether a suit is against the united states or a state.[ ] the line is not always easy to draw, nor are the cases always strictly consistent. they do yield, however, to the formulation of certain general rules. thus, suits brought against state officials acting either in excess of their statutory authority[ ] or in pursuance of an unconstitutional statute[ ] are suits against the officer in his individual capacity and therefore are not prohibited by the eleventh amendment; and suits against an officer for the commission of a common law tort alleged to be justified by a statute or administrative order of the state belong to the same category.[ ] on the other hand, suits against the officers of a state involving what is conceded to be state property or suits asking for relief which clearly call for the exercise of official authority cannot be sustained.[ ] mandamus proceedings thus mandamus proceedings which seek "affirmative official action" on the part of state officials as "the performance of an obligation which belongs to the state in its political capacity"[ ] are uniformly regarded as suits against the state. this rule is well illustrated by louisiana ex rel. elliott _v._ jumel[ ] where a holder of louisiana state bonds sought to compel the state treasurer to apply a sinking fund that had been created under an earlier constitution for the payment of the bonds to such purpose after a new constitution had abolished this provision for retiring the bonds. the proceeding was held to be a suit against the state because: "the relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the state, whose creatures they are, and to which they are ultimately responsible in law for what they do. they must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done."[ ] however, mandamus proceedings to compel a state official to perform a plain or ministerial duty which admits of no discretion are not suits against the state since the official is regarded as acting in his individual capacity in failing to act according to law.[ ] early limitation on injunction proceedings in spite of a dictum by justice bradley in the mccomb case that the writs of mandamus and injunction are somewhat correlative to each other in suits against state officials for illegal actions,[ ] injunctions against state officials to restrain the enforcement of an unconstitutional statute or action in excess of statutory authority are more readily obtainable. they constitute in fact the single largest class of cases involving the issue of state immunity. until reagan _v._ farmers' loan and trust company[ ] the court maintained a distinction between the duty imposed upon an official by the general laws of the state and the duty imposed by a specific unconstitutional statute and held that whereas an injunction would not lie to restrain a state official from enforcing an act alleged to be unconstitutional in pursuance of the general duties of his office, it would lie to restrain him from performing special duties vested in him by an unconstitutional statute.[ ] the leading cases assertive of this distinction are ex parte ayers and fitts _v._ mcghee, decided respectively in and .[ ] injunction proceedings today: ex parte young however, the distinction between injunction suits to restrain an official from pursuing his general duties under the law and those to restrain the performance of special duties under an unconstitutional statute had been largely lost even before fitts _v._ mcghee, in reagan _v._ farmers' loan and trust company[ ] and smyth _v._ ames,[ ] where injunctions issued by the lower federal courts to restrain the enforcement of railroad rate regulations were sustained even though the officials against whom the suits were brought were acting under general law. what remained of the distinction as a limitation upon suits against state officials was dispelled by ex parte young,[ ] which not only sustained an injunction restraining state officials from exercising their discretionary duties but also upheld the authority of the lower court to enjoin the enforcement of the statute prior to a determination of its unconstitutionality. while ex parte ayers and fitts _v._ mcghee[ ] were not overruled, the inevitable effect of the young case was to abrogate the rule that a suit in equity against a state official to enjoin discretionary action is a suit against the state, and to convert the injunction into a device to test the validity of state legislation in the federal courts prior to its interpretation in the state courts and prior to any opportunity for state officials to put the act into operation.[ ] but the earlier rule still crops up at times. thus as recently as , ex parte ayers[ ] was applied to the interpretation of the federal interpleader act,[ ] so as to prevent taxpayers from enjoining tax officials from collecting death taxes arising from the competing claims of two states as being the last domicile of a decedent.[ ] on the other hand, the eleventh amendment was held not to be infringed by joinder of a state court judge and receiver in an interpleader proceeding in which the state had no interest and neither the judge nor the receiver was enjoined by the final decree.[ ] tort actions against state officials in tort actions against state officials the rule of united states _v._ lee[ ] has been substantially incorporated into the eleventh amendment. in tindal _v._ wesley[ ] the lee case was held to permit a suit by claimants to real property in south carolina which they had purchased from the state sinking fund commission but which had been retaken by the state because the purchaser insisted on paying for the property with revenue bond scrip issued by the state. in other cases the court had held that the immunity of a state from suit does not extend to actions against state officials for damages arising out of willful and negligent disregard of state laws.[ ] suits to recover taxes recent decisions, however, have rendered suits against state officials to recover taxes increasingly difficult to maintain. although the court long ago held that the sovereign immunity of the state prevented a suit to recover money in the general treasury,[ ] it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.[ ] beginning, however, with great northern life insurance co. _v._ read[ ] in the court has held that this kind of suit cannot be maintained unless the state expressly consents to suits in the federal courts. in this case the state statute provided for the payment of taxes under protest and for suits afterwards against state tax collection officials for the recovery of taxes illegally collected. the act also provided for the segregation by the collector of taxes paid under protest. the read case has been followed in two more recent cases[ ] involving a similar state of facts, with the result that the rule once permitting such suits to recover taxes from a segregated fund has been distinguished away. consent of state to be sued although _dicta_ in some cases suggested that once a state consented generally to be sued in a court of competent jurisdiction,[ ] suits could be maintained against it in the federal courts, later decisions involving statutory provisions for the payment of taxes under protest followed by a suit in a court of competent jurisdiction to recover do not authorize suits in the federal courts. these rulings are based on the assumption that when the court is dealing "with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the state's intention to submit its fiscal problems to other courts than those of its own creation must be found."[ ] long before these decisions it had been settled that a state could confine to its own courts suits against it to recover taxes.[ ] thus the questions involved in the cases laying down the above rule concerned only the lack of an express consent to suit in the federal courts. waiver of immunity the immunity of a state from suit is a privilege which it may waive at pleasure by voluntary submission to suit,[ ] as distinguished from appearing in a similar suit to defend its officials,[ ] and by general law specifically consenting to suit in the federal courts. such consent must be clear and specific and consent to suit in its own courts does not imply a waiver of immunity in the federal courts.[ ] it follows, therefore, that in consenting to be sued, the states, like the national government, may attach such conditions to suit as they deem fit. notes [ ] dall. ( ). [ ] justice frankfurter dissenting in larson _v._ domestic & foreign corp., u.s. , ( ). [ ] wheat. , - ( ). [ ] wheat. ( ). [ ] ibid. - . [ ] pet. ( ). [ ] ex parte ayers, u.s. , ( ). [ ] osborn _v._ bank of the united states, wheat. at , , . [ ] lincoln county _v._ luning, u.s. ( ). [ ] hopkins _v._ clemson agricultural college, u.s. ( ). _see also_ bank of the united states _v._ planters' bank of georgia, wheat. ( ), where a state bank was held liable to suit although the state owned a portion of its stock, and briscoe _v._ bank of kentucky, pet. ( ), and bank of kentucky _v._ wister, pet. ( ), where the state bank was held liable to suit even though the state owned all of the stock. compare, however, murray _v._ wilson distilling co., u.s. ( ), which held that a state in engaging in the retail liquor business does not surrender its immunity to suit for transaction of a nongovernmental nature. here the state conducted the business directly rather than through the medium of a corporation. [ ] hans _v._ louisiana, u.s. ( ); fitts _v._ mcghee, u.s. , ( ); duhne _v._ new jersey, u.s. , ( ); ex parte new york, u.s. ( ). [ ] monaco _v._ mississippi, u.s. , ( ). [ ] smith _v._ reeves, u.s. ( ). [ ] new hampshire _v._ louisiana, u.s. ( ). however, this rule does not preclude a suit by a state to collect debts which have been assigned to it and the proceeds of which will remain with it. south dakota _v._ north carolina, u.s. ( ) [ ] u.s. , ( ). [ ] u.s. , - ( ). [ ] for the liability of the states to suit by the united states _see_ the discussion of the right of the united states to sue under article iii, § , _supra_, pp. - . [ ] tindal _v._ wesley, u.s. , ( ). this case applied the rule of united states _v._ lee, u.s. ( ), to suits against states. [ ] _see_ for example larson _v._ domestic & foreign corp., u.s. ( ), where both the majority and dissenting opinions utilize both types of cases in a suit against a federal official. [ ] pennoyer _v._ mcconnaughy, u.s. ( ); scully _v._ bird, u.s. ( ); atchison, topeka & s.f.r. co. _v._ o'connor, u.s. ( ); greene _v._ louisville & i.r. co., u.s. ( ); louisville & nashville r. co. _v._ greene, u.s. ( ). [ ] osborn _v._ bank of the united states, wheat. ( ); board of liquidation _v._ mccomb, u.s. ( ); poindexter _v._ greenhow, u.s. ( ); pennoyer _v._ mcconnaughy, u.s. ( ); reagan _v._ farmers' loan & trust co., u.s. ( ); smyth _v._ ames, u.s. ( ); ex parte young, u.s. ( ); truax _v._ raich, u.s. ( ); public service co. _v._ corboy, u.s. ( ); sterling _v._ constantin, u.s. ( ); davis _v._ gray, wall. ( ); tomlinson _v._ branch, wall. ( ); litchfield _v._ webster co., u.s. ( ); allen _v._ baltimore & o.r. co., u.s. ( ); gunter _v._ atlantic c.l.r. co., u.s. ( ); prout _v._ starr, u.s. ( ); scott _v._ donald, u.s. ; _also_ u.s. ( ). [ ] south carolina _v._ wesley, u.s. ( ); tindal _v._ wesley, u.s. ( ); hopkins _v._ clemson agricultural college, u.s. ( ). in this last case the court held that a suit would lie against the state agricultural college, and relief could be granted to the extent that it would not affect the property rights of the state. these cases involve such matters as the seizure and distraint of property, wrongs done by government corporations, etc. [ ] _see_ for example governor of georgia _v._ madrazo, pet. ( ); cunningham _v._ macon and brunswick r. co., u.s. ( ); louisiana ex rel. elliott _v._ jumel, u.s. ( ); hagood _v._ southern, u.s. ( ); chandler _v._ dix, u.s. ( ); murray _v._ wilson distilling co., u.s. ( ); hopkins _v._ clemson agricultural college, u.s. ( ); lankford _v._ platte iron works, u.s. ( ); carolina glass co. _v._ south carolina, u.s. ( ); kennecott copper corp. _v._ state tax commission, u.s. ( ). [ ] hagood _v._ southern, u.s. , ( ). _see also_ pennoyer _v._ mcconnaughy, u.s. , ( ) where justice lamar also emphasizes the operation of the judgment against the state itself. [ ] u.s. , ( ). _see also_ christian _v._ atlantic & n.c.r. co., u.s. ( ). [ ] louisiana ex rel. elliott _v._ jumel, u.s. , ( ). [ ] board of liquidation _v._ mccomb, u.s. , ( ). this was a case involving an injunction, but justice bradley regarded mandamus and injunction as correlative to each other in cases where the official unlawfully commits or omits an act. _see also_ rolston _v._ missouri fund commissioners, u.s. , ( ), where it is held that an injunction would lie to restrain the sale of a railroad on the ground that a suit to compel a state official to do what the law requires of him is not a suit against the state. _see also_ houston _v._ ormes, u.s. ( ). [ ] board of liquidation _v._ mccomb, u.s. , ( ). [ ] u.s. ( ). [ ] poindexter _v._ greenhow, u.s. ( ); allen _v._ baltimore & o.r. co., u.s. ( ); pennoyer _v._ mcconnaughy, u.s. ( ); in re tyler, u.s. ( ). as stated by justice harlan in fitts _v._ mcghee, u.s. , - ( ), "there is a wide difference between a suit against individuals, holding official positions under a state, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a state merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the state." _see also_ north carolina _v._ temple, u.s. ( ). [ ] _see_ u.s. ; and u.s. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ); u.s. ( ). [ ] for cases following ex parte young, _see_ home telephone & telegraph co. _v._ los angeles, u.s. ( ); truax _v._ raich, u.s. ( ); cavanaugh _v._ looney, u.s. ( ); terrace _v._ thompson, u.s. ( ); hygrade provision co. _v._ sherman, u.s. ( ); massachusetts state grange _v._ benton, u.s. ( ); hawks _v._ hamill, u.s. ( ). these last cases, however, emphasize "manifest oppression" as a prerequisite to issuance of such injunctions. _see also_ fenner _v._ boykin, u.s. ( ), where an injunction to restrain the enforcement of a state law penalizing gambling contracts was denied. the rule of ex parte young applies equally to the governor of a state in the enforcement of an unconstitutional statute. continental baking co. _v._ woodring, u.s. ( ); sterling _v._ constantin, u.s. ( ). joseph d. block, "suit against government officers and the sovereign immunity doctrine," harv. l. rev. , ( ), points out that ex parte young is enunciating the doctrine that an official proceeding unconstitutionally is "stripped of his official ... character" has given impetus to the fiction that the suit must be against the officer as an individual to be permissible under the eleventh amendment. two recent cases in which ex parte young was followed are alabama comm'n _v._ southern r. co., u.s. , ( ); and georgia r. _v._ redwine, u.s. , - ( ). [ ] u.s. ( ). _see also_ larson _v._ domestic and foreign corp., u.s. , - ( ). [ ] stat. ( ). [ ] worcester county trust co. _v._ riley, u.s. ( ); _see also_ old colony trust co. _v._ seattle, u.s. ( ). [ ] treinies _v._ sunshine mining co., u.s. ( ). _see also_ missouri _v._ fiske, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] johnson _v._ lankford, u.s. ( ); martin _v._ lankford, u.s. ( ). [ ] smith _v._ reeves, u.s. ( ). [ ] atchison, topeka & s.f.r. co. _v._ o'connor, u.s. ( ). [ ] u.s. ( ). [ ] ford motor co. _v._ dept. of treasury of indiana, u.s. ( ); kennecott copper corp. _v._ state tax commission, u.s. ( ). [ ] lincoln county _v._ luning, u.s. ( ); hopkins _v._ clemson agricultural college, u.s. ( ). [ ] great northern ins. co. _v._ read, u.s. , ( ); ford motor co. _v._ dept. of treasury of indiana, u.s. ( ); kennecott copper corp. _v._ state tax commission, u.s. ( ). [ ] smith _v._ reeves, u.s. ( ). _see also_ murray _v._ wilson distilling co., u.s. ( ); chandler _v._ dix, u.s. ( ). [ ] clark _v._ barnard, u.s. , ( ); ashton _v._ cameron county water improvement dist., u.s. , ( ). [ ] farish _v._ state banking board, u.s. ( ); missouri _v._ fiske, u.s. ( ). [ ] murray _v._ wilson distilling co., u.s. , ( ), citing smith _v._ reeves, u.s. ( ); chandler _v._ dix, u.s. ( ). _see also_ graves _v._ texas co., u.s. , - ( ). amendment election of president page purpose and operation of the amendment electors as free agents election of president amendment the electors shall meet in their respective states, and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president, and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the united states, directed to the president of the senate;--the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for president, shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the president. but in choosing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. and if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of march[ ] next following, then the vice-president shall act as president, as in the case of the death or other constitutional disability of the president.[ ]--the person having the greatest number of votes as vice-president, shall be the vice-president, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the vice-president; a quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. but no person constitutionally ineligible to the office of president shall be eligible to that of vice-president of the united states. purpose and operation of the amendment this amendment, which supersedes clause of section of article ii, of the original constitution, was inserted on account of the tie between jefferson and burr in the election of . the difference between the procedure which it defines and that which was laid down in the original constitution is in the provision it makes for a separate designation by the electors of their choices for president and vice president, respectively. the final sentence of clause , above, has been in turn superseded today by amendment xx. in consequence of the disputed election of , congress, by an act passed in , has laid down the rule that if the vote of a state is not certified by the governor under the seal thereof, it shall not be counted unless both houses of congress are favorable.[ ] it should be noted that no provision is made by this amendment for the situation which would result from a failure to choose either a president or vice president, an inadequacy which amendment xx undertakes to cure. electors as free agents acting under the authority of state law, the democratic committee of alabama adopted a rule requiring that a party candidate for the office of presidential elector take a pledge to support the nominees of the party's national convention for president and vice president and that the party's officers refuse to certify as a candidate for such office any person who, otherwise qualified, refused to take such a pledge. one blair did so refuse and was upheld, in mandamus proceedings, by the state supreme court, which ordered the chairman of the state democratic executive committee to certify him to the secretary of state as a candidate for the office of presidential elector in the democratic primary to be held on may , . the supreme court at washington granted certiorari and reversed this holding.[ ] the constitutional issue arose out of the alabama court's findings that the required pledge was incompatible with the twelfth amendment, which contemplated that electors, once appointed, should be absolutely free to vote for any person who was constitutionally eligible to the office of president or vice president.[ ] this position the supreme court combatted as follows: "it is true that the amendment says the electors shall vote by ballot. but it is also true that the amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. the suggestion that in the early elections candidates for electors--contemporaries of the founders--would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. history teaches that the electors were expected to support the party nominees. experts in the history of government recognize the longstanding practice. indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. this long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary. however, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the constitution, art. ii, § , to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional. a candidacy in the primary is a voluntary act of the applicant. he is not barred, discriminatorily, from participating but must comply with the rules of the party. surely one may voluntarily assume obligations to vote for a certain candidate. the state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary. ala. code, tit. , § . even though the victory of an independent candidate for elector in alabama cannot be anticipated, the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. such parties may leave their electors to their own choice. we conclude that the twelfth amendment does not bar a political party from requiring the pledge to support the nominees of the national convention. where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge."[ ] justice jackson conceding that "as an institution the electoral college suffered atrophy almost indistinguishable from _rigor mortis_," nevertheless dissented on the following ground: "it may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. if custom were sufficient authority for amendment of the constitution by court decree, the decision in this matter would be warranted. usage may sometimes impart changed content to constitutional generalities, such as 'due process of law,' 'equal protection,' or 'commerce among the states.' but i do not think powers or discretions granted to federal officials by the federal constitution can be forfeited by the court for disuse. a political practice which has its origin in custom must rely upon custom for its sanctions."[ ] notes [ ] by the twentieth amendment, adopted in , the term of the president is to begin on the th of january. [ ] under the twentieth amendment, § , in case a president is not chosen before the time for beginning of his term, the vice president-elect shall act as president, until a president shall have qualified. [ ] u.s.c.a. § . [ ] ray _v._ blair, u.s. ( ). [ ] ibid. - . [ ] ibid. - . [ ] ibid. - . amendment slavery and involuntary servitude page origin and purpose of the amendment peonage discriminations and legal compulsions less than servitude enforcement slavery and involuntary servitude amendment section . neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the united states, or any place subject to their jurisdiction. section . congress shall have power to enforce this article by appropriate legislation. origin and purpose of the amendment "the language of the thirteenth amendment," which "reproduced the historic words of the ordinance of for the government of the northwest territory, and gave them unrestricted application within the united states,"[ ] was first construed in the slaughter-house cases.[ ] presented there with the contention that a louisiana statute, by conferring upon a single corporation the exclusive privilege of slaughtering cattle in new orleans, had imposed an unconstitutional servitude on the property of other butchers disadvantaged thereby, the court expressed its inability, even after "a microscopic search," to find in said amendment any "reference to servitudes, which may have been attached to property in certain localities * * *." on the contrary, the term "servitude" appearing therein was declared to mean "a personal servitude * * * [as proven] by the use of the word 'involuntary,' which can only apply to human beings. * * * the word servitude is of larger meaning than slavery, * * *, and the obvious purpose was to forbid all shades and conditions of african slavery." but while the court was initially in doubt as to whether persons other than negroes could share in the protection afforded by this amendment, it nevertheless conceded that although "* * * negro slavery alone was in the mind of the congress which proposed the thirteenth article, [the latter] forbids any other kind of slavery, now or hereafter. if mexican peonage or the chinese coolie labor system shall develop slavery of the mexican or chinese race within our territory, this amendment may safely be trusted to make it void."[ ] all uncertainty on this score was dispelled in later decisions; and in hodges _v._ united states[ ] the justices proclaimed unequivocally that the thirteenth amendment is "not a declaration in favor of a particular people. it reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof. slavery or involuntary servitude of the chinese, of the italian, of the anglo-saxon are as much within its compass as slavery or involuntary servitude of the african."[ ] peonage notwithstanding its early acknowledgment in the slaughter-house cases that peonage was comprehended within the slavery and involuntary servitude proscribed by the thirteenth amendment,[ ] the court has had frequent occasion to determine whether state legislation or the conduct of individuals has contributed to reestablishment of that prohibited status. defined as a condition of enforced servitude by which the servitor is compelled to labor in liquidation of some debt or obligation, either real or pretended, against his will, peonage was found to have been unconstitutionally sanctioned by an alabama statute, directed at defaulting sharecroppers, which imposed a criminal liability and subjected to imprisonment farm workers or tenants who abandoned their employment, breached their contracts, and exercised their legal right to enter into employment of a similar nature with another person. the clear purpose of such a statute was declared to be the coercion of payment, by means of criminal proceedings, of a purely civil liability arising from breach of contract.[ ] several years later, in bailey _v._ alabama,[ ] the court voided another alabama statute which made the refusal without just cause to perform the labor called for in a written contract of employment, or to refund the money or pay for the property advanced thereunder, _prima facie_ evidence of an intent to defraud and punishable as a criminal offense; and which was enforced subject to a local rule of evidence which prevented the accused, for the purpose of rebutting the statutory presumption, from testifying as to his "uncommunicated motives, purpose, or intention." inasmuch as a state "may not compel one man to labor for another in payment of a debt by punishing him as a criminal if he does not perform the service or pay the debt," the court refused to permit it "to accomplish the same result [indirectly] by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction."[ ] in , in united states _v._ reynolds,[ ] a third alabama enactment was condemned as conducive to peonage through the permission it accorded to persons, fined upon conviction for a misdemeanor, to confess judgment with a surety in the amount of the fine and costs, and then to agree with said surety, in consideration of the latter's payment of the confessed judgment, to reimburse him by working for him upon terms approved by the court, which, the court pointed out, might prove more onerous than if the convict had been sentenced to imprisonment at hard labor in the first place. fulfillment of such a contract with the surety was viewed as being virtually coerced by the constant fear it induced of rearrest, a new prosecution, and a new fine for breach of contract, which new penalty the convicted person might undertake to liquidate in a similar manner attended by similar consequences. more recently, bailey _v._ alabama has been followed in taylor _v._ georgia[ ] and pollock _v._ williams,[ ] in which statutes of georgia and florida not materially different from that voided in the bailey case, were found to be unconstitutional. although the georgia statute prohibited the defendant from testifying under oath, it did not prevent him from entering an unsworn denial both of the contract and of the receipt of any cash advancement thereunder, a factor which, the court emphasized, was no more controlling than the customary rule of evidence in the bailey case. in the florida case, notwithstanding the fact that the defendant pleaded guilty and accordingly obviated the necessity of applying the _prima facie_ presumption provision, the court reached an identical result, chiefly on the ground that the presumption provision, despite its nonapplication, "had a coercive effect in producing the plea of guilty." discriminations and legal compulsions less than servitude a contention of "involuntary servitude" was rejected in the following cases: ( ) racial discrimination. denial of admission to public places, such as inns, restaurants, or theaters, or the segregation of races in public conveyances, etc., was held not to give rise to a "condition of enforced compulsory service of one to another," and effected no deprivation of one's legal right to dispose of his person, property, and services. even prior to the amendment, such discriminations had never been "regarded as badges of slavery"; and it was not "the intent of the amendment to denounce every act which was wrong if done to a free man and yet justified in a condition of slavery."[ ] likewise, individuals who conspired to prevent citizens of african descent, because of their race or color, from making or carrying out contracts of labor, and so from pursuing a common calling, were not deemed to have reduced negroes to a condition of involuntary servitude; and hence a federal statute which penalized such a conspiracy was declared to be in excess of the enforcement powers vested in congress by the thirteenth amendment.[ ] ( ) "services which have from time immemorial been treated as exceptional." thus, contracts of seamen, which have from earliest historical times been treated as exceptional, and involving, to a certain extent, the surrender of personal liberty may be enforced without regard to the amendment.[ ] ( ) "enforcement of those duties which individuals owe the state, such as services in the army, militia, on the jury, etc." thus, "a state has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compensation."[ ] similarly, the exaction by congress of enforced military duty from citizens of the united states, as was done by the selective service act of may , ( stat. ); and the requirement, under the selective training and service act of ( u.s.c.a. app. § (g)), that conscientious objectors be assigned to work of national importance under civilian direction, were held not to contravene the thirteenth amendment.[ ] ( ) a state law which made it a misdemeanor for a lessor, or his agent or janitor, intentionally to fail to furnish such water, heat, light, elevator, telephone, or other service as may be required by the terms of the lease and necessary to the proper and customary use of the building, did not create an involuntary servitude.[ ] ( ) section (a) of the communications act ( u.s.c.a. § ) making it unlawful to coerce, compel, or constrain a licensee to employ persons in excess of the number of the employees needed by the licensee in the conduct of a radio broadcasting business, on its face, was construed as not violating this amendment.[ ] enforcement "* * * this amendment, besides abolishing forever slavery and involuntary servitude * * *, gives power to congress to protect all persons within the jurisdiction of the united states from being in any way subject to slavery or involuntary servitude, except as a punishment for crime, and in the enjoyment of that freedom which it was the object of the amendment to secure. * * *"[ ] it "is undoubtedly self-executing without any ancillary legislation, * * * [but] legislation may be necessary and proper to meet all the various * * * circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit." this legislation, moreover, "may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not; [whereas] under the fourteenth [amendment], * * * it * * * can only be, corrective in its character, addressed to counteract and afford relief against state regulations or proceedings."[ ] pursuant to its powers of enforcement under section two of this amendment, congress on march , enacted a statute[ ] by the terms of which the system of peonage was abolished and prohibited and penalties were imposed on anyone who holds, arrests, or returns, or causes, or aids in the arrest or return of a person to peonage. the validity of this act was sustained in clyatt _v._ united states;[ ] and more recently, in united states _v._ gaskin,[ ] a proviso thereof was construed as capable of supporting a conviction for arrest with intent to compel performance of labor even though the debtor in fact rendered no service after his arrest. each of the acts enumerated in that proviso, the "holding, arresting, or the returning, may be the subject of indictment and punishment." notes [ ] bailey _v._ alabama, u.s. , ( ). [ ] wall. ( ). [ ] ibid. , - . [ ] u.s. ( ). [ ] ibid. - . [ ] pursuant to its enforcement powers under section of this amendment, congress, on march , adopted a statute ( stat. ), which is now found in u.s.c.a. § and u.s.c.a. § , by the terms of which peonage was prohibited, and persons returning any one to a condition of peonage were subjected to criminal punishment. this statute was upheld in clyatt _v._ united states, u.s. ( ). [ ] peonage cases, f. ( ). [ ] u.s. ( ). justice holmes, who was joined by justice lurton, dissented on the ground that a state was not forbidden by this amendment from punishing a breach of contract as a crime. "compulsory work for no private master in a jail is not peonage."--ibid. . [ ] ibid. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). justice reed, with chief justice stone concurring, contended in a dissenting opinion that a state is not prohibited by the thirteenth amendment from "punishing the fraudulent procurement of an advance in wages."--ibid. . [ ] civil rights cases, u.s. , - ( ); plessy _v._ ferguson, u.s. ( ). [ ] hodges _v._ united states; u.s. ( ). [ ] robertson _v._ baldwin, u.s. , ( ). [ ] butler _v._ perry, u.s. , ( ).--work-or-fight laws, such as states enacted during world war i, which required male residents to be employed during the period of that war were sustained on similar grounds, as were municipal ordinances, enforced during the depression, which compelled indigents physically able to perform manual labor to serve the municipality without compensation as a condition of receiving financial assistance.--state _v._ mcclure, boyce (del.) ; a. ( ); commonwealth _v._ pouliot, mass. ; n.e. ( ). [ ] arver _v._ united states (selective draft law cases), u.s. , ( ); united states _v._ brooks, f. supp. ( ); affirmed f. ( d) ( ); certiorari denied, u.s. ( ). it may be noted in this connection that labor leaders have contended that conscription of labor in time of war, unaccompanied by nationalization of industry, would mean that the conscripts, having thus been forced by the government to work for private profit, would be reduced to involuntary servitude. this position is not supported by the precedents.--_see_ corwin, total war and the constitution, - ( ). [ ] brown (marcus) holding co. _v._ feldman, u.s. , ( ). [ ] united states _v._ petrillo, u.s. , - ( ). injunctions and "cease and desist" orders in labor disputes have also been repeatedly sustained against charges by labor that the prohibitions of this amendment had been violated. _see_ auto workers _v._ wis. board, u.s. ( ), in which application of the wisconsin employment peace act in support of an order forbidding recurrent, intermittent work stoppages for unstated ends was held not to have imposed involuntary servitude. _see also_ western union tel. co. _v._ international b. of e. workers, f. ( d) ( ); international brotherhood, etc. _v._ western u. tel. co., f. ( d) ( ), certiorari denied, u.s. ( ). [ ] united states _v._ harris, u.s. , ( ). an act of congress which penalized a conspiracy to deprive any person of the equal protection of the laws or of equal privileges and immunities under the laws was accordingly held unconstitutional insofar as its validity was made to depend upon the thirteenth amendment. [ ] civil rights cases, u.s. , , ( ). [ ] stat. ; u.s.c.a. § ; u.s.c.a. § . [ ] u.s. , ( ). [ ] u.s. , ( ). amendment rights of citizens page section . citizenship; privileges and immunities; due process; equal protection citizens of the united states kinds and sources of citizenship history judicial elucidation of the citizenship clause national and state citizenship corporations privileges and immunities purpose and early history of the clause privileges and immunities of citizens of the united states privileges held not within the protection of the clause due process of law clause historical development police power: liberty: property liberty of contract--labor relations definitions "persons" defined due process and the police power definition limitations on the police power "liberty," in general definitions personal liberty: compulsory vaccination: sexual sterilization liberties pertaining to education (of teachers, parents, pupils) liberties safeguarded by the first eight amendments liberty of contract (labor relations) in general laws regulating hours of labor laws regulating labor in mines laws prohibiting employment of children in hazardous occupations laws regulating payment of wages minimum wage laws workmen's compensation laws collective bargaining regulation of charges; business affected with a public interest history nebbia _v._ new york judicial review of publicly determined rates and charges development limitations on judicial review ben avon case history of the valuation question regulation of public utilities (other than rates) in general compulsory expenditures grade crossings and other expenditures by railroads compellable services intercompany railway service intercompany discriminatory service charges safety regulations applicable to railroads liabilities and penalties regulation of corporations, business, professions, and trades domestic corporations foreign corporations business in general laws prohibiting trusts, discrimination, restraint of trade statutes preventing fraud in sale of goods blue sky laws; laws regulating boards of trade, etc. trading stamps banking loans, interest, assignments insurance professions, trades, occupations pharmacies miscellaneous business, professions, trades, and occupations protection of resources of the state oil and gas protection of property damaged by mining or drilling of wells water apple and citrus fruit industries fish and game limitations on ownership zoning, building lines, etc. safety regulations police power general health measures protection of water supply garbage sewers food and drugs, etc. milk protection of public morals gambling and lotteries red light districts sunday blue laws intoxicating liquor regulation of motor vehicles and motor carriers succession to property administration of estates abandoned property vested rights, remedial rights; political candidacy man's best friend control of local units of government taxation in general public purpose other considerations affecting validity: excessive burden; ration of amount to benefit received estate, gift and inheritance taxes other types of taxes income taxes franchise taxes severance taxes real property taxes (assessment) real property taxes (special assessments) jurisdiction to tax land tangible personalty intangible personalty general taxes on intangibles sustained taxes on intangibles invalidated transfer taxes (inheritance, estate, gift taxes) corporation taxes intangible personal property privilege taxes measured by corporate stock privilege taxes measured by gross receipts taxes on tangible personal property income and other taxes individual incomes incomes of foreign corporations chain store taxes insurance company taxes procedure in taxation in general notice and hearing in relation to general taxes notice and hearing in relation to assessments notice and hearing in relation to special assessments sufficiency and manner of giving notice sufficiency of remedy laches collection of taxes eminent domain historical development public use necessity for a taking what constitutes a taking for a public use just compensation uncompensated takings consequential damages limits to the above rule due process in eminent domain notice hearing occupation in advance of condemnation due process in civil proceedings some general criteria ancient usage and uniformity equality due process and judicial process jurisdiction in general how perfected: by voluntary appearance or service of process service of process in actions in personam: individuals, resident and nonresident suits in personam suability of foreign corporations service of process actions in rem--proceedings against land actions in rem--attachment proceedings actions in rem--corporations, estates, trusts, etc. actions in rem--divorce proceedings misnomer of defendant--false return, etc. notice and hearing legislative proceedings administrative proceedings statutory proceedings judicial proceedings sufficiency of notice and hearing power of states to regulate procedure generally pleading and practice commencement of actions pleas in abatement defenses amendments and continuances costs, damages, and penalties statutes of limitation evidence and presumptions jury trials: dispensing with trials due process in criminal proceedings general indefinite statutes: right of accused to knowledge of offense abolition of the grand jury right to counsel right to trial by jury self-incrimination: forced confessions unreasonable searches and seizures conviction based on perjured testimony confrontation: presence of the accused; public trial trial by impartial tribunal other attributes of a fair trial excessive bail, cruel and unusual punishment, sentence double jeopardy rights of prisoners access to the courts appeals: corrective process due process: miscellaneous appeals federal review of state procedure equal protection of the laws definition of terms what constitutes state action "persons" "within its jurisdiction" "equal protection of the laws" legislative classifications taxation classifications for the purpose of taxation foreign corporations income taxes inheritance taxes motor vehicle taxes poll taxes property taxes special assessment police power classification administrative discretion alien laws labor relations monopolies punishment for crime segregation political rights procedure general doctrine access to courts corporations expenses of litigation selection of jury section . apportionment of representation in general "indians not taxed" right to vote reduction of state's representation section . disqualification of officers in general section . public debt, etc. section . enforcement scope of the provision rights of citizens amendment section . all persons born or naturalized in the united states, and subject to the jurisdiction thereof, are citizens of the united states and of the state wherein they reside. no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. citizens of the united states kind and sources of citizenship there are three categories of persons who, if subject to the jurisdiction of the united states, are citizens thereof: ( ) those who are born citizens, of whom there are two classes, those who are born in the united states and those who are born abroad of american parentage; ( ) those who achieve citizenship by qualifying for it in accordance with the naturalization statutes; ( ) those who have citizenship thrust upon them, such as the members of certain indian tribes and the inhabitants of certain dependencies of the united states. in the present connection we are interested in those who are citizens by virtue of birth in the united states.[ ] history in the famous dred scott case,[ ] chief justice taney had ruled that united states citizenship was enjoyed by two classes of individuals: ( ) white persons born in the united states as descendants of "persons, who were at the time of the adoption of the constitution recognized as citizens in the several states and [who] became also citizens of this new political body," the united states of america, and ( ) those who, having been "born outside the dominions of the united states," had migrated thereto and been naturalized therein. the states were competent, he conceded, to confer state citizenship upon anyone in their midst, but could not make the recipient of such status a citizen of the united states. the negro, however, according to the chief justice, was ineligible to attain united states citizenship either from a state or by virtue of birth in the united states, even as a free man descended from a negro residing as a free man in one of the states at the date of ratification of the constitution. that basic document did not contemplate the possibility of negro citizenship.[ ] by the fourteenth amendment this deficiency of the original constitution was cured.[ ] judicial elucidation of the citizenship clause by the decision in in united states _v._ wong kim ark,[ ] all children born in the united states to aliens, even temporary sojourners, if they are not exempt from territorial jurisdiction, are citizens irrespective of race or nationality. but children born in the united states to alien enemies in hostile occupation or to diplomatic representatives of a foreign state, not being "subject to the jurisdiction thereof," i.e., of the united states, are not citizens.[ ] likewise persons born on a public vessel of a foreign country while within the waters of the united states are not considered as having been born within the jurisdiction of the united states, and hence are not citizens thereof.[ ] conversely, a chinese born on the high seas aboard an american vessel of chinese parents residing in the united states was declared not to be a citizen on the ground of not having been born "in the united states."[ ] but a child who was born in like circumstances of parents who were citizens of the united states was declared, shortly before the civil war, to be a citizen thereof.[ ] national and state citizenship with the ratification of the fourteenth amendment a distinction between citizenship of the united states and citizenship of a state was clearly recognized and established. "not only may a man be a citizen of the united states without being a citizen of a state, but an important element is necessary to convert the former into the latter. he must reside within the state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the united states to be a citizen of the union. it is quite clear, then, that there is a citizenship of the united states, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual."[ ] national citizenship, although not created by this amendment, was thereby made "paramount and dominant."[ ] corporations citizens of the united states within the meaning of this article must be natural and not artificial persons; a corporate body is not a citizen of the united states.[ ] privileges and immunities purpose and early history of the clause unique among constitutional provisions, the privileges and immunities clause of the fourteenth amendment enjoys the distinction of having been rendered a "practical nullity" by a single decision of the supreme court rendered within five years after its ratification. in the slaughter-house cases[ ] a bare majority of the court frustrated the aims of the most aggressive sponsors of this clause, to whom was attributed an intention to centralize "in the hands of the federal government large powers hitherto exercised by the states" with a view to enabling business to develop unimpeded by state interference. this expansive alteration of the federal system was to have been achieved by converting the rights of the citizens of each state as of the date of the adoption of the fourteenth amendment into privileges and immunities of united states citizenship and thereafter perpetuating this newly defined _status quo_ through judicial condemnation of any state law challenged as "abridging" any one of the latter privileges. to have fostered such intentions, the court declared, would have been "to transfer the security and protection of all the civil rights * * * to the federal government, * * * to bring within the power of congress the entire domain of civil rights heretofore belonging exclusively to the states," and to "constitute this court a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment * * * [the effect of] so great a departure from the structure and spirit of our institutions; * * * is to fetter and degrade the state governments by subjecting them to the control of congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; * * * we are convinced that no such results were intended by the congress * * *, nor by the legislatures * * * which ratified" this amendment, and that the sole "pervading purpose" of this and the other war amendments was "the freedom of the slave race." conformably to these conclusions the court advised the new orleans butchers that the louisiana statute conferring on a single corporation a monopoly of the business of slaughtering cattle abrogated no rights possessed by them as united states citizens and that insofar as that law interfered with their claimed privilege of pursuing the lawful calling of butchering animals, the privilege thus terminated was merely one of "those which belonged to the citizens of the states as such, and" that these had been "left to the state governments for security and protection" and had not been by this clause "placed under the special care of the federal government." the only privileges which the latter clause expressly protected against state encroachment were declared to be those "which owe their existence to the federal government, its national character, its constitution, or its laws."--privileges, indeed, which had been available to united states citizens even prior to the adoption of the fourteenth amendment; and inasmuch as under the principle of federal supremacy no state ever was competent to interfere with their enjoyment, the privileges and immunities clause of the fourteenth amendment was thereby reduced to a superfluous reiteration of a prohibition already operative against the states.[ ] privileges and immunities of citizens of the united states although the court has expressed a reluctance to attempt a definitive enumeration of those privileges and immunities of united states citizens such as are protected against state encroachment, it nevertheless felt obliged in the slaughter-house cases "to suggest some which owe their existence to the federal government, its national character, its constitution, or its laws." among those then identified were the following: right of access to the seat of government, and to the seaports, subtreasuries, land offices, and courts of justice in the several states; right to demand protection of the federal government on the high seas, or abroad; right of assembly and privilege of the writ of _habeas corpus_; right to use the navigable waters of the united states; and rights secured by treaty.[ ] in a later listing in twining _v._ new jersey,[ ] decided in , the court recognized "among the rights and privileges" of national citizenship the following: the right to pass freely from state to state;[ ] the right to petition congress for a redress of grievances;[ ] the right to vote for national officers;[ ] the right to enter public lands;[ ] the right to be protected against violence while in the lawful custody of a united states marshal;[ ] and the right to inform the united states authorities of violations of its laws.[ ] earlier in a decision not referred to in the aforementioned enumeration, the court had also acknowledged that the carrying on of interstate commerce is "a right which every citizen of the united states is entitled to exercise."[ ] during the past fifteen years this clause has been accorded somewhat uneven treatment by the court which, on two occasions at least, has manifested a disposition to magnify the restraint which it imposes on state action by enlarging previous enumerations of the privileges protected thereby. in hague _v._ c.i.o.,[ ] decided in , the court affirmed that freedom to use municipal streets and parks for the dissemination of information concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a united states citizen. the latter privilege was deemed to have been abridged by city officials who acted in pursuance of a void ordinance which authorized a director of safety to refuse permits for parades or assemblies on streets or parks whenever he believed riots could thereby be avoided and who forcibly evicted from their city union organizers who sought to use the streets and parks for the aforementioned purposes.[ ] again in edwards _v._ california,[ ] four justices[ ] who concurred in the judgment that a california statute restricting the entry of indigent migrants was unconstitutional preferred to rest their decision on the ground that the act interfered with the right of citizens to move freely from state to state. in thus rejecting the commerce clause, relied on by the majority as the basis for disposing of this case, the minority thereby resurrected an issue first advanced in the old decision of crandall _v._ nevada[ ] and believed to have been resolved in favor of the commerce clause by helson and randolph _v._ kentucky.[ ] colgate _v._ harvey,[ ] however, which was decided in and overruled in ,[ ] represented the first attempt by the court since adoption of the fourteenth amendment to convert the privileges and immunities clause into a source of protection of other than those "interests growing out of the relationship between the citizen and the national government." here the court declared that the right of a citizen, resident in one state, to contract in another, to transact any lawful business, or to make a loan of money, in any state other than that in which the citizen resides was a privilege of national citizenship which was abridged by a state income tax law excluding from taxable income interest received on money loaned within the state.[ ] whether or not this overruled precedent is again to be revived and the privileges and immunities clause again placed in readiness for further expansion cannot yet be determined with assurance; but in oyama _v._ california,[ ] decided in , the court, in a single sentence, affirmed the contention of a native-born youth that california's alien land law, applied so as to work a forfeiture of property purchased in his name with funds advanced by his parent, a japanese alien ineligible to citizenship and precluded from owning land by the terms thereof, deprived him "of his privileges as an american citizen." in none of the previous enumerations has the right to acquire and retain property been set forth as one of the privileges of american citizenship protected against state abridgment; nor is any connection readily discernible between this right and the "relationship between the citizen and the national government." however, the right asserted by oyama was supported by a "federal statute enacted before the fourteenth amendment" which provided that "all citizens of the united states shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to * * * purchase, * * * and hold * * * real * * * property."[ ] privileges held not within the protection of the clause in the following cases state action was upheld against the challenge that it abridged the immunities or privileges of citizens of the united states: ( ) statute limiting hours of labor in mines.[ ] ( ) statute taxing the business of hiring persons to labor outside the state.[ ] ( ) statute requiring employment of only licensed mine managers and examiners, and imposing liability on the mine owner for failure to furnish a reasonably safe place for workmen.[ ] ( ) statute restricting employment under public works of the state to citizens of the united states, with a preference to citizens of the state.[ ] ( ) statute making railroads liable to employees for injuries caused by negligence of fellow servants, and abolishing the defense of contributory negligence.[ ] ( ) statute prohibiting a stipulation against liability for negligence in delivery of interstate telegraph messages.[ ] ( ) refusal of state court to license a woman to practice law.[ ] ( ) law taxing in the hands of a resident citizen a debt owing from a resident of another state and secured by mortgage of land in the debtors' state.[ ] ( ) statutes regulating the manufacture and sale of intoxicating liquors.[ ] ( ) statute regulating the method of capital punishment.[ ] ( ) statute restricting the franchise to male citizens.[ ] ( ) statute requiring persons coming into a state to make a declaration of intention to become citizens and residents thereof before being permitted to register as voters.[ ] ( ) statute restricting dower, in case wife at time of husband's death is a nonresident, to lands of which he died seized.[ ] ( ) statute restricting right to jury trial in civil suits at common law.[ ] ( ) statute restricting drilling or parading in any city by any body of men without license of the governor. "the right voluntarily to associate together as a military company or organization, or to drill * * *, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship."[ ] ( ) provision for prosecution upon information, and for a jury (except in capital cases) of eight persons.[ ] upon an extended review of the cases, the court held that "the privileges and immunities of citizens of the united states do not necessarily include all the rights protected by the first eight amendments to the federal constitution against the powers of the federal government"; and specifically, that the right to be tried for an offense only upon indictment, and by a jury of , rests with the state governments and is not protected by the fourteenth amendment. "those are not distinctly privileges or immunities [of national citizenship] where everyone has the same as against the federal government, whether citizen or not." similarly, freedom from testimonial compulsion, or self-incrimination, is not "an immunity that is protected by the fourteenth amendment against state invasion."[ ] ( ) statute penalizing the becoming or remaining a member of any oath-bound association (other than benevolent orders, etc.,) with knowledge that the association has failed to file its constitution and membership lists. the privilege of remaining a member of such an association, "if it be a privilege arising out of citizenship at all," is an incident of state rather than united states citizenship.[ ] ( ) statute allowing a state to appeal in criminal cases for errors of law and to retry the accused.[ ] ( ) statute making the payment of poll taxes a prerequisite to the right to vote.[ ] ( ) statute whereby deposits in banks outside the state are taxed at ¢ per $ and deposits in banks within the state are taxed at ¢ per $ . "* * * the right to carry out an incident to a trade, business or calling such as the deposit of money in banks is not a privilege of national citizenship."[ ] ( ) the right to become a candidate for state office is a privilege of state citizenship, not national citizenship.[ ] ( ) the illinois election code which requires that a petition to form and nominate candidates for a new political party be signed by at least voters from each of at least of the counties in the state, notwithstanding that % of the voters reside in only one county and %, in the most populous counties.[ ] due process of law clause historical development although many years after ratification the court ventured the not very informative observation that the fourteenth amendment "operates to extend * * * the same protection against arbitrary state legislation, affecting life, liberty and property, as is offered by the fifth amendment,"[ ] and that "ordinarily if an act of congress is valid under the fifth amendment it would be hard to say that a state law in like terms was void under the fourteenth,"[ ] the significance of the due process clause as a restraint on state action appears to have been grossly underestimated by litigants no less than by the court in the years immediately following its adoption. from the outset of our constitutional history due process of law as it occurs in the fifth amendment had been recognized as a restraint upon government, but, with one conspicuous exception,[ ] only in the narrower sense that a legislature must provide "due process for the enforcement of law"; and it was in accordance with this limited appraisal of the clause that the court disposed of early cases arising thereunder. thus, in the slaughter-house cases,[ ] in which the clause was timidly invoked by a group of butchers challenging on several grounds the validity of a louisiana statute which conferred upon one corporation the exclusive privilege of butchering cattle in new orleans, the court declared that the prohibition against a deprivation of property "has been in the constitution since the adoption of the fifth amendment, as a restraint upon the federal power. it is also to be found in some form of expression in the constitutions of nearly all the states, as a restraint upon the power of the states. * * * we are not without judicial interpretation, therefore, both state and national, of the meaning of this clause. and it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the state of louisiana upon the exercise of their trade by the butchers of new orleans be held to be a deprivation of property within the meaning of that provision."[ ] four years later, in munn _v._ illinois,[ ] the court again refused to interpret the due process clause as invalidating state legislation regulating the rates charged for the transportation and warehousing of grain. overruling contentions that such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its use and by transferring to the public an interest in a private enterprise, chief justice waite emphasized that "the great office of statutes is to remedy defects in the common law as they are developed, * * * we know that this power [of rate regulation] may be abused; but that is no argument against its existence. for protection against abuses by legislatures the people must resort to the polls, not to the courts."[ ] deploring such attempts, nullified consistently in the preceding cases, to convert the due process clause into a substantive restraint on the powers of the states, justice miller in davidson _v._ new orleans[ ] obliquely counseled against a departure from the conventional application of the clause, albeit he acknowledged the difficulty of arriving at a precise, all inclusive, definition thereof. "it is not a little remarkable," he observed, "that while this provision has been in the constitution of the united states, as a restraint upon the authority of the federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. but while it has been part of the constitution, as a restraint upon the power of the states, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, or property without due process of law. there is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the fourteenth amendment. in fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. if, therefore, it were possible to define what it is for a state to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the state, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law. but, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, * * *, in the ascertaining of the intent and application of such an important phrase in the federal constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, * * *"[ ] in thus persisting in its refusal to review, on other than procedural grounds, the constitutionality of state action, the court was rejecting additional business; but a bare half-dozen years later, in again reaching a result in harmony with past precedents, the justices gave fair warning of the imminence of a modification of their views. thus, after noting that the due process clause, by reason of its operation upon "all the powers of government, legislative as well as executive and judicial," could not be appraised solely in terms of the "sanction of settled usage," justice mathews, speaking for the court in hurtado _v._ california,[ ] declared that, "arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. and the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. the enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government."[ ] thus were the states put on notice that every species of state legislation, whether dealing with procedural or substantive rights, was subject to the scrutiny of the court when the question of its essential justice is raised. police power: liberty: property what induced the court to dismiss its fears of upsetting the balance in the distribution of powers under the federal system and to enlarge its own supervisory powers over state legislation were the appeals more and more addressed to it for adequate protection of property rights against the remedial social legislation which the states were increasingly enacting in the wake of industrial expansion. at the same time the added emphasis on the due process clause which satisfaction of these requests entailed afforded the court an opportunity to compensate for its earlier virtual nullification of the privileges and immunities clause of the amendment. so far as such modification of its position needed to be justified in legal terms, theories concerning the relation of government to private rights were available to demonstrate the impropriety of leaving to the state legislatures the same ample range of police power they had enjoyed prior to the civil war. preliminary, however, to this consummation the slaughter-house cases and munn _v._ illinois had to be overruled in part, at least, and the views of the dissenting justices in those cases converted into majority doctrine. about twenty years were required to complete this process, in the course of which the restricted view of the police power advanced by justice field in his dissent in munn _v._ illinois,[ ] namely, that it is solely a power to prevent injury, was in effect ratified by the court itself. this occurred in , in mugler _v._ kansas,[ ] where the power was defined as embracing no more than the power to promote public health, morals, and safety. during the same interval, ideas embodying the social compact and natural rights, which had been espoused by justice bradley in his dissent in the slaughter-house cases,[ ] had been transformed tentatively into constitutionally enforceable limitations upon government,[ ] with the consequence that the states, in exercising their police power, could foster only those purposes of health, morals, and safety which the court had enumerated and could employ only such means as would not unreasonably interfere with the fundamental natural rights of liberty and property, which justice bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose.[ ] so having narrowed the scope of the state's police power in deference to the natural rights of liberty and property, the court next proceeded to read into the latter currently accepted theories of _laissez faire_ economics, reinforced by the doctrine of evolution as elaborated by herbert spencer, to the end that "liberty", in particular, became synonymous with governmental hands-off in the field of private economic relations. in budd _v._ new york,[ ] decided in , justice brewer in a dictum declared: "the paternal theory of government is to me odious. the utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government." and to implement this point of view the court next undertook to water down the accepted maxim that a state statute must be presumed to be valid until clearly shown to be otherwise.[ ] the first step was taken with the opposite intention. this occurred in munn _v._ illinois,[ ] where the court, in sustaining the legislation before it, declared: "for our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed."[ ] ten years later, in mugler _v._ kansas[ ] this procedure was improved upon, and a state-wide anti-liquor law was sustained on the basis of the proposition that deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the court to be able to take notice of them; that is to say, for the court to review and appraise the considerations which had induced the legislature to enact the statute in the first place.[ ] however, in powell _v._ pennsylvania,[ ] decided the following year, the court, being confronted with a similar act involving oleomargarine, concerning which it was unable to claim a like measure of common knowledge, fell back upon the doctrine of presumed validity, and declaring that "it does not appear upon the face of the statute, or from any of the facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, * * *"[ ] sustained the measure. in contrast to the presumed validity rule under which the court ordinarily is not obliged to go beyond the record of evidence submitted by the litigants in determining the validity of a statute, the judicial notice principle, as developed in mugler _v._ kansas, carried the inference that unless the court, independently of the record, is able to ascertain the existence of justifying facts accessible to it by the rules governing judicial notice, it will be obliged to invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be subserved by the latter; namely, health, morals, or safety. for appraising state legislation affecting neither liberty nor property, the court found the rule of presumed validity quite serviceable; but for invalidating legislation constituting governmental interference in the field of economic relations, and, more particularly, labor-management relations, the court found the principle of judicial notice more advantageous. this advantage was enhanced by the disposition of the court, in litigation embracing the latter type of legislation, to shift the burden of proof from the litigant charging unconstitutionality to the state seeking enforcement. to the latter was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact "authorized" by the constitution and not merely that the latter did not expressly prohibit enactment of the same. liberty of contract--labor relations although occasionally acknowledging in abstract terms that freedom of contract is not absolute but is subject to restraint by the state in the exercise of its police powers, the court, in conformity with the aforementioned theories of economics and evolution, was in fact committed to the principle that freedom of contract is the general rule and that legislative authority to abridge the same could be justified only by exceptional circumstances. to maintain such abridgments at a minimum, the court intermittently employed the rule of judicial notice in a manner best exemplified by a comparison of the early cases of holden _v._ hardy[ ] and lochner _v._ new york,[ ] decisions which bear the same relation to each other as powell _v._ pennsylvania[ ] and mugler _v._ kansas.[ ] in holden _v._ hardy, decided in , the court, in reliance upon the principle of presumed validity, allowed the burden of proof to remain with those attacking the validity of a statute and upheld a utah act limiting the period of labor in mines to eight hours per day. taking cognizance of the fact that labor below the surface of the earth was attended by risk to person and to health and for these reasons had long been the subject of state intervention, the court registered its willingness to sustain a limitation on freedom of contract which a state legislature had adjudged "necessary for the preservation of health of employees," and for which there were "reasonable grounds for believing that * * * [it was] supported by the facts."[ ] seven years later, however, a radically altered court was predisposed in favor of the doctrine of judicial notice, through application of which it arrived at the conclusion, in lochner _v._ new york, that a law restricting employment in bakeries to ten hours per day and hours per week was an unconstitutional interference with the right of adult laborers, _sui juris_, to contract with respect to their means of livelihood. denying that in so holding that the court was in effect substituting its own judgment for that of the legislature, justice peckham, nevertheless, maintained that whether the act was within the police power of the state was a "question that must be answered by the court"; and then, in disregard of the accumulated medical evidence proffered in support of the act, uttered the following observation: "in looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some trades, and is also vastly more healthy than still others. to the common understanding the trade of a baker has never been regarded as an unhealthy one. * * * it might be safely affirmed that almost all occupations more or less affect the health. * * * but are we all, on that account, at the mercy of the legislative majorities?"[ ] of two dissenting opinions filed in the case, one, prepared by justice harlan, stressed the abundance of medical testimony tending to show that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly prone to suffer irritations of the eyes, lungs, and bronchial passages; and concluded that the very existence of such evidence left the reasonableness of the measure under review open to discussion and that the the latter fact, of itself, put the statute within legislative discretion. "'responsibility,' according to justice harlan, 'therefore, rests upon the legislators, not upon the courts. no evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives. * * * the public interest imperatively demand--that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably beyond all question in violation of the fundamental law of the constitution.'"[ ] the second dissenting opinion written by justice holmes has received the greater measure of attention, however, for the views expressed therein were a forecast of the line of reasoning to be followed by the court some decades later. according to justice holmes: "this case is decided upon an economic theory which a large part of the country does not entertain. if it were a question whether i agreed with that theory, i should desire to study it further and long before making up my mind. but i do not conceive that to be my duty, because i strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. it is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. * * * the fourteenth amendment does not enact mr. herbert spencer's social statics. * * * but a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of _laissez faire_. it is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the constitution * * * i think that the word 'liberty,' in the fourteenth amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."[ ] in part, justice holmes's criticism of his colleagues was unfair, for his "rational and fair man" could not function in a vacuum, and, in appraising the constitutionality of state legislation, could no more avoid being guided by his preferences or "economic predilections" than were the justices constituting the majority. insofar as he was resigned to accept the broader conception of due process of law in preference to the historical concept thereof as pertaining to the enforcement rather than the making of law and did not affirmatively advocate a return to the maxim that the possibility of abuse is no argument against possession of a power, justice holmes, whether consciously or not, was thus prepared to observe, along with his opponents in the majority, the very practices which were deemed to have rendered inevitable the assumption by the court of a "perpetual censorship" over state legislation. the basic distinction, therefore, between the positions taken by justice peckham for the majority and justice holmes, for what was then the minority, was the espousal of the conflicting doctrines of judicial notice by the former and of presumed validity by the latter. although the holmes dissent bore fruit in time in the form of the bunting _v._ oregon[ ] and muller _v._ oregon[ ] decisions overruling the lochner case, the doctrinal approach employed in the earlier of these by justice brewer continued to prevail until the depression in the 's. in view of the shift in the burden of proof which application of the principle of judicial notice entailed, counsel defending the constitutionality of social legislation developed the practice of submitting voluminous factual briefs replete with medical or other scientific data intended to establish beyond question a substantial relationship between the challenged statute and public health, safety, or morals. whenever the court was disposed to uphold measures pertaining to industrial relations, such as laws limiting hours[ ] of work, it generally intimated that the facts thus submitted by way of justification had been authenticated sufficiently for it to take judicial cognizance thereof; but whenever it chose to invalidate comparable legislation, such as enactments establishing minimum wages for women and children,[ ] it brushed aside such supporting data, proclaimed its inability to perceive any reasonable connection between the statute and the legitimate objectives of health or safety, and condemned the former as an arbitrary interference with freedom of contract. during the great depression, however, the _laissez faire_ tenet of self-help was supplanted by the belief that it is peculiarly the duty of government to help those who are unable to help themselves; and to sustain remedial legislation enacted in conformity with the latter philosophy, the court had to revise extensively its previously formulated concepts of "liberty" under the due process clause. not only did the court take judicial notice of the demands for relief arising from the depression when it overturned prior holdings and sustained minimum wage legislation,[ ] but in upholding state legislation designed to protect workers in their efforts to organize and bargain collectively, the court virtually had to exclude from consideration the employer's contention that such legislation interfered with his liberty of contract in contravention of the due process clause and to exalt as a fundamental right the correlative liberty of employees, which right the state legislatures were declared to be competent to protect against interference from private sources. to enable these legislatures to balance the equities, that is, to achieve equality in bargaining power between employer and employees, the court thus sanctioned a diminution of liberty in the sense of the employer's freedom of contract and a corresponding increase in the measure of liberty enjoyable by the workers. to the extent that it acknowledged that liberty of the individual may be infringed by the coercive conduct of other individuals no less than by the arbitrary action of public officials, the court in effect transformed the due process clause into a source of encouragement to state legislatures to intervene affirmatively by way of mitigating the effects of such coercion. by such modification of its views, liberty, in the constitutional sense of freedom resulting from restraint upon government, was replaced by the civil liberty which an individual enjoys by virtue of the restraints which government, in his behalf, imposes upon his neighbors. definitions "persons" defined notwithstanding the historical controversy that has been waged as to whether the framers of the fourteenth amendment intended the word, "person," to mean only natural persons, or whether the word, "person," was substituted for the word, "citizen," with a view to protecting corporations from oppressive state legislation,[ ] the supreme court, as early as the granger cases,[ ] decided in , upheld on the merits various state laws without raising any question as to the status of railway corporation-plaintiffs to advance due process contentions. there is no doubt that a corporation may not be deprived of its property without due process of law;[ ] and although prior decisions have held that the "liberty" guaranteed by the fourteenth amendment is the liberty of natural, not artificial, persons,[ ] nevertheless a newspaper corporation was sustained, in , in its objection that a state law deprived it of liberty of press.[ ] as to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship.[ ] ordinarily, the mere interest of an official as such, in contrast to an actual injury sustained by a natural or artificial person through invasion of personal or property rights, has not been deemed adequate to enable him to invoke the protection of the fourteenth amendment against state action.[ ] similarly, municipal corporations are viewed as having no standing "to invoke the provisions of the fourteenth amendment in opposition to the will of their creator," the state.[ ] however, state officers are acknowledged to have an interest, despite their not having sustained any "private damage," in resisting an "endeavor to prevent the enforcement of laws in relation to which they have official duties," and, accordingly, may apply to federal courts for the "review of decisions of state courts declaring state statutes which [they] seek to enforce to be repugnant to the" fourteenth amendment.[ ] due process and the police power definition.--the police power of a state today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the state.[ ] limitations on the police power.--because the police power of a state is the least limitable of the exercises of government, such limitations as are applicable thereto are not readily definable. being neither susceptible of circumstantial precision, nor discoverable by any formula, these limitations can be determined only through appropriate regard to the subject matter of the exercise of that power.[ ] "it is settled [however] that neither the 'contract' clause nor the 'due process' clause had the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise."[ ] insofar as the police power is utilized by a state, the means employed to effect its exercise can be neither arbitrary nor oppressive, but must bear a real and substantial relation to an end which is public, specifically, the public health, public safety, or public morals, or some other phase of the general welfare.[ ] the general rule is that if a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid.[ ] yet where mutual advantage is a sufficient compensation, an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose seems to be a private use.[ ] on the other hand, mere "cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a state to exert its reserved power or its police power."[ ] moreover, it is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking without due process of law.[ ] similarly, initial compliance with a regulation which is valid when adopted occasions no forfeiture of the right to protest when that regulation subsequently loses its validity by becoming confiscatory in its operation.[ ] "liberty" in general definition.--"while * * * [the] court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. without doubt, it denotes not merely freedom from bodily restraint but also right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship god according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."[ ] personal liberty: compulsory vaccination: sexual sterilization.--personal liberty is not infringed by a compulsory vaccination law[ ] enacted by a state or its local subdivisions pursuant to the police power for the purpose of protecting inhabitants against the spread of smallpox. "the principle that sustains compulsory vaccination is [also] broad enough to cover" a statute providing for sexual sterilization of inmates of state supported institutions who are found to be afflicted with an hereditary form of insanity or imbecility.[ ] equally constitutional is a statute which provides for the commitment, after probate proceedings, of a psychopathic personality, defined by the state court as including those persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to commit injury.[ ] however, a person cannot be deprived of his liberty under a vague statute which subjected to fine or imprisonment, as a "gangster," any one not engaged in any lawful occupation, known to be a member of a gang consisting of two or more persons, and who had been convicted of a crime in any state in the union.[ ] liberties pertaining to education (of teachers, parents, pupils).--a state law forbidding the teaching in any private denominational, parochial, or public school, of any modern language, other than english, to any child who has not successfully passed the eighth grade was declared, in meyer _v._ nebraska[ ] to be an unconstitutional interference with the right of a foreign language teacher to teach and "of parents to engage him so to instruct their children." although the court did incorporate into its opinion in this case the general definition of "liberty" set forth above, its holding was substantially a reaffirmation of the liberty, in this instance of the teacher, to pursue a lawful calling free and clear of arbitrary restraints imposed by the state. in pierce _v._ society of the sisters,[ ] the court elaborated further upon the liberty of parents when it declared that a state law requiring compulsory public school education of children, aged eight to sixteen, "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."[ ] as to a student, neither his liberty to pursue his happiness nor his property or property rights were infringed when he was denied admission to a state university for refusing to comply with a law requiring renunciation of allegiance to, or affiliation with, a greek letter fraternity. the right to attend such an institution was labelled, not an absolute, but a conditional right; inasmuch as the school was wholly under the control of the state, the latter was competent to enact measures such as the present one regulating internal discipline thereat.[ ] similarly, "the fourteenth amendment as a safeguard of 'liberty' [does not] confer the right to be students in the state university free from obligation to take military training as one of the conditions of attendance."[ ] liberties safeguarded by the first eight amendments.--in what has amounted to a constitutional revolution, the court, since the end of world war i, has substantially enlarged the meaning of the term, "liberty," appearing in the due process clause of the fourteenth amendment. as a consequence of this altered interpretation, states and their local subdivisions have been restrained in their attempts to interfere with the press, or with the freedom of speech, assembly, or religious precepts of their inhabitants, and prevented from withholding from persons charged with commission of a crime certain privileges deemed essential to the enjoyment of a "fair trial." cases revealing to what extent there has been incorporated into the "liberty" of the due process clause of the fourteenth amendment the substance of the first amendment are set forth in the discussion presented under the latter amendment; whereas the decisions indicating the scope of the absorption into the fourteenth amendment of the procedural protection afforded by the fourth, fifth, sixth, and eighth amendments are included in the material hereinafter presented under the subtitle, criminal proceedings. liberty of contract (labor relations) in general.--liberty of contract, a concept originally advanced by justices bradley and field in the slaughter-house cases,[ ] was elevated to the status of accepted doctrine in in allgeyer _v._ louisiana.[ ] applied repeatedly in subsequent cases as a restraint on state power, freedom of contract has also been alluded to as a property right, as is evident in the language of the court in coppage _v._ kansas:[ ] "included in the right of personal liberty and the right of private property--partaking of the nature of each--is the right to make contracts for the acquisition of property. chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. if this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense." however, by a process of reasoning that was almost completely discarded during the depression, the court was nevertheless able, prior thereto, to sustain state ameliorative legislation by acknowledging that freedom of contract was "a qualified and not an absolute right. * * * liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. * * * in dealing with the relation of the employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression."[ ] through observance of such qualifying statement the court was induced to uphold the following types of labor legislation. laws regulating hours of labor.--the due process clause has been construed as permitting enactment by the states of laws: ( ) limiting the hours of labor in mines and smelters to eight hours per day;[ ] ( ) prescribing eight hours a day or a maximum of hours per week as a limitation of the hours at which women may labor;[ ] and ( ) providing that no person shall work in any mill, etc., more than ten hours per day (with exceptions) but permitting overtime, not to exceed three hours a day, on condition that it is paid at the rate of one and one-half times the regular wage.[ ] because of the almost plenary powers of the state and its municipal subdivisions to determine the conditions under which work shall go forward on public projects, statutes limiting the hours of labor on public works were also upheld at a relatively early date.[ ] laws regulating labor in mines.--the regulation of mines being so patently within the police power, states have been upheld in the enactment of laws providing for appointment of mining inspectors and requiring payment of their fees by mine owners,[ ] compelling employment of only licensed mine managers and mine examiners, and imposing upon mine owners liability for the wilful failure of their manager and examiner to furnish a reasonably safe place for workmen.[ ] other similar regulations which have been sustained have included laws requiring that entries be of a specified width,[ ] that boundary pillars be installed between adjoining coal properties as a protection against flood in case of abandonment,[ ] and that washhouses be provided for employees.[ ] laws prohibiting employment of children in hazardous occupations.--to make effective its prohibition against the employment of persons under years of age in dangerous occupations, a state has been held to be competent to require employers at their peril to ascertain whether their employees are in fact below that age.[ ] laws regulating payment of wages.--no unconstitutional deprivation of liberty of contract was deemed to have been occasioned by a statute requiring redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages.[ ] nor was any constitutional defect discernible in laws requiring railroads to pay their employees semimonthly[ ] and to pay them on the day of discharge, without abatement or reduction, any funds due them.[ ] similarly, freedom of contract was held not to be infringed by an act requiring that miners, whose compensation was fixed on the basis of weight, be paid according to coal in the mine car rather than at a certain price per ton for coal screened after it has been brought to the surface, and conditioning such payment on the presence of no greater percentage of dirt or impurities than that ascertained as unavoidable by the state industrial commission.[ ] minimum wage laws.--the theory that a law prescribing minimum wages for women and children violates due process by impairing freedom of contract was finally discarded in .[ ] the current theory of the court, particularly when labor is the beneficiary of legislation, was recently stated by justice douglas for a majority of the court, in the following terms: "our recent decisions make plain that we do not sit as a superlegislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. the legislative power has limits * * *. but the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided."[ ] proceeding from this basis the court sustained a missouri statute giving employees the right to absent themselves four hours on election day, between the opening and closing of the polls, without deduction of wages for their absence. it was admitted that this was a minimum wage law, but, said justice douglas, "the protection of the right of suffrage under our scheme of things is basic and fundamental," and hence within the police power. "of course," the justice added, "many forms of regulation reduce the net return of the enterprise * * * most regulations of business necessarily impose financial burdens on the enterprise for which no compensation is paid. those are part of the costs of our civilization. extreme cases are conjured up where an employer is required to pay wages for a period that has no relation to the legitimate end. those cases can await decision as and when they arise. the present law has no such infirmity. it is designed to eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote. the public welfare is a broad and inclusive concept. the moral, social, economic, and physical well-being of the community is one part of it; the political well-being, another. the police power which is adequate to fix the financial burden for one is adequate for the other. the judgment of the legislature that time out for voting should cost the employee nothing may be a debatable one. it is indeed conceded by the opposition to be such. but if our recent cases mean anything, they leave debatable issues as respects business, economic, and social affairs to legislative decision. we could strike down this law only if we returned to the philosophy of the _lochner_, _coppage_, and _adkins_ cases."[ ] workmen's compensation laws.--"this court repeatedly has upheld the authority of the states to establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employer's liability for personal injuries to the employee.[ ] * * * these decisions have established the propositions that the rules of law concerning the employer's responsibility for personal injury or death of an employee arising in the course of employment are not beyond alteration by legislation in the public interest; that no person has a vested right entitling him to have these any more than other rules of law remain unchanged for his benefit; and that, if we exclude arbitrary and unreasonable changes, liability may be imposed upon the employer without fault, and the rules respecting his responsibility to one employee for the negligence of another and respecting contributory negligence and assumption of risk are subject to legislative change."[ ] accordingly, a state statute which provided an exclusive system to govern the liabilities of employers and the rights of employees and their dependents, in respect of compensation for disabling injuries and death caused by accident in certain hazardous occupations,[ ] was held not to work a deprivation of property without due process of law in rendering the employer liable irrespective of the doctrines of negligence, contributory negligence, assumption of risk, and negligence of fellow-servants, nor in depriving the employee, or his dependents, of the higher damages which, in some cases, might be rendered under these doctrines.[ ] likewise, an act which allowed an injured employee an election of remedies permitting restricted recovery under a compensation law although guilty of contributory negligence, and full compensatory damages under the employers' liability act did not deprive an employer of his property without due process of law.[ ] similarly, an elective statute has been sustained which provided that, in actions against employers rejecting the system, the inquiry should be presumed to have resulted directly from the employer's negligence and the burden of rebutting said presumption shall rest upon the latter.[ ] contracts limiting liability for injuries, consummated in advance of the injury received, may be prohibited by the state, which may further stipulate that subsequent acceptance of benefits under such contracts shall not constitute satisfaction of a claim for injuries thereafter sustained.[ ] also, as applied to a nonresident alien employee hired within the state but injured on the outside, an act forbidding any contracts exempting employers from liability for injuries outside the state has been construed as not denying due process to the employer.[ ] the fact that a state, after having allowed employers to cover their liability with a private insurer, subsequently withdrew that privilege and required them to contribute to a state insurance fund was held to effect no unconstitutional deprivation as applied to an employer who had obtained protection from an insurance company before this change went into effect.[ ] likewise, as long as the right to come under a workmen's compensation statute is optional with an employer, the latter, having chosen to accept benefits thereof, is estopped from attempting to escape its burdens by challenging the constitutionality of a provision thereof which makes the finding of fact of an industrial commission conclusive if supported by any evidence regardless of its preponderance.[ ] when, by the terms of a workmen's compensation statute, the wrongdoer, in case of wrongful death, is obliged to indemnify the employer or the insurance carrier of the employer of the decedent, in the amount which the latter were required under said act to contribute into special compensation funds, no unconstitutional deprivation of the wrongdoer's property was discernible.[ ] by the same course of reasoning neither the employer nor the carrier was held to have been denied due process by another provision in an act requiring payments by them, in case an injured employee dies without dependents, into special funds to be used for vocational rehabilitation or disability compensation of injured workers of other establishments.[ ] compensation also need not be based exclusively on loss of earning power, and an award authorized by statute for injuries resulting in disfigurement of the face or head, independent of compensation for inability to work, has been conceded to be neither an arbitrary nor oppressive exercise of the police power.[ ] collective bargaining.--during the 's, liberty, in the sense of freedom of contract, judicially translated into what one justice has labelled the allgeyer-lochner-adair-coppage doctrine,[ ] lost its potency as an obstacle to the enforcement of legislation calculated to enhance the bargaining capacity of workers as against that already possessed by their employers. prior to the manifestation, in senn _v._ tile layers protective union,[ ] decided in , of a greater willingness to defer to legislative judgment as to the wisdom and need of such enactments, the court had, on occasion, sustained measures such as one requiring every corporation to furnish, upon request, to any employee, when discharged or leaving its service, a letter, signed by the superintendent or manager, setting forth the nature and duration of his service to the corporation and stating truly the cause of his leaving.[ ] added provisions that such letters shall be on plain paper selected by the employee, signed in ink and sealed, and free from superfluous figures, and words, were also sustained as not amounting to any unconstitutional deprivation of liberty and property.[ ] on the ground that the right to strike is not absolute, the court in a similar manner upheld a statute by the terms of which an officer of a labor union was punished for having ordered a strike for the purpose of enforcing a payment to a former employee of a stale claim for wages.[ ] the significance of the case of senn _v._ tile layers protective union[ ] as an indicator of the range of the alteration of the court's views concerning the constitutionality of state labor legislation derives in part from the fact that the statute upheld therein was not appreciably different from that voided in truax _v._ corrigan.[ ] both statutes were alike in that they withheld the remedy of injunction; but by reason of the fact that the invalidated act did not contain the more liberal and also more precise definition of a labor dispute set forth in the later enactment and, above all, did not affirmatively purport to sanction peaceful picketing only, the court was enabled to maintain that truax _v._ corrigan, insofar as "the statute there in question was * * * applied to legalize conduct which was not simply peaceful picketing," was distinguishable. specifically, the court in the senn case gave its approval to the application of a wisconsin statute which authorized the giving of publicity to labor disputes, declared peaceful picketing and patrolling lawful, and prohibited the granting of injunctions against such conduct to a controversy in which the matter at issue was the refusal of a tiling contractor employing nonunion workmen to sign a closed shop agreement unless a provision requiring him to abstain from working in his business as a tile layer or helper should be eliminated. inasmuch as the enhancement of job opportunities for members of the union was a legitimate objective, the state was held competent to authorize the fostering of that end by peaceful picketing, and the fact that the sustaining of the union in its efforts at peaceful persuasion might have the effect of preventing senn from continuing in business as an independent entrepreneur was declared to present an issue of public policy exclusively for legislative determination.[ ] the policy of many state legislatures in recent years, however, has been to adopt legislation designed to control the abuse of the enormous economic power which previously enacted protective measures enabled labor unions to amass; and it is the constitutionality of such restrictive measures that has lately concerned the court. thus, in railway mail association _v._ corsi,[ ] section of new york's civil rights law which forbids a labor organization to deny any person membership by reason of race, color, or creed, or to deny any member, on similar grounds, equal treatment in designation for employment, promotion, or dismissal by an employer was sustained, when applied to an organization of railway mail clerks, as not interfering unlawfully with the latter's right to choose its members nor abridging its property rights, or liberty of contract. inasmuch as it held "itself out to represent the general business needs of employees" and functioned "under the protection of the state," the union was deemed to have forfeited the right to claim exemption from legislation protecting workers against discriminatory exclusion.[ ] similarly approved as constitutional in lincoln union _v._ northwestern co.[ ] and american federation of labor _v._ american sash co.[ ] were state laws outlawing the closed shop; and when labor unions invoked in their own defense the freedom of contract doctrine that hitherto had been employed to nullify legislation intended for their protection, the court, speaking through justice black announced its refusal "to return, * * * to * * * [a] due process philosophy that has been deliberately discarded. * * * the due process clause," it maintained, does not "forbid a state to pass laws clearly designed to safeguard the opportunity of nonunion workers to get and hold jobs, free from discrimination against them because they are nonunion workers."[ ] also in harmony with the last mentioned pair of cases is auto workers _v._ wisconsin board[ ] in which was upheld enforcement of the wisconsin employment peace act which proscribed as an unfair labor practice efforts of a union, after collective bargaining negotiations had become deadlocked, to coerce an employer through a "slow-down" in production achieved by the irregular, but frequent, calling of union meetings during working hours without advance notice to the employer or notice as to whether or when the employees would return, and without informing him of the specific terms sought by such tactics. "no one," declared the court, can question "the state's power to police coercion by * * * methods" which involve "considerable injury to property and intimidation of other employees by threats."[ ] finally, in giboney _v._ empire storage co.,[ ] the court acknowledged that no violation of the constitution results when a state law forbidding agreements in restraint of trade is construed by state courts as forbidding members of a union of ice peddlers from peacefully picketing a wholesale ice distributor's place of business for the sole purpose of inducing the latter not to sell to nonunion peddlers. regulation of charges; "businesses affected with a public interest" history in endeavoring to measure the impact of the due process clause upon efforts by the states to control the charges exacted by various businesses for their services, the supreme court, almost from the inception of the fourteenth amendment, has devoted itself to the examination of two questions: ( ) whether that clause precluded that kind of regulation of certain types of business, and ( ) the nature of the restraint, if any, which this clause imposes on state control of rates in the case of businesses as to which such control exists. for a brief interval following the ratification of the fourteenth amendment, the supreme court appears to have underestimated the significance of this clause as a substantive restraint on the power of states to fix rates chargeable by an industry deemed appropriately subject to such controls. thus, in munn _v._ illinois,[ ] the first of the "granger" cases, in which maximum charges established by a state legislature for chicago grain elevator companies were challenged, not as being confiscatory in character, but rather as a regulation beyond the power of any state agency to impose, the court, in an opinion that was largely an _obiter dictum_, declared that the due process clause did not operate as a safeguard against oppressive rates, that if regulation was permissible, the severity thereof was within legislative discretion and could be ameliorated only by resort to the polls. not much time was permitted to elapse, however, before the court effected a complete withdrawal from this position; and by [ ] it had fully converted the due process clause into a positive restriction which the judicial branch is duty bound to enforce whenever state agencies seek to impose rates which, in its estimation, are arbitrary or unreasonable. in contrast to the speed with which the court arrived at those above mentioned conclusions, more than fifty years were to elapse before it developed its currently applicable formula for determining the propriety of subjecting specific businesses to state regulation of their prices or charges. prior to , unless a business were "affected with a public interest," control of its prices, rates, or conditions of service was viewed as an unconstitutional deprivation of liberty and property without due process of law. during the period of its application, however, this standard, "business affected with a public interest," never acquired any precise meaning; and as a consequence lawyers were never able to identify all those qualities or attributes which invariably distinguished a business so affected from one not so affected. the best the court ever offered by way of enlightenment was the following classification of businesses subject to regulation, prepared by chief justice taft.[ ] these were said to comprise: "( ) those [businesses] which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. such are the railroads, other common carriers and public utilities. ( ) certain occupations, regarded as exceptional, the public interest attaching to which, recognized from earliest times, has survived the period of arbitrary laws by parliament or colonial legislatures for regulating all trades and callings. such are those of the keepers of inns, cabs and grist mills. * * * ( ) businesses which though not public at their inception may be fairly said to have risen to be such and have become subject in consequence to some government regulation. they have come to hold such a peculiar relation to the public that this is superimposed upon them. in the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly." through application of this now outmoded formula the court found it possible to sustain state laws regulating charges made by grain elevators,[ ] stockyards,[ ] and tobacco warehouses,[ ] and fire insurance rates[ ] and commissions paid to fire insurance agents.[ ] voided, because the businesses sought to be controlled were deemed to be not so affected, were state statutes fixing the price at which gasoline may be sold,[ ] or at which ticket brokers may resell tickets purchased from theatres,[ ] and limiting competition in the manufacture and sale of ice through the withholding of licenses to engage therein.[ ] nebbia _v._ new york in upholding, by a vote of five-to-four, a depression induced new york statute fixing prices at which fluid milk might be sold, the court, in , finally shelved the concept of "a business affected with a public interest."[ ] older decisions, insofar as they negatived a power to control prices in businesses found not "to be clothed with a public use" were now reviewed as resting, "finally, upon the basis that the requirements of due process were not met because the laws were found arbitrary in their operation and effect. price control, like any other form of regulation, is [now] unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty." conceding that "the dairy industry is not, in the accepted sense of the phrase, a public utility"; that is, a "business affected with a public interest," the court in effect declared that price control henceforth is to be viewed merely as an exercise by the state of its police power, and as such is subject only to the restrictions which due process of law imposes on arbitrary interference with liberty and property. nor was the court disturbed by the fact that a "scientific validity" had been claimed for the theories of adam smith relating to the "price that will clear the market." however much the minority might stress the unreasonableness of any artificial state regulation interfering with the determination of prices by "natural forces,"[ ] the majority was content to note that the "due process clause makes no mention of prices" and that "the courts are both incompetent and unauthorized to deal with the wisdom of the policy adopted or the practicability of the law enacted to forward it." having thus concluded that it is no longer the nature of the business which determines the validity of a regulation of its rates or charges but solely the reasonableness of the regulation, the court had little difficulty in upholding, in olsen _v._ nebraska,[ ] a state law prescribing the maximum commission which private employment agencies may charge. rejecting the contentions of the employment agencies that the need for such protective legislation had not been shown, the court held that differences of opinion as to the wisdom, need, or appropriateness of the legislation "suggest a choice which should be left to the states"; and that there was "no necessity for the state to demonstrate before us that evils persist despite the competition" between public, charitable, and private employment agencies. the older case of ribnik _v._ mcbride,[ ] which founded the invalidation of similar legislation upon the now obsolete concept of a "business affected with a public interest" was expressly overruled. judicial review of publicly determined rates and charges development in munn _v._ illinois,[ ] its initial holding concerning the applicability of the fourteenth amendment to governmental price fixing,[ ] the court, not only asserted that governmental regulation of rates charged by public utilities and allied businesses was within the states' police power but added that the determination of such rates by a legislature was conclusive and not subject to judicial review or revision. expanding the range of permissible governmental fixing of prices, the court, in the nebbia case,[ ] more recently declared that prices established for business in general would invite judicial condemnation only if "arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt." the latter standard of judicial appraisal, as will be subsequently noted, represents less of a departure from the principle enunciated in the munn case than that which the court evolved, in the years following , to measure the validity of state imposed public utility rates, and this difference in the judicial treatment of prices and rates accordingly warrants an explanation at the outset. unlike operators of public utilities who, in return for the grant of certain exclusive, virtually monopolistic privileges by the governmental unit enfranchising them, must assume an obligation to provide continuous service, proprietors of other businesses are in receipt of no similar special advantages and accordingly are unrestricted in the exercise of their right to liquidate and close their establishments. at liberty, therefore, as public utilities invariably are not, to escape, by dissolution, the consequences of publicly imposed charges deemed to be oppressive, owners of ordinary business, presumably for that reason, have thus far been unable to convince the courts that they too, no less than public utilities, are in need of that protection which judicial review affords. consistently with its initial pronouncement in the munn case, that the reasonableness of compensation allowed under permissible rate regulation presented a legislative rather than a judicial question, the court, in davidson _v._ new orleans,[ ] also rejected the contention that, by virtue of the due process clause, businesses, even though subject to control of their prices or charges, were nevertheless entitled to "just compensation." less than a decade was to elapse, however, before the court, appalled perhaps by prospective consequences of leaving business "at the mercy of the majority of the legislature," began to reverse itself. thus, in , chief justice waite, in the railroad commission cases,[ ] warned that "this power to regulate is not a power to destroy; [and] the state cannot do that in law which amounts to a taking of property for public use without just compensation or without due process of law"; or, in other words, cannot impose a confiscatory rate. by treating "due process of law" and "just compensation" as equivalents, the court, contrary to its earlier holding in davidson _v._ new orleans, was in effect asserting that the imposition of a rate so low as to damage or diminish private property ceased to be an exercise of a state's police power and became one of eminent domain. nevertheless, even the added measure of protection afforded by the doctrine of the railroad commission cases proved inadequate to satisfy public utilities; for through application of the latter the courts were competent to intervene only to prevent legislative imposition of a confiscatory rate, a rate so low as to be productive of a loss and to amount to a taking of property without just compensation. nothing less than a judicial acknowledgment that when the "reasonableness" of legislative rates is questioned, the courts should finally dispose of the contention was deemed sufficient by such businesses to afford the relief desired; and although as late as [ ] the court doubted that it possessed the requisite power, it finally acceded to the wishes of the utilities in , and, in chicago, m. & st. p.r. co. _v._ minnesota[ ] ruled as follows: "the question of the reasonableness of a rate * * *, involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination. if the company is deprived of the power of charging rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law * * *" despite a last hour attempt, in budd _v._ new york,[ ] to reconcile munn _v._ illinois with chicago, m. & st. p.r. co. _v._ minnesota by confining application of the latter decision to cases wherein rates had been fixed by a commission and denying its pertinence to rates directly imposed by a legislature, the court, in reagan _v._ farmers' loan and trust co.,[ ] set at rest all lingering doubts as to the scope of judicial intervention by declaring that, "if a carrier," in the absence of a legislative rate, "attempted to charge a shipper an unreasonable sum," the court, in accordance with common law principles, will pass on the reasonableness of its rates and has "jurisdiction * * * to award to the shipper any amount exacted * * * in excess of a reasonable rate; * * * the province of the courts is not changed, nor the limit of judicial inquiry altered, because the legislature instead of a carrier prescribes the rates."[ ] reiterating virtually the same principle in smyth _v._ ames,[ ] the court not only obliterated the distinction between confiscatory and unreasonable rates, but also contributed the additional observation that the requirements of due process are not met unless a court reviews not merely the reasonableness of a rate but also determines whether the rate permits the utility to earn a fair return on a fair valuation of its investment. limitations on judicial review as to what courts will not do, when reviewing rate orders of a state commission, the following negative statements of the supreme court appear to have enduring value. as early as , the court asserted: "the courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work; * * * [however, there can be no doubt] of their power and duty to inquire whether a body of rates * * * is unjust and unreasonable, * * *, and if found so to be, to restrain its operation."[ ] and later, in , although it was examining the order of a federal rate-making agency, the court made a similar observation which appears to be equally applicable to the judicial review of regulations of state agencies. the courts cannot, "under the guise of exerting judicial power, usurp merely administrative functions by setting aside" an order of the commission within the scope of the power delegated to such commission, upon the ground that such power was unwisely or inexpediently exercised.[ ] also inferable from these early holdings, and effective to restrict the bounds of judicial investigation, is the notion that a distinction can be made between factual questions which give rise only to controversies as to the wisdom or expediency of an order issued by a commission and determinations of fact which bear on a commission's power to act; namely those questions which are inseparable from the constitutional issue of confiscation, and that judicial review does not extend to the former. this distinction is accorded adequate emphasis by the court in louisville & n.r. co. _v._ garrett,[ ] in which it declared that "the appropriate question for the courts" is simply whether a "commission," in establishing a rate, "acted within the scope of its power" and did not violate "constitutional rights * * * by imposing confiscatory requirements" and that a carrier, contesting the rate thus established, accordingly was not entitled to have a court also pass upon a question of fact regarding the reasonableness of a higher rate charged by it prior to the order of the commission. all that need concern a court, it said, is the fairness of the proceeding whereby the commission determined that the existing rate was excessive; but not the expediency or wisdom of the commission's having superseded that rate with a rate regulation of its own. likewise, with a view to diminishing the number of opportunities which courts may enjoy for invalidating rate regulations of state commissions, the supreme court has placed various obstacles in the path of the complaining litigant. thus, not only must a person challenging a rate assume the burden of proof,[ ] but he must present a case of "manifest constitutional invalidity";[ ] and if, notwithstanding his effort, the question of confiscation remains in doubt, no relief will be granted.[ ] moreover, even though a public utility, which has petitioned a commission for relief from allegedly confiscatory rates, need not await indefinitely a decision by the latter before applying to a court for equitable relief,[ ] the latter ought not to interfere in advance of any experience of the practical result of such rates.[ ] in the course of time, however, a distinction emerged between ordinary factual determinations by state commissions and factual determinations which were found to be inseparable from the legal and constitutional issue of confiscation. in two older cases arising from proceedings begun in lower federal courts to enjoin rates, the court initially adopted the position that it would not disturb such findings of fact insofar as these were supported by substantial evidence. thus, in san diego land and town company _v._ national city,[ ] the court declared that: after a legislative body has fairly and fully investigated and acted, by fixing what it believes to be reasonable rates, the courts cannot step in and say its action shall be set aside because the courts, upon similar investigation, have come to a different conclusion as to the reasonableness of the rates fixed. "judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulation as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use." and in a similar later case[ ] the court expressed even more clearly its reluctance to reexamine factual determinations of the kind just described. the court is not bound "to reexamine and weigh all the evidence, * * *, or to proceed according to * * * [its] independent opinion as to what are proper rates. it is enough if * * * [the court] cannot say that it was impossible for a fair-minded board to come to the result which was reached." moreover, in reviewing orders of the interstate commerce commission, the court, at least in earlier years,[ ] chose to be guided by approximately the same standards of appraisal as it had originally formulated for examining regulations of state commissions; and inasmuch as the following excerpt from its holding in interstate commerce commission _v._ union pacific r. co.[ ] represents an adequate summation of the law as it stood prior to , it is set forth below: "* * * questions of fact may be involved in the determination of questions of law, so that an order, regular on its face, may be set aside if it appears that the rate is so low as to be confiscatory * * *; or if the commission acted so arbitrarily and unjustly as to fix rates contrary to evidence, or without evidence to support it; or if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. * * * in determining these mixed questions of law and fact, the court confines itself to the ultimate question as to whether the commission acted within its power. it will not consider the expediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling. * * * [the commission's] conclusion, of course, is subject to review, but when supported by evidence is accepted as final; not that its decision, * * *, can be supported by a mere scintilla of proof--but the courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order." the ben avon case these standards of review were abruptly rejected by the court in ohio valley water company _v._ ben avon borough,[ ] decided in , as being no longer sufficient to satisfy the requirements of due process. unlike previous litigation involving allegedly confiscatory rate orders of state commissions, which had developed from rulings of lower federal courts in injunctive proceedings, this case reached the supreme court by way of appeal from a state appellate tribunal;[ ] and although the latter did in fact review the evidence and ascertained that the state commission's findings of fact were supported by substantial evidence, it also construed the statute providing for review as denying to state courts "the power to pass upon the weight of such evidence." largely on the strength of this interpretation of the applicable state statute, the supreme court held that when the order of a legislature, or of a commission, prescribing a schedule of maximum future rates is challenged as confiscatory, "the state must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, fourteenth amendment." without departing from the ruling, previously enunciated in louisville & n.r. co. _v._ garrett,[ ] that the failure of a state to grant a statutory right of judicial appeal from a commission's regulation is not violative of due process as long as relief is obtainable by a bill in equity for injunction, the court also held that the alternative remedy of injunction expressly provided by state law did not afford an adequate opportunity for testing judicially a confiscatory rate order. it conceded the principle stressed by the dissenting justices that "where a state offers a litigant the choice of two methods of judicial review, of which one is both appropriate and unrestricted, the mere fact that the other which the litigant elects is limited, does not amount to a denial of the constitutional right to a judicial review."[ ] history of the valuation question for almost fifty years the court was to wander through a maze of conflicting formulas for valuing public service corporation property only to emerge therefrom in at a point not very far removed from munn _v._ illinois.[ ] by holding, in , in federal power commission _v._ natural gas pipeline co.,[ ] that the "constitution does not bind rate-making bodies to the service of any single formula or combination of formulas," and in , in federal power commission _v._ hope gas co.,[ ] that "it is the result reached not the method employed which is controlling, * * * [that] it is not the theory but the impact of the rate order which counts, [and that] if the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the act is at an end," the court, in effect, abdicated from the position assumed in the ben avon case.[ ] without surrendering the judicial power to declare rates unconstitutional on grounds of a substantive[ ] deprivation of due process, the court announced that it would not overturn a result deemed by it to be just simply because "the method employed [by a commission] to reach that result may contain infirmities. * * * [a] commission's order does not become suspect by reason of the fact that it is challenged. it is the product of expert judgment which carries a presumption of validity. and he who would upset the rate order * * * carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."[ ] in dispensing with the necessity of observing any of the formulas for rate computation which previously had currency, the court did not undertake to devise, by way of substitution, any discernible guide to aid it in ascertaining whether a so-called end result is unreasonable. it did intimate that rate-making "involves a balancing of the investor and consumer interests," which does not, however, "'insure that the business shall produce net revenues,' * * * from the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. these include service on the debt and dividends on the stock. * * * by that standard the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks. that return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital."[ ] nevertheless, in the light of the court's concentration on the reasonableness of the final result rather than on the correctness of the methods employed to reach that result, it is conceivable that methods or formulas, now discredited in whole or in part, might continue to be observed by state commissions in drafting rate orders that will prove to be justiciably sustainable.[ ] regulation of public utilities (other than rates) in general by virtue of the nature of the business they carry on and the public's interest in it, public utilities are subject, as to their local business, to state regulation exerted either directly by legislature or by duly authorized administrative bodies.[ ] but inasmuch as their property remains under the full protection of the constitution, it follows that whenever this power of regulation is exerted in what the court considers to be an "arbitrary" or "unreasonable" way and to be in effect an infringement upon the right of ownership, such exertion of power is void as repugnant to the due process clause.[ ] thus, a city cannot take possession of the equipment of a street railway company, the franchise of which has expired,[ ] although it may subject said company to the alternative of accepting an inadequate price for its property or of ceasing operations and removing its property from the streets.[ ] likewise, a city, which is desirous of establishing a lighting system of its own, may not remove, without compensation, the fixtures of a lighting company already occupying the streets under a franchise;[ ] but in erecting its own waterworks in competition with that of a company which has no exclusive charter, a municipality inflicts no unconstitutional deprivation.[ ] nor is the property of a telegraph company illegally taken by a municipal ordinance which demands, as a condition of the establishment of poles and conduits in the city streets, that positions be reserved for the city's wires, which shall be carried free of charge, and which provides for the moving of the conduits, when necessary, at company expense.[ ] and, the fact that a state, by mere legislative or administrative fiat, cannot convert a private carrier into a common carrier will not protect a foreign corporation which has elected to enter a state, the constitution and laws of which require that it operate its local private pipe line as a common carrier. such foreign corporation is viewed as having waived its constitutional right to be secure against imposition of conditions which amount to a taking of property without due process of law.[ ] compulsory expenditures the enforcement of uncompensated obedience to a regulation for the public health and safety is not an unconstitutional taking of property without due process of law.[ ] thus, where the applicable rule so required at the time of the granting of its charter, a water company may be compelled to furnish connections at its own expense to one residing on an ungraded street in which it voluntarily laid its lines.[ ] however, if pipe and telephone lines are located on a right of way owned by a pipe line company, the latter cannot, without a denial of due process, be required to relocate such equipment at its own expense;[ ] but if its pipes are laid under city streets, a gas company validly may be obligated to assume the cost of moving them to accommodate a municipal drainage system.[ ] to require a turnpike company, as a condition of its taking tolls, to keep its road in repair and to suspend collection thereof, conformably to a state statute, until the road is put in good order, does not take property without due process of law, notwithstanding the fact that present patronage does not yield revenue sufficient to maintain the road in proper condition.[ ] nor is a railroad bridge company unconstitutionally deprived of its property when, in the absence of proof that the addition will not yield a reasonable return, it is ordered to widen its bridge by inclusion of a pathway for pedestrians and a roadway for vehicles.[ ] grade crossings and other expenditures by railroads.--when railroads are required to repair a viaduct under which they operate,[ ] or to reconstruct a bridge or provide means for passing water for drainage through their embankment,[ ] or to sprinkle that part of the street occupied by them,[ ] their property is not taken without due process of law. but if an underground cattle-pass is to be constructed, not as a safety measure but as a means of sparing the farmer the inconvenience attendant upon the use of an existing and adequate grade crossing, collection of any part of the cost thereof from a railroad is a prohibited taking for private use.[ ] as to grade crossing elimination, the rule is well established that the state may exact from railroads the whole, or such part, of the cost thereof as it deems appropriate, even though commercial highway users, who make no contribution whatsoever, benefit from such improvements. but, the power of the state in this respect is not unlimited. if its imposition is "arbitrary" and "unreasonable" it may be set aside; but to reach that conclusion, it may become necessary to consider certain relevant facts; e.g., whether a new highway on which an underpass is to be constructed is essential to the transportation needs of a community already well served by a crossing equipped with devices which are adequate for safety and convenience of a local traffic; whether the underpass is prescribed as part of a national system of federal aid highways for the furtherance of motor vehicle traffic, much of which is in direct competition with the railroad; whether the increase in such traffic will greatly decrease rail traffic and hence the revenue of the railroad; whether the amount of taxes paid by the railroads of the state, part of which is devoted to the upkeep of public highways used by motor carriers, is disproportionately higher than the amount paid by motor carriers.[ ] compellable services the primary duty of a public utility being to serve on reasonable terms all those who desire the service it renders, it follows that a company cannot pick and choose and elect to serve only those portions of its territory which it finds most profitable, leaving the remainder to get along without the service which it alone is in a position to give. compelling a gas company to continue serving specified cities as long as it continues to do business in other parts of the state entails therefore no unconstitutional deprivation.[ ] likewise a railway may be compelled to continue the service of a branch or part of a line although the operation involves a loss.[ ] but even though a utility, as a condition of enjoyment of powers and privileges granted by the state, is under a continuing obligation to provide reasonably adequate service, and even though that obligation cannot be avoided merely because performance occasions financial loss, yet if a company is at liberty to surrender its franchise and discontinue operations, it cannot be compelled to continue at a loss.[ ] pursuant to the principle that the state may require railroads to provide adequate facilities suitable for the convenience of the communities served by them,[ ] such carriers have been obligated to establish stations at proper places for the convenience of patrons,[ ] to stop all their intrastate trains at county seats,[ ] to run a regular passenger train instead of a mixed passenger and freight train,[ ] to furnish passenger service on a branch line previously devoted exclusively to carrying freight,[ ] to restore a siding used principally by a particular plant but available generally as a public track, and to continue, even though not profitable by itself, a sidetrack[ ] as well as the upkeep of a switch-track leading from its main line to industrial plants.[ ] however, a statute requiring a railroad without indemnification to install switches on the application of owners of grain elevators erected on its right of way was held void.[ ] whether a state order requiring transportation service is to be viewed as reasonable may necessitate consideration of such facts as the likelihood that pecuniary loss will result to the carrier, the nature, extent and productiveness of the carrier's intrastate business, the character of the service required, the public need for it, and its effect upon service already being rendered.[ ] if the service required has no substantial relation to transportation, it will be deemed arbitrary and void, as in the case of an order requiring railroads to maintain cattle scales to facilitate trading in cattle,[ ] and of a prohibition against letting down an unengaged upper berth while the lower berth was occupied.[ ] intercompany railway service.--"since the decision in wisconsin m. & p.r. co. _v._ jacobson, u.s. ( ), there can be no doubt of the power of a state, acting through an administrative body, to require railroad companies to make track connections. but manifestly that does not mean that a commission may compel them to build branch lines, so as to connect roads lying at a distance from each other; nor does it mean that they may be required to make connections at every point where their tracks come close together in city, town and country, regardless of the amount of business to be done, or the number of persons who may utilize the connection if built. the question in each case must be determined in the light of all the facts, and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier. * * * if the order involves the use of property needed in the discharge of those duties which the carrier is bound to perform, then, upon proof of the necessity, the order will be granted, even though 'the furnishing of such necessary facilities may occasion an incidental pecuniary loss.' * * * where, however, the proceeding is brought to compel a carrier to furnish a facility not included within its absolute duties, the question of expense is of more controlling importance. in determining the reasonableness of such an order the court must consider all the facts--the places and persons interested, the volume of business to be affected, the saving in time and expense to the shipper, as against the cost and loss to the carrier."[ ] although a carrier is under a duty to accept goods tendered at its station, it cannot be required, upon payment simply for the service of carriage, to accept cars offered at an arbitrary connection point near its terminus by a competing road seeking to reach and use the former's terminal facilities. nor may a carrier be required to deliver its cars to connecting carriers without adequate protection from loss or undue detention or compensation for their use.[ ] but a carrier may be compelled to interchange its freight cars with other carriers under reasonable terms,[ ] and to accept, for reshipment over its lines to points within the state, cars already loaded and in suitable condition.[ ] intercompany discriminatory railroad service charges.--due process is not denied when two carriers, who wholly own and dominate a small connecting railroad, are prohibited from exacting higher charges from shippers accepting delivery over said connecting road than are collected from shippers taking delivery at the terminals of said carriers.[ ] nor is it "unreasonable" or "arbitrary" to require a railroad to desist from demanding freight in advance on merchandise received from one carrier while it accepts merchandise of the same character at the same point from another carrier without such prepayment.[ ] safety regulations applicable to railroads the following regulations with reference to railroads have been upheld: a prohibition against operation on certain streets,[ ] restrictions on speed, operations, etc., in business sections,[ ] requirement of construction of a sidewalk across a right of way,[ ] or removal of a track crossing a thoroughfare,[ ] compelling the presence of a flagman at a crossing notwithstanding that automatic device might be cheaper and better,[ ] compulsory examination of employees for color blindness,[ ] full crews on certain trains,[ ] specification of a type of locomotive headlight,[ ] safety appliance regulations,[ ] and a prohibition on the heating of passenger cars from stoves or furnaces inside or suspended from the cars.[ ] liabilities and penalties a statute making the initial carrier[ ] or the connecting or delivering carrier,[ ] liable to the shipper for the nondelivery of goods is not unconstitutional; nor is a law which provides that a railroad shall be responsible in damages to the owner of property injured by fire communicated by its locomotive engines and which grants the railroad an insurable interest in such property along its route and authority to procure insurance against such liability.[ ] equally consistent with the requirements of due process are the following two enactments; the first, imposing on all common carriers a penalty for failure to settle within a reasonable specified period claims for freight lost or damaged in shipment and conditioning payment of that penalty upon recovery by the claimant in subsequent suit of more than the amount tendered,[ ] and the second, levying double damages and an attorney's fee upon a railroad for failure to pay within a reasonable time after demand the amount claimed by an owner for stock injured or killed. however, only in the event that the application of the latter statute is limited to cases where the plaintiff has not demanded more than he recovered in court will its constitutionality be upheld;[ ] but when the penalty allowed thereunder is exacted in a case in which the plaintiff demanded more than he sued for and recovered, a defendant railroad is arbitrarily deprived of its property without due process.[ ] the requirements of fair play are similarly violated by a statute which, by imposing double liability for failure to pay the full amount of damages within days after notice, unless the claimant recovers less than the amount offered in settlement, in effect penalizes a carrier for guessing incorrectly what a jury would award.[ ] to penalize a carrier which has collected transportation charges in excess of established maximum rates by permitting a person wronged to sue for and collect as liquidated damages $ plus a reasonable attorney's fee is to subject the carrier to a requirement so unreasonable as to be repugnant to the due process clause; for such liability is not only disproportionate to actual damages, but is being exacted under conditions which do not afford the carrier an adequate opportunity for safely testing the validity of the rates before any liability for the penalty attaches.[ ] where it appears, however, that the carrier had an opportunity to test the reasonableness of the rate, and that its deviation therefrom, by collection of an overcharge, did not proceed from any belief that the rate was invalid, the validity of the penalty imposed is not to be tested by comparison with the amount of the overcharge. inasmuch as it is imposed as punishment for violation of a law, the legislature may adjust its amount to the public wrong rather than the private injury, and the only limitation which the fourteenth amendment imposes is that the penalty prescribed shall not be "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." in accordance with the latter standard, a statute granting an aggrieved passenger (who recovered $ for an overcharge of cents) the right to recover in a civil suit not less than $ nor more than $ plus costs and a reasonable attorney's fee is constitutional.[ ] for like reasons, a statute requiring railroads to erect and maintain fences and cattle guards, and making them liable in double amount of damages for their failure to so maintain them is not unconstitutional.[ ] nor is a nebraska law which establishes a minimum rate of speed for delivery of livestock and which requires every carrier violating the same to pay the owner of such livestock the sum of $ per car per hour.[ ] on the other hand, when a telephone company, in accordance with its established and uncontested regulations, suspends the service of a patron in arrears, infliction upon it of penalties aggregating $ , , levied pursuant to a statute imposing fines of $ per day for alleged discrimination, is so plainly arbitrary and oppressive as to take property without due process.[ ] regulation of corporations, business, professions, and trades domestic corporations although a corporation is the creation of a state which reserves the power to amend or repeal corporate charters, the retention of such power will not support the taking of the corporate property without due process of law. to terminate the life of a corporation by annulling its charter is not to confiscate its property but to turn it over to the stockholders after liquidation.[ ] conversely, unreasonable regulation, as by the imposition of confiscatory rates, although it ostensibly falls short of termination of the corporate existence, entails an invalid deprivation.[ ] foreign corporations foreign corporations also enjoy the protection which the due process clause affords; but such protection does not entitle them to enter another state or, once having been permitted to enter, to continue to do business therein.[ ] the power of a state to exclude or to expel a foreign corporation being almost plenary as long as interstate commerce is not directly affected, it follows that a state may subject such entry or continued operation to conditions. thus, a state law which requires the filing of articles with a local official as a condition prerequisite to the validity of conveyances of local realty to such corporations is not violative of due process.[ ] neither is a state statute which requires a foreign insurance company, as part of the price of entry, to maintain reserves computed by a specific percentage of premiums, including membership fees, received in all states.[ ] similarly a statute requiring corporations to dispose of farm land not necessary to the conduct of their business is not invalid as applied to a foreign hospital corporation, even though the latter, because of changed economic conditions, is unable to recoup its original investment from the sale which it is thus compelled to make.[ ] business: in general "the constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. * * * statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the state's competency."[ ] laws prohibiting trusts, discrimination, restraint of trade.--a state act prohibiting trusts, etc., is not in conflict with the fourteenth amendment as to a person combining with others to pool and fix prices, divide net earnings, and prevent competition in the purchase and sale of grain.[ ] nor does the fourteenth amendment preclude a state from adopting a policy against all combinations of competing corporations and enforcing it even against combinations which may have been induced by good intentions and from which benefit and not injury may have resulted.[ ] nor is freedom of contract unconstitutionally abridged by a statute which prohibits retail lumber dealers from uniting in an agreement not to purchase materials from wholesalers selling directly to consumers in the retailers' localities,[ ] nor by a law punishing combinations for "maliciously" injuring a rival in his business profession or trade.[ ] similarly, a prohibition of unfair discrimination by any one engaged in the manufacture or distribution of a commodity in general use for the purpose of intentionally destroying competition of any regular dealer in such commodity by making sales thereof at a lower rate in one section of the state than in another, after equalization for distance, effects no invalid deprivation of property or interference with freedom of contract.[ ] liberty of contract is infringed, however, by a law punishing dealers in cream who pay higher prices in one locality than in another. although high bidding by strong buyers tends toward monopoly, the statute has no reasonable relation to such bidding, but infringes private rights whose exercise is not shown to produce evil consequences.[ ] a law sanctioning contracts requiring that commodities identified by trade mark will not be sold by the vendee or subsequent vendees except at prices stipulated by the original vendor does not violate the due process clause.[ ] statutes preventing fraud in sale of goods.--laws and ordinances tending to prevent frauds and requiring honest weights and measures in the sale of articles of general consumption have long been considered lawful exertions of the police power.[ ] thus, a prohibition on the issuance by other than an authorized weigher of any weight certificate for grain weighed at any warehouse or elevator where state weighers are stationed, or to charge for such weighing, is not unconstitutional.[ ] nor is a municipal ordinance requiring that commodities sold in load lots by weight be weighed by a public weigh-master within the city invalid as applied to one delivering coal from state-tested scales at a mine outside the city.[ ] a statute requiring merchants to record sales in bulk not made in the regular course of business is also within the police power.[ ] similarly, the power of a state to prescribe standard containers to protect buyers from deception as well as to facilitate trading and to preserve the condition of the merchandise is not open to question. accordingly, an administrative order issued pursuant to an authorizing statute and prescribing the dimensions, form, and capacity of containers for strawberries and raspberries is not arbitrary inasmuch as the form and dimensions bore a reasonable relation to the protection of the buyers and the preservation in transit of the fruit.[ ] similarly, an ordinance fixing standard sizes of bread loaves and prohibiting the sale of other sizes is not unconstitutional.[ ] however, by a case decided in , a "tolerance" of only two ounces in excess of the minimum weight of a loaf of bread is unreasonable when it is impossible to manufacture good bread without frequently exceeding the prescribed tolerance and is consequently unconstitutional;[ ] but by one decided ten years later, regulations issued in furtherance of a statutory authorization which impose a rate of tolerance not to exceed three ounces to a pound of bread and requiring that the bread maintain the statutory minimum weight for not less than hours after cooling are constitutional.[ ] likewise a law requiring that lard not sold in bulk should be put upon in containers holding one, three, or five pounds weight, or some whole multiple of these numbers, does not deprive sellers of their property without the process of law.[ ] the right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the state, in the exercise of the police power and in the promotion of fair dealing, to require that the nature of the product be fairly set forth.[ ] nor does a statute providing that the purchaser of harvesting or threshing machinery for his own use shall have a reasonable time after delivery for inspecting and testing it, and permitting recission of the contract if the machinery does not prove reasonably adequate, and further declaring any agreement contrary to its provisions to be against public policy and void, does not violate the due process clause.[ ] blue sky laws; laws regulating boards of trade, etc.--in the exercise of its power to prevent fraud and imposition, a state may regulate trading in securities within its borders, require a license of those engaging in such dealing, make issuance of a license dependent on a public officer's being satisfied of the good repute of the applicants, and permit him, subject to judicial review of his findings, to revoke the same.[ ] a state may forbid the giving of options to sell or buy at a future time any grain or other commodity.[ ] it may also forbid sales on margin for future delivery;[ ] and may prohibit the keeping of places where stocks, grain, etc., are sold but not paid for at the time, unless a record of the same be made and a stamp tax paid.[ ] making criminal any deduction by the purchaser from the actual weight of grain, hay, seed, or coal under a claim of right by reason of any custom or rule of a board of trade is a valid exercise of the police power and does not deprive the purchaser of his property without due process of law, nor interfere with his liberty of contract.[ ] trading stamps.--a prohibitive license fee upon the use of trading stamps is not unconstitutional.[ ] banking the fourteenth amendment does not deny to states the power to forbid a business simply because it was permitted at common law; and therefore, where public interests so demand, a state may place the banking business under legislative control and prohibit it except under prescribed conditions. accordingly, a statute subjecting state banks to assessments for a depositors' guaranty fund is within the police power of the states and does not deprive the banks of property without due process of law.[ ] also, a law requiring savings banks to turn over to the state deposits inactive for thirty years (when the depositor cannot be found), with provision for payment to the depositor or his heirs on establishment of the right, does not effect an invalid taking of the property of said banks; nor does a kentucky statute requiring banks to turn over to the protective custody of that state deposits that have been inactive ten or twenty-five years (depending on the nature of the deposit).[ ] the constitutional rights of creditors in an insolvent bank in the hands of liquidators are not violated by a later statute permitting reopening under a reorganization plan approved by the court, the liquidating officer, and by three-fourths of the creditors.[ ] similarly, a federal reserve bank is not unlawfully deprived of business rights of liberty of contract by a law which allows state banks to pay checks in exchange when presented by or through a federal reserve bank, post office, or express company and when not made payable otherwise by a maker.[ ] loans, interest, assignments in fixing maximum rates of interest on money loaned within its borders, a state is acting clearly within its police power; and the details are within legislative discretion if not unreasonably or arbitrarily exercised.[ ] equally valid as an exercise of a state's police power is a requirement that assignments of future wages as security for debts of less than $ , to be valid, must be accepted in writing by the employer, consented to by the assignors, and filed in a public office. such a requirement deprives neither the borrower nor the lender of his property without due process of law.[ ] insurance the relations generally of those engaged in the insurance business[ ] as well as the business itself have been peculiarly subject to supervision and control.[ ] the state may fix insurance rates and regulate the compensation of insurance agents.[ ] it may impose a fine on "any person 'who shall act in any manner in the negotiation or transaction of unlawful insurance * * * with a foreign insurance company not admitted to do business [within said state].'"[ ] it may forbid life insurance companies and their agents to engage in the undertaking business and undertakers to serve as life insurance agents.[ ] nor does a virginia law which forbids the making of contracts of casualty or surety insurance, by companies authorized to do business therein, except through registered agents, which requires that such contracts applicable to persons or property in the state be countersigned by a registered local agent, and which prohibits such agents from sharing more than % of a commission with a nonresident broker, deprive authorized foreign casualty and surety insurers of due process.[ ] and just as all banks may be required to contribute to a depositors' guaranty fund, so may all automobile liability insurers be required to submit to the equitable apportionment among them of applicants who are in good faith entitled to, but are financially unable to, procure such insurance through ordinary methods.[ ] however, a statute which prohibits the assured from contracting directly with a marine insurance company outside the state for coverage of property within the state is invalid as a deprivation of liberty without due process of law.[ ] for the same reason, a state may not prevent a citizen from concluding with a foreign life insurance company at its home office a policy loan agreement whereby the policy of his life is pledged as collateral security for a cash loan to become due upon default in payment of premiums, in which case the entire policy reserve might be applied to discharge the indebtedness. authority to subject such an agreement to the conflicting provisions of domestic law is not deducible from the power of a state to license a foreign insurance company as a condition of its doing business therein.[ ] a stipulation that policies of hail insurance shall take effect and become binding twenty-four hours after the hour in which an application is taken and further requiring notice by telegram of rejection of an application is not invalid.[ ] nor is any arbitrary restraint upon their liberty of contract imposed upon surety companies by a statute providing that any bond executed after its enactment for the faithful performance of a building contract shall inure to the benefit of materialmen and laborers, notwithstanding any provision of the bond to the contrary.[ ] likewise constitutional is a law requiring that a policy, indemnifying a motor vehicle owner against liability to persons injured through negligent operation, shall provide that bankruptcy of the insured shall not release the insurer from liability to an injured person.[ ] if fire insurance companies, in case of total loss, are compelled to pay the amount for which the property was insured, less depreciation between the time of issuing the policy and the time of the loss, such insurers are not deprived of their property without due process of law.[ ] moreover, even though it has its attorney-in-fact located in illinois, signs all its contracts there, and forwards therefrom all checks in payment of losses, a reciprocal insurance association, if it covers real property located in new york, may be compelled to comply with new york regulations which require maintenance of an office in that state and the countersigning of policies by an agent resident therein.[ ] also, to discourage monopolies and to encourage competition in the matter of rates, a state constitutionally may impose on all fire insurance companies connected with a tariff association fixing rates a liability or penalty to be collected by the insured of % in excess of actual loss or damage, stipulations in the insurance contract to the contrary notwithstanding.[ ] a state statute by which a life insurance company, if it fails to pay upon demand the amount due under a policy after death of the insured, is made liable in addition for fixed damages, reasonable in amount, and for a reasonable attorney's fee is not unconstitutional even though payment is resisted in good faith and upon reasonable grounds.[ ] it is also proper by law to cut off a defense by a life insurance company based on false and fraudulent statements in the application, unless the matter misrepresented actually contributed to the death of the insured.[ ] a provision that suicide, unless contemplated when the application for a policy was made, shall be no defense is equally valid.[ ] when a cooperative life insurance association is reorganized so as to permit it to do a life insurance business of every kind, policyholders are not deprived of their property without due process of law.[ ] similarly, when the method of liquidation provided by a plan of rehabilitation of a mutual life insurance company is as favorable to dissenting policyholders as would have been the sale of assets and pro rata distribution to all creditors, the dissenters are unable to show any taking without due process. dissenters have no constitutional right to a particular form of remedy.[ ] professions, trades, occupations employment agencies.--an act imposing license fees for operating such agencies and prohibiting them from sending applicants to an employer who has not applied for labor does not deny due process of law.[ ] pharmacies.--a pennsylvania law forbidding a corporation to own therein any drug store, excepting those owned and operated at the time of the enactment, unless all its stockholders are licensed pharmacists, violates the due process clause as applied to a foreign corporation, all of whose stockholders are not pharmacists, which sought to extend its business in pennsylvania by acquiring and operating therein two additional stores.[ ] miscellaneous business, professions, trades, and occupations.--the practice of medicine, using this word in its most general sense, has long been the subject of regulation;[ ] and in pursuance of its power a state may exclude osteopathic physicians from hospitals maintained by it or its municipalities;[ ] and may regulate the practice of dentistry by prescribing qualifications that are reasonably necessary, requiring licenses, establishing a supervisory administrative board, and by prohibiting certain advertising regardless of its truthfulness.[ ] but while statutes requiring pilots to be licensed[ ] and railroad engineers to pass color blindness tests[ ] have been sustained, an act making it a misdemeanor for a person to act as a railway passenger conductor without having had two years' experience as a freight conductor or brakeman is invalid.[ ] legislation has been upheld which regulated or required licenses for admissions to places of amusement,[ ] grain elevators,[ ] detective agencies,[ ] sale of cigarettes,[ ] or cosmetics,[ ] and the resale of theatre tickets;[ ] or which absolutely forbade the advertising of cigarettes,[ ] or the use of a representation of the united states flag on an advertising medium,[ ] the solicitation by a layman of business of collecting and adjusting claims,[ ] the keeping of private markets within six squares of a public market,[ ] the keeping of billiard halls except in hotels,[ ] or the purchase by junk dealers of wire, copper, etc., without ascertaining the sellers' right to sell.[ ] protection of resources of the state oil and gas to prevent waste production may be prorated; the prohibition of wasteful conduct, whether primarily in behalf of the owners of gas in a common reservoir or because of the public interests involved is consistent with the constitution.[ ] thus a statute which defines waste as including, in addition to its ordinary meaning, economic waste, surface waste, and waste incident to production in excess of transportation or marketing facilities or reasonable market demands, and which provides that whenever full production from a common source of supply can be obtained only under conditions constituting waste, a producer may take only such proportion of all that may be produced from such common source without waste, as the production of his wells bears to the total production of such common source, is not repugnant to the due process clause.[ ] but whether a system of proration based on hourly potential is as fair as one based upon estimated recoverable reserves or some other combination of factors is a question for administrative and not judicial judgment. in a domain of knowledge still shifting and growing, and in a field where judgment is necessarily beset by the necessity of inferences bordering on the conjecture even for those learned in the art, it has been held to be presumptuous for courts, on the basis of conflicting expert testimony, to nullify an oil proration order, promulgated by an administrative commission in execution of a regulatory scheme intended to conserve a state's oil resources, as violative of due process.[ ] on the other hand, where the evidence showed that an order, purporting to limit daily total production of a gas field and to prorate the allowed production among several wells, had for its real purpose, not the prevention of waste nor the undue drainage from the reserves of other well owners, but rather the compelling of pipe line owners to furnish a market to those who had no pipe line connections, the order was held void as a taking of private property for private benefit.[ ] as authorized by statute the oklahoma corporation commission, finding that existing low field prices for gas were resulting in economic and physical waste, issued orders fixing a minimum price for natural gas and requiring the cities service company to take gas ratably from another producer in the same field at the dictated price. the orders were sustained by the court as conservation measures.[ ] even though carbon black is more valuable than the gas from which it is extracted, and notwithstanding a resulting loss of investment in a plant for the manufacture of carbon black, a state, in the exercise of its police power, may forbid the use of natural gas for products, such as carbon black, in the production of which such gas is burned without fully utilizing for other manufacturing or domestic purposes the heat therein contained.[ ] likewise, for the purpose of regulating and adjusting coexisting rights of surface owners to underlying oil and gas, it is within the power of a state to prohibit the operators of wells from allowing natural gas, not conveniently necessary for other purposes, to come to the surface without its lifting power having been utilized to produce the greatest quantity of oil in proportion.[ ] protection of property damaged by mining or drilling of wells an ordinance conditioning the right to drill for oil and gas within the city limits upon the filing of a bond in the sum of $ , for each well, to secure payment of damages from injuries to any persons or property resulting from the drilling operation, or maintenance of any well or structures appurtenant thereto, is consistent with due process of law, and is not rendered unreasonable by the requirement that the bond be executed, not by personal sureties, but by a bonding company authorized to do business in the state.[ ] on the other hand, a pennsylvania statute, which forbade the mining of coal under private dwellings or streets or cities by a grantor that had reserved the right to mine, was viewed as restricting the use of private property too much, and hence as a "taking" without due process of law.[ ] water a statute making it unlawful for a riparian owner to divert water into another state does not deprive him of property without due process of law. "the constitutional power of the state to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs. * * * what it has it may keep and give no one a reason for its will."[ ] apple and citrus fruit industries a statute requiring the destruction of cedar trees to avoid the infecting with cedar rust of apple orchards within the vicinity of two miles is not unreasonable, notwithstanding the absence of provision for compensation for the trees thus removed or the decrease in the market value of realty caused by their destruction. apple growing being one of the principal agricultural pursuits in virginia and the value of cedar trees throughout that state being small as compared with that of apple orchards, the state was constitutionally competent to decide upon the destruction of one class of property in order to save another which, in the judgment of its legislature, is of greater value to the public.[ ] with a similar object in view; namely, to protect the reputation of one of its major industries, florida was held to possess constitutional authority to penalize the delivery for shipment in interstate commerce of citrus fruits so immature as to be unfit for consumption.[ ] fish and game over fish found within its waters, and over wild game, the state has supreme control.[ ] it may regulate or prohibit fishing and hunting within its limits;[ ] and for the effective enforcement of such restrictions, it may forbid the possession within its borders of special instruments of violations, such as nets, traps, and seines, regardless of the time of acquisition or the protestations of lawful intentions on the part of a particular possessor.[ ] to conserve for food fish found within its waters, a state constitutionally may provide that a reduction plant, processing fish for commercial purposes, may not accept more fish than can be used without deterioration, waste, or spoilage; and, as a shield against the covert depletion of its local supply, may render such restriction applicable to fish brought into the state from the outside.[ ] likewise, it is within the power of a state to forbid the transportation outside the state of game killed therein;[ ] and to make illegal possession during the closed season even of game imported from abroad.[ ] limitations on ownership zoning, building lines, etc. by virtue of their possession of the police power, states and their municipal subdivisions may declare that in particular circumstances and in particular localities specific businesses, which are not nuisances _per se_ are to be deemed nuisances in fact and in law.[ ] consequently when, by an ordinance enacted in good faith, a municipality prohibited brickmaking in a designated area, the land of a brickmaker in said area was not taken without due process of law, although such land contained valuable clay deposits which could not profitably be removed for processing elsewhere, was far more valuable for brickmaking than for any other purpose, and had been acquired by him before it was annexed to the municipality, and had long been used as a brickyard.[ ] on the same basis laws have been upheld which restricted the location of dairy or cow stables,[ ] of livery stables,[ ] of the grazing of sheep near habitations.[ ] also a state may declare the emission of dense smoke in cities or populous neighborhoods a nuisance and restrain it; and regulations to that effect are not invalid even though they affect the use of property or subject the owner to the expense of complying with their terms.[ ] not only may the height of buildings be regulated;[ ] but it also is permissible to create a residential district in a village and to exclude therefrom apartment houses, retail stores, and billboards. before holding unconstitutional an ordinance establishing such a district, it must be shown to be clearly arbitrary and unreasonable and to have no substantial relation to the public health, safety, or general welfare.[ ] on the other hand, erection of a home for the aged within a residential district cannot be made to depend upon the consent of owners of two-thirds of the property within feet of the site thereof;[ ] nor may the interests of nonassenting property owners be ignored by an ordinance which requires municipal officers to establish building lines in a block on request of owners of two-thirds of the property therein.[ ] but ordinances requiring lot owners, when constructing new buildings, to set them back a certain distance from the street lines is constitutional unless clearly arbitrary or unreasonable.[ ] however, colored persons cannot be forbidden to occupy houses in blocks where the greater number of houses are occupied by white persons, and vice versa. such a prohibition, the practical effect of which is to prevent the sale of lots in such blocks to colored persons, violates the constitutional prohibitions against interference with property rights except by due process of laws; and cannot be sustained on the ground that it will promote public peace by preventing race conflicts.[ ] safety regulations as a legitimate exercise of the police power calculated to promote public safety and diminish fire hazards, municipal ordinances have been sustained which prohibit the storage of gasoline within feet of any dwelling,[ ] or require that all tanks with a capacity of more than ten gallons, used for the storage of gasoline, be buried at least three feet under ground,[ ] or which prohibit washing and ironing in public laundries and wash houses, within defined territorial limits, from p.m. to a.m.[ ] equally sanctioned by the fourteenth amendment is the demolition and removal by cities of wooden buildings erected within defined fire limits contrary to regulations in force at the time.[ ] nor does construction of property in full compliance with existing laws confer upon the owner an immunity against exercise of the police power. thus, a amendment to a multiple dwelling law, requiring installation of automatic sprinklers in lodginghouses of nonfireproof construction erected prior to said enactment, does not, as applied to a lodginghouse constructed in in conformity with all laws then applicable, deprive the owner thereof of due process, even though compliance entails an expenditure of $ , on a property worth only $ , .[ ] the police power general according to settled principles, the police power of a state must be held to embrace the authority not only to enact directly quarantine[ ] and health laws of every description but also to vest in municipal subdivisions a capacity to safeguard by appropriate means public health, safety and morals. the manner in which this objective is to be accomplished is within the discretion of the state and its localities, subject only to the condition that no regulation adopted by either shall contravene the constitution or infringe any right granted or secured by that instrument.[ ] health measures protection of water supply.--a state may require the removal of timber refuse from the vicinity of a watershed for a municipal water supply to prevent the spread of fire and consequent damage to such watershed.[ ] garbage.--an ordinance for cremation of garbage and refuse at a designated place as a means for the protection of the public health is not a taking of private property without just compensation even though such garbage and refuse may have some elements of value for certain purposes.[ ] sewers.--compelling property owners to connect with a publicly maintained system of sewers and enforcing that duty by criminal penalties does not violate the due process clause.[ ] food and drugs, etc.--"the power of the state to * * * prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established";[ ] and statutes forbidding or regulating the manufacture of oleomargarine have been upheld as a valid exercise of such power.[ ] for the same reasons, statutes ordering the destruction of unsafe and unwholesome food[ ], prohibiting the sale and authorizing confiscation of impure milk[ ] have been sustained, notwithstanding that such articles had a value for purposes other than food. there also can be no question of the authority of the state, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors,[ ] or the sale of spectacles by an establishment not in charge of a physician or optometrist.[ ] nor is it any longer possible to doubt the validity of state regulations pertaining to the administration, sale, prescription, and use of dangerous and habit-forming drugs.[ ] milk.--equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat,[ ] or of condensed milk made from skimmed milk rather than whole milk,[ ] or of food preservatives containing boric acid.[ ] similarly, a statute which prohibits the sale of milk to which has been added any fat or oil other than milk fat, and which has, as one of its purposes, the prevention of fraud and deception in the sale of milk products, does not, when applied to "filled milk" having the taste, consistency, and appearance of whole milk products, violate the due process clause. filled milk is inferior to whole milk in its nutritional content; and cannot be served to children as a substitute for whole milk without producing a dietary deficiency.[ ] however, a statute forbidding the use of shoddy, even when sterilized, was held to be arbitrary and therefore invalid.[ ] protection of the public morals gambling and lotteries.--unless effecting a clear, unmistakable infringement of rights securely by fundamental law, legislation suppressing gambling will be upheld by the court as concededly within the police power of a state.[ ] accordingly, a state may validly make a judgment against those winning money a lien upon the property in which gambling is conducted with the owner's knowledge and consent.[ ] for the same reason, lotteries, including those operated under a legislative grant, may be forbidden, irrespective of any particular equities.[ ] red light districts.--an ordinance prescribing limits in a city outside of which no woman of lewd character shall dwell does not deprive persons owning or occupying property in or adjacent to said limits of any rights protected by the constitution.[ ] sunday blue laws.--the supreme court has uniformly recognized state laws relating to the observance of sunday as representing a legitimate exercise of the police power. thus, a law forbidding the keeping open of barber shops on sunday is constitutional.[ ] intoxicating liquor.--"* * * on account of their well-known noxious qualities and the extraordinary evils shown by experience to be consequent upon their use, a state * * * [is competent] to prohibit [absolutely the] manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders * * *."[ ] and to implement such prohibition, a state has the power to declare that places where liquor is manufactured or kept shall be deemed common nuisances;[ ] and even to subject an innocent owner to the forfeiture of his property for the acts of a wrongdoer.[ ] regulation of motor vehicles and carriers the highways of a state are public property, the primary and preferred use of which is for private purposes; their uses for purposes of gain may generally be prohibited by the legislature or conditioned as it sees fit.[ ] in limiting the use of its highways for intrastate transportation for hire, a state reasonably may provide that carriers who have furnished adequate, responsible, and continuous service over a given route from a specified date in the past shall be entitled to licenses as a matter of right, but that the licensing of those whose service over the route began later than the date specified shall depend upon public convenience and necessity.[ ] to require private contract carriers for hire to obtain a certificate of convenience and necessity, which is not granted if the service of common carriers is impaired thereby, and to fix minimum rates applicable thereto which are not less than those prescribed for common carriers is valid as a means of conserving highways;[ ] but any attempt to convert private carriers into common carriers,[ ] or to subject them to the burdens and regulations of common carriers, without expressly declaring them to be common carriers, is violative of due process.[ ] in the absence of legislation by congress a state may, in protection of the public safety, deny an interstate motor carrier the use of an already congested highway.[ ] in exercising its authority over its highways, on the other hand, a state is limited not merely to the raising of revenue for maintenance and reconstruction, or to regulations as to the manner in which vehicles shall be operated, but may also prevent the wear and hazards due to excessive size of vehicles and weight of load. accordingly, a statute limiting to , pounds the net load permissible for trucks is not unreasonable.[ ] no less constitutional is a municipal traffic regulation which forbids the operation in the streets of any advertising vehicle, excepting vehicles displaying business notices or advertisements of the products of the owner and not used mainly for advertising; and such regulation may be validly enforced to prevent an express company from selling advertising space on the outside of its trucks. inasmuch as it is the judgment of local authorities that such advertising affects public safety by distracting drivers and pedestrians, courts are unable to hold otherwise in the absence of evidence refuting that conclusion.[ ] any appropriate means adopted to insure compliance and care on the part of licensees and to protect other highway users being consonant with due process, a state may also provide that one, against whom a judgment is rendered for negligent operation and who fails to pay it within a designated time, shall have his license and registration suspended for three years, unless, in the meantime, the judgment is satisfied or discharged.[ ] by the same token a nonresident owner who loaned his automobile in another state, by the law of which he was immune from liability for the borrower's negligence, and who was not in the state at the time of an accident, is not subjected to any unconstitutional deprivation by a law thereof, imposing liability on the owner for the negligence of one driving the car with the owner's permission.[ ] compulsory automobile insurance is so plainly valid as to present no federal question.[ ] succession to property when a new york decedent estate law, effective after , grants for the first time to a surviving spouse a right of election to take as in intestacy, and the husband, by executing in a codicil to his will drafted in , made this provision operative, his widow, notwithstanding her waiver in of any right in her husband's estate, may avail herself of such right of election. the deceased husband's heirs cannot contend that the impairment of the widow's waiver by subsequent legislation deprived his estate of property without due process of law. rights of succession to property are of statutory creation. accordingly, new york could have conditioned any further exercise of testamentary power upon the giving of right of election to the surviving spouse regardless of any waiver however formally executed.[ ] administration of estates.--even after the creation of testamentary trust, a state retains the power to devise new and reasonable directions to the trustee to meet new conditions arising during its administration, especially such as the depression presented to trusts containing mortgages. accordingly, no constitutional right is violated by the retroactive application to an estate on which administration had already begun of a statute which had the effect of taking away a remainderman's right to judicial examination of the trustee's computation of income. judicial rules, promulgated prior to such statute and which were more favorable to the interests of remaindermen, can be relied upon by the latter only insofar as said rules were intended to operate retroactively; for the decedent, in whose estate the remaindermen had an interest, died even before such court rules were established. if a property right in a particular rule of income allotment in salvage proceedings vested at all, it would seem to have done so at the death of the decedent or testator.[ ] abandoned property.--as applied to insurance policies on the lives of new york residents issued by foreign corporations for delivery in new york, where the insured persons continued to be residents and the beneficiaries were resident at the maturity date of the policies, a new york abandoned property law requiring payment to the state of money owing by life insurers and remaining unclaimed for seven years does not deprive such foreign companies of property without due process. the relationship between new york and its residents who abandon claims against foreign insurance companies, and between new york and foreign insurance companies doing business therein is sufficiently close to give new york jurisdiction.[ ] in standard oil co. _v._ new jersey,[ ] a sharply divided court held recently that due process is not violated by a statute escheating to the state shares of stock in a domestic corporation and unpaid dividends declared thereon, even though the last-known owners were nonresidents and the stock was issued and the dividends were held in another state. the state's power over the debtor corporation gives it power to seize the debts or demands represented by the stock and dividends. vested rights, remedial rights, political candidacy inasmuch as the right to become a candidate for state office is a privilege only of state citizenship, an unlawful denial of such right is not a denial of a right of "property."[ ] however, an existing right of action to recover damages for an injury is property, which a legislature has no power to destroy.[ ] thus, the retroactive repeal of a provision which made directors liable for moneys embezzled by corporate officers, by preventing enforcement of a liability which already had arisen, deprived certain creditors of their property without due process of law.[ ] but while a vested cause of action is property, a person has no property, in the constitutional sense, in any particular form of remedy; and is guaranteed only the preservation of a substantial right to redress by any effective procedure.[ ] accordingly, a statute creating an additional remedy for enforcing stockholders' liability is not, as applied to stockholders then holding stock, violative of due process.[ ] nor is a law which lifts a statute of limitations and make possible a suit, theretofore barred, for the value of certain securities. "the fourteenth amendment does not make an act of state legislation void merely because it has some retrospective operation. * * * some rules of law probably could not be changed retroactively without hardship and oppression, * * *, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is _per se_ an offense against the fourteenth amendment."[ ] man's best friend a statute providing that no dog shall be entitled to the protection of the law unless placed upon the assessment rolls, and that in a civil action for killing a dog the owner cannot recover beyond the value fixed by himself in the last assessment preceding the killing is within the police power of the state.[ ] control of local units of government the fourteenth amendment does not deprive a state of the power to determine what duties may be performed by local officers, nor whether they shall be appointed or popularly elected.[ ] its power over the rights and property of cities held and used for governmental purposes was unaltered by the ratification thereof.[ ] thus, notwithstanding that it imposes liability irrespective of the power of a city to have prevented the violence, a statute requiring cities to indemnify owners of property damaged by mobs or during riots effects no unconstitutional deprivation of the property of such municipalities.[ ] likewise, a person obtaining a judgment against a municipality for damages resulting from a riot is not deprived of property without due process of law by an act which so limits the municipality's taxing power as to prevent collection of funds adequate to pay it. as long as the judgment continues as an existing liability unconstitutional deprivation is experienced.[ ] local units of government obliged to surrender property to other units newly created out of the territory of the former cannot successfully invoke the due process clause,[ ] nor may taxpayers allege any unconstitutional deprivation as the result of changes in their tax burden attendant upon the consolidation of contiguous municipalities.[ ] nor is a statute requiring counties to reimburse cities of the first class but not other classes for rebates allowed for prompt payment of taxes in conflict with the due process clause.[ ] taxation in general it was not contemplated that the adoption of the fourteenth amendment would restrain or cripple the taxing power of the states.[ ] rather, the purpose of the amendment was to extend to the residents of the states the same protection against arbitrary state legislation affecting life, liberty, and property as was afforded against congress by the fifth amendment.[ ] public purpose inasmuch as public moneys cannot be expended for other than public purposes, it follows that an exercise of the taxing power for merely private purposes is beyond the authority of the states.[ ] whether a use is public or private is ultimately a judicial question, however, and in the determination thereof the court will be influenced by local conditions and by the judgments of state tribunals as to what are to be deemed public uses in any state.[ ] taxes levied for each of the following listed purposes have been held to be for a public use: city coal and fuel yard,[ ] state bank, warehouse, elevator, flour-mill system, and homebuilding projects,[ ] society for preventing cruelty to animals (dog license tax),[ ] railroad tunnel,[ ] books for school children attending private as well as public schools,[ ] and relief of unemployment.[ ] other considerations affecting validity: excessive burden; ratio of amount to benefit received when the power to tax exists, the extent of the burden is a matter for the discretion of the lawmakers;[ ] and the court will refrain from condemning a tax solely on the ground that it is excessive.[ ] nor can the constitutionality of the power to levy taxes be made to depend upon the taxpayer's enjoyment of any special benefit from use of the funds raised by taxation.[ ] estate, gift, and inheritance taxes the power of testamentary disposition and the privilege of inheritance being legitimate subjects of taxation, a state may apply its inheritance tax to either the transmission, or the exercise of the legal power of transmission, of property by will or descent, or to the legal privilege of taking property by devise or descent.[ ] accordingly, an inheritance tax law, enacted after the death of a testator, but before the distribution of his estate, constitutionally may be imposed on the shares of legatees, notwithstanding that under the law of the state in effect on the date of such enactment, ownership of the property passed to the legatees upon the testator's death.[ ] equally consistent with due process is a tax on an _inter vivos_ transfer of property by deed intended to take effect upon the death of the grantor.[ ] the due process clause places no restriction on a state as to the time at which an inheritance tax shall be levied or the property valued for purposes of such a tax; and for that reason a graduated tax on the transfer of contingent remainders, undiminished by the value of an intervening life estate but not payable until after the death of the life tenant, is valid.[ ] also, when a power of appointment has been granted by deed, transfer tax upon the exercise of the power by will is not a taking of property without due process of law, even though the instrument creating the power was executed prior to enactment of the taxing statute.[ ] likewise when a transfer tax law did not become effective until after a deed creating certain remainders had been executed, but the state court applied the tax on the theory that the vesting actually occurred after the tax law became operative, no denial of due process resulted. "* * *, the statute unquestionably might have made the tax applicable to this transfer, * * * [and the court need] * * * not inquire * * * into the reasoning by which * * *" the state held the statute operative.[ ] on the other hand, when remainders indisputably vest at the time of the creation of a trust and a succession tax is enacted thereafter, the imposition of said tax on the transfer of such remainder is unconstitutional.[ ] but where the remaindermen's interests are contingent and do not vest until the donor's death subsequent to the adoption of the statute, the tax is valid.[ ] another example of valid retroactive taxation is to be found in a new york statute amending a estate tax law. the amendment required inclusion in the decedent's gross estate, for tax computation purposes, of property in respect of which the decedent exercised after , by will, a nongeneral power of appointment created prior to that year. the amendment reached such transfers under powers of appointment as under the previous statute escaped taxation. in sustaining application of the amendment, the court held that the inclusion in the gross estate of property never owned by the decedent, but appointed by her will under a limited power which could not be exercised in favor of the decedent, her creditors, or her estate, did not deny due process to those who inherited the decedent's property, even though, because the tax rate was progressive, the net amount they inherited was less than it would have been if the appointed property had not been included in the gross estate.[ ] in summation, the court has noted that insofar as retroactive taxation of vested gifts has been voided, the justification therefor has been that "the nature or amount of the tax could not reasonably have been anticipated by the taxpayer at the time of the particular voluntary act which the [retroactive] statute later made the taxable event * * * taxation, * * *, of a gift which * * * [the donor] might well have refrained from making had he anticipated the tax, * * * [is] thought to be so arbitrary * * * as to be a denial of due process."[ ] other types of taxes income taxes.--any attempt by a state to measure a tax on one person's income by reference to the income of another is contrary to due process as guaranteed by the fourteenth amendment. thus a husband cannot be taxed on the combined total of his and his wife's incomes as shown by separate returns, where her income is her separate property and where, by reason of the tax being graduated, its amount exceeded the sum of the taxes which would have been due had their separate incomes been separately assessed.[ ] moreover, a tax on income, unlike a gift tax, is not necessarily unconstitutional, because retroactive. taxpayers cannot complain of arbitrary action or assert surprise in the retroactive apportionment of tax burdens to income when that is done by the legislature at the first opportunity after knowledge of the nature and amount of the income is available.[ ] franchise taxes.--a city ordinance imposing annual license taxes on light and power companies is not violative of the due process clause merely because the city has entered the power business in competition with such companies.[ ] nor does a municipal charter authorizing the imposition upon a local telegraph company of a tax upon the lines of the company within its limits at the rate at which other property is taxed, but upon an arbitrary valuation per mile, deprive the company of its property without due process of law, inasmuch as the tax is a mere franchise or privilege tax.[ ] severance taxes.--a state excise on the production of oil which extends to the royalty interest of the lessor in the oil produced under an oil lease as well as to the interest of the lessee engaged in the active work of production, the tax being apportioned between these parties according to their respective interest in the common venture, is not arbitrary as regards the lessor, but consistent with due process.[ ] real property taxes (assessment).--the maintenance of a high assessment in the face of declining value is merely another way of achieving an increase in the rate of property tax. hence, an over-assessment constitutes no deprivation of property without due process of law.[ ] likewise, land subject to mortgage may be taxed for its full value without deduction of the mortgage debt from the valuation.[ ] real property taxes: special assessments.--a state may defray the entire expense of creating, developing, and improving a political subdivision either from funds raised by general taxation, or by apportioning the burden among the municipalities in which the improvements are made, or by creating, or authorizing the creation of, tax districts to meet sanctioned outlays.[ ] where a state statute authorizes municipal authorities to define the district to be benefited by a street improvement and to assess the cost of the improvement upon the property within the district in proportion to benefits, their action in establishing the district and in fixing the assessments on included property, after due hearing of the owners as required by the statute cannot, when not arbitrary or fraudulent, be reviewed under the fourteenth amendment upon the ground that other property benefited by the improvement was not included.[ ] it is also proper to impose a special assessment for the preliminary expenses of an abandoned road improvement, even though the assessment exceeds the amount of the benefit which the assessors estimated the property would receive from the completed work.[ ] likewise a levy upon all lands within a drainage district of a tax of twenty-five cents per acre to defray preliminary expenses does not unconstitutionally take the property of landowners within that district who may not be benefited by the completed drainage plans.[ ] on the other hand, when the benefit to be derived by a railroad from the construction of a highway will be largely offset by the loss of local freight and passenger traffic, an assessment upon such railroad is violative of due process,[ ] whereas any gains from increased traffic reasonably expected to result from a road improvement will suffice to sustain an assessment thereon.[ ] also the fact that the only use made of a lot abutting on a street improvement is for a railway right of way does not make invalid, for lack of benefits, an assessment thereon for grading, curbing, and paving.[ ] however, when a high and dry island was included within the boundaries of a drainage district from which it could not be benefited directly or indirectly, a tax on such island was held to be a deprivation of property without due process of law.[ ] finally, a state may levy an assessment for special benefits resulting from an improvement already made[ ] and may validate an assessment previously held void for want of authority.[ ] jurisdiction to tax land prior even to the ratification of the fourteenth amendment, it was settled principle that a state could not tax land situated beyond its limits; and subsequently elaborating upon that principle the court has said that "* * *, we know of no case where a legislature has assumed to impose a tax upon land within the jurisdiction of another state, much less where such action has been defended by a court."[ ] insofar as a tax payment may be viewed as an exaction for the maintenance of government in consideration of protection afforded, the logic sustaining this rule is self-evident. tangible personalty as long as tangible personal property has a situs within its borders, a state validly may tax the same, whether directly through an _ad valorem_ tax or indirectly through death taxes, irrespective of the residence of the owner.[ ] by the same token, if tangible personal property makes only occasional incursions into other states, its permanent situs remains in the state of origin, and is taxable only by the latter.[ ] the ancient maxim, _mobilia sequuntur personam_, which had its origin when personal property consisted in the main of articles appertaining to the person of the owner, yielded in modern times to the "law of the place where the property is kept and used." in recent years, the tendency has been to treat tangible personal property as "having a situs of its own for the purpose of taxation, and correlatively to * * * exempt [it] at the domicile of its owner."[ ]the benefit-protection theory of taxation, upon which the court has in fact relied to sustain taxation exclusively by the situs state, logically would seem to permit taxation by the domiciliary state as well as by the nondomiciliary state in which the tangibles are situate, especially when the former levies the tax on the owner in terms of the value of the tangibles. thus far, however, the court has taken the position that when the tangibles have a situs elsewhere, the domiciliary state can neither control such property nor extend to it or to its owner such measure of protection as would be adequate to meet the jurisdictional requirements of due process. intangible personalty general.--to determine whether a state, or states, may tax intangible personal property, the court has applied the fiction, _mobilia sequuntur personam_ and has also recognized that such property may acquire, for tax purposes, a business or commercial situs where permanently located; but it has never clearly disposed of the issue as to whether multiple personal property taxation of intangibles is consistent with due process. in the case of corporate stock, however, the court has obliquely acknowledged that the owner thereof may be taxed at his own domicile, at the commercial situs of the issuing corporation, and at the latter's domicile; but, as of the present date, constitutional lawyers are speculating whether the court would sustain a tax by all three jurisdictions, or by only two of them, and, if the latter, which two, the state of the commercial situs and of the issuing corporation's domicile, or the state of the owner's domicile and that of the commercial situs.[ ] taxes on intangibles sustained.--thus far, the court has sustained the following personal property taxes on intangibles: ( ) a debt held by a resident against a nonresidence, evidenced by a bond of the debtor and secured by a mortgage on real estate in the state of the debtor's residence.[ ] ( ) a mortgage owned and kept outside the state by a nonresident but on land within the state.[ ] ( ) investments, in the form of loans to residents, made by a resident agent of a nonresident creditor, are taxable to the nonresident creditor.[ ] ( ) deposits of a resident in a bank in another state, where he carries on a business and from which these deposits are derived, but belonging absolutely to him and not used in the business, are subject to a personal property tax in the city of his residence, whether or not they are subject to tax in the state where the business is carried on. the tax is imposed for the general advantage of living within the jurisdiction [benefit-protection theory], and may be measured by reference to the riches of the person taxed.[ ] ( ) membership owned by a nonresident in a domestic exchange, known as a chamber of commerce.[ ] ( ) membership by a resident in a stock exchange located in another state. "double taxation" the court observed "by one and the same state is not" prohibited "by the fourteenth amendment; much less is taxation by two states upon identical or closely related property interests falling within the jurisdiction of both, forbidden."[ ] ( ) a resident owner may be taxed on stock held in a foreign corporation that does no business and has no property within the taxing state. the court also added that "undoubtedly the state in which a corporation is organized may * * *, [tax] of all its shares whether owned by residents or nonresidents."[ ] ( ) stock in a foreign corporation owned by another foreign corporation transacting its business within the taxing state. the court attached no importance to the fact that the shares were already taxed by the state in which the issuing corporation was domiciled and might also be taxed by the state in which the issuing corporation was domiciled and might also be taxed by the state in which the stock owner was domiciled; or at any rate did not find it necessary to pass upon the validity of the latter two taxes. the present levy was deemed to be tenable on the basis of the benefit-protection theory; namely, "the economic advantages realized through the protection, at the place * * *, [of business situs] of the ownership of rights in intangibles * * *"[ ] ( ) shares owned by nonresident shareholders in a domestic corporation, the tax being assessed on the basis of corporate assets and payable by the corporation either out of its general fund or by collection from the shareholder. the shares represent an aliquot portion of the whole corporate assets, and the property right so represented arises where the corporation has its home, and is therefore within the taxing jurisdiction of the state, notwithstanding that ownership of the stock may also be a taxable subject in another state.[ ] ( ) a tax on the dividends of a corporation may be distributed ratably among stockholders regardless of their residence outside the state, the stockholders being the ultimate beneficiaries of the corporation's activities within the taxing state and protected by the latter and subject to its jurisdiction.[ ] this tax, though collected by the corporation, is on the transfer to a stockholder of his share of corporate dividends within the taxing state, and is deducted from said dividend payments.[ ] ( ) stamp taxes on the transfer within the taxing state by one nonresident to another of stock certificates issued by a foreign corporation;[ ] and upon promissory notes executed by a domestic corporation, although payable to banks in other states.[ ] these taxes, however, were deemed to have been laid, not on the property, but upon an event, the transfer in one instance, and execution, in the latter, which took place in the taxing state. taxes on intangibles invalidated.--the following personal property taxes on intangibles have not been upheld: ( ) debts evidenced by notes in safekeeping within the taxing state, but made and payable and secured by property in a second state and owned by a resident of a third state.[ ] ( ) a property tax sought to be collected from a life beneficiary on the corpus of a trust composed of property located in another state and as to which said beneficiary had neither control nor possession, apart from the receipt of income therefrom.[ ] however, a personal property tax may be collected on one-half of the value of the corpus of a trust from a resident who is one of the two trustees thereof, notwithstanding that the trust was created by the will of a resident of another state in respect of intangible property located in the latter state, at least where it does not appear that the trustee is exposed to the danger of other _ad valorem_ taxes in another state.[ ] the first case, brooke _v._ norfolk,[ ] is distinguishable by virtue of the fact that the property tax therein voided was levied upon a resident beneficiary rather than upon a resident trustee in control of nonresident intangibles. different too is safe deposit and trust co. _v._ virginia,[ ] where a property tax was unsuccessfully demanded of a nonresident trustee with respect to nonresident intangibles under its control. ( ) a tax, measured by income, levied on trust certificates held by a resident, representing interests in various parcels of land (some inside the state and some outside), the holder of the certificates, though without a voice in the management of the property, being entitled to a share in the net income and, upon sale of the property, to the proceeds of the sale.[ ] transfer taxes (inheritance, estate, gift taxes).--being competent to regulate exercise of the power of testamentary disposition and the privilege of inheritance, a state may base its succession taxes upon either the transmission, or an exercise of the legal power of transmission, of property by will or by descent, or the enjoyment of the legal privilege of taking property by devise or descent.[ ] but whatever may be the justification of their power to levy such taxes, states have consistently found themselves restricted by the rule, established as to property taxes in in union refrigerator transit co. _v._ kentucky,[ ] and subsequently reiterated in frick _v._ pennsylvania[ ] in , which precludes imposition of transfer taxes upon tangible personal property by any state other than the one in which such tangibles are permanently located or have an actual situs. in the case of intangibles, however, the states have been harassed by the indecision of the supreme court; for to an even greater extent than is discernible in its treatment of property taxes on intangibles, it has oscillated in upholding, then rejecting, and again currently sustaining the levy by more than one state of death taxes upon intangibles comprising the estate of a decedent. until , transfer taxes upon intangibles levied by both the domiciliary as well as nondomiciliary, or situs state, were with rare exceptions approved. thus, in bullen _v._ wisconsin,[ ] the domiciliary state of the creator of a trust was held competent to levy an inheritance tax, upon the death of the settlor, on his trust fund consisting of stocks, bonds, and notes kept and administered in another state and as to which the settlor reserved the right to control disposition and to direct payment of income for life, such reserved powers being equivalent to a fee. cognizance was taken of the fact that the state in which these intangibles had their situs had also taxed the trust. levy of an inheritance tax by a nondomiciliary state was sustained on similar grounds in wheeler _v._ sohmer, wherein it was held that the presence of a negotiable instrument was sufficient to confer jurisdiction upon the state seeking to tax its transfer.[ ] on the other hand, the mere ownership by a foreign corporation of property in a nondomiciliary state was held insufficient to support a tax by that state on the succession to shares of stock in that corporation owned by a nonresident decedent.[ ] also against the trend was blodgett _v._ silberman[ ] wherein the court defeated collection of a transfer tax by the domiciliary state by treating coins and bank notes deposited by a decedent in a safe deposit box in another state as tangible property, albeit it conceded that the domiciliary state could tax the transfer of books and certificates of indebtedness found in that safe deposit box as well as the decedent's interest in a foreign partnership. in the course of about two years following the recent depression, the court handed down a group of four decisions which, for the time being at any rate, placed the stamp of disapproval upon multiple transfer and--by inference--other multiple taxation of intangibles. asserting, as it did in one of these cases, that "practical considerations of wisdom, convenience and justice alike dictate the desirability of a uniform general rule confining the jurisdiction to impose death transfer taxes as to intangibles to the state of the [owner's] domicile; * * *"[ ] the court, through consistent application of the maxim, _mobilia sequuntur personam_, proceeded to deny the right of nondomiciliary states to tax and to reject as inadequate jurisdictional claims of the latter founded upon such bases as control, benefit, and protection or situs. during this interval, - , multiple transfer taxation of intangibles came to be viewed, not merely as undesirable, but as so arbitrary and unreasonable as to be prohibited by the due process clause. beginning, in , with farmers' loan and trust co. _v._ minnesota,[ ] the court reversed its former ruling in blackstone _v._ miller,[ ] in which it had held that the state in which a debtor was domiciled or a bank located could levy an inheritance tax on the transfer of the debt or the deposit, notwithstanding that the creditor had his domicile in a different state. farmers' loan and trust co. _v._ minnesota, strictly appraised, was authority simply for the proposition that jurisdiction over a debtor, in this instance a state which had issued bonds held by a nonresident creditor, was inadequate to sustain a tax by that debtor state on the transfer of such securities. the securities in question, which had never been used by the creditor in any business in the issuing state, were located in the state in which the creditor had his domicile, and were deemed to be taxable only in the latter. in baldwin _v._ missouri,[ ] a nondomiciliary state was prevented from applying its inheritance tax to bonds, bank deposits, and promissory notes, all physically present within its limits and some of them secured by lands therein, when the owner thereof was domiciled in another state. a like result, although on this occasion on grounds of lack of evidence of any "business situs," was reached in beidler _v._ south carolina tax commission,[ ] in which the court ruled that a state, upon the death of a nonresident creditor, may not apply its inheritance tax to a debt [open account] owned by one of its domestic corporations. finally, in first national bank _v._ maine,[ ] which has since been overruled in state tax commission _v._ aldrich,[ ] the court declared that only the state in which the owner of corporate stock died domiciled was empowered to tax the succession to the shares by will or inheritance and that the state in which the issuing corporation was domiciled could not do so. without expressly overruling more than one of these four cases condemning multiple succession taxation of intangibles, the court, beginning with curry _v._ mccanless[ ] in , announced a departure from the "doctrine, of recent origin, that the fourteenth amendment precludes the taxation of any interest in the same intangible in more than one state * * *." taking cognizance of the fact that this doctrine had never been extended to the field of income taxation or consistently applied in the field of property taxation, where the concepts of business situs as well as of domiciliary situs had been utilized to sustain double taxation, especially in connection with shares of corporate stock, the court declared that a correct interpretation of constitutional requirements would dictate the following conclusions: "from the beginning of our constitutional system control over the person at the place of his domicile and his duty there, common to all citizens, to contribute to the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on the use and enjoyment of rights in intangibles measured by their value. * * * but when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and benefit of the laws of another state, in such a way as to bring his person or * * * [his intangibles] within the reach of the tax gatherer there, the reason for a single place of taxation no longer obtains, * * * [however], the state of domicile is not deprived, by the taxpayer's activities elsewhere, of its constitutional jurisdiction to tax." in accordance with this line of reasoning, tennessee, where a decedent died domiciled, and alabama, where a trustee, by conveyance from said decedent, held securities on specific trusts, were both deemed competent to impose a tax on the transfer of these securities passing under the will of the decedent. "in effecting her purposes," the testatrix was viewed as having "brought some of the legal interests which she created within the control of one state by selecting a trustee there, and others within the control of the other state, by making her domicile there." she had found it necessary to invoke "the aid of the law of both states, and her legatees" were subject to the same necessity. these statements represented a belated adoption of the views advanced by chief justice stone in dissenting or concurring opinions which he filed in three of the four decisions rendered during - . by the line of reasoning taken in these opinions, if protection or control was extended to, or exercised over, intangibles or the person of their owner, then as many states as afforded such protection or were capable of exerting such dominion should be privileged to tax the transfer of such property. on this basis, the domiciliary state would invariably qualify as a state competent to tax and a nondomiciliary state, so far as it could legitimately exercise control or could be shown to have afforded a measure of protection that was not trivial or insubstantial. on the authority of curry _v._ mccanless, the court, in pearson _v._ mcgraw,[ ] also sustained the application of an oregon transfer tax to intangibles handled by an illinois trust company and never physically present in oregon, jurisdiction to tax being viewed as dependent, not on the location of the property in the state, but on control over the owner who was a resident of oregon. in graves _v._ elliott,[ ] decided in the same year, the court upheld the power of new york, in computing its estate tax, to include in the gross estate of a domiciled decedent the value of a trust of bonds managed in colorado by a colorado trust company and already taxed on its transfer by colorado, which trust the decedent had established while in colorado and concerning which he had never exercised any of his reserved powers of revocation or change of beneficiaries. it was observed that "the power of disposition of property is the equivalent of ownership, * * * and its exercise in the case of intangibles is * * * [an] appropriate subject of taxation at the place of the domicile of the owner of the power. relinquishment at death, in consequence of the non-exercise in life, of a power to revoke a trust created by a decedent is likewise an appropriate subject of taxation."[ ] consistent application of the principle enunciated in curry _v._ mccanless is also discernible in two later cases in which the court sustained the right of a domiciliary state to tax the transfer of intangibles kept outside its boundaries, notwithstanding that "in some instances they may be subject to taxation in other jurisdictions, to whose control they are subject and whose legal protection they enjoyed." in graves _v._ schmidlapp[ ] an estate tax was levied upon the value of the subject of a general testamentary power of appointment effectively exercised by a resident donee over intangibles held by trustees under the will of a nonresident donor of the power. viewing the transfer of interest in said intangibles by exercise of the power of appointment as the equivalent of ownership, the court quoted from mcculloch _v._ maryland[ ] to the effect that the power to tax "'is an incident of sovereignty, and is coextensive with that to which it is an incident.'" again, in central hanover bank & t. co. _v._ kelly,[ ] the court approved a new jersey transfer tax imposed on the occasion of the death of a new jersey grantor of an irrevocable trust executed, and consisting of securities located, in new york, and providing for the disposition of the corpus to two nonresident sons. the costliness of multiple taxation of estates comprising intangibles is appreciably aggravated when each of several states founds its tax not upon different events or property rights but upon an identical basis; namely that, the decedent died domiciled within its borders. not only is an estate then threatened with excessive contraction but the contesting states may discover that the assets of the estate are insufficient to satisfy their claims. thus, in texas _v._ florida,[ ] the state of texas filed an original petition in the supreme court, in which it asserted that its claim, together with those of three other states, exceeded the value of the estate, that the portion of the estate within texas alone would not suffice to discharge its own tax, and that its efforts to collect its tax might be defeated by adjudications of domicile by the other states. the supreme court disposed of this controversy by sustaining a finding that the decedent had been domiciled in massachusetts, but intimated that thereafter it would take jurisdiction in like situations only in the event that an estate did not exceed in value the total of the conflicting demands of several states and that the latter were confronted with a prospective inability to collect. corporation taxes ( ) intangible personal property.--a state in which a foreign corporation has acquired a commercial domicile and in which it maintains its general business offices may tax the latter's bank deposits and accounts receivable even though the deposits are outside the state and the accounts receivable arise from manufacturing activities in another state.[ ] similarly, a nondomiciliary state in which a foreign corporation did business can tax the "corporate excess" arising from property employed and business done in the taxing state.[ ] on the other hand, when the foreign corporation transacts only interstate commerce within a state, any excise tax on such excess is void, irrespective of the amount of the tax.[ ] a domiciliary state, however, may tax the excess of market value of outstanding capital stock over the value of real and personal property and certain indebtedness of a domestic corporation even though this "corporate excess" arose from property located and business done in another state and was there taxable. moreover, this result follows whether the tax is considered as one on property or on the franchise.[ ] also a domiciliary state, which imposes no franchise tax on a stock fire insurance corporation, validly may assess a tax on the full amount of its paid-in capital stock and surplus, less deductions for liabilities, notwithstanding that such domestic corporation concentrates its executive, accounting, and other business offices in new york, and maintains in the domiciliary state only a required registered office at which local claims are handled. despite "the vicissitudes which the so-called 'jurisdiction-to-tax' doctrine has encountered * * *," the presumption persists that intangible property is taxable by the state of origin.[ ] but a property tax on the capital stock of a domestic company which includes in the appraisement thereof the value of coal mined in the taxing state but located in another state awaiting sale deprives the corporation of its property without due process of law.[ ] also void for the same reason is a state tax on the franchise of a domestic ferry company which includes in the valuation thereof the worth of a franchise granted to the said company by another state.[ ] ( ) privilege taxes measured by corporate stock.--since the tax is levied not on property but on the privilege of doing business in corporate form, a domestic corporation may be subjected to a privilege tax graduated according to paid up capital stock, even though the latter represents capital not subject to the taxing power of the state.[ ] by the same token, the validity of a franchise tax, imposed on a domestic corporation engaged in foreign maritime commerce and assessed upon a proportion of the total franchise value equal to the ratio of local business done to total business, is not impaired by the fact that the total value of the franchise was enhanced by property and operations carried on beyond the limits of the state.[ ] however, a state, under the guise of taxing the privilege of doing an intrastate business, cannot levy on property beyond its borders; and, therefore, as applied to foreign corporations, a license tax based on authorized capital stock is void,[ ] even though there be a maximum to the fee,[ ] unless apportioned according to some method, as, for example, a franchise tax based on such proportion of outstanding capital stock as is represented by property owned and used in business transacted in the taxing state.[ ] an entrance fee, on the other hand, collected only once as the price of admission to do an intrastate business, is distinguishable from a tax and accordingly may be levied on a foreign corporation on the basis of a sum fixed in relation to the amount of authorized capital stock (in this instance, a $ , fee on an authorized capital of $ , , ).[ ] ( ) privilege taxes measured by gross receipts.--a municipal license tax imposed as a percentage of the receipts of a foreign corporation derived from the sales within and without the state of goods manufactured in the city is not a tax on business transactions or property outside the city and therefore does not violate the due process clause.[ ] but a state is wanting in jurisdiction to extend its privilege tax to the gross receipts of a foreign contracting corporation for work done outside the taxing state in fabricating equipment later installed in the taxing state. unless the activities which are the subject of the tax are carried on within its territorial limits, a state is not competent to impose such a privilege tax.[ ] ( ) taxes on tangible personal property.--when rolling stock is permanently located and employed in the prosecution of a business outside the boundaries of a domiciliary state, the latter has no jurisdiction to tax the same.[ ] vessels, however, inasmuch as they merely touch briefly at numerous ports, never acquire a taxable situs at any one of them, and are taxable by the domicile of their owners or not at all;[ ] unless, of course, the ships operate wholly on the waters within one state, in which event they are taxable there and not at the domicile of the owners.[ ] only recently airplanes have been treated in a similar manner for tax purposes. noting that the entire fleet of airplanes of an interstate carrier were "never continuously without the [domiciliary] state during the whole tax year," that such airplanes also had their "home port" in the domiciliary state, and that the company maintained its principal office therein, the court sustained a personal property tax applied by the domiciliary state to all the airplanes owned by the taxpayer. no other state was deemed able to accord the same protection and benefits as the taxing state in which the taxpayer had both its domicile and its business situs; and the doctrines of union refrigerator transit co. _v._ kentucky,[ ] as to the taxability of permanently located tangibles, and that of apportionment, for instrumentalities engaged in interstate commerce[ ] were held to be inapplicable.[ ] conversely, a nondomiciliary state, although it may not tax property belonging to a foreign corporation which has never come within its borders, may levy on movables which are regularly and habitually used and employed therein. thus, while the fact that cars are loaded and reloaded at a refinery in a state outside the owner's domicile does not fix the situs of the entire fleet in such state, the latter may nevertheless tax the number of cars which on the average are found to be present within its borders.[ ] moreover, in assessing that part of a railroad within its limits, a state need not treat it as an independent line, disconnected from the part without, and place upon the property within the state only a value which could be given to it if operated separately from the balance of the road. the state may ascertain the value of the whole line as a single property and then determine the value of the part within on a mileage basis, unless there be special circumstances which distinguish between conditions in the several states.[ ] but no property of an interstate carrier can be taken into account unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the state.[ ] also, a state property tax on railroads, which is measured by gross earnings apportioned to mileage, is not unconstitutional in the absence of proof that it exceeds what would be legitimate as an ordinary tax on the property valued as part of a going concern or that it is relatively higher than taxes on other kinds of property.[ ] the tax reaches only revenues derived from local operations, and the fact that the apportionment formula does not result in mathematical exactitude is not a constitutional defect.[ ] income and other taxes individual incomes.--consistently with due process of law, a state annually may tax the entire net income of resident individuals from whatever source received,[ ] and that portion of a nonresident's net income derived from property owned, and from any business, trade, or profession carried on, by him within its borders.[ ] jurisdiction, in the case of residents, is founded upon the rights and privileges incident to domicile; that is, the protection afforded the recipient of income in his person, in his right to receive the income, and in his enjoyment of it when received, and, in the case of nonresidents, upon dominion over either the receiver of the income or the property or activity from which it is derived, and upon the obligation to contribute to the support of a government which renders secure the collection of such income. accordingly, a state may tax residents on income from rents of land located outside the state and from interest on bonds physically without the state and secured by mortgage upon lands similarly situated;[ ] and the income received by a resident beneficiary from securities held by a trustee in a trust created and administered in another state, and not directly taxable to the trustee.[ ] nor does the fact that another state has lawfully taxed identical income in the hands of trustees operating therein necessarily destroy a domiciliary state's right to tax the receipt of said income by a resident beneficiary. "the taxing power of a state is restricted to her confines and may not be exercised in respect of subjects beyond them."[ ] likewise, even though a nonresident does no business within a state, the latter may tax the profits realized by the nonresident upon his sale of a right appurtenant to membership in a stock exchange within its borders.[ ] incomes of foreign corporations.--a tax based on the income of a foreign corporation may be determined by allocating to the state a proportion of the total income which the tangible property in the state bears to the total.[ ] however, such a basis may work an unconstitutional result if the income thus attributed to the state is out of all appropriate proportion to the business there transacted by the corporation. evidence may always be submitted which tends to show that a state has applied a method which, albeit fair on its face, operates so as to reach profits which are in no sense attributable to transactions within its jurisdiction.[ ] nevertheless, a foreign corporation is in error when it contends that due process is denied by a franchise tax measured by income, which is levied, not upon net income from intrastate business alone, but on net income justly attributable to all classes of business done within the state, interstate and foreign, as well as intrastate business.[ ] inasmuch as the privilege granted by a state to a foreign corporation of carrying on local business supports a tax by that state on the income derived from that business, it follows that the wisconsin privilege dividend tax, consistently with the due process clause, may be applied to a delaware corporation, having its principal offices in new york, holding its meetings and voting its dividends in new york, and drawing its dividend checks on new york bank accounts. the tax is imposed on the "privilege of declaring and receiving dividends" out of income derived from property located and business transacted in the state, equal to a specified percentage of such dividends, the corporation being required to deduct the tax from dividends payable to resident and nonresident shareholders and pay it over to the state.[ ] chain store taxes.--a tax on chain stores, at a rate per store determined by the number of stores both within and without the state, is not unconstitutional as a tax in part upon things beyond the jurisdiction of the state.[ ] insurance company taxes.--a privilege tax on the gross premiums received by a foreign life insurance company at its home office for business written in the state does not deprive the company of property without due process;[ ] but a tax is bad when the company has withdrawn all its agents from the state and has ceased to do business, merely continuing to be bound to policyholders resident therein and receiving at its home office the renewal premiums.[ ] distinguishable therefrom is the following tax which was construed as having been levied, not upon annual premiums nor upon the privilege merely of doing business during the period that the company actually was within the state, but upon the privilege of entering and engaging in business, the percentage "on the annual premiums _to be paid throughout the life of the policies issued_." by reason of this difference a state may continue to collect such tax even after the company's withdrawal from the state.[ ] a state which taxes the insuring of property within its limits may lawfully extend its tax to a foreign insurance company which contracts with an automobile sales corporation in a third state to insure its customers against loss of cars purchased through it, so far as the cars go into possession of purchasers within the taxing state.[ ] on the other hand, a foreign corporation admitted to do a local business, which insures its property with insurers in other states who are not authorized to do business in the taxing state, cannot constitutionally be subjected to a % tax on the amount of premiums paid for such coverage.[ ] likewise a connecticut life insurance corporation, licensed to do business in california, which negotiated reinsurance contracts in connecticut, received payment of premiums thereon in connecticut, and was there liable for payment of losses claimed thereunder, cannot be subjected by california to a privilege tax measured by gross premiums derived from such contracts, notwithstanding that the contracts reinsured other insurers authorized to do business in california and protected policies effected in california on the lives of residents therein. the tax cannot be sustained whether as laid on property, business done, or transactions carried on, within california, or as a tax on a privilege granted by that state.[ ] when policy loans to residents are made by a local agent of a foreign insurance company, in the servicing of which notes are signed, security taken, interest collected, and debts are paid within the state, such credits are taxable to the company, notwithstanding that the promissory notes evidencing such credits are kept at the home office of the insurer.[ ] but when a resident policyholder's loan is merely charged against the reserve value of his policy, under an arrangement for extinguishing the debt and interest thereon by deduction from any claim under the policy, such credit is not taxable to the foreign insurance company.[ ] premiums due from residents on which an extension has been granted by foreign companies also are credits on which the latter may be taxed by the state of the debtor's domicile;[ ] and the mere fact that the insurers charge these premiums to local agents and give no credit directly to policyholders does not enable them to escape this tax.[ ] procedure in taxation in general exactly what due process requires in the assessment and collection of general taxes has never been decided by the supreme court. while it was held that "notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential" for imposition of special taxes, it has also ruled that laws for assessment and collection of general taxes stand upon a different footing and are to be construed with the utmost liberality, even to the extent of acknowledging that no notice whatever is necessary.[ ] due process of law as applied to taxation does not mean judicial process;[ ] neither does it require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain.[ ] if a taxpayer is given an opportunity to test the validity of a tax at any time before it is final, whether the proceedings for review take place before a board having a quasi-judicial character, or before a tribunal provided by the state for the purpose of determining such questions, due process of law is not denied.[ ] notice and hearing in relation to general taxes "of the different kinds of taxes which the state may impose, there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and generally, specific taxes on things, or persons, or occupations. in such cases the legislature, in authorizing the tax, fixes its amount, and that is the end of the matter. if the tax be not paid, the property of the delinquent may be sold, and he be thus deprived of his property. yet there can be no question, that the proceeding is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. no right of his is, therefore, invaded. thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard, or bushel, or gallon, there is nothing the owner can do which can affect the amount to be collected from him. so, if a person wishes a license to do business of a particular kind, or at a particular place, such as keeping a hotel or a restaurant, or selling liquors, or cigars, or clothes, he has only to pay the amount required by law and go into the business. there is no need in such cases for notice or hearing. so, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the state, or on domestic corporations for franchises, if the parties desire the privilege, they have only to pay the amount required. in such cases there is no necessity for notice or hearing. the amount of the tax would not be changed by it."[ ] notice and hearing in relation to assessments "but where a tax is levied on property not specifically, but according to its value, to be ascertained by assessors appointed for that purpose upon such evidence as they may obtain, a different principle comes in. the officers in estimating the value act judicially; and in most of the states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assessments. the law in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law."[ ] nevertheless, it has never been considered necessary to the validity of a tax that the party charged shall have been present, or had an opportunity to be present, in some tribunal when he was assessed.[ ] where a tax board has its time of sitting fixed by law and where its sessions are not secret, no obstacle prevents the appearance of any one before it to assert a right or redress a wrong; and in the business of assessing taxes, this is all that can be reasonably asked.[ ] nor is there any constitutional command that notice of an assessment as well as an opportunity to contest it be given in advance of the assessment. it is enough that all available defenses may be presented to a competent tribunal during a suit to collect the tax and before the demand of the state for remittance becomes final.[ ] a hearing before judgment, with full opportunity to submit evidence and arguments being all that can be adjudged vital, it follows that rehearings and new trials are not essential to due process of law.[ ] one hearing is sufficient to constitute due process;[ ] and the requirements of due process are also met if a taxpayer, who had no notice of a hearing, does receive notice of the decision reached thereat, and is privileged to appeal the same and, on appeal, to present evidence and be heard on the valuation of his property.[ ] notice and hearing in relation to special assessments however, when assessments are made by a political subdivision, a taxing board or court, according to special benefits, the property owner is entitled to be heard as to the amount of his assessments and upon all questions properly entering into that determination.[ ] the hearing need not amount to a judicial inquiry,[ ] but a mere opportunity to submit objections in writing, without the right of personal appearance, is not sufficient.[ ] if an assessment for a local improvement is made in accordance with a fixed rule prescribed by legislative act, the property owner is not entitled to be heard in advance on the question of benefits.[ ] on the other hand, if the area of the assessment district was not determined by the legislature, a landowner does have the right to be heard respecting benefits to his property before it can be included in the improvement district and assessed; but due process is not denied if, in the absence of actual fraud or bad faith, the decision of the agency vested with the initial determination of benefits is made final.[ ] the owner has no constitutional right to be heard in opposition to the launching of a project which may end in assessment; and once his land has been duly included within a benefit district, the only privilege which he thereafter enjoys is to a hearing upon the apportionment; that is, the amount of the tax which he has to pay.[ ] nor can he rightfully complain because the statute renders conclusive, after said hearing, the determination as to apportionment by the same body which levied the assessment.[ ] more specifically, where the mode of assessment resolves itself into a mere mathematical calculation, there is no necessity for a hearing.[ ] statutes and ordinances providing for the paving and grading of streets, the cost thereof to be assessed on the front foot rule, do not, by their failure to provide for a hearing or review of assessments, generally deprive a complaining owner of property without due process of law.[ ] in contrast, when an attempt is made to cast upon particular property a certain proportion of the construction cost of a sewer not calculated by any mathematical formula, the taxpayer has a right to be heard.[ ] sufficiency and manner of giving notice notice, insofar as it is required, may be either personal, or by publication, or by statute fixing the time and place of hearing.[ ] a state statute, consistently with due process, may designate a corporation as the agent of a nonresident stockholder to receive notice and to represent him in proceedings for correcting assessments.[ ] also "where the state * * * [desires] to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the court, and a notice which permits all interested, who are 'so minded,' to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be heard, whether to be found within the jurisdiction or not, is due process of law within the fourteenth amendment * * *."[ ] a description, even though it not be technically correct, which identifies the land will sustain an assessment for taxes and a notice of sale therefor when delinquent. if the owner knows that the property so described is his, he is not, by reason of the insufficient description, deprived of his property without due process. where tax proceedings are _in rem_, owners are bound to take notice thereof, and to pay taxes on their property, even if assessed to unknown or other persons; and if an owner stands by and sees his property sold for delinquent taxes, he is not thereby wrongfully deprived of his property.[ ] sufficiency of remedy when no other remedy is available, due process is denied by a judgment of a state court withholding a decree in equity to enjoin collection of a discriminatory tax.[ ] requirements of due process are similarly violated by a statute which limits a taxpayer's right to challenge an assessment to cases of fraud or corruption,[ ] and by a state tribunal which prevents a recovery of taxes imposed in violation of the constitution and laws of the united states by invoking a state law limiting suits to recover taxes alleged to have been assessed illegally to taxes paid at the time and in the manner provided by said law.[ ] laches persons failing to avail themselves of an opportunity to object and be heard, cannot thereafter complain of assessments as arbitrary and unconstitutional.[ ] likewise a car company, which failed to report its gross receipts as required by statute, has no further right to contest the state comptroller's estimate of those receipts and his adding thereto the % penalty permitted by law.[ ] collection of taxes to reach property which has escaped taxation, a state may tax the estates of decedents for a period anterior to death and grant proportionate deductions for all prior taxes which the personal representative can prove to have been paid.[ ] collection of an inheritance tax also may be expedited by a statute requiring the sealing of safe deposit boxes for at least ten days after the death of the renter and obliging the lessor to retain assets found therein sufficient to pay the tax that may be due the state.[ ] moreover, with a view to achieving a like result in the case of gasoline taxes, a state may compel retailers to collect such taxes from consumers and, under penalty of a fine for delinquency, to remit monthly the amounts thus collected.[ ] likewise, a tax on the tangible personal property of a nonresident owner may be collected from the custodian or possessor of such property, and the latter, as an assurance of reimbursement, may be granted a lien on such property.[ ] in collecting personal income taxes, however, most states require employers to deduct and withhold the tax from the wages of only nonresident employees; but the duty thereby imposed on the employer has never been viewed as depriving him of property without due process of law, nor has the adjustment of his system of accounting and paying salaries which withholding entails been viewed as an unreasonable regulation of the conduct of his business.[ ] as a state may provide in advance that taxes shall bear interest from the time they become due, it may with equal validity stipulate that taxes which have become delinquent shall bear interest from the time the delinquency commenced. likewise, a state may adopt new remedies for the collection of taxes and apply these remedies to taxes already delinquent.[ ] after liability of a taxpayer has been fixed by appropriate procedure, collection of a tax by distress and seizure of his person does not deprive him of liberty without due process of law.[ ] nor is a foreign insurance company denied due process of law when its personal property is distrained to satisfy unpaid taxes.[ ] the requirements of due process are fulfilled by a statute which, in conjunction with affording an opportunity to be heard, provides for the forfeiture of titles to land for failure to list and pay taxes thereon for certain specified years.[ ] no less constitutional, as a means of facilitating collection, is an _in rem_ proceeding, to which the land alone is made a party, whereby tax liens on land are foreclosed and all pre-existing rights or liens are eliminated by a sale under a decree in said proceeding.[ ] on the other hand, while the conversion of an unpaid special assessment into both a personal judgment therefor against the owner as well as a charge on the land is consistent with the fourteenth amendment,[ ] a judgment imposing personal liability against a nonresident taxpayer over whom the state court acquired no jurisdiction is void.[ ] apart from such restraints, however, a state is free to adopt new remedies for the collection of taxes and even to apply new remedies to taxes already delinquent.[ ] eminent domain historical development "prior to the adoption of the fourteenth amendment," the power of eminent domain, which is deemed to inhere in every state and to be essential to the performance of its functions,[ ] "was unrestrained by any federal authority."[ ] an express prohibition against the taking of private property for public use without just compensation was contained in the fifth amendment; but an effort to extend the application thereof to the states had been defeated by the decision, in , in barron _v._ baltimore.[ ] the most nearly comparable provision included in the fourteenth amendment, was the prohibition against a state depriving a person of property without due process of law. the court was accordingly confronted with the task of determining whether this restraint on state action, minus the explicit provision for just compensation found in the fifth amendment, afforded property owners the same measure of protection as did the latter in its operation as a limitation on the federal government. the court's initial answer to this question, as set forth in davidson _v._ new orleans,[ ] decided in , was in the negative; and on the ground of the omission of the clause found in the fifth amendment from the terms of the fourteenth, it refused to equate the just compensation with due process. within less than a decade thereafter, however, the court modified its position, and in chicago, b. & q.r. co. _v._ chicago,[ ] seven justices unequivocally rejected the contention, obviously based on the davidson case that "the question as to the amount of compensation to be awarded to the railroad company was one of local law merely, and [insofar as] that question was determined in the mode prescribed by the constitution and [state] law, the [property owner] appearing and having full opportunity to be heard, the requirement of due process of law was observed." on the contrary, the seven justices maintained that although a state "legislature may prescribe a form of procedure to be observed in the taking of private property for public use, * * * it is not due process of law if provision be not made for compensation * * * the mere form of the proceeding instituted against the owner, * * *, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation." public use while acknowledging that agreement was virtually nonexistent as to "what are public uses for which the right of compulsory taking may be employed," the court, until , continued to reiterate "the nature of the uses, whether public or private, is ultimately a judicial question."[ ] but because of proclaimed willingness to defer to local authorities, especially "the highest court of the state" in resolving such an issue,[ ] the court, as early as , was obliged to admit that, notwithstanding its retention of the power of judicial review, "no case is recalled where this court has condemned as a violation of the fourteenth amendment a taking upheld by the state court as a taking for public uses * * *"[ ] in , however, without endeavoring to ascertain whether "the scope of the judicial power to determine what is a 'public use' in fourteenth amendment controversies, * * *" is the same as under the fifth amendment, a majority of the justices, in a decision involving the federal government, declared that "it is the function of * * * [the legislative branch] to decide what type of taking is for a public use * * *"[ ] necessity for a taking "once it is admitted or judicially determined that a proposed condemnation is for a public purpose and within the statutory authority, a political or judicially nonreviewable question may emerge, to wit, the necessity or expediency of the condemnation of the particular property."[ ] the necessity and expediency of the taking are legislative questions to be determined by such agency and in such mode as the state may designate.[ ] what constitutes a taking for a public use to constitute a public use within the law of eminent domain, it is not essential that an entire community should directly participate in or enjoy an improvement, and, in ascertaining whether a use is public, not only present demands of the public but those which may be fairly anticipated in the future may be considered.[ ] moreover, it is also not necessary that property should be absolutely taken, in the narrowest sense of the word, to bring the case within the protection of this constitutional provision, but there may be such serious interruption to the common and necessary use of property as will be equivalent to a taking. "it would be * * * [an] unsatisfactory result, if * * *, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it [has] not [been] taken for the public use."[ ] takings for a purpose that is public hitherto have been held to comprise the following: a privately owned water supply system formerly operated under contract with the municipality effecting the taking;[ ] a right of way across a neighbor's land for the enlargement of an irrigation ditch therein to enable the taker to obtain water for irrigating land that would otherwise remain valueless;[ ] a right of way across a placer mining claim for the aerial bucket line of a mining corporation;[ ] land, water, and water rights for the production of electric power by a public utility;[ ] water rights by an interurban railway company for the production of power in excess of current needs;[ ] places of historical interest;[ ] land taken for the purpose of exchange with a railroad company for a portion of its right of way, required for widening a highway;[ ] land by a railway for a spur track;[ ] establishment by a municipality of a public hack stand upon the driveway maintained by a railroad upon its own terminal grounds to afford ingress and egress to its patrons.[ ] likewise, damages for which compensation must be paid are sustained by an upper riparian proprietor by reason of the erection of a dam by a lower mill owner under authority of a "mill act."[ ] on the other hand, even when compensation is tendered, an owner of property cannot be compelled to assent to its taking by the state for the private use of another. such a taking is prohibited, by the due process clause. thus, a state, by law, could not require a railroad corporation, which had permitted the erection of two grain elevators by private citizens on its right of way, to grant upon like terms, a location to another group of farmers desirous of erecting a third grain elevator for their own benefit.[ ] just compensation "when * * * [the] power [of eminent domain] is exercised it can only be done by giving the party whose property is taken or whose use and enjoyment of such property is interfered with, full and adequate compensation, not excessive or exorbitant, but just compensation."[ ] however, "there must be something more than an ordinary honest mistake of law in the proceedings for compensation before a party can make out that the state has deprived him of his property unconstitutionally."[ ] unless, by its rulings of law, the state court prevented a complainant from obtaining substantially any compensation, its findings as to the amount of damages will not be overturned on appeal, even though as a consequence of error therein the property owner received less than he ought.[ ] accordingly, when a state court, expressly recognizing a right of recovery for any substantial damage, found that none had been shown by the proof, its award of only $ as nominal damages was held to present no question for review.[ ] "all that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the federal constitution."[ ] "the general rule is that compensation 'is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future,' * * * [but] 'mere possible or imaginary uses, or the speculative schemes of its proprietor, are to be excluded.'"[ ] damages are measured by the loss to the owner, not by the gain to the taker;[ ] and attorneys' fees and expenses are not embraced therein.[ ] "when the public faith and credit are pledged to a reasonably prompt ascertainment and payment, and there is adequate provision for enforcing the pledge, * * * the requirement of just compensation is satisfied."[ ] uncompensated takings "it is well settled that 'neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation designed to secure the common welfare.' * * * uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not a taking or damaging without just compensation of private property, * * *"[ ] thus, the flooding of lands consequent upon private construction of a dam under authority of legislation enacted to subserve the drainage of lowlands was not a taking which required compensation to be made, especially since such flooding could have been prevented by raising the height of dikes around the lands. "the rule to be gathered from these cases is that where there is a practical destruction, or material impairment of the value of plaintiff's lands, there is a taking, which demands compensation, but otherwise where, as in this case, plaintiff is merely put to some extra expense in warding off the consequences of the overflow."[ ] similarly, when a city, by condemnation proceedings, sought to open a street across the tracks of a railroad, it was not obligated to pay the expenses that the railroad would incur in planking the crossing, constructing gates, and posting gatemen at the crossing. the railway was presumed to have "laid its tracks subject to the condition necessarily implied that their use could be so regulated by competent authority as to insure the public safety."[ ] also, one who leased oyster beds in hampton roads from virginia for $ per acre under guaranty of an "absolute right" to use and occupy them was held to have acquired such rights subject to the superior power of virginia to authorize newport news to discharge its sewage into the sea; and, hence could not successfully contend that the resulting pollution of his oysters constituted an uncompensated taking without due process of law.[ ] consequential damages "acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the due process clause."[ ] accordingly, consequential damages to abutting property caused by an obstruction in a street resulting from the authorization of a railroad to erect tracks, sheds, and fences over a portion thereof have been held to effect no unconstitutional deprivation of property.[ ] likewise, the erection over a street of an elevated viaduct, intended for general public travel and not devoted to the exclusive use of a private transportation corporation, has been declared to be a legitimate street improvement equivalent to a change in grade; and, as in the case of a change of grade, the owner of land abutting on the street has been refused damages for impairment of access to his land and the lessening of the circulation of light and air over it.[ ] limits to the above rule.--there are limits however, to the amount of destruction or impairment of the enjoyment or value of private property which public authorities or citizens acting in their behalf may occasion without the necessity of paying compensation therefor. thus, in upholding zoning regulations limiting the height of buildings which may be constructed in a designated zone, the court has warned that similar regulations, if unreasonable, arbitrary, and discriminatory, may be held to deprive an owner of the profitable use of his property and hence to amount to a taking sufficient to require compensation to be paid for such invasion of property rights.[ ] similarly, in voiding a statute forbidding mining of coal under private dwellings or streets or cities in places where such right to mine has been reserved in a conveyance, justice holmes, speaking for his associates, declared if a regulation restricting the use of private property goes too far, it will be recognized as a taking for which compensation must be made. "some values are enjoyed under an implied limitation, and must yield to the police power. but obviously the implied limitation must have its limits, * * * one fact for consideration in determining such limits is the extent of the diminution. * * * the damage [here] is not common or public. * * * the extent of the taking is great. it purports to abolish what is recognized in pennsylvania as an estate in land."[ ] due process in eminent domain ( ) notice.--if the owner of property sought to be condemned is a nonresident, personal notice is not requisite and service may be effected by publication.[ ] in fact, "it has been uniformly held that statutes providing for * * * condemnation of land may adopt a procedure summary in character, and that notice of such proceedings may be indirect, provided only that the period of notice of the initiation of proceedings and the method of giving it are reasonably adapted to the nature of the proceedings and their subject matter." insofar as reasonable notice is deemed to be essential, that requirement was declared to have been satisfied by a statute providing that notice of initiation of proceedings for establishment of a county road be published on three successive weeks in three successive issues of a paper published in the county, and that all meetings of the county condemning agency be public and published in a county newspaper.[ ] ( ) hearing.--the necessity and expediency of a taking being legislative questions irrespective of who may be charged with their decision, a hearing thereon need not be afforded;[ ] but the mode of determining the compensation payable to an owner must be such as to furnish him with an opportunity to be heard. among several admissible modes is that of causing the amount to be assessed by viewers, or by a jury, generally without a hearing, but subject to the right of the owner to appeal for a judicial review thereof at which a trial on the evidence may be had. through such an appeal the owner obtains the hearing to which he is entitled;[ ] and the fact that after having been adequately notified of the determination by the condemning authorities, the former must exercise his right of appeal within a limited period thereafter, such as days, has been held not so arbitrary as to deprive him of property without due process of law.[ ] nor is there any "denial of due process in making the findings of fact by the triers of fact, whether commissioners or a jury, final as to such facts [that is, conclusive as to the mere value of the property], and leaving open to the courts simply the inquiry as to whether there was any erroneous basis adopted by the triers in their appraisal, * * *"[ ] ( ) occupation in advance of condemnation.--due process does require that condemnation precede occupation by the condemning authority so long as the opportunity for a hearing as to the value of the land is guaranteed during the condemnation proceedings. where the statute contains an adequate provision for assured payment of compensation without unreasonable delay, the taking may precede compensation.[ ] due process of law in civil proceedings some general criteria what is due process of law depends on the circumstances.[ ] it varies with the subject matter and the necessities of the situation. by due process of law is meant one which, following the forms of law, is appropriate to the case, and just to the parties affected. it must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.[ ] ancient usage and uniformity.--what is due process of law may be ascertained in part by an examination of those settled usages and modes of proceedings existing in the common and statute law of england before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. if it can show the sanction of settled usage both in england and in this country, a process of law which is not otherwise forbidden may be taken to be due process of law. in other words, the antiquity of a procedure is a fact of weight in its behalf. however, it does not follow that a procedure settled in english law at the time of the emigration and brought to this country and practiced by our ancestors is, or remains, an essential element of due process of law. if that were so, the procedure of the first half of the seventeenth century would be fastened upon american jurisprudence like a strait jacket, only to be unloosed by constitutional amendment. fortunately, the states are not tied down by any provision of the constitution to the practice and procedure which existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.[ ] equality.--if due process is to be secured, the laws must operate alike upon all, and not subject the individual to the arbitrary exercise of governmental power unrestrained by established principles of private rights and distributive justice. where a litigant has the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result.[ ] due process and judicial process.--due process of law does not always mean a proceeding in court.[ ] proceedings to raise revenue by levying and collecting taxes are not necessarily judicial, neither are administrative and executive proceedings, yet their validity is not thereby impaired.[ ] moreover, the due process clause has been interpreted as not requiring that the judgment of an expert commission be supplanted by the independent view of judges based on the conflicting testimony, prophecies, and impressions of expert witnesses when judicially reviewing a formula of a state regulatory commission for limiting daily production in an oil field and for proration among the several well owners.[ ] nor does the fourteenth amendment prohibit a state from conferring upon nonjudicial bodies certain functions that may be called judicial, or from delegating to a court powers that are legislative in nature. for example, state statutes vesting in a parole board certain judicial functions,[ ] or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade,[ ] or vesting in a probate court authority to appoint park commissioners and establish park districts[ ] are not in conflict with the due process clause and present no federal question. whether legislative, executive, and judicial powers of a state shall be kept altogether distinct and separate, or whether they should in some particulars be merged is for the determination of the state.[ ] jurisdiction in general.--jurisdiction may be defined as the power to create legal interests; but if a state attempts to exercise such power with respect to persons or things beyond its borders, its action is in conflict with the fourteenth amendment and is void within as well as without its territorial limits. the foundation of jurisdiction is therefore physical power capable of being exerted over persons through _in personam_ actions and over things, generally through actions _in rem_.[ ] in proceedings _in personam_ to determine liability of a defendant, no property having been subjected by such litigation to the control of the court, jurisdiction over the defendant's person is a condition prerequisite to the rendering of any effective decree.[ ] that condition is fulfilled; that is, a state is deemed capable of exerting jurisdiction over an individual if he is physically present within the territory of the state, if he is domiciled in the state although temporarily absent therefrom, or if he has consented to the exercise of jurisdiction over him. in actions _in rem_, however, a state validly may proceed to settle controversies with regard to rights or claims against property within its borders, notwithstanding that control of the defendant is never obtained. accordingly, by reason of its inherent authority over titles to land within its territorial confines, a state may proceed through its courts to judgment respecting the ownership of such property, even though it lacks the constitutional competence to reach claimants of title who reside beyond its borders.[ ] by the same token, probate[ ] and garnishment or foreign attachment[ ] proceedings, being in the nature of _in rem_ actions for the disposition of property, may be prosecuted to conclusion without requirement of the presence of all parties in interest.[ ] how perfected: by voluntary appearance or service of process.--it is not enough, however, that a state be potentially capable of exercising control over persons and property. before a state legitimately can exercise such power to alter private interests, its jurisdiction must be perfected by the employment of an appropriate mode of serving process deemed effective to acquaint all parties of the institution of proceedings calculated to affect their rights; for the interest of no one constitutionally may be impaired by a decree resulting from litigation concerning which he was afforded neither notice nor an opportunity to participate.[ ] voluntary appearance, on the other hand, may enable a state not only to obtain jurisdiction over a person who was otherwise beyond the reach of its process; but also, as in the case of a person who was within the scope of its jurisdiction, to dispense with the necessity of personal service. when a party voluntarily appears in a cause and actively conducts his defense, he cannot thereafter claim that he was denied due process merely because he was not served with process when the original action was commenced.[ ] service of process in actions in personam: individuals, resident and nonresident.--the proposition being well established that no person can be deprived of property rights by a decree in a case in which he neither appeared, nor was served or effectively made a party, it follows, by way of illustration that to subject property of individual citizens of a municipality, by a summary proceeding in equity, to the payment of an unsatisfied judgment against the municipality would be a denial of due process of law.[ ] similarly, in a suit against a local partnership, in which the resident partner was duly served with process and the nonresident partner was served only with notice, a judgment thus obtained is binding upon the firm and the resident partner, but is not a personal judgment against the nonresident and cannot be enforced by execution against his individual property.[ ] that the nonresident partner should have been so protected is attributable to the fact the process of a court of one state cannot run into another and summon a party there domiciled to respond to proceedings against him, when neither his person nor his property is within the jurisdiction of the court rendering the judgment.[ ] in the case of a resident, however, absence alone will not defeat the processes of courts in the state of his domicile; for domicile is deemed to be sufficient to keep him within reach of the state courts for purposes of a personal judgment, whether obtained by means of appropriate, substituted service, or by actual personal service on the resident at a point outside the state. amenability to such suit even during sojourns outside is viewed as an "incident of domicile."[ ] however, if the defendant, although technically domiciled therein, has left the state with no intention to return, service by publication; that is, by advertisement in a local newspaper, as compared to a summons left at his last and usual place of abode where his family continued to reside, is inadequate inasmuch as it is not reasonably calculated to give him actual notice of the proceedings and opportunity to be heard.[ ] in the case of nonresident individuals who are domiciled elsewhere, jurisdiction in certain instances may be perfected by requiring such persons, as a condition to entering the state, to designate local agents to accept service of process. although a state does not have the power to exclude individuals until such formal appointment of an agent has been made,[ ] it may, for example, declare that the use of its highways by a nonresident is the equivalent of the appointment of the state registrar as agent for receipt of process in suits growing out of motor vehicle accidents. however, a statute designating a state official as the proper person to receive service of process in such litigation must, to be valid, contain a provision making it reasonably probable that a notice of such service will be communicated to the person sued. if the statute imposed "either on the plaintiff himself, or upon the official" designated to accept process "or some other, the duty of communicating by mail or otherwise with the defendant" this requirement is met; but if the act exacts no more than service of process on the local agent, it is unconstitutional, notwithstanding that the defendant may have been personally served in his own state. not having been directed by the statute, such personal service cannot supply constitutional validity to the act or to service under it.[ ] suits _in personam_.--restating the constitutional principles currently applicable for determining whether individuals, resident and nonresident, are suable in _in personam_ actions, the supreme court in international shoe co. _v._ washington,[ ] recently declared that: "historically the jurisdiction of courts to render judgments _in personam_ is grounded on their de facto power over the defendant's person. hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. * * * but now * * *, due process requires only that in order to subject a defendant to a judgment _in personam_, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" suability of foreign corporations.--until the enunciation in in international shoe co. _v._ washington[ ] of a "fair play and substantial justice" doctrine, the exact scope of which cannot yet be ascertained, the suability of foreign corporations had been determined by utilization of the "presence" doctrine. defined in terms no less abstract than its alleged successor and capable therefore of acquiring meaning only in cases of specific application, the "presence" doctrine was stated by justice brandeis as follows: "in the absence of consent, a foreign corporation is amenable to process to enforce a personal liability only if it is doing business within the state in such manner and to such extent as to warrant the inference that it is present there".[ ] in a variety of cases the court has considered the measure of "presence" sufficient to confer jurisdiction and a representative sample of the classes thereof is set forth below. with rare exceptions,[ ] even continuous activity of some sort by a foreign corporation within a state did not in the past suffice to render it amenable to suits therein unrelated to that activity. without the protection of such a rule, it was maintained, foreign corporations would be exposed to the manifest hardship and inconvenience of defending in any state in which they happen to be carrying on business suits for torts wherever committed and claims on contracts wherever made. thus, an indiana insurance corporation, engaging, without formal admission, in the business of selling life insurance in pennsylvania, was held not to be subject in the latter state to a suit filed by a pennsylvania resident upon an insurance policy executed and delivered in indiana.[ ] similarly, a virginia railway corporation, doing business in new orleans, was declared not to be within the jurisdiction of louisiana for the purposes of a negligence action instituted against it by a louisiana citizen and based upon injuries suffered in alabama.[ ] also, an iowa railway company soliciting freight and passenger business in philadelphia through a local agent was viewed as exempt therein from suit brought by a pennsylvania resident to recover damages for personal injuries sustained on one of the carrier's trains in colorado.[ ] on the other hand, when a missouri statute, accepted by a foreign insurance company and requiring it to designate the state superintendent of insurance as its agent for service of process, was construed by missouri courts to apply to suits on contracts executed outside missouri, with the result that the company had to defend in missouri a suit on a policy issued in colorado and covering property therein, the court was unable to discern any denial of due process. the company was deemed to have consented to such interpretation when it complied with the statute.[ ] moreover, even when the cause of action arose in the forum state and suit was instituted by a corporation chartered therein, a foreign company retailing clothing in oklahoma was held immune from service of process on its president when the latter visited new york on one of his periodic trips there for the purchase of merchandise. notwithstanding that such business trips were made at regular intervals, the oklahoma corporation was considered not to be doing business in new york "in such manner and to such extent as to warrant the inference that it was present there," especially in view of its having never applied for a license to do business in new york or consented to suit being brought against it there, or established therein an office or appointed a resident agent.[ ] nor would the mere presence within its territorial limits of an agent, officer, or stockholder, upon whom service might readily be had, be effective without more to enable a state to acquire jurisdiction over a foreign corporation. consequently, service of process on the president of a foreign corporation in a state where he was temporarily and casually present and where the corporation did no business and had no property was fruitless.[ ] likewise, service on a new york director of a virginia corporation was not sufficient to bring the corporation into the new york courts when, at the time of service, the corporation was not doing business in new york, and the director was not there officially representing the corporation in its business.[ ] on occasion, an officer of a corporation may temporarily be in a state or even temporarily reside therein; but if he is not there for the purpose of transacting business for the corporation, or vested with authority by the corporation to transact business in such state, his presence affords no basis for the exercise of jurisdiction over such nonresident employer, and any decree resulting from service upon such officer is violative of due process.[ ] however, a foreign insurance corporation which had ceased to sell insurance in tennessee but which had sent a special agent there to adjust a loss under a policy previously issued in that state could not, it was held, constitutionally object when a judgment on that claim was obtained by service on that agent.[ ] inasmuch as a state need not permit a foreign corporation to do domestic business within its borders, it may condition entry upon acceptance by the corporation of service of process upon its agents or upon a person to be designated by the corporation or, failing such designation, upon a state officer designated by law.[ ] service on a state officer, however, is no more effective than service upon an agent in the employ of a foreign corporation when, as has already been noted, such corporation is not subject to the jurisdiction of the state; that is, has not engaged in activities sufficient to render it "present" within the state, or is subjected to a cause of action unrelated to such activities and originating beyond the forum state. thus, a foreign insurance company which, after revocation of its entry license, continued to collect premiums on policies formerly issued to citizens of the forum state was in fact continuing to do business in that state sufficiently to render service on it through the insurance commissioner adequate to bind it as defendant in a suit by a citizen of said state on a policy therein issued to him.[ ] furthermore, a foreign corporation which, after leaving a state and subsequently dissolving, failed to obey a statutory requirement of that state that it maintain therein a resident agent until the period of limitations shall have run, or, in default thereof, that it consent to service on it through the secretary of state, could not complain of any denial of due process because that statute did not oblige the secretary of state to notify it of the pendency of an action. the burden was on the corporation to make such arrangement for notice as was thought desirable.[ ] to what extent these aforementioned holdings have been undermined by the recent opinion in international shoe co. _v._ washington[ ] cannot yet be determined. in the latter case, a foreign corporation, which had not been issued a license to do business in washington, but which systematically and continuously employed a force of salesmen, residents thereof, to canvass for orders therein, was held suable in washington for unpaid unemployment compensation contributions in respect to such salesmen. service of the notice of assessment personally upon one of its local sales solicitors plus the forwarding of a copy thereof by registered mail to the corporation's principal office in missouri was deemed sufficient to apprize the corporation of the proceeding. to reach this conclusion the court not only overturned prior holdings to the effect that mere solicitation of patronage does not constitute doing of business in a state sufficient to subject a foreign corporation to the jurisdiction thereof,[ ] but also rejected the "presence" test as begging "the question to be decided. * * * the terms 'present' or 'presence,'" according to chief justice stone, "are used merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process. * * * those demands may be met by such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system * * *, to require the corporation to defend the particular suit which is brought there; [and] * * * that the maintenance of the suit does not offend 'traditional notices of fair play and substantial justice' * * * an 'estimate of the inconveniences' which would result to the corporation from a trial away from its 'home' or principal place of business is relevant in this connection."[ ] as to the scope of application to be accorded this "fair play and substantial justice" doctrine, the court, at least verbally, conceded that "* * * so far as * * * [corporate] obligations arise out of or are connected with activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue."[ ] read literally, these statements coupled with the terms of the new doctrine may conceivably lead to a reversal of former decisions which: ( ) nullified the exercise of jurisdiction by the forum state over actions arising outside said state and brought by a resident plaintiff against a foreign corporation doing business therein without having been legally admitted and without having consented to service of process on a resident agent; and ( ) exempted a foreign corporation, which has been licensed by the forum state to do business therein and has consented to the appointment of a local agent to accept process, from suit on an action not arising in the forum state and not related to activities pursued therein. by an extended application of the logic of the last mentioned case, a majority of the court, in travelers health assn. _v._ virginia[ ] ruled that, notwithstanding that it solicited business in virginia solely through recommendations of existing members and was represented therein by no agents whatsoever, a foreign mail order insurance company had through its policies developed such contacts and ties with virginia residents that the state, by forwarding notice to the company by registered mail only, could institute enforcement proceedings under its blue sky law leading to a decree ordering cessation of business pending compliance with that act. the due process clause was declared not to "forbid a state to protect its citizens from such injustice" of having to file suits on their claims at a far distant home office of such company, especially in view of the fact that such suits could be more conveniently tried in virginia where claims of loss could be investigated.[ ] service of process actions in rem--proceedings against land.--for the purpose of determining the extent of a nonresident's title to real estate within its limits, a state may provide any reasonable means of imparting notice.[ ] precluded from going beyond its boundaries and serving nonresident owners personally, states in such cases of necessity have had recourse to constructive notice or service by publications. this they have been able to do because of their inherent authority over titles to lands within their borders. owners, nonresident as well as resident, are charged with knowledge of laws affecting demands of the state pertinent to property and of the manner in which such demands may be enforced.[ ] accordingly, only so long as the property affected has been brought under control of the court, will a judgment obtained thereto without personal notice to a nonresident defendant be effective. insofar as jurisdiction is thus required over a nonresident, it does not extend beyond the property involved.[ ] consistently with such principles, san francisco, after the earthquake of , had destroyed nearly all records, permitted titles to be reestablished by parties in possession by posting summons on the property, serving them on known claimants, and publishing them against unknown claimants in newspapers for two weeks.[ ] actions in rem--attachment proceedings.--in fulfillment of the protection which a state owes to its citizens, it may exercise its jurisdiction over real and personal property situated within its borders belonging to a nonresident and permit an appropriation of the same in attachment proceedings to satisfy a debt owed by the nonresident to one of its citizens or to settle a claim for damages founded upon a wrong inflicted on the citizen by the nonresident. being neither present within the state nor domiciled therein, the nonresident defendant cannot be served personally; and consequently any judgment in money obtained against him would be void and could not thereafter be satisfied either by execution on the nonresident's property subsequently found within the state or by suit and execution thereon in another state. in such instances, the citizen-plaintiff may recover, if at all, only by an _in rem_ proceeding involving a levy of a writ of attachment on the local property of the defendant, of which proceeding the nonresident need be notified merely by publication of a notice within the forum state. however, any judgment rendered in such proceedings can have no consequence beyond the property attached. if the attached property be insufficient to pay the claim, the plaintiff cannot thereafter sue on such judgment to collect an unpaid balance; and if property owned by the defendant cannot be found within the state, the attachment proceedings are, of course, summarily concluded.[ ] actions in rem--corporations, estates, trusts, etc.--probate administration, being in the nature of a proceeding _in rem_, is one to which all the world is charged with notice.[ ] thus, in a proceeding against an estate involving a suit against an administratrix to foreclose a mortgage executed by the decedent, the heir, notwithstanding that the suit presents an adverse claim the disposition of which may be destructive of his title to land deriving from the decedent, may properly be represented by the administratrix and is not entitled to personal notification or summons.[ ] for like reasons, a statutory proceeding whereunder a special administrator, having charge of an estate pending a contest as to the validity of the will, is empowered to have a final settlement of his accounts without notice to the distributees, is not violative of due process. the executor, or administrator c.t.a., has an opportunity to contest the final settlement of the special administrator before giving the latter an acquittance; and since the former represents all claiming under the will, it cannot be said the absence of notice to the distributees of the settlement deprives them of their rights without due process of law.[ ] in litigation to determine succession to property by proceedings in escheat, due process is afforded by personal service of summons upon all known claimants and constructive notice by publication to all claimants who are unknown.[ ] whether a proceeding by the state to compel a bank to turn over to it unclaimed deposits in _quasi in rem_ or strictly _in rem_, the essentials of jurisdiction over the deposit are that there be a seizure of the _res_ at the commencement of the suit and reasonable notice and opportunity to be heard. these requirements are met by personal service on the bank and publication of summons to depositors and of notice to all other claimants. the fact that no affidavit of impracticability of personal service on claimants is required before publication of such notices does not render the latter unreasonable inasmuch as they are used only in cases where the depositor is not known to the bank officers to be alive.[ ] similarly, a kentucky statute requiring banks to turn over to the state deposits long inactive is not violative of due process where, although the deposits are taken over upon published notice only, without any judicial decree of actual abandonment, they are to be held by the state for the depositor until such determination and for five years thereafter.[ ] however, a procedure is at least partly defective whereby a bank managing a common trust fund in favor of nonresident as well as resident beneficiaries may, by a petition, the only notice of which is by publication in a local paper, obtain a judicial settlement of accounts which is conclusive on all having an interest in the common fund or in any participating trust. such notice by publication is sufficient as to beneficiaries whose interests or addresses are unknown to the bank, since there are no other more practicable means of giving them notice; but is inadequate as a basis for adjudication depriving of substantial rights persons whose whereabouts are known, inasmuch as it is feasible to make serious efforts to notify them at least by mail to their addresses on record with said bank.[ ] on the other hand, failure to make any provision for notice to majority stockholders of a suit by dissenting shareholders, under a statute which provided that, on a sale or other disposition of all or substantially all of corporate assets, a dissenting shareholder shall have the right, after six months, to be paid the amount demanded, if the corporation makes no counter offer or does not abandon the sale, does not deny due process; for the majority stockholders are sufficiently represented by the corporation.[ ] actions in rem--divorce proceedings.--the jurisdictional requirements for rendering a valid decree in divorce proceedings are considered under the full faith and credit clause. _see_ pp. - . misnomer of defendant--false return, etc.--an unattainable standard of accuracy is not imposed by the due process clause. if a defendant within the jurisdiction is served personally with process in which his name is misspelled, he cannot safely ignore it on account of the misnomer. if he fails to appear and plead the misnomer in abatement, the judgment binds him. in a published notice intended to reach absent or nonresident defendants, where the name is a principal means of identifying the person concerned, somewhat different considerations obtain. the general rule, in case of constructive service of process by publication, tends to strictness. however, published notice to "albert guilfuss, assignee," in a suit to partition land, was adequate to render a judgment binding on "albert b. geilfuss, assignee," the latter not having appeared.[ ] foreclosure of a mortgage made upon process duly issued but which the sheriff falsely returned as having been duly served, and of which the owner had no notice, does not deprive said owner of property without due process of law. a purchaser of the land at the sheriff's sale has a right to rely on such return; otherwise judicial proceedings could never be relied upon. the mortgagor must seek his remedy against the sheriff upon his bond.[ ] notice and hearing legislative proceedings.--while due notice and a reasonable opportunity to be heard to present one's claim or defense have been declared to be two fundamental conditions almost universally prescribed in all systems of law established by civilized countries,[ ] there are certain proceedings appropriate for the determination of various rights in which the enjoyment of these two privileges has not been deemed to be constitutionally necessary. thus the constitution does not require legislative assemblies to discharge their functions in town meeting style; and it would be manifestly impracticable to accord every one affected by a proposed rule of conduct a voice in its adoption. advanced notice of legislation accordingly is not essential to due process of law; nor need legislative bodies preface their enactment of legislation by first holding committee hearings thereon. it follows therefore that persons adversely affected by a specific law can never challenge its validity on the ground that they were never heard on the wisdom or justice of its provisions.[ ] administrative proceedings.--to what extent notice and hearing are deemed essential to due process in administrative proceedings, encompassing as they do the formulation and issuance of general regulations, the determination of the existence of conditions which have the effect of bringing such regulations into operation, and the issuance of orders of specific, limited application, entails a balancing of considerations as to the desirability of speed in law enforcement and protection of individual interests. when an administrative agency engages in a legislative function, as, for example, when, in pursuance of statutory authorization, it drafts regulations of general application affecting an unknown number of people, it need not, any more than does a legislative assembly, afford a hearing prior to promulgation. on the other hand, if a regulation, sometimes described as an order or action of an administrative body, is of limited application; that is, affects the property or interests of specific, named individuals, or a relatively small number of people readily identifiable by their relation to the property or interests affected, the question whether notice and hearing is prerequisite and, if so, whether it must precede such action, becomes a matter of greater urgency. but while a distinction readily may be made, for example, between a regulation establishing a schedule of rates for all carriers in a state, and one designed to control the charges of only one or two specifically named carriers, the cases do not consistently sustain the withholding of advance notice and hearing in the first class of regulations and insist upon its provision in the latter. in fact, the observation has been made that the judicial disposition to exact the protection of notice and hearing rises in direct proportion to the extent to which a regulation affects the finances of business establishments covered thereunder. accordingly, if a regulation bears only indirectly upon income and expenses, as for example, a regulation altering insurance policy forms, less concern for such procedural protection is likely to be expressed than in the case of the formulation of a minimum wage schedule, even though the regulations involved in both illustrations are general and not limited in operation. moreover, if regulations, which are general in their application, may be readily subjected to judicial challenge after their promulgation, or if the parties to which they apply are affected only when they endeavor to comply in the future, advance notice and hearing is less likely to be viewed as essential to due process.[ ] as to that portion of administrative activity pertaining to the making of determinations or the issuance of orders of limited or individual application, the obligation to afford notice and hearing is reasonably clear; but controversy has been protracted on the question whether this procedural safeguard, in every instance, must be granted in advance of such activity. the most frequently litigated types of administrative action embracing the latter issue have been determinations to withhold issuance of, or to revoke, an occupational license, or to impound or destroy property believed to be dangerous to public health, morals, or safety. apparently in recognition of the fact that few occupations today can be pursued without a license, the trend of decisions is toward sustaining a requirement of a hearing before refusal to issue a license and away from the view that inasmuch as no one is entitled as of right to engage in a specific profession, the issue of a practitioner's license applicable thereto is in the nature of a gift as to the granting or withholding of which procedural protection is unnecessary. revocation, or refusal to renew a license, however, has been distinguished from issuance of a license; and where a license is construed to confer something in the nature of a property right rather than a mere privilege terminable at will, such property right, the courts have maintained, ought not to be destroyed summarily by revocation without prior notice and hearing. whether an occupational license is to be treated as a privilege revocable without a hearing, or as conferring a property right deserving of greater protection, depends very largely on prevailing estimates of the social desirability of a calling. thus, if a business is susceptible of being viewed as injurious to public health, morals, safety, and convenience, as, for example, saloons, pool rooms, and dance halls, the licensee is deemed to have entered upon such line of endeavor with advance knowledge of the state's right to withdraw his license therefor summarily. prompt protection of the public in such instances is said to outweigh the advantages of a slower procedure, retarded by previous notice and hearing, and to require that the person adversely affected seek his remedy from the court via a petition to review or to enjoin the decision of the licensing authorities.[ ] for like reasons, the owner of property about to be impounded or destroyed by officers acting in furtherance of the police power may justifiably be relegated to post mortem remedies in the form of a suit for damages against the officer effecting the seizure or destruction, or, if time permits, a bill in equity for an injunction. thus, due process of law is not denied the custodian of food in cold storage by enforcement of a city ordinance under which such food, when unfit for human consumption, may summarily be seized, condemned, and destroyed without a preliminary hearing. "if a party cannot get his hearing in advance of the seizure and destruction he has the right to have it afterward, * * * in an action brought for the destruction of his property, and in that action those who destroyed it can only successfully defend if the jury shall find the fact of unwholesomeness as claimed by them."[ ] similarly, if the owner of liquor, possession of which has been made unlawful, can secure a hearing by instituting injunction proceedings, he is not denied due process by the failure to grant him a hearing before seizure and destruction of his property.[ ] indeed, even when no emergency exists, such as is provided by a conflagration or threatened epidemic, and the property in question is not intrinsically harmful, mere use in violation of a valid police power regulation has been held to justify summary destruction. thus, in the much criticized case of lawton _v._ steele,[ ] the destruction, without prior notice and hearing, of fishing nets set in violation of a conservation law defining them to be a nuisance was sustained on the ground that the property was not "of great value." conceding that "it is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation," the court acknowledged that "if the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be * * * dangerous * * * to permit * * * [an officer] to sell or destroy it as a public nuisance, * * * but where the property is of trifling value, * * * we think it is within the power of the legislature to order its summary abatement."[ ] statutory proceedings.--"it is not an indispensable requirement of due process that every procedure affecting the ownership or disposition of property be exclusively by judicial proceeding. statutory proceedings affecting property rights, which, by later resort to the courts, secure to adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process."[ ] thus, a procedure under which a state banking superintendent, after having taken over a closed bank and issued notices to stockholders of their assessment, may issue execution for the amounts due, subject to the right of each stockholder, by affidavit of illegality, to contest his liability for such an assessment, does not in effect authorize an execution and creation of a lien before and without any judicial proceeding. the fact that the execution is issued in the first instance by an agent of the state and not from a court, followed by personal notice and a right to take the case into court, is open to no objection. the statute authorizing this procedure is itself notice to stockholders that on becoming such they assumed the liability on which they are to be held.[ ] judicial proceedings.--consistently with the due process clause, a state may not enforce a judgment against a party named in the proceedings without an opportunity to be heard at sometime before final judgment is entered.[ ] as to the presentation of every available defense, however, the requirements of due process do not entail affording an opportunity to do so before entry of judgment. a hearing by an appeal may suffice. accordingly, a surety company, objecting to the entry of a judgment against it on a supersedeas bond, without notice and an opportunity of a hearing on the issue of liability thereon, was not denied due process where the state practice provided the opportunity for such hearing by an appeal from the judgment so entered. nor could the company found its claim of denial upon the fact that it lost this opportunity for a hearing by inadvertently pursuing the wrong procedure in the state courts.[ ] on the other hand, where a state supreme court reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed immaterial but which the appellate court considered material, was held to have been deprived of his rights without due process of law.[ ] sufficiency of notice and hearing.--although the supreme court has wavered on the question whether the granting of notice in administrative proceedings, in cases in which the authorizing statute does not expressly provide therefor, will satisfy the requirements of due process,[ ] in judicial proceedings it has almost consistently declared that notice must be provided as an essential part of the statutory provision and not as a mere matter of favor or grace.[ ] also, the notice afforded must be adequate for the purpose. thus, a texas statute providing for service of process by giving five days' notice was held to be an insufficient notice to a virginian who would (at that time) have required four days' traveling to reach the place where the court was held. nor would this insufficiency of notice on a nonresident be cured by the fact that under local practice there would be several additional days before the case would be called for trial or that the court would probably set aside a default judgment and permit a defense when the nonresident arrived.[ ] on the other hand, a statute affording ten days' notice of the time for settlement of the account of a personal representative in probate proceedings is not wanting in due process of law as to a nonresident.[ ] adequacy, moreover, is no less an essential attribute of a hearing than it is of notice; and, as the preceding discussion has shown, unless a person involved in administrative as well as judicial proceedings has received a hearing that is both sufficient and fair and has been subjected to rulings amply supported by the evidence introduced thereat, he will not be considered to have been accorded due process.[ ] power of states to regulate procedure generally the due process clause of the fourteenth amendment does not control mere forms of procedure in state courts or regulate practice therein.[ ] a state "is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."[ ] pursuant to such plenary power, states have regulated the manner in which rights may be enforced and wrongs remedied,[ ] and, in connection therewith, have created courts and endowed them with such jurisdiction as, in the judgment of their legislatures, seemed appropriate.[ ] whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure are issues which can give rise to no conflict with the fourteenth amendment; for the latter's function is negative rather than affirmative and in no way obligates the states to adopt specific measures of reform.[ ] pleading and practice commencement of actions.--a state may impose certain conditions on the right to institute litigation. thus, access to the courts may be denied to persons instituting stockholders' derivative actions unless reasonable security for the costs, and fees incurred by the corporation is first tendered. nor is the retroactive application of this statutory requirement to actions pending at the time of its adoption violative of due process as long as no new liability for expenses incurred before enactment is imposed thereby, and the only effect thereof is to stay such proceedings until the security is furnished.[ ] moreover, when a nonresident files suit in a local court, the state, as the price of opening its tribunals to such plaintiff, may exact the condition that the former stand ready to answer all cross-actions filed and accept any _in personam_ judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff's attorney of record.[ ] for similar reasons, the requirements, without excluding other evidence, of a chemical analysis as a condition precedent to a suit to recover damages resulting to crops from allegedly deficient fertilizers is not deemed to be arbitrary or unreasonable.[ ] pleas in abatement.--state legislation which forbids a defendant to come into court and challenge the validity of service upon him in a personal action without thereby surrendering himself to the jurisdiction of the court, but which does not restrain him from protecting his substantive rights against enforcement of a judgment rendered without service of process, is constitutional and does not deprive him of property without due process of law. such a defendant, if he please, may ignore the proceedings as wholly ineffective, and set up the invalidity of the judgment if and when an attempt is made to take his property thereunder. however, if he desires to contest the validity of the proceedings in the court in which it is instituted, so as to avoid even semblance of a judgment against him, it is within the power of a state to declare that he shall do this subject to the risk of being obliged to submit to the jurisdiction of the court to hear and determine the merits, if the objection raised by him as to its jurisdiction over his person shall be overruled.[ ] defenses.--just as the state may condition the right to institute litigation, so may it establish its terms for the interposition of certain defenses. thus, by statute a state validly may provide that one sued in a possessory action cannot bring an action to try title until after judgment shall have been rendered in the possessory action, and until he shall have paid the judgment, if the decision shall have so awarded.[ ] likewise, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot successfully challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend. "the condition imposed has a reasonable relation to the conversion of a proceeding _quasi in rem_ into an action _in personam_; [and] ordinarily * * * is not difficult to comply with--* * *"[ ] amendments and continuances.--amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal; accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation.[ ] costs, damages, and penalties.--what costs are allowed by law is for the court to determine; and an erroneous judgment of what the law allows does not deprive a party of his property without due process of law.[ ] nor does a statute providing for the recovery of reasonable attorney's fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.[ ] equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives.[ ] also, as a reasonable incentive for prompt settlement without suit of just demands of a class admitting of special legislative treatment, such as common carriers and insurance companies together with their patrons, a state through the exercise of its police power may permit harassed litigants to recover penalties in the form of attorney's fees or damages.[ ] similarly, to deter careless destruction of human life, a state by law may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees.[ ] likewise, by virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a state may provide that a public officer embezzling public money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. whatever this fine be called, whether it be a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime.[ ] statutes of limitation a statute of limitations does not deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce that right by suit. by the same token, a state may shorten an existing period of limitation, provided a reasonable time is allowed for bringing an action after the passage of the statute and before the bar takes effect. what is a reasonable period, however, is dependent on the nature of the right and particular circumstances.[ ] thus, an interval of only one year is not so unreasonable as to be wanting in due process when applied to bar actions relative to the property of an absentee in instances when the receiver for such property has not been appointed until years after the former's disappearance.[ ] likewise, when a state, by law, suddenly prohibits, unless brought within six months after its passage, all actions to contest tax deeds which have been of record for two years, no unconstitutional deprivation is effected.[ ] no less valid is a statute, applicable to wild lands, which provides that when a person has been in possession under a recorded deed continuously for years, and had paid taxes thereon during the same, the former owner in that interval paying nothing, no action to recover such land shall be entertained unless commenced within years, or before the expiration of five years following enactment of said provision.[ ] similarly, an amendment to a workmen's compensation act, limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation of a disability, does not deny due process to one who sustained his injury at a time when the statute contained no limitation. a limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive.[ ] moreover, as long as no agreement of the parties is violated, a state may extend as well as shorten the time in which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. as applied to actions for personal debts, a repeal or extension of a statute of limitations effects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. "a right to defeat a just debt by the statute of limitation * * * [not being] a vested right," such as is protected by the constitution, accordingly no offense against the fourteenth amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a child for the use of her property,[ ] or a suit to recover the purchase price of securities sold in violation of a blue sky law,[ ] or a right of an employee to seek, on account of the aggravation of a former injury, an additional award out of a state administered fund.[ ] however, as respects suits to recover real and personal property, when the right of action has been barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as attempting an arbitrary transfer of title.[ ] also unconstitutional is the application of a local statute of limitation declaring invalid any contractual limitation of the right to sue to a period shorter than two years to an insurance contract made and to be performed outside the forum state and containing a stipulation that suit thereon must be brought within one year from the date of loss. "when the parties to a contract have expressly agreed upon a time limit on their obligation, a statute which invalidates * * * [said] agreement and directs enforcement of the contract after * * * [the agreed] time has expired * * *" unconstitutionally imposes a burden in excess of that contracted.[ ] evidence and presumptions the establishment of presumptions and rules respecting the burden of proof is clearly within the domain of state governments.[ ] as long as a presumption is not unreasonable and is not conclusive of the rights of the person against whom raised, it does not violate the due process clause. legislative fiat may not take the place of fact, however, in the determination of issues involving life, liberty, or property, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one's defense is void. on the other hand, if there is a rational connection between what is proved and what is to be inferred, legislation declaring that the proof of one fact or group of facts shall constitute _prima facie_ evidence of a main or ultimate fact will be sustained.[ ] on the ground that the connection between the fact proven and that presumed was not sufficient and that reasoning did not lead from one to the other, the following statutory presumptions have been voided. thus, a statute which treated a breach of a contract to labor as _prima facie_ evidence of an intent to defraud an employer of money paid by him in advance was found to be constitutionally defective because the trial court was permitted to disregard evidence rationally bearing upon fraud and to decide upon evidence pertaining to an unrelated breach of contract, with the consequence that an adequate hearing upon fraud was not afforded.[ ] also, since "inference of crime and guilt may not reasonably be drawn from mere inability [of a bank] to pay demand deposits and other debts as they mature," a statute making proof of insolvency _prima facie_ evidence of fraud on the part of bank directors was deemed wholly arbitrary.[ ] similarly, negligence by one or all the participants in a grade crossing collision not being inferable from the latter occurrence, the court voided a georgia statute which declared that a railroad shall be liable in damages to person or property by the running of trains unless the company shall make it appear that its agents exercised ordinary diligence, the presumption in all cases being against the company, and which was construed by state courts as permitting said presumption of evidence to be weighed against opposing testimony and to prevail unless such testimony is found by a jury to be preponderant.[ ] on the other hand, a south carolina statute which raised a presumption of negligence against a railroad upon proof of failure to give prescribed warning signals was sustained because the presumption therein established gave rise merely to a temporary inference which might be rebutted by contrary evidence and which is thereafter to be excluded in determining proximate cause.[ ] presumptions sustained as constitutionally tenable include those set out in statutes providing that when distillery apparatus is found upon the premises of an individual, such discovery shall be _prima facie_ evidence of actual knowledge of the presence of the same;[ ] that the flowing, release, or escape of natural gas into the air shall constitute _prima facie_ evidence of prohibited waste,[ ] and that prior conviction of a felony shall be conclusive evidence of bad character justifying refusal to issue a license to practice medicine.[ ] upheld, consistently with the former, were two sections of the california alien land law; one, which specified that the taking of title in the name of a person eligible to hold land, where the consideration is furnished by one ineligible to acquire agricultural land, shall raise a _prima facie_ presumption that the conveyance is made to evade the law;[ ] and a second, which cast upon a japanese defendant the burden of proving citizenship by birth after the state endeavored to prove that he belonged to a race ineligible for naturalization.[ ] in contrast with the latter result, however, is a subsequent decision of the court holding unconstitutional another section of the same california law providing that when an indictment alleges alienage and ineligibility to united states citizenship of a defendant, the burden of proving citizenship or eligibility thereto shall devolve upon the defendant.[ ] as a basis for distinguishing these last two decisions the court observed that while "the decisions are manifold that within [the] limits" of fairness[ ] and reason the burden of proof may be shifted to the defendant even in criminal prosecutions, nevertheless, to be justified, "the evidence held to be inculpatory * * * [must have had] at least a sinister significance * * *, or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, * * *" whereas, accordingly, under the terms of the section previously upheld, the defendant could prove his citizenship without trouble, and the state, if forced to disprove his claim, could be relatively helpless, the background of the accused party being known probably only to himself and close relatives, the alleged japanese defendant, in the last mentioned case, would have suffered hardship and injustice if compelled to prove non-japanese origin, especially since ineligibility renders criminal conduct otherwise lacking in "sinister significance" (occupation of land under lease from an american codefendant).[ ] on the other hand, it was held in a recent case, that oregon was entitled to require that one pleading insanity as a defense against a criminal charge should prove same beyond a reasonable doubt, and to make "morbid propensity" no defense.[ ] jury trials: dispensing with jury trials trial by jury has not been considered essential to due process, and since the fourteenth amendment guarantees no particular form or method of procedure, states have been free to retain or abolish juries.[ ] conformably to the constitution, states, in devising their own procedures, eliminated juries in proceedings to enforce liens,[ ] inquiries for contempt,[ ] mandamus[ ] and quo warranto actions,[ ] and in eminent domain[ ] and equity proceedings.[ ] states are equally free to adopt innovations respecting the selection and number of jurors. verdicts rendered by ten out of twelve jurors may be substituted for the requirement of a unanimous verdict,[ ] and petit juries containing eight rather than the conventional twelve members may be established.[ ] due process in criminal proceedings general in the following pages the requirements of the due process clause of amendment xiv in criminal cases will be dealt with in approximately the order in which questions regarding them arise in the course of a prosecution. indefinite statutes: right of accused to knowledge of offense "a statute so vague and indefinite, in form and as interpreted, * * * [as to fail] to give fair notice of what acts will be punished, * * *, violates an accused's rights under procedural due process * * * [a penal statute must set up] ascertainable standards of guilt. [so that] men of common intelligence * * * [are not] required to guess at * * * [its] meaning," either as to persons within the scope of the act or as to applicable tests to ascertain guilt.[ ] defective by these tests and therefore violative of due process is a statute providing that any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime in this or any other state, is a gangster and subject to fine or imprisonment. pointing to specific shortcomings of this act, the supreme court observed that "* * * neither [at] common law, * * * nor anywhere in the language of the law is there [to be found any] definition of the word, * * * 'gang'." the state courts, in adopting dictionary definitions of that term, were not to be viewed as having intended to give "gangster" a meaning broad enough to include anyone who had not been convicted of a specified crime or of disorderly conduct as set out in the statute, or to limit its meaning to the field covered by the words that they found in a dictionary ("roughs, thieves, criminals"). application of the latter interpretation would include some obviously not within the statute and would exclude some plainly covered by it. moreover, the expression, "known to be a member," is ambiguous; and not only permits a doubt as to whether actual or putative association is meant, but also fails to indicate what constitutes membership or how one may join a gang. in conclusion, the supreme court declared that if on its face a challenged statute is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it; for it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.[ ] in contrast, the court sustained as neither too vague nor indefinite a state law which provided for commitment of a psychopathic personality by probate action akin to a lunacy proceeding, and which was construed by the state court as including those persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to inflict injury. the underlying conditions, i.e., habitual course of misconduct in sex matters and lack of power to control impulses, and likelihood of attack on others, were viewed as calling for evidence of past conduct pointing to probable consequences and as being as susceptible of proof as many of the criteria constantly applied in criminal prosecutions.[ ] abolition of the grand jury an indictment or presentment by a grand jury, as known to the common law of england, is not essential to due process of law even when applied to prosecutions for felonies. substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution is due process of law.[ ] furthermore, due process does not require that the information filed by the prosecuting attorney should have been preceded by the arrest or preliminary examination of the accused.[ ] even when an information is filed pending an investigation by the coroner, due process has not been violated.[ ] but when the grand jury is retained it must be fairly constituted. thus, in the leading case, an indictment by a grand jury in a county of alabama in which no member of a considerable negro population had ever been called for jury service, was held void, although the alabama statute governing the matter did not discriminate between the two races.[ ] the right to counsel whatever previously may have been recognized as constituting the elements of procedural due process in criminal cases, it was not until [ ] that the supreme court acknowledged that the right "to have the assistance of counsel for * * * [one's] defense," guaranteed as against the national government by the sixth amendment, was of such fundamental character as to be embodied in the concept of due process of law as set forth in the fourteenth amendment. later in , it effected this incorporation by way of expansion of the term, "liberty," rather than, "due process," and conceded that the right to counsel was "implicit in the concept of ordered liberty."[ ] for want of adequate enjoyment of the right to counsel, the court, in powell _v._ alabama,[ ] overturned the conviction of negroes who had received sentences of death for rape, and asserted that, at least in capital cases, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law. the duty is not discharged by an assignment at such time or under such circumstances as to preclude the giving of effective aid in preparation and trial of the case. under certain circumstances (e.g., ignorance and illiteracy of defendants, their youth, public hostility, imprisonment and close surveillance by military forces, fact that friends and families are in other states, and that they stand in deadly peril of their lives), the necessity of counsel is so vital and imperative that the failure of a trial court to make an effective appointment of counsel is a denial of due process of law.[ ] by its explicit refusal in powell _v._ alabama to consider whether denial of counsel in criminal prosecutions for less than capital offenses or under other circumstances[ ] was equally violative of the due process clause, the court left undefined the measure of the protection available to defendants; and its first two pertinent decisions rendered thereafter, contributed virtually nothing to correct that deficiency. in avery _v._ alabama,[ ] a state trial court was sustained in its refusal to continue a murder case upon request of defense counsel appointed by said court only three days before the trial, who contended that they had not had sufficient time to prepare a defense, and in its subsequent rejection of a motion for a new trial which was grounded in part on the contention that the denial of the continuance was a deprivation of the prisoner's rights under the fourteenth amendment. apart from an admission that "where denial of the constitutional right to assistance of counsel is asserted, its peculiar sacredness demands that we scrupulously review the record," a unanimous court proffered only the following vague appraisal of the application of the fourteenth amendment: "in determining whether petitioner has been denied his constitutional right * * *, we must remember that the fourteenth amendment does not limit the power of the states to try and deal with crimes committed within their borders, and was not intended to bring to the test of a decision of this court every ruling made in the course of a state trial. consistently with the preservation of constitutional balance between state and federal sovereignty, this court must respect and is reluctant to interfere with the states' determination of local social policy."[ ] one year later, the court made another inconclusive observation in smith _v._ o'grady,[ ] in which it stated that if true, allegations in a petition for _habeas corpus_ showing that the petitioner, although an uneducated man and without prior experience in court, was tricked into pleading guilty to a serious crime of burglary, and was tried without the requested aid of counsel would void the judgment under which he was imprisoned. conceding that the above mentioned opinions "lend color to the argument," though they did not actually so rule, that "in every case, whatever the circumstances, one charged with crime, who is unable to obtain counsel, must be furnished counsel by the state," the court, in betts _v._ brady,[ ] decided in , not only narrowed the scope of the right of the accused to the "assistance of counsel," but also set at rest any question as to the constitutional source from which the right was derived. offering state courts the following vague guide for determining when provision of counsel is constitutionally required, the court declared that "the fourteenth amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel * * * asserted denial of due process is to be tested by an appraisal of the totality of facts in a given case. that which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial."[ ] accordingly, an indigent farm laborer was deemed not to have been denied due process of law when he was convicted of robbery by a maryland county court, sitting without a jury, which was not required by statute[ ] to honor his request for counsel and whose "practice," in fact was to afford counsel only in murder and rape cases. finally, the court emphatically rejected the notion, suggested, however faintly by the older decisions, that the fourteenth amendment "incorporates the specific guarantees found in the sixth amendment, although it recognized that a denial of the rights stipulated in the latter amendment may in a given case amount to a deprivation of due process."[ ] having thus construed the due process clause of the fourteenth amendment as not inclusive of the sixth amendment and as requiring no more than a fair trial which, on occasion, may necessitate the protection of counsel, the court, in succeeding decisions rendered during the interval, - , proceeded to subject betts _v._ brady to the "silent treatment." in williams _v._ kaiser[ ] and tomkins _v._ missouri[ ] two defendants pleaded guilty without counsel to the commission in missouri of capital offenses, one, to robbery with a deadly weapon, and the second, to murder. defendant, williams contended that, notwithstanding his request, the trial court did not appoint counsel, whereas defendant, tomkins alleged that he was ignorant of his right to demand counsel under the missouri statute. in ruling that the defendants' petitions for _habeas corpus_ should not have been rejected by missouri courts without a hearing, the supreme court relied almost entirely upon the quotations from powell _v._ alabama[ ] previously set forth herein; and reiterated that the right to counsel in felony cases being protected by the fourteenth amendment, the failure of a state court to appoint counsel is a denial of due process. "a layman," the court added, "is usually no match for the skilled prosecutor whom he confronts in the court room. he needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment."[ ] nor was betts _v._ brady mentioned in the following pertinent decisions. in house _v._ mayo,[ ] the supreme court held that the action of a trial court in compelling a defendant to plead to an information charging burglary without opportunity to consult with his counsel is a denial of the constitutional right to counsel; and in hawk _v._ olson[ ] the court repeated this assertion, in connection with the denial to a defendant accused of a murder of the same opportunity during the critical period between his arraignment and the impaneling of the jury. both these opinions cited with approval the two previously discussed williams and tomkins cases; and in house _v._ mayo the court declared without any explanation: "compare betts _v._ brady with williams _v._ kaiser and tomkins _v._ missouri."[ ] a similar performance by the court is also discernible in rice _v._ olson,[ ] in which it ruled that a defendant, who pleads guilty to a charge of burglary, is incapable adequately of making his own defense, and does not understandingly waive counsel; he is entitled to the benefit of legal aid, and a request therefor is not necessary. also, on the basis of unchallenged facts contradicting a prisoner's allegation that he had been denied counsel; namely, that after his arraignment and plea of guilty to a charge of robbery, counsel had noted an appearance for him two days before the date of sentencing and had actively intervened in his behalf on the latter date, a majority of the court, in canizio _v._ new york,[ ] ruled that the right to counsel had not been withheld. without mentioning betts _v._ brady by name, the court, in , returned to the fair trial principle enunciated therein when it held that no deprivation of the constitutional right to the aid of counsel was disclosed by the record in carter _v._ illinois.[ ] that record included only the indictment, the judgment on the plea of guilty to a charge of murder, the minute entry bearing on the sentence, and the sentence, together with a lengthy recital in the judgment to the effect that when the defendant expressed a desire to plead guilty the court explained to him the consequence of such plea, his rights in the premises, especially, his rights to have a lawyer appointed to defend him and to be tried before a jury, and the degree of proof required for an acquittal under a not guilty plea, but that the defendant persisted in his plea of guilty. emphasizing that this record was entirely wanting in facts bearing upon the maturity or capacity of comprehension of the prisoner, or upon the circumstances under which the plea of guilty was tendered and accepted, the supreme court concluded that no inference of lack of understanding, or ability to make an intelligent waiver of counsel, could be drawn from the fact that the trial court did assign counsel when it came to sentencing.[ ] applying the same doctrine, and on this occasion at least citing betts _v._ brady, the court, in de meerleer _v._ michigan,[ ] unanimously declared that the arraignment, trial, conviction of murder, and sentence to life imprisonment, all on the same day, of a seventeen-year old boy who was without legal assistance, and was never advised of his right to counsel, who received from the trial court no explanation of the consequences of his plea of guilty, and who never subjected the state's witnesses to cross-examination, effected a denial of constitutional "rights essential to a fair hearing." even more conclusive evidence of the revival of the fair trial doctrine of betts _v._ brady is to be found in the majority opinions contained in foster _v._ illinois[ ] and gayes _v._ new york.[ ] in the former the court ruled that where it appears that the trial court, before accepting pleas of guilty to charges of burglary and larceny by defendants, aged and respectively, advised each of his rights of trial and of the consequences of such a plea, the fact that the record reveals no express offer of counsel would not suffice to show that the accused were deprived of rights essential to the fair hearing required by the due process clause. reiterating that the absolute right to counsel accorded by the sixth amendment does not apply in prosecutions in state courts, five of the justices declared that all the due process clause of the fourteenth amendment "exacts from the states is a conception of fundamental justice" which is neither "satisfied by merely formal procedural correctness, nor * * * confined by any absolute rule such as that which the sixth amendment contains in securing to an accused [in the federal courts] 'the assistance of counsel for his defense.'"[ ] on the same day, four justices, with justice burton concurring only in the result, held in gayes _v._ new york,[ ] that one sentenced in as a second offender under a charge of burglary was not entitled to vacation of a judgment rendered against him in , when charged with the first offense, on the ground that when answering in the negative the trial court's inquiry as to whether he desired the aid of counsel, he did not understand his constitutional rights. on his subsequent conviction in , which took into account his earlier sentence of , the defendant was deemed to have had full opportunity to contest the constitutionality of his earlier sentence. consistently with these two cases, the court in marino _v._ ragen,[ ] decided later in the same year, held that the absence of counsel, in conjunction with the following set of facts, operated to deprive a defendant of due process. in this latter decision, the accused, an -year-old italian immigrant, unable to understand the english language, was convicted of murder and sentenced to life imprisonment on a plea of guilty when, notwithstanding a recital in the record that he was arraigned in open court and advised through interpreters, one of whom was the arresting officer, of the meaning and effect of a "guilty" plea, and that he signed a statement waiving a jury trial and pleading guilty, the waiver was not in fact signed by him and no plea of guilty actually had been entered. in disposing of more recent cases embracing right to counsel as an issue, the court, either with or without citation of betts _v._ brady, has consistently applied the fair trial doctrine. thus, the absence of counsel competent to advise a -year-old negro boy of his rights was one of several factors operating in haley _v._ ohio[ ] to negative the propriety of admitting in evidence a confession to murder and contributing to the conclusion that the boy's conviction had resulted from proceedings that were unfair. dividing again on the same issues in which they were in disagreement in foster _v._ illinois;[ ] namely, the applicability of amendment six to state criminal prosecutions and the merits of the fair trial doctrine as expounded in betts _v._ brady, five justices in bute _v._ illinois[ ] ruled that the due process clause of the fourteenth amendment does not require a state court to tender assistance of counsel, before accepting a plea of guilty to a charge of indecent liberties with female children, the maximum penalty for which is years, from a -year-old man who was not a lawyer and who received from the court an explanation of the consequences and penalties resulting from such plea. unanimity was subsequently regained in wade _v._ mayo[ ] in which the justices had before them the plight of an -year-old boy, convicted on the charge of breaking and entering, who was described by a federal district court as not a stranger in court, having been convicted of prior offenses, but as still unfamiliar with court procedure and not capable of representing himself adequately. on the strength of these and other findings, the supreme court held that where one charged with crime is by reason of age, ignorance, or mental incapacity incapable of defending himself, even in a prosecution of a relatively simple nature, the refusal of a state trial court to appoint counsel at his request is a denial of due process, even though the law of the state does not require such appointment. dissents were again registered in the following brace of decision which a minority of the justices declared their inability to reconcile. in the first, gryger _v._ burke,[ ] the court held that when one, sentenced to life imprisonment as a fourth offender under a state habitual criminal act, had been arrested eight times for crimes of violence, followed by pleas of guilty or conviction, and in two of such former trials had been represented by counsel, the state's failure to offer or to provide counsel for him on his plea to a charge of being a fourth offender does not render his conviction and sentence as such invalid, even though the court may have misconstrued the statute as making a life sentence mandatory rather than discretionary. emphasizing that there were "no exceptional circumstances * * * present," the majority asserted that "it rather overstrains our credulity to believe that [such a defendant would be ignorant] of his right [to request and] to engage counsel." in the second, townsend _v._ burke,[ ] the supreme court declared that although failure of a state court to offer or to assign counsel to one charged with the noncapital offenses of burglary and robbery, or to advise him of his right to counsel before accepting a plea of guilty may not render his conviction invalid for lack of due process, the requirement is violated when, while disadvantaged by lack of counsel who might have corrected the court's errors, defendant is sentenced on the basis of materially untrue assumptions concerning his criminal record.[ ] concordant as to the results reached, if not always as to the reasoning supporting them, are the court's latest rulings. in uveges _v._ pennsylvania,[ ] it was held that inasmuch as the record showed that a state court did not attempt to make a -year-old youth understand the consequences of his plea of guilty to four separate indictments charging burglary, for which he could be given sentences aggregating years, and that the youth was neither advised of his right to counsel nor offered counsel at any time between arrest and conviction, due process was denied him. likewise, in gibbs _v._ burke[ ] was overturned, as contrary to due process, the conviction for larceny of a man in his thirties who conducted his own defense, having neither requested, nor having been offered counsel. on the authority of the uveges case, accused's failure to request counsel, since it could be attributed to ignorance of his right thereto, was held not to constitute a waiver. moreover, had the accused been granted the protection of counsel, the latter might have been able to prevent certain prejudicial rulings; namely, the introduction without objection of considerable hearsay testimony, the error of the trial judge in converting a prosecution witness into a defense witness, and finally, the injection of biased statements into the judge's comments to the jury. and of the same general pattern is the holding in palmer _v._ ashe,[ ] another pennsylvania case, involving a petitioner who alleged that, as a youth and former inmate at a mental institution, he was railroaded into prison for armed robbery without benefit of counsel, on the representation that he was charged only with breaking and entering. reversing the state court's denial of petitioner's application for a writ of habeas corpus, the court remanded the case, asserting that if petitioner's allegations were proven, he was entitled to counsel. on the other hand, it was held in quicksall _v._ michigan,[ ] a state in which capital punishment does not exist, that a defendant who had received a life sentence on a plea of guilty entered without benefit of counsel, had "failed to sustain the burden of proving such disregard of fundamental fairness * * * as alone would * * * invalidate his sentence," not having convinced the state court that he was ignorant of his right to counsel, or that he had requested same, or that the consequences of his plea had been misrepresented to him. also, in gallegos _v._ nebraska,[ ] in which the petitioner had been convicted of manslaughter on a homicide charge, a similar conclusion was reached in the face of the petitioner's claim that the confession on the strength of which he was convicted had been obtained from him by mistreatment, prior to the assignment of counsel to him. said the court: "the federal constitution does not command a state to furnish defendants counsel as a matter of course. * * * lack of counsel at state noncapital trials denies federal constitutional protection only when the absence results in a denial to accused of the essentials of justice."[ ] by way of summation, the court in uveges _v._ pennsylvania[ ] offered the following comment on the conflicting views advanced by its members on this issue of right to counsel. "some members [minority] of the court think that where serious offenses are charged, failure of a court to offer counsel in state criminal trials deprives an accused of rights under the fourteenth amendment. they are convinced that the services of counsel to protect the accused are guaranteed by the constitution in every such instance. _see_ bute _v._ illinois, u.s. , dissent, - . only when the accused refuses counsel with an understanding of his rights can the court dispense with counsel.[ ] others of us [majority] think that when a crime subject to capital punishment is not involved, each case depends on its own facts. _see_ betts _v._ brady, u.s. , . where the gravity of the crime and other factors--such as the age and education of the defendant,[ ] the conduct of the court or the prosecuting officials,[ ] and the complicated nature of the offense charged and the possible defenses thereto[ ]--render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, the latter group [majority] holds that the accused must have legal assistance under the amendment whether he pleads guilty or elects to stand trial, whether he requests counsel or not. only a waiver of counsel, understandingly made, justifies trial without counsel. the philosophy behind both of these views is that the due process clause of the fourteenth amendment * * * requires counsel for all persons charged with serious crimes, when necessary for their adequate defense, in order that such persons may be advised how to conduct their trials. the application of the rule varies * * *" it would appear nevertheless that the statement quoted in the previous paragraph from the gallegos case weakens this doctrine somewhat. nor is the court's reply to the contention that such variation in application "leaves the state prosecuting authorities uncertain as to whether to offer counsel to all accused who are without adequate funds and under serious charges," very reassuring: "we cannot offer a panacea for the difficulty. * * * the due process clause is not susceptible of reduction to a mathematical formula."[ ] right to trial by jury the contention that a right to trial by a common law jury of twelve men in criminal cases was guaranteed by amendment xiv was first rejected in maxwell _v._ dow[ ] on the basis of hurtado _v._ california,[ ] where it was denied that the due process clause itself incorporated all the rules of procedural protection having their origin in english legal history. accordingly, so long as all persons are made liable to be proceeded against in the same manner, a state statute dispensing with unanimity,[ ] or providing for a jury of eight instead of twelve, in noncapital criminal cases[ ] is not unconstitutional; nor is one eliminating employment of a jury when the defendant pleads guilty to no less than a capital offense;[ ] or permitting a defendant generally to waive trial by jury.[ ] in short, jury trials are no longer viewed as essential to due process, even in criminal cases, and may be abolished altogether.[ ] inasmuch as "the purpose of criminal procedure is not to enable the defendant to select jurors, but to secure an impartial jury," a trial of a murder charge by a "struck" jury, chosen in conformity with a statute providing that the court may select from the persons qualified to serve as jurors names, from which the prosecutor and defendant may each strike , and that the remainder of which shall be put in the jury box, out of which the trial jury shall be drawn in the usual way, is not violative of due process. such a method "is certainly a fair and reasonable way of securing an impartial jury," which is all that the defendant constitutionally may demand.[ ] likewise, the right to challenge being the right to reject, not to select, a juror, a defendant who is subjected at a single trial to two indictments, each charging murder, cannot complain when the state limits the number of his peremptory challenges to ten on each indictment instead of the twenty customarily allowed at a trial founded upon a single indictment.[ ] also, a defendant who has been convicted by a special, or "blue ribbon," jury cannot validly contend that he was thereby denied due process of law.[ ] in ruling that the defendant had failed to sustain his contention that such a jury was defective as to its composition, the court conceded that "a system of exclusions could be so manipulated as to call a jury before which defendants would have so little chance of a decision on the evidence that it would constitute a denial of due process" and would result in a trial which was a "sham or pretense." a defendant is deemed entitled, however, to no more than "a neutral jury" and "has no constitutional right to friends on the jury."[ ] in fact, the due process clause does not prohibit a state from excluding from the jury certain occupational groups such as lawyers, preachers, doctors, dentists, and enginemen and firemen of railroad trains. such exclusions may be justified on the ground that the continued attention to duty by members of such occupations is beneficial to the community.[ ] self-incrimination--forced confessions in , in twining _v._ new jersey,[ ] the court ruled that neither the historical meaning nor the current definition of the due process clause of the fourteenth amendment included protection against self-incrimination, which was viewed as unworthy of being rated "an immutable principle of justice" or as a "fundamental right." the fifth amendment embodying this privilege was held to operate to restrain only the federal government; whereas the due process clause of the fourteenth amendment was deemed to permit a state even to go so far as to substitute the criminal procedure of the civil law, in which the privilege against self-incrimination is unknown, for that of the common law. accordingly, new jersey was within her rights in permitting a trial judge, in a criminal proceeding, to instruct a jury that they might draw an unfavorable inference from the failure of a defendant to comment on the prosecutor's evidence. apart from a recent ineffectual effort of a minority of the justices to challenge the interpretation thus placed upon the due process clause of the fourteenth amendment, the court has yet to register any departure from its ruling in twining _v._ new jersey.[ ] in two subsequent opinions the court reasserted _obiter_ that "the privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state." no "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"[ ] is violated by abolition of such privilege; nor is its complete destruction likely to outrage students of our penal system, many of whom "look upon * * * [this] immunity as a mischief rather than a benefit, * * *"[ ] in subsequently disposing of similarly challenged state criminal proceedings, the court has applied almost exclusively the fair trial doctrine. with only casual consideration of the intention of the framers of the fourteenth amendment, or of the rejected proposition that the due process clause thereof had imposed upon the states all the restraints which the bill of rights had imposed upon the federal government, the court has simply endeavored to ascertain whether the accused enjoyed all the privileges essential to a fair trial. thus, without even admitting that the privilege against self-incrimination was involved, all the justices agreed, in brown _v._ mississippi,[ ] that the use of a confession extorted by brutality and violence (undenied strangulation and whipping by the sheriff aided by a mob) was a denial of due process, even though coercion was not established until after the confession had been admitted in evidence and defense counsel did not thereafter move for its exclusion. although compulsory processes of justice may be used to call the accused as a witness and to require him to testify, "compulsion by torture to extort a confession is a different matter. * * * the rack and torture chamber may not be substituted for the witness stand."[ ] again, in chambers _v._ florida[ ] the court, with no mention of the privilege against self-incrimination, proclaimed that due process is denied when convictions of murder are obtained in state courts by the use of confessions extorted under the following conditions: dragnet methods of arrest on suspicion without warrant and protracted questioning (on the last day, from noon until sunset) in a fourth floor jail where the prisoners were without friends or counselors, and under circumstances calculated to break the strongest nerves and stoutest resistance. affirming that the supreme court is not concluded by the finding of a jury in a state court that a confession in a murder trial was voluntary, but determines that question for itself from the evidence, the justices unanimously declared that the constitution proscribes lawless means irrespective of the end, and rejected the argument that the thumbscrew, the wheel, solitary confinement, protracted questioning, and other ingenious means of entrapment are necessary to uphold our laws.[ ] procuring a conviction for a capital crime by use of a confession extracted by protracted interrogation conducted in a similar manner was, on the authority of chambers _v._ florida, condemned in white _v._ texas;[ ] and in lisenba _v._ california,[ ] a case rendered inconclusive by conflicting testimony, the court remarked, by way of dictum, that "the concept of due process would void a trial in which, by threats or promises in the presence of court and jury, a defendant was induced to testify against himself," or in which a confession is used which is "procured * * * by fraud, collusion, trickery and subornation or perjury." in conformity with these rulings, the court, in ward _v._ texas,[ ] set aside a conviction based upon a confession obtained, by methods of coercion and duress, from a defendant who had been arrested illegally, without warrant, by the sheriff of another county, and removed to a county more than a hundred miles away, and who for three days, while being driven from county to county, was questioned continuously by various officers and falsely informed by them of threats of mob violence. similarly, in ashcraft _v._ tennessee,[ ] the use in a state court of a confession obtained near the end of a -hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers was held to be violative of constitutional right by reason of the inherently coercive character of such interrogation. justice jackson, joined by justices frankfurter and roberts, dissented on the ground that the accused not only denied that the protracted questioning "had the effect of forcing an involuntary confession from him" but that he had ever confessed at all, a contention which reputable witnesses contradicted. referring to justice holmes's warning against "the ever increasing scope given to the fourteenth amendment in cutting down * * * the constitutional rights of the states."[ ] justice jackson protested that "interrogation _per se_ is not, * * *, an outlaw"; and that inasmuch as all questioning is "'inherently coercive' * * *, the ultimate question * * * [must be] whether the confessor was in possession of his own will and self-control at the time of [his] confession."[ ] this dissent was not without effect. in june , in lyons _v._ oklahoma,[ ] the court finally handed down a ruling calculated definitely to arrest the suspicion that had been developing that the use of any confession made after arrest would render a trial constitutionally defective. here, six justices refused to overturn a holding of the oklahoma criminal court of appeals which labelled as voluntary and usable a second confession obtained by other than coercive means within twelve hours after the defendant had made a confession admittedly under duress. the vice of coerced confessions, these justices asserted, was that they offended "basic standards of justice, not because the victim had a legal grievance against the police, but because declarations procured by torture are not premises from which a civilized forum will infer guilt."[ ] in malinski _v._ new york,[ ] however, although in the opinion of four justices there was conflicting evidence as to the involuntary character of the confessions used, the court nevertheless overturned a conviction sustained by new york tribunals.[ ] without finding it necessary to determine whether succeeding oral and written confessions were the product of the coercion "admittedly" applied in extracting an initial oral confession,[ ] the court held that, even though other evidence might have sufficed to convict the accused and notwithstanding the fact that the initial oral confession was never put in evidence, the repeated indirect reference to its content at the trial plus the failure to warn the jury not to consider it as evidence[ ] invalidated the proceeding giving rise to the verdict.[ ] of the remaining cases involving the issue of self-incrimination, adamson _v._ california[ ] is especially significant because it represents the high water mark of dissent in support of the contention that the bill of rights, originally operative only against the federal government, became limitations on state action by virtue of their inclusion within the due process clause of the fourteenth amendment. here, the court, speaking through justice reed, declared that the california law which provides that if an accused elects to take the witness stand and testify, he must then be prepared to undergo impeachment of his testimony, through disclosure of his previous convictions, and which also permits him to avoid such disclosure by remaining silent, subject to comment on his failure to testify by the court and prosecuting counsel, does not involve such a denial of due process as to invalidate a conviction in a state court. inasmuch as california law "does not involve any presumption, rebuttable or irrebuttable, either of guilt or of the truth of any fact," and does not alter the burden of proof, which rests upon the state, nor the presumption of innocence in favor of the accused, it does not prevent the accused from enjoying a fair trial, which is all that the due process clause of the fourteenth amendment guarantees. relying upon twining _v._ new jersey[ ] and palko _v._ connecticut,[ ] the court reiterated that the "due process clause of the fourteenth amendment, however, does not draw all the rights of the federal bill of rights under its protection."[ ] in a concurring opinion concerning the scope of the protection afforded by this clause of the fourteenth amendment, justice frankfurter contended that further argument thereon is foreclosed by twining _v._ new jersey, a precedent, on which he commented as follows: "decisions of this court do not have equal intrinsic authority. the _twining_ case shows the judicial process at its best--comprehensive briefs and powerful arguments on both sides, followed by long deliberation, resulting in an opinion by mr. justice moody which at once gained and has ever since retained recognition as one of the outstanding opinions in the history of the court. after enjoying unquestioned prestige for forty years, the _twining_ case should not now be diluted, even unwittingly, either in its judicial philosophy or in its particulars. as the surest way of keeping the _twining_ case intact, i would affirm this case on its authority." in dismissing as historically untenable the position adopted by justice black, justice frankfurter further declared that: "the notion that the fourteenth amendment was a covert way of imposing upon the states all the rules which it seemed important to eighteenth century statesmen to write into the federal amendments, was rejected by judges who were themselves witnesses of the process by which the fourteenth amendment became part of the constitution. arguments that may now be adduced to prove that the first eight amendments were concealed within the historic phrasing of the fourteenth amendment were not unknown at the time of its adoption. a surer estimate of their bearing was possible for judges at the time than distorting distance is likely to vouchsafe. any evidence of design or purpose not contemporaneously known could hardly have influenced those who ratified the amendment. remarks of a particular proponent of the amendment, no matter how influential, are not to be deemed part of the amendment. what was submitted for ratification was his proposal, not his speech. * * * the due process clause of the fourteenth amendment has an independent potency, precisely as does the due process clause of the fifth amendment in relation to the federal government. it ought not to require argument to reject the notion that due process of law meant one thing in the fifth amendment and another in the fourteenth. the fifth amendment specifically prohibits prosecution of an 'infamous crime' except upon indictment; it forbids double jeopardy; it bars compelling a person to be a witness against himself in any criminal case; it precludes deprivation of 'life, liberty, or property, without due process of law * * *' are madison and his contemporaries in the framing of the bill of rights to be charged with writing into it a meaningless clause? to consider 'due process of law' as merely a shorthand statement of other specific clauses in the same amendment is to attribute to the authors and proponents of this amendment ignorance of, or indifference to, a historic conception which was one of the great instruments in the arsenal of constitutional freedom which the bill of rights was to protect and strengthen." warning that "a construction which * * * makes of" the due process clause of the fourteenth amendment "a summary of specific provisions of the bill of rights would, * * *, tear up by the roots much of the fabric of the law in the several states," justice frankfurter, in conclusion, offers his own appraisal of this clause. to him, the due process clause "expresses a demand for civilized standards of law, [and] it is thus not a stagnant formulation of what has been achieved in the past but a standard for judgment in the progressive evolution of the institutions of a free society." accordingly "judicial judgment in applying the due process clause must move within the limits of accepted notions of justice and * * * [should] not be based upon the idiosyncrasies of a merely personal judgment. * * * an important safeguard against such merely individual judgment is an alert deference to the judgment of the state court under review."[ ] in dissenting justice black, who was supported by justice douglas, attached to his opinion "an appendix which contains * * * [his] resume, * * *, of the amendment's history." it is his judgment "that history conclusively demonstrates that the language of the first section of the fourteenth amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the bill of rights." a majority of the court, he acknowledges resignedly, has declined, however, "to appraise the relevant historical evidence of the intended scope of the first section of the amendment." in the instant case, the majority opinion, according to justice black, "reasserts a constitutional theory spelled out in twining _v._ new jersey, * * * that this court is endowed by the constitution with boundless power under 'natural law' periodically to expand and contract constitutional standards to conform to the court's conception of what at a particular time constitutes 'civilized decency' and 'fundamental liberty and justice.' * * * [this] 'natural law' formula, [he further contends] * * * should be abandoned as an incongruous excrescence on our constitution. * * * [the] formula [is] itself a violation of our constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the constitution limits legislative power." in conclusion, justice black expresses his fears as to "the consequences of the court's practice of substituting its own concepts of decency and fundamental justice for the language of the bill of rights * * *"[ ] in all but one of the remaining cases, the court sided with the accused and supported his contention that the confession on which his conviction was based had been procured by methods contrary to the requirements of due process. the conviction of murder of a negro boy of fifteen was reversed by five justices in haley _v._ ohio[ ] on the ground that his confession, which contributed to the verdict, was involuntary, having been obtained by the police after several hours of questioning immediately after the boy was arrested, during which interval the youth was without friends or legal counsel. after having had his confession reduced to writing, the boy continued to be held _incommunicado_ for three days before being arraigned. "the age of petitioner, the [midnight] hours when he was grilled, the duration of his quizzing, the fact that he had no friend or counsel to advise him, the callous attitude of the police towards his rights combine to convince us," the court declared, "that this was a confession wrung from a child by means which the law should not sanction."[ ] the application of duress being indisputed, a unanimous court, in lee _v._ mississippi,[ ] citing as authority all the preceding cases beginning with brown _v._ mississippi, held that "a conviction resulting from such use of a coerced confession, however, is no less void because the accused testified at some point in the proceeding that he had never in fact confessed, voluntarily or involuntarily. * * *, inconsistent testimony as to the confession * * * cannot preclude the accused from raising * * * the issue * * * [that] the fourteenth amendment * * * [voids a] conviction grounded * * * upon a confession which is the product of other than reasoned and voluntary choice." in taylor _v._ alabama,[ ] however, a majority of the justices sustained the denial by a state appellate court, in which a conviction had been affirmed, of leave to file in a trial court a petition for a writ of error _coram nobis_ grounded upon the contention that confessions and admissions introduced into evidence at the trial had been obtained by coercion.[ ] five justices declared that such denial was not such arbitrary action as in itself to amount to a deprivation of due process of law where the circumstances tended to show that the petitioner's allegations of mistreatment, none of which were submitted during the trial or the appeal,[ ] were highly improbable.[ ] finally, in three decisions rendered on june , , the court reversed three convictions of murder on the ground that they had been founded entirely upon coerced confessions. the defendant in the first case, watts _v._ indiana,[ ] was held without arraignment, without the aid of counsel or friends, and without advice as to his constitutional rights from wednesday until the following friday, when he confessed. during this interval, he was held much of the time in solitary confinement in a cell with no place to sit or sleep except the floor, and was subjected to interrogation daily, sunday excepted, by relays of police officers for periods ranging in duration from three to nine and one-half hours. his incarceration without a prompt preliminary hearing also was a violation of indiana law. similarly in conflict with state law was the arrest without warrant and detention without arraignment for five days of the accused in turner _v._ pennsylvania,[ ] the second case. during this period, turner was not permitted to see friends, relatives, or counsel, was never informed of his right to remain silent, and was interrogated daily, though for briefer intervals than in the preceding case. at his trial, the prosecuting attorney "admitted that a hearing was withheld until interrogation had produced a confession." in the third and last case of this group, harris _v._ south carolina,[ ] the defendant, an illiterate negro, was apprehended in tennessee on a friday on a warrant alleging no more than a theft of a pistol, and taken to south carolina on a sunday. without being informed of the contents of the warrant or of the charge of murder on which he was being held, without arraignment or advice as to his rights and without access to family or counsel, the defendant was questioned daily by officers for periods as long as hours. in addition, he was warned that his mother also might be arrested for handling stolen property. in each of these cases there was dissent, and in none was the majority able to record its views in a single opinion. justice murphy and justice rutledge joined justice frankfurter, who filed a separate opinion in all three cases, in declaring that "a confession by which life becomes forfeit must be the expression of free choice. * * * when a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. * * * if * * * [his confession] is the product of sustained pressure by the police it does not issue from a free choice."[ ] on the authority of chambers _v._ florida[ ] and ashcraft _v._ tennessee,[ ] justice black supported the judgments reached in all three cases; but justice douglas, in concurring, advocated the disposition of these cases in conformity with a broader rule; namely that, "any confession obtained during * * * [a] period of * * * unlawful detention"; that is during a period of custody between arrest and arraignment, should be outlawed.[ ] justice jackson, who wrote an opinion applicable to all three cases, concurred in the result in watts _v._ indiana, presumably on the basis of that part of justice frankfurter's opinion therein which was founded "on the state's admissions as to the treatment of watts."[ ] emphasizing the merit of deferring to the findings of trial court and jury on the issue of the "voluntariness" of confessions on the ground that they have "the great advantage of hearing and seeing the confessor and also the officers whose conduct and bearing toward him is in question," justice jackson dissented in turner _v._ pennsylvania[ ] and harris _v._ south carolina.[ ] "if the right of interrogation be admitted," he declared, "then * * * we must leave it to trial judges and juries and state appellate courts to decide individual cases, unless they show some want of proper standards of decision."[ ] without explanatory opinion, chief justice vinson and justices burton and reed dissented in all three cases. unreasonable searches and seizures in national safe deposit co. _v._ stead,[ ] decided in , the court unequivocally declared that an unreasonable search and seizure committed by state and local officers presented no federal question, inasmuch as the fourth amendment does not apply to the states. prior to that date, the court has passed upon this question obliquely in only a few decisions,[ ] in one of which it conceded for the sake of argument, but without so deciding, that the due process clause of the fourteenth amendment embraces in its generic terms a prohibition against unreasonable searches. in two of these earlier cases the court sustained as consistent with due process the power of a state, in investigating the conduct of corporations doing business within its limits, to demand the production of corporate books and papers. the call for such papers was deemed not to have been rendered unreasonable because, at the time of the demand therefor, the corporation affected either temporarily or permanently kept such documents in another jurisdiction. nor was the validity of the order to produce such materials viewed as having been impaired by the fact that it sought to elicit proof not only as to the liability of the corporation but also, evidence in its possession relevant to its defense. in its most recent opportunity to review the question whether the due process clause of the fourteenth amendment precludes admission in a state court of relevant evidence obtained by an unreasonable search and seizure,[ ] the court apparently ruled in the negative; but justice frankfurter, speaking for the majority, did not limit himself to a repetition of the conclusions stated by him in adamson _v._ california;[ ] namely, that the due process clause of the fourteenth amendment did not incorporate the first eight amendments of the constitution, and, conformably to palko _v._ connecticut,[ ] exacts no more from a state than is "implicit in 'the concept of ordered liberty.'" he also proclaimed that: "the security of one's privacy against arbitrary intrusion by the police--which is at the core of the fourth amendment--is basic to a free society. it is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the states through the due process clause."[ ] such language appears to effect the very absorption into the fourteenth amendment which justice frankfurter rejects in the adamson case; but he concluded by adding that as long as "a state [does not] affirmatively * * * sanction * * * [arbitrary] police incursion into privacy"; that is, as long as its police are deterred from making searches without authority of law by virtue of such internal discipline as an alert public opinion may induce and by reason of the statutory or common law remedies which the victims of such illegal searches may invoke, a state, without running counter to the due process clause, may employ at a trial incriminating evidence obtained by unlawful search and seizure. the fact that most of the english-speaking world, including states and the british commonwealth of nations, does not regard the exclusion of evidence thus obtained, as vital to the protection of the right of privacy is interpreted by the justice as lending abundant support to the merit of his position.[ ] without departing from his previously adopted position which he restated in his dissenting opinion in adamson _v._ california;[ ] namely, that the due process clause of the fourteenth amendment embraces the fourth amendment's prohibition of unreasonable searches and seizures, justice black concurred in the result on the ground that the exclusionary rule, whereby evidence procured in an illegal search and seizure is not admissible in a federal court, is "not a command of the fourth amendment but is a judicially created rule of evidence which congress might negate."[ ] justices douglas, murphy, and rutledge, in separate dissenting opinions, all declared that the fourth amendment was applicable to the states and that "evidence obtained in violation of it must be excluded in state prosecutions as well as in federal prosecutions, * * *."[ ] attacking justice frankfurter's method of approach, justice murphy declared that the court should not "decide due process questions by simply taking a poll of the rules in various jurisdictions, * * *" and agreed with justice rutledge that unless illegally obtained evidence is excluded, no effective sanction "exists to deter violations of the search and seizure clause." in two recent cases, both argued the same day, a nearly unanimous court reached opposite results.[ ] in the first the outcome of the wolf case was repeated. the court, speaking by justice frankfurter, refused to enjoin the use, in state criminal proceedings against them in new jersey of evidences claimed to have been obtained by unlawful search by state police. said justice frankfurter, "if we were to sanction this intervention, we would expose every state criminal prosecution to insupportable disruption. every question of procedural due process of law--with its far flung and undefined range--would invite a flanking movement against the system of state courts by resort to the federal forum * * *"[ ] the facts in the second case were as follows: state officers, on the basis of "some information" that petitioner was selling narcotics, entered his home and forced their way into his wife's bedroom. when asked about two capsules lying on a bedroom table, petitioner put them into his mouth and swallowed them. he was then taken to a hospital, where an emetic was forced into his stomach with the result that he vomited them up. later they were offered in evidence against him. again justice frankfurter spoke for the court, while reiterating his preachments regarding the tolerance claimable by the states under the fourteenth amendment[ ] he held that methods offensive to human dignity were ruled out by the due process clause.[ ] justices black and douglas concurred in opinions in which they seized the opportunity to reiterate once more their position in adamson _v._ california.[ ] conviction based on perjured testimony when a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, the constitutional requirement of due process is not satisfied. that requirement "cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. such a contrivance * * * is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation."[ ] this principle, as originally announced, was no more than a dictum uttered by the court in disposing of tom mooney's application for a writ of _habeas corpus_, filed almost eighteen years after his conviction, and founded upon the contention that the verdict of his guilt was made possible solely by perjured testimony knowingly employed by the prosecutor who "deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him."[ ] on the authority of the preceding case, and without qualification, the court subsequently applied this principle in hysler _v._ florida,[ ] pyle _v._ kansas[ ] and white _v._ ragen.[ ] in the first case, the supreme court concurred in the judgment of the florida appellate court denying a petition for leave to apply to a trial court for a writ of _coram nobis_. supporting the petition filed by hysler, the accused, were affidavits signed by one of two codefendants on the eve of his execution for participation in the same crime and stating that the two codefendants had testified falsely against hysler because they had been "'coerced, intimidated, beaten, threatened with violence and otherwise abused and mistreated' by the police and were 'promised immunity from the electric chair' by the district attorney." having made "an independent examination of the affidavits upon which * * * [hysler's] claim was based," a majority of the justices concluded that the florida appellate court's finding that hysler's proof was insubstantial and did not make out a _prima facie_ case was justified. "that in the course of * * * years witnesses die or disappear, that memories fade, that a sense of responsibility may become attenuated, that [recantation] * * * on the eve of execution * * * [is] not unfamiliar as a means of relieving others or as an irrational hope for self * * * are relevant" to the determination by the florida court that "such a belated disclosure" did not spring "from the impulse for truth-telling" and was "the product of self-delusion * * * [and] artifice prompted by the instinct of self-preservation."[ ] relying largely on the failure of the state to answer allegations in a prisoner's application for a write of _habeas corpus_, which application recited that persons named in supporting affidavits and documents were coerced to testify falsely, and that testimony of certain other persons material to the prisoner's defense was suppressed under threat and coercion by the state, the court, in pyle _v._ kansas[ ] reversed the kansas court's refusal to issue the writ. inasmuch as the record of the prisoner's conviction did "not controvert the charges that perjured evidence was used, and that favorable evidence was suppressed with the knowledge" of the authorities, the case was remanded in order that the prisoner might enjoy that to which he was entitled; namely, a determination of the verity of his allegations. similarly, in white _v._ ragen,[ ] the court declared that since a prisoner's petition to a state court for release on _habeas corpus_ had been dismissed without requiring the state to answer allegations supporting the petition; namely, that the conviction was obtained by the use of false testimony procured by bribery of two witnesses by the prosecutor, must be assumed to be true. accordingly, the petitioner's contentions were deemed sufficient to make out a _prima facie_ case of violation of constitutional rights and adequate to entitle him to invoke corrective process in a state court. confrontation; presence of the accused; public trial on the issue whether the privileges of presence, confrontation and cross-examination face to face, assured to a defendant in a federal trial by the sixth amendment, are also guaranteed in state criminal proceedings, the court thus far has been unable to formulate an enduring and unequivocal answer. at times it has intimated, as in the following utterance, that the enjoyment of all these privileges is essential to due process. "the personal presence of the accused, from the beginning to the end of a trial for felony, involving life or liberty, as well as at the time final judgment is rendered against him, may be, and must be assumed to be, vital to the proper conduct of his defence, and cannot be dispensed with."[ ] notwithstanding this early assumption, the supreme court, fourteen years later, sustained a kentucky court which approved the questioning, in the absence of the accused and his counsel, of a juror whose discharge before he was sworn had been demanded.[ ] inasmuch as no injury to substantial rights of the defendant was deemed to have been inflicted by his occasional absence during a trial, no denial of due process was declared to have resulted from the acceptance by the state court of the defendant's waiver of his right to be present. in harmony with the latter case is felts _v._ murphy,[ ] which contains additional evidence of an increasing inclination on the part of the court to treat as not fundamental the rights of presence, confrontation, and cross-examination face to face. the defendant in felts _v._ murphy proved to be so deaf that he was unable to hear any of the testimony of witnesses, and had never had the evidence repeated to him. while regretting that the trial court has not had the testimony read or repeated to the accused, the supreme court held that a deaf person is not deprived of due process of law because he had not heard a word of the evidence. it also did not overlook the fact the defendant "made no objection, asked for nothing, and permitted his counsel to take his own course." that the presence of the accused may be dispensed with at various stages of criminal proceedings was further conceded by the court in frank _v._ mangum,[ ] wherein it held that the presence of the defendant when the verdict is rendered is not essential, and, accordingly, that a rule of practice allowing the accused to waive it and which bound him by that waiver did not effect any unconstitutional deprivation. enumerating many departures from common law procedure respecting jury trials, including provisions waiving the presence of an accused during portions of a trial, the court emphasized that none of these changes had been construed as conflicting with the fourteenth amendment. more recently, the court, sustained, by only a five-to-four vote, however, a conviction for murder where the trial court rejected the defendant's request that he be present at a view of the scene of the murder to which the jury had been taken.[ ] acknowledging that it had never squarely held, though it now assumed, that "the privilege to confront one's accusers and cross-examine them face to face" in state court prosecutions "is reinforced by the fourteenth amendment," the majority devised the following standard for disposing of similar cases in the future. "in a prosecution for a felony," five justices declared, "the defendant has the privilege under the fourteenth amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. * * * the fourteenth amendment does not assume to a defendant the privilege to be present [when] * * * presence would be useless, or the benefit but a shadow. * * * the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." employing this standard of appraisal, the majority therefore concluded that no harm or damage had been done to the accused by reason of his failure to be present when the jury viewed the site of the murder.[ ] to what extent, consistently with due process, states may authorize the conduct, after conviction and sentence, of nonadversary proceedings from which the accused has been excluded and denied the privilege of confrontation and cross-examination, has been examined by the court in two recent cases. in williams _v._ new york,[ ] the supreme court rejected the contention that the due process clause requires that a person convicted of murder be permitted to cross-examine probation officers as to his prior criminal record when the trial judge, in the exercise of discretion vested in him by law, considers such information, obtained outside the courtroom, in determining whether to abide by a jury's recommendation of life imprisonment or to impose a death sentence. emphasizing the distinction between evidentiary rules applicable to the conduct of criminal trials, which are confined to the narrow issue of guilt, and sentencing procedures which pertain to the determination of the type and extent of punishment after the issue of guilt has been decided, the court disposed of the petitioner's appeal by declaring that, "modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial."[ ] by a similar process of reasoning, in solesbee _v._ balkcom,[ ] the court sustained a georgia statutory procedure granting the governor discretionary authority, with the aid of physicians appointed by himself, to determine, without opportunity for an adversary hearing or for judicial review, whether a condemned convict has become insane and, if so, whether he should be committed to an insane asylum. likening the function thus vested in the governor to the power of executive clemency, the supreme court reiterated that "trial procedure safeguards are not applicable to the process of sentencing," and concluded with the observation that the georgia procedure is amply supported by "the universal common-law principle that upon a suggestion of insanity after sentence, the tribunal charged with responsibility must be vested with broad discretion in deciding whether evidence shall be heard. * * * the heart of the common-law doctrine has been that a suggestion of insanity after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence."[ ] when employed in the conduct of the trial, however, summary procedures such as those examined in the preceding two decisions invariably elicit judicial condemnation. thus, when a michigan judge proceeding as a one-man grand jury concluded that a witness had given false and evasive testimony, not on the basis of anything inherent in the testimony itself, but at least in part upon its inconsistency with other testimony given by a preceding witness, and immediately thereupon suspended his investigation, and committed the witness to jail for contempt, such summary commitment, in the absence of a showing that it was necessary to prevent demoralization of the judge's authority, was held to constitute a denial of due process. the guaranty of that clause forbids the sentencing of an accused person to prison without a public trial; that is, without a day in court, reasonable notice of the charges, and an opportunity to be heard in one's defense by cross-examining other witnesses, or by summoning witnesses to refute the charges against him.[ ] on the other hand, when the alleged contempt is committed, not within the confines of a secret grand jury proceeding, but in open court, is readily observable by the presiding judge, and constitutes an open and immediate threat to orderly judicial procedure and to the court's authority, the offended tribunal is constitutionally empowered summarily to punish without notice, testimony, or hearing. thus in fisher _v._ pace,[ ] albeit with the concurrence of only five justices, the court sustained a texas court's conviction for contempt, with progressive increase of penalty from a $ to $ to $ fine plus three days in jail, of a trial attorney who, despite judicial admonition, persisted in conveying to the jury, in a workmen's compensation case, information not for their consideration. conceding that "there must be adequate facts to support an order for contempt," the majority declared that the texas appellate court's finding in the affirmative, after evaluation of the facts, should not be overturned inasmuch as the supreme court, in examining the transcript of the record, could not derive therefrom an adequate picture of the courtroom scene nor discern therein "such elements of misbehavior as expression, manner of speaking, bearing, and attitude of * * * [the attorney]." the fact that the bench was guilty of "mildly provocative language" was deemed insufficient to excuse the conduct of the attorney.[ ] trial by impartial tribunal inasmuch as due process implies a tribunal both impartial and mentally competent to afford a hearing, it follows that the subjection of a defendant's liberty or property to the decision of a court, the judge of which has a direct, personal, substantial pecuniary interest in rendering a verdict against him, is violative of the fourteenth amendment.[ ] compensating an inferior judge for his services only when he convicts a defendant may have been a practice of long-standing, but such a system of remuneration, the court declared, never became "so embedded by custom in the general practice either at common law or in this country that it can be regarded as due process of law. * * *"[ ] however, a conviction before a mayor's court does not become constitutionally defective by reason of the fact that the fixed salary of the mayor is paid out of the fund to which the fines imposed by him contribute.[ ] obviously, the attribute of impartiality is lacking whenever the judge and jury are dominated by a mob. "if the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law. * * *"[ ] but "if * * * the whole proceeding is a mask--* * * [if the] counsel, jury and judge * * * [are] swept to the fatal end by an irresistible wave of public passion, and * * * [if] the state courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent" intervention by the supreme court to secure the constitutional rights of the defendant.[ ] insofar as a criminal trial proceeds with a jury, it is part of the american tradition to contemplate not only an impartial jury but one drawn from a cross-section of the community. this has been construed as requiring that prospective jurors be selected by court officials without systematic and intentional exclusion of any group, even though it is not necessary that every jury contain representatives of all the economic, social, religious, racial, political, and geographical groups of the community.[ ] other attributes of a fair trial "due process of law," the supreme court has observed, "requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. * * * what is fair in one set of circumstances may be an act of tyranny in others."[ ] conversely, "as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. in order to declare a denial of it * * * [the court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."[ ] and on another occasion the court remarked that "the due process clause," as applied in criminal trials "requires that action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, [and] which not infrequently are designated as 'the law of the land.'"[ ] basic to the very idea of free government and among the immutable principles of justice which no state of the union may disregard is the necessity of due "notice of the charge and an adequate opportunity to be heard in defense of it."[ ] consequently, when a state appellate court affirms a conviction on the ground that the information charged, and the evidence showed a violation of sec. of a penal law of the state, notwithstanding that the language of the information and the construction placed upon it at the trial clearly show that an offense under sec. of such law was charged, that the trial judge's instructions to the jury were based on sec. , and that on the whole case it was clear that the trial and conviction in the lower court were for the violation of sec. , not sec. , such appellate court in effect is convicting the accused of a charge on which he was never tried, which is as much a violation of due process as a conviction upon a charge that was never made.[ ] on the other hand, a prisoner who, after having been indicted on a charge of receiving stolen goods, abides by the prosecutor's suggestion and pleads guilty to the lesser offense of attempted second degree grand larceny, cannot later contend that a judgment of guilty of the latter offense was lacking in due process in that it amounted to a conviction of a crime for which he had never been indicted. in view of the "close kinship between the offense of larceny and that of receiving stolen property * * *, when related to the same stolen goods, the two crimes may fairly be said 'to be connected with the same transaction.'" it would be therefore, the court concluded, "an exaltation of technical precision to an unwarranted degree to say that the indictment here did not inform the petitioner that he was charged with the substantial elements of the crime of larceny." under these circumstances he must be deemed to have been given "reasonable notice and information of the specific charge against him and a fair hearing in open court."[ ] excessive bail, cruel and unusual punishment, sentence the commitment to prison of a person convicted of crime, without giving him an opportunity pending an appeal, to furnish bail, does not violate the due process clause of the fourteenth amendment.[ ] likewise, a state, notwithstanding the limitations of that clause, retains a wide discretion in prescribing penalties for violation of its laws. accordingly, a sentence of fourteen years' imprisonment for the crime of perjury has not been viewed as excessive nor as effecting any unconstitutional deprivation of the defendant's liberty;[ ] nor has the imposition of successively heavier penalties upon "repeaters" been considered as partaking of a "cruel and unusual punishment."[ ] in an older decision, ex parte kemmler,[ ] rendered in , the supreme court rejected the suggestion that the substance of the eighth amendment had been incorporated into the due process clause of the fourteenth amendment, but did intimate that the latter clause would invalidate punishments which would involve "torture or a lingering death," such "as burning at the stake, crucifixion, breaking on the wheel, and the like." holding that the infliction of the death penalty by electrocution was comparable to none of the latter, the court refused to interfere with the judgment of the state legislature that such a method of executing the judgment of a court was humane. more recently, in louisiana ex rel. francis _v._ resweber,[ ] five members of the court reached a similar conclusion as to the restraining effect of the due process clause of the fourteenth amendment when, assuming, "but without so deciding" that violations of the eighth amendment as to cruel and unusual punishments would also be violative of that clause, they upheld a subsequent proceeding to execute a sentence of death by electrocution after an accidental failure of equipment had rendered an initial attempt unsuccessful.[ ] double jeopardy in none of the pertinent cases considered prior to was the supreme court able to discern the existence of any factual situation amounting to double jeopardy, and accordingly it was never confronted with the necessity of determining whether the guarantee that no person be put twice in jeopardy of life or limb, expressed in the fifth amendment as a limitation against the federal government, had been absorbed in the due process clause of the fourteenth amendment. thus, in dreyer _v._ illinois,[ ] after declaring that a retrial after discharge of a hung jury did not subject a defendant to double jeopardy, the court concluded as follows: if "* * * what was said in united states _v._ perez [( wheat. ( )) embracing a similar set of facts], * * * is adverse to the contention of the accused that he was put twice in jeopardy," then "we need not now express an opinion" as to whether the fourteenth amendment embraces the guarantee against double jeopardy. similarly, in murphy _v._ massachusetts[ ] and shoener _v._ pennsylvania[ ] the court held that where the original conviction of the prisoner was, on appeal, construed by the state tribunal to be legally defective and therefore a nullity, a subsequent trial, conviction, and sentence of the accused deprived him of no constitutional right, notwithstanding the fact that under the invalidated original conviction, the defendant had spent time in prison. in both instances the court found it unnecessary to discuss "any question of a federal nature." with like dispatch, "the propriety of inflicting severer punishment upon old offenders" was sustained on the ground that they were not being "punished * * * [a] second time for the earlier offense, but [that] the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted."[ ] in palko _v._ connecticut,[ ] however, the court appeared to have been presented with issues, the disposition of which would preclude further avoidance of a decision as to whether the double jeopardy provision of the fifth amendment had become operable as a restraint upon the states by reason of its incorporation into the due process clause of the fourteenth amendment. by the terms of the connecticut statute at issue, the state was privileged to appeal any question of law arising out of a criminal prosecution, and did appeal a conviction of second degree murder and sentence to life imprisonment of one palko, who had been charged with first degree murder. obtaining a reversal, the state prosecuted palko a second time and won a conviction of first degree murder and sentence to death. in response to the petitioner's contentions that a retrial under one indictment would subject him to double jeopardy in violation of the fifth amendment, if the prosecution were one on behalf of the united states and "that whatever is forbidden by the fifth amendment is forbidden by the fourteenth also,"[ ] eight justices[ ] replied that the state statute did not subject him to double jeopardy "so acute and shocking that our polity will not endure it"; nor did "it violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political' institutions.'" consistently with past behavior, the court thus refused to assert that the defendant had been subjected to treatment of the type prohibited by the double jeopardy clause of the fifth amendment; nor did it, on the other hand, repudiate the possibility of situations in which the fourteenth amendment would prevent the states from inflicting double jeopardy. whether a state is prohibited by the latter amendment, after a trial free from error, from trying the accused over again or from wearing out the accused "by a multitude of cases with accumulated trials" were questions which the court reserved for future disposition. subsequently, in louisiana ex rel. francis _v._ resweber,[ ] a majority of the court assumed, "but without so deciding, that violation of the principles of the fifth amendment * * *, as to double jeopardy * * *, would be violative of the due process clause of the fourteenth amendment," and then concluded that the palko case was decisive, there being "no difference from a constitutional point of view between a new trial for error of law at the instance of the state that results in a death sentence instead of imprisonment for life and an execution" by electrocution that follows after "an accidental failure in equipment had rendered a previous attempt at execution ineffectual." rights of prisoners access to the courts.--a state prison regulation requiring that all legal papers sought to be filed in court by inmates must first be submitted to the institution for approval and which was applied so as to obstruct efforts of a prisoner to petition a federal court for a writ of _habeas corpus_ is void. whether a petition for such writ is properly drawn and what allegations it must contain are questions which a federal court alone determines.[ ] equally subject to condemnation is the practice of the warden of a state penitentiary who denied prisoners access to the courts unless they procured counsel to represent them.[ ] appeals; corrective process.--rehearing, new trials, and appeals are not considered to be essential to due process; and a state is forbidden by no provision of the constitution from vesting in one tribunal the final determination of legal questions. consequently, a review by an appellate court of a final judgment in a criminal case, irrespective of the gravity of the offense, is wholly within the discretion of the state to allow or not to allow;[ ] and, if granted, may be accorded by the state upon such terms as in its wisdom may be deemed proper.[ ] "wide discretion must be left to the states for the manner of adjudicating a claim that a conviction is unconstitutional; * * * and so long as the rights under the * * * constitution may be pursued, it is for a state and not for * * * [the supreme] court [of the united states] to define the mode by which they may be vindicated. * * * a state may decide whether to have direct appeals * * *, and if so under what circumstances * * * may provide that the protection of [constitutional] rights * * * be sought through the writ of _habeas corpus_ or _coram nobis_, [or] * * * may afford remedy by a simple motion brought either in the court of original conviction or at the place of detention."[ ] however, if the tribunal of first instance fails to accord due process such as occurs when the court in which a conviction is obtained is dominated by a mob, the state must supply corrective process. moreover, when such process is made available, the corrective proceedings in the reviewing or appellate tribunal being no less a part of the process of law under which a defendant is held in custody, become subject to scrutiny on the occasion of any determination of an alleged unconstitutional deprivation of life or liberty.[ ] such examination may lead unavoidably to substantial federal intervention in state judicial proceedings, and sensitive, no doubt, to the propriety thereof,[ ] the supreme court, almost until brown _v._ mississippi,[ ] decided in , manifested an unusual reluctance to indulge in an adverse appraisal of the adequacy of a state's corrective process. prior to the latter date, the court was content to assume as it did in frank _v._ mangum,[ ] decided in , that inasmuch as the proceedings in the state appellate court formally appeared to be sufficient to correct errors committed by a trial court alleged to have been intimidated by a mob, the conclusion by that appellate court that the trial court's sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law. apparently in observance of a principle of comity, whereunder a state appellate court's holding, though acknowledged as not binding, was deemed entitled to utmost respect, the court persisted in its refusal to make an independent examination of allegations of a denial of due process. eight years later, in moore _v._ dempsey,[ ] a case involving similar allegations of mob domination, the court, on this occasion speaking through justice holmes who had dissented in the preceding decision, ordered the federal district court, in which the defendants had petitioned for a writ of _habeas corpus_ and which had sustained the state of arkansas's demurrer thereto, to make an independent investigation of the facts, notwithstanding that the arkansas appellate court had ruled that, in view of the legally sufficient evidence on which the verdict was based and the competent counsel defending the accused, the allegations of mob domination did not suffice to void the trial. indubitably, moore _v._ dempsey marked the abandonment of the supreme court's deference, founded upon considerations of comity, to decisions of state appellate tribunals on issues of constitutionality and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair. however, the enduring character of this precedent was depreciated by the court's insistence that moore _v._ dempsey was decided consistently[ ] with frank _v._ mangum; and it was not until the later holding in brown _v._ mississippi in and the numerous decisions rendered conformably thereto in the decade following that all uncertainty was dispelled as to the supreme court's willingness to engage in its own independent examination of the constitutional adequacy of trial court proceedings. due process: miscellaneous appeals in every case a point is reached where litigation must cease; and what that point is can best be determined by the state legislature. the power to render a final judgment must be lodged somewhere; and there is no provision in the federal constitution which forbids a state from granting to a tribunal, whether called a court or an administrative board, the final determination of a legal question. neither in administrative nor judicial proceedings does the due process clause require that the participants be entitled as of right to rehearings, new trials, or appeals.[ ] federal review of state procedure the fourteenth amendment does not impair the authority of the states to determine finally, according to their settled usages and established modes of procedure, issues which do not involve any right secured by the constitution, an act of congress, or a treaty. as long as a local tribunal acts in consonance with the constitution, laws and procedure of its own state and as long as said constitution and laws are so interpreted as not to violate due process, it is only in exceptional circumstances that the supreme court would feel justified in intervening. neither by intention nor by result has the fourteenth amendment transformed the supreme court into a court of general review to which questions of general justice or equitable consideration arising out of the taking of property may be brought for final determination.[ ] insofar as mere irregularities or errors in matters of practice under state procedure do not affect constitutional right,[ ] they are matters solely for consideration by the appropriate state tribunal.[ ] the constitution does not guarantee that the decisions of state courts shall be free from error;[ ] nor does the due process clause give the supreme court jurisdiction to review mere mistakes of law concerning nonfederal matters alleged to have been committed by a state court.[ ] accordingly, when statutes authorizing the form of the indictment used are not obviously violative of fundamental constitutional principles, any question as to the sufficiency of the indictment employed is for a state court to determine.[ ] likewise, the failure of a state to establish a county appellate court as required by the state constitution cannot support any appeal founded upon a denial of due process.[ ] moreover, if a state court errs in deciding what the common law is, without, however, denying any constitutional right, the litigant adversely affected is not deprived of any liberty or property without due process of law.[ ] also, whenever a wrong judgment is rendered, property is taken when it should not have been; yet whatever the ground may be, if the mistake is not so gross as to be impossible in a rational administration of justice, it is no more than the imperfection of man, not a denial of constitutional rights.[ ] in conclusion, the decision of a state court upon a question of local law, however wrong, is not an infraction of the fourteenth amendment merely because it is wrong. it is not for the supreme court to determine whether there has been an erroneous construction of a state statute or the common law; nor does the constitution impose any impediment to the correction or modification by a state court of erroneous or older constructions of local law embraced in previous decisions.[ ] equal protection of the laws definitions of terms what constitutes state action the inhibition against denial of equal protection of the laws has exclusive reference to state action. it means that no agency of the state, legislative, executive or judicial,[ ] no instrumentality of the state, and no person, officer or agent exerting the power of the state shall deny equal protection to any person within the jurisdiction of the state. the clause prohibits "discriminating and partial legislation * * * in favor of particular persons as against others in like condition."[ ] but it also has reference to the way the law is administered. "though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution."[ ] this was said in a case where a chinese subject had been convicted of operating a laundry in violation of a municipal ordinance which made it unlawful to engage in such business (except in a building constructed of brick or stone) without the consent of the board of supervisors. permission had been withheld from petitioner and other chinese subjects but had been granted to others to carry on the same business under similar conditions. this discrimination solely on the basis of nationality was held illegal. for an unlawful administration of a valid statute to constitute a violation of constitutional rights, purposeful discrimination must be shown. an erroneous performance of a statutory duty, although a violation of the statute, is not without more a denial of equal protection of the laws.[ ] this clause is also violated by the withholding of equal access to the courts,[ ] or by inequality of treatment in the courts.[ ] in shelley _v._ kraemer[ ] the use of judicial power to enforce private agreements of a discriminatory character was held unconstitutional. holding that restrictive covenants prohibiting the sale of homes to negroes could not be enforced in the courts, chief justice vinson said: "these are not cases, as has been suggested, in which the states have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. rather, these are cases in which the states have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. the difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing."[ ] the action of the curators of a state university in refusing admission to an applicant on account of race is regarded as state action.[ ] a state cannot avoid the impact of the clause by the delegation of responsibility to a private body. after a period of vacillation, the supreme court has determined that the action of a political party in excluding negroes from membership is unlawful when such membership is an essential qualification for voting in a primary conducted pursuant to state law.[ ] "persons" in the case in which it was first called upon to interpret this clause the court expressed doubt whether "any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision."[ ] that view was soon abandoned. in it took jurisdiction of a series of cases, popularly known as the granger cases, in which railroad corporations sought protection under the due process and equal protection clauses.[ ] although every case was decided against the corporations on its merits, there was no expression of any doubt that the corporations were entitled to invoke the protection of the amendment. nine years later the issue was settled definitely by an announcement from the bench by chief justice waite that the court would not hear argument on the question whether the equal protection clause applies to corporations, adding: "we are all of opinion that it does."[ ] at the same term the court gave the broadest possible meaning to the word "person"; it held that: "these provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; * * *"[ ] the only qualification of the meaning of "person" is that introduced by subsequent decisions holding that a municipal corporation cannot invoke the amendment against its state.[ ] "within its jurisdiction" it is persons "within its jurisdiction" that are entitled to equal protection from a state. largely because article iv, section , has from the beginning entitled "citizens of each state" to the "privileges and immunities of citizens in the several states," the court has never construed the phrase, "within its jurisdiction," in relation to natural persons.[ ] the cases interpretive of this expression consequently all concern corporations. in , the court laid down the rule that a foreign corporation not doing business in a state under conditions that subjected it to process issuing from the courts of the state at the instance of suitors was not "within the jurisdiction," and could not complain of the preference granted resident creditors in the distribution of the assets of an insolvent corporation.[ ] that principle was subsequently qualified, over the dissent of justices brandeis and holmes, by a holding that a foreign corporation which sued in a court of a state in which it was not licensed to do business to recover possession of property wrongfully taken from it in another state was "within the jurisdiction" and could not be subjected to unequal burdens in the maintenance of the suit.[ ] the test of amenability to service of process within the state was ignored in a recent case dealing with discriminatory assessment of property belonging to a nonresident individual. in holding that a federal court had jurisdiction to entertain a suit for a declaratory judgment to invalidate the tax, the supreme court specifically mentioned the equal protection clause as the source of the federal right, but took no account of the plaintiff's status as a nonresident, beyond a passing reference to the existence of diversity of citizenship.[ ] when a state has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws, but not necessarily to identical treatment with domestic corporations.[ ] a foreign corporation licensed to do business within a state upon payment of an annual license tax is subject to the power of the state to change at any time the conditions of admission for the future. if it fails to pay an increased license tax as a prerequisite to doing business, it is not "within the jurisdiction" and unequal burdens may be laid upon it as compared with other foreign corporations.[ ] "equal protection of the laws" equal protection of the laws means the protection of equal laws.[ ] it forbids all invidious discrimination but does not require identical treatment for all persons without recognition of differences in relevant circumstances. it requires "that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses."[ ] the amendment was not "designed to interfere with the power of the state, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity * * * regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. though, in many respects, necessarily special in their character they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions."[ ] the due process and equal protection clauses overlap but the spheres of protection they offer are not coterminous. the due process clause "tends to secure equality of law in the sense that it makes a required minimum of protection for everyone's right of life, liberty, and property, which the congress or the legislature may not withhold. * * * the guaranty [of equal protection] was aimed at undue favor and individual or class privilege, on the other hand, and at hostile discrimination or the oppression of inequality, on the other."[ ] legislative classifications although the equal protection clause requires laws of like application to all similarly situated, the legislature is allowed wide discretion in the selection of classes.[ ] classification will not render a state police statute unconstitutional so long as it has a reasonable basis;[ ] its validity does not depend on scientific or marked differences in things or persons or in their relations. it suffices if it is practical.[ ] while a state legislature may not arbitrarily select certain individuals for the operation of its statutes, a selection is obnoxious to the equal protection clause only if it is clearly and actually arbitrary and not merely possibly so.[ ] a substantial difference, in point of harmful results, between two methods of operation, justifies a classification and the burden is on the attacking party to prove it unreasonable.[ ] there is a strong presumption that discriminations in state legislation are based on adequate grounds.[ ] every state of facts sufficient to sustain a classification which can reasonably be conceived of as having existed when the law was adopted will be assumed.[ ] there is no doctrinaire requirement that legislation should be couched in all-embracing terms.[ ] a police statute may be confined to the occasion for its existence.[ ] the equal protection clause does not mean that all occupations that are called by the same name must be treated in the same way.[ ] the legislature is free to recognize degrees of harm; a law which hits the evil where it is most felt will not be overthrown because there are other instances to which it might have been applied.[ ] the state may do what it can to prevent what is deemed an evil and stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rules laid down were made mathematically exact.[ ] exceptions of specified classes will not render the law unconstitutional unless there is no fair reason for the law that would not equally require its extension to the excepted classes.[ ] incidental individual inequality does not violate the fourteenth amendment.[ ] one who is not discriminated against cannot attack a statute because it does not go further; and if what it commands of one it commands of all others in the same class, that person cannot complain of matter which the statute does not cover.[ ] taxation at the outset, the court did not regard the equal protection clause as having any bearing on taxation.[ ] before long, however, it took jurisdiction of cases assailing specific tax laws under this provision.[ ] in it conceded cautiously that "clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, _might_ be obnoxious to the constitutional prohibition."[ ] in succeeding years the clause has been invoked but sparingly to invalidate state levies. in the field of property taxation, inequality has been condemned only in two classes of cases: ( ) intentional discrimination in assessments; and ( ) discrimination against foreign corporations. in addition, there are a handful of cases invalidating, because of inequality, state laws imposing income, gross receipts, sales and license taxes. classifications for the purpose of taxation the power of the state to classify for purposes of taxation is "of wide range and flexibility."[ ] the constitution does not prevent it "from adjusting its system of taxation in all proper and reasonable ways. it may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. it may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. all such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, * * *"[ ] a state may adjust its taxing system in such a way as to favor certain industries or forms of industry,[ ] and may tax different types of taxpayers differently, despite the fact that they compete.[ ] it does not follow that because "some degree of inequality from the nature of things must be permitted, gross inequality must also be allowed."[ ] classification may not be arbitrary; it must be based on a real and substantial difference,[ ] but the difference need not be great or conspicuous;[ ] but there must be no discrimination in favor of one as against another of the same class.[ ] also, discriminations of an unusual character are scrutinized with especial care.[ ] a gross sales tax graduated at increasing rates with the volume of sales,[ ] a heavier license tax on each unit in a chain of stores where the owner has stores located in more than one county,[ ] and a gross receipts tax levied on corporations operating taxicabs, but not on individuals,[ ] have been held to be repugnant to the equal protection clause. but it is not the function of the court to consider the propriety or justness of the tax, to seek for the motives and criticize the public policy which prompted the adoption of the statute.[ ] if the evident intent and general operation of the tax legislation is to adjust the burden with a fair and reasonable degree of equality, the constitutional requirement is satisfied.[ ] one not within the class claimed to be discriminated against cannot raise the question of constitutionality of a statute on the ground that it denies equal protection of the law.[ ] if a tax applies to a class which may be separately taxed, those within the class may not complain because the class might have been more aptly defined, nor because others, not of the class, are taxed improperly.[ ] foreign corporations the equal protection clause does not require identical taxes upon all foreign and domestic corporations in every case.[ ] in , a pennsylvania corporation previously licensed to do business in new york challenged an increased annual license tax imposed by that state in retaliation for a like tax levied by pennsylvania against new york corporations. this tax was held valid on the ground that the state, having power to exclude entirely, could change the conditions of admission for the future, and could demand the payment of a new or further tax, as a license fee.[ ] later cases whittled down this rule considerably. the court decided that "after its admission, the foreign corporation stands equal and is to be classified with domestic corporations of the same kind,"[ ] and that where it has acquired property of a fixed and permanent nature in a state, it cannot be subjected to a more onerous tax for the privilege of doing business than domestic corporations.[ ] a state statute taxing foreign corporations writing fire, marine, inland navigation and casualty insurance on net receipts, including receipts from casualty business was held invalid under the equal protection clause where foreign companies writing only casualty insurance were not subject to a similar tax.[ ] recently, the doctrine of fire asso. of philadelphia _v._ new york was revived to sustain an increased tax on gross premiums which was exacted as an annual license fee from foreign but not from domestic corporations.[ ] even though the right of a foreign corporation to do business in a state rests on a license, yet the equal protection clause is held to insure it equality of treatment, at least so far as _ad valorem_ taxation is concerned.[ ] income taxes a state law which taxes the entire income, including that derived without the state, of domestic corporations which do business in the state, while exempting entirely the income received outside the state by domestic corporations which do no local business, is arbitrary and invalid.[ ] in taxing the income of a nonresident, there is no denial of equal protection in limiting the deduction of losses to those sustained within the state, although residents are permitted to deduct all losses, wherever incurred.[ ] a retroactive statute imposing a graduated tax at rates different from those in the general income tax law, on dividends received in a prior year which were deductible from gross income under the law in effect when they were received, is not obnoxious to the equal protection clause.[ ] inheritance taxes in inheritance taxation, there is no denial of equal protection in prescribing different treatment for lineal relations, collateral kindred and strangers of the blood, or in increasing the proportionate burden of the tax progressively as the amount of the benefit increases.[ ] a tax on life estates where the remainder passes to lineal heirs is valid despite the exemption of life estates where the remainder passes to collateral heirs;[ ] there is no arbitrary classification in taxing the transmission of property to a brother or sister, while exempting that to a son-in-law or a daughter-in-law.[ ] vested and contingent remainders may be treated differently.[ ] the exemption of property bequeathed to charitable or educational institutions may be limited to those within the state.[ ] in computing the tax collectible from a nonresident decedent's property within the state, a state may apply the pertinent rates to the whole estate wherever located, and take that proportion thereof which the property within the state bears to the total; the fact that a greater tax may result than would be assessed on an equal amount of property if owned by a resident,[ ] does not invalidate the result. motor vehicle taxes in demanding compensation for the use of highways, a state may exempt certain types of vehicles, according to the purpose for which they are used, from a mileage tax on carriers.[ ] a state maintenance tax act, which taxes vehicle property carriers for hire at greater rates than similar vehicles carrying property not for hire is reasonable, since the use of roads by one hauling not for hire generally is limited to transportation of his own property as an incident to his occupation and is substantially less than that of one engaged in business as a common carrier.[ ] a property tax on motor vehicles used in operating a stage line that makes constant and unusual use of the highways may be measured by gross receipts and be assessed at a higher rate than taxes on property not so employed.[ ] common motor carriers of freight operating over regular routes between fixed termini may be taxed at higher rates than other carriers, common and private.[ ] a fee for the privilege of transporting motor vehicles on their own wheels over the highways of the state for purpose of sale, does not violate the equal protection clause as applied to cars moving in caravans.[ ] the exemption from a tax for a permit to bring cars into the state in caravans of cars moved for sale between zones in the state is not an unconstitutional discrimination where it appears that the traffic subject to the tax places a much more serious burden on the highways than that which is exempt.[ ] the exemption of small vehicles from graduated registration fees on carriers for hire,[ ] and of persons whose vehicles haul passengers and farm products between points not having railroad facilities or hauling farm and dairy products for a producer from a vehicle license tax on private motor carriers, has been upheld.[ ] poll taxes a poll tax statute exempting women, the aged and minors, does not make an arbitrary classification[ ]. property taxes the state's latitude of discretion is notably wide in the classification of property for purposes of taxation and the granting of partial or total exemption on the grounds of policy,[ ] whether the exemption results from the terms of the statute or the conduct of a state official under it.[ ] a provision for the forfeiture of land for nonpayment of taxes is not invalid because the conditions to which it applies exist only in a part of the state.[ ] intentional and systematic undervaluation by state officials of other taxable property in the same class contravenes the constitutional right of one taxed upon the full value of his property;[ ] but mere errors in judgment resulting in unequal overvaluation or undervaluation, not intentional or systematic, will not support a claim of discrimination.[ ] differences in the basis of assessment are not invalid where the person or property affected might properly be placed in a separate class for purposes of taxation.[ ] an owner aggrieved by discrimination is entitled to have his assessment reduced to the common level.[ ] equal protection is denied if a state does not itself remove the discrimination; it cannot impose upon the person against whom the discrimination is directed the burden of seeking an upward revision of the assessment of other members of the class.[ ] a corporation whose valuations were accepted by the assessing commission cannot complain that it was taxed disproportionately, as compared with others, if the commission did not act fraudulently.[ ] special assessment a special assessment is not discriminatory because apportioned on an _ad valorem_ basis, nor does its validity depend upon the receipt of some special benefit as distinguished from the general benefit to the community.[ ] railroad property may not be burdened for local improvements upon a basis so wholly different from that used for ascertaining the contribution demanded of individual owners as necessarily to produce manifest inequality.[ ] a special highway assessment against railroads based on real property, rolling stock and other personal property is unjustly discriminatory when other assessments for the same improvement are based on real property alone.[ ] a law requiring the franchise of a railroad to be considered in valuing its property for apportionment of a special assessment, is not invalid where the franchises were not added as a separate personal property value to the assessment of the real property.[ ] in taxing railroads within a levee district on a mileage basis, it is not necessarily arbitrary to fix a lower rate per mile for those having less than miles of main line within the district than for those having more.[ ] police power classification justice holmes once called the equal protection clause the "usual last refuge of constitutional arguments."[ ] when state action is attacked under the due process clause, the assailant usually charges also that he is denied the equal protection of the laws. except where discrimination on the basis of race or nationality is shown, few police regulations have been found unconstitutional on this ground.[ ] the court has condemned a statute which forbade stock insurance companies to act through agents who were their salaried employees, but permitted mutual companies to operate in this manner.[ ] a law which required private motor vehicle carriers to obtain certificates of convenience and necessity and to furnish security for the protection of the public was held invalid by reason of the exemption of carriers of fish, farm and dairy products.[ ] discrimination among milk dealers without well advertised trade names, giving those who entered business before a specified date the benefit of a price differential denied to those who commenced operations thereafter, is arbitrary and unlawful.[ ] a statute providing for the sterilization of defectives in state institutions was sustained;[ ] but a similar act applicable to triple offenders was held void.[ ] administrative discretion a municipal ordinance which vests in supervisory authorities a naked and arbitrary power to grant or withhold consent to the operation of laundries in wooden buildings, without consideration of the circumstances of individual cases, constitutes a denial of equal protection of the law when consent is withheld from certain persons solely on the basis of nationality.[ ] but a city council may reserve to itself the power to make exceptions from a ban on the operation of a dairy within the city,[ ] or from building line restrictions.[ ] written permission of the mayor or president of the city council may be required before any person shall move a building on a street.[ ] the mayor may be empowered to determine whether an applicant has a good character and reputation and is a suitable person to receive a license for the sale of cigarettes.[ ] in a recent case[ ] the court held that the unfettered discretion of officer river pilots to select their apprentices, which was almost invariably exercised in favor of their relatives and friends, was not a denial of equal protection to persons not selected despite the fact that such apprenticeship was requisite for appointment as a pilot. alien laws the fourteenth amendment prohibits purely arbitrary discrimination against aliens.[ ] where alien race and allegiance bear a reasonable relation to a legitimate object of legislation, it may be made the basis of classification. thus, legislation has been upheld under which aliens were forbidden to conduct pool rooms[ ] or to take game or possess shotguns.[ ] a discrimination between citizens and aliens in the matter of employment on public works is not unconstitutional.[ ] a state cannot, however, deny to aliens the right to earn a living in ordinary occupations. consequently, a statute requiring that employers of more than five workers employ not less than eighty percent qualified electors or natural born citizens denies equal protection of the law.[ ] likewise a state law forbidding the issuance of commercial fishing licenses to aliens ineligible for citizenship has been held void.[ ] state laws forbidding aliens to own real estate, have been upheld in the past.[ ] a less sympathetic attitude toward such legislation was indicated in oyama _v._ california, in .[ ] there the state of california sought to escheat land owned by an american-born son of a japanese father under a provision of its alien land law which made payment by an alien of the consideration for a transfer of land to a third person _prima facie_ evidence of intent to evade the statute. the court held that the burden of proof imposed upon the son, an american citizen, by reason of his parent's country of origin, was an unlawful discrimination, but it did not pass upon the constitutionality of the alien land law itself. in concurring opinions four justices took the position that the law was incompatible with the fourteenth amendment.[ ] labor relations objections to labor legislation on the ground that the limitation of particular regulations to specified industries was obnoxious to the equal protection clause, have been consistently overruled. statutes limiting hours of labor for employees in mines, smelters,[ ] mills, factories,[ ] or on public works[ ] have been sustained. so also was a statute forbidding persons engaged in mining and manufacturing to issue orders for payment of labor unless redeemable at face value in cash.[ ] the exemption of mines employing less than ten persons from a law pertaining to measurement of coal to determine a miner's wages is not unreasonable.[ ] all corporations,[ ] or public service corporations,[ ] may be required to issue to employees who leave their service letters stating the nature of the service and the cause of leaving even though other employers are not. industries may be classified in a workmen's compensation act according to the respective hazards of each;[ ] the exemption of farm laborers and domestic servants does not render such an act invalid.[ ] a statute providing that no person shall be denied opportunity for employment because he is not a member of a union does not offend the equal protection clause.[ ] women, or particular classes of women, may be singled out for special treatment, in the exercise of the state's protective power, without violation of the fourteenth amendment. classification may be based on differences either in their physical characteristics or in the social conditions which surround their employment. restrictions on conditions of employment in particular occupations are not invalid because the law might have been made broader.[ ] one of the earliest pieces of social legislation to be sustained was a ten-hour law for women employed in laundries.[ ] a law limiting hours of labor for women in hotels is not rendered unconstitutional by reason of the exemption of certain railroad restaurants.[ ] night work by women in restaurants may be prohibited.[ ] reversing earlier decisions, the supreme court upheld a minimum wage law for women in , saying that their unequal bargaining position justified a law applicable only to them.[ ] women may be forbidden to engage in an occupation where their employment may create special moral and social problems. a state statute forbidding women to act as bartenders, but making an exception in favor of wives and daughters of the male owners of liquor establishments was sustained over the objection, which three justices found persuasive, that the act denied the equal protection of the law to female owners of such establishments.[ ] said justice frankfurter for the majority: "the fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the states from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic. * * * the constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards."[ ] monopolies on the principle that the law may hit the evil where it is most felt, state antitrust laws applicable to corporations but not to individuals,[ ] or to vendors of commodities but not to vendors of labor,[ ] have been upheld. contrary to its earlier view, the court now holds that an antitrust act which exempts agricultural products in the hands of the producer is valid.[ ] diversity with respect to penalties also has been sustained. corporations violating the law may be proceeded against by bill in equity, while individuals are indicted and tried.[ ] a provision, superimposed upon the general antitrust law, for revocation of the licenses of fire insurance companies which enter into illegal combinations, does not violate the equal protection clause.[ ] a grant of monopoly privileges, if otherwise an appropriate exercise of the police power, is immune to attack under that clause.[ ] punishment for crime equality of protection under the law implies that in the administration of criminal justice no person shall be subject to any greater or different punishment than another in similar circumstances.[ ] comparative gravity of criminal offenses is a matter for the state to determine, and the fact that some offenses are punished with less severity than others does not deny equal protection.[ ] heavier penalties may be imposed upon habitual criminals for like offenses,[ ] even after a pardon for an earlier offense,[ ] and such persons may be made ineligible for parole.[ ] a state law doubling the sentence on prisoners attempting to escape does not deny equal protection in subjecting prisoners who attempt to escape together to different sentences depending on their original sentences.[ ] infliction of the death penalty for assaults with intent to kill by life term convicts is not unconstitutional because not applicable to convicts serving lesser terms.[ ] the fourteenth amendment does not preclude the commitment of persons who, by an habitual course of misconduct, have evidenced utter lack of power to control sexual impulses, and are likely to inflict injury.[ ] a statute prohibiting a white person and a negro from living together in adultery or fornication is not invalid because it prescribes penalties more severe than those to which the parties would be subject were they both of the same race.[ ] the equal protection clause does not prevent the execution of a prisoner after the accidental failure of the first attempt.[ ] it does, however, render invalid a statute requiring sterilization of persons convicted of various offenses, including larceny by fraud, but exempting embezzlers.[ ] segregation laws designed to segregate persons of different races in the location of their homes, in the public schools and on public conveyances have been a prolific source of litigation under the equal protection clause. an ordinance intended to segregate the homes of white and colored races is invalid.[ ] private covenants forbidding the transfer of real property to persons of a certain race or color have been held lawful,[ ] but the enforcement of such agreements by a state through its courts would constitute a denial of equal protection of the laws.[ ] a statute providing for separate but equal accommodations on railroads for white and colored persons has been held not to deny equal protection of the law,[ ] but a separate coach law which permits carriers to provide sleeping and dining cars only for white persons, is invalid notwithstanding recognition by the legislature that there would be little demand for them by colored persons.[ ] fifty years ago the action of a local board of education in suspending temporarily for economic reasons a high school for colored children was held not to be a sufficient reason for restraining the board from maintaining an existing high school for white children, when the evidence did not indicate that the board had proceeded in bad faith or had acted in hostility to the colored race.[ ] a child of chinese ancestry, who is a citizen of the united states, is not denied equal protection of law by being assigned to a public school provided for colored children, when equal facilities for education are offered to both races.[ ] although the principle that separate but equal facilities satisfy constitutional requirements has not been reversed, the court in recent years has been inclined to review more critically the facts of cases brought before it to ascertain whether equality has, in fact, been offered. in missouri _v._ canada[ ] it held that the state was denying equal protection of the law in failing to provide a legal education within the state for negroes comparable to that afforded white students. pursuant to a policy of segregating negro and white students, the state had established a law school at the state university for white applicants. in lieu of setting up one at its negro university, it authorized the curators thereof to establish such a school whenever in their opinion it should be necessary and practicable to do so, and pending such development, to arrange and pay for the legal education of the state's negroes at schools in other states. this was found insufficient; the obligation of the state to afford the protection of equal law can be performed only where its laws operate, that is to say, within its own jurisdiction. it is there that equality of rights must be maintained. in a later case the court held that the state of oklahoma was obliged to provide legal education for a qualified negro applicant as soon as it did for applicants of any other group.[ ] to comply with this mandate a state court entered an order requiring in the alternative the admission of a negro to the state-maintained law school or non-enrollment of any other applicant until a separate school with equal educational facilities should be provided for negroes. over the objection of two justices the supreme court held this order did not depart from its mandate.[ ] after a close examination of the facts, the court concluded, in sweatt _v._ painter,[ ] that the legal education offered in a separate law school for negroes was inferior to that afforded by the university of texas law school and hence that the equal protection clause required that a qualified applicant be admitted to the latter. in mclaurin _v._ oklahoma state regents[ ] the court held that enforced segregation of a negro student admitted to a state university was invalid because it handicapped him in the pursuit of effective graduate instruction. political rights in conjunction with the fifteenth amendment the equal protection clause has played an important role in cases involving various expedients devised to deprive negro citizens of the right of suffrage. attempts have also been made, but thus far without success, to invoke this clause against other forms of political inequality. the principal devices employed to prevent voting by negroes have been grandfather clauses, educational qualifications, registration requirements and restrictions on membership in a political party. grandfather clauses exempting persons qualified as electors before and their descendants from requirements applicable to other voters, were held to violate the fifteenth amendment.[ ] educational qualifications which did not on their face discriminate between white and negro voters were sustained in the absence of a showing that their actual administration was evil.[ ] in in a suit charging that the registration procedure prescribed by statute was fraudulently designed to prevent negroes from voting, the court, in an opinion written by justice holmes, refused to order the registration of an allegedly qualified negro, on the whimsical ground that to do so would make the court a party to the fraudulent plan.[ ] the opinion was careful to state that "we are not prepared to say that an action at law could not be maintained on the facts alleged in the bill." such an action was brought some years later in oklahoma under a registration law enacted after its "grandfather" statute had been held unconstitutional. registration was not necessary for persons who had voted at the previous election under the invalid statute. other persons were required to register during a twelve day period or be forever disfranchised. a colored citizen who was refused the right to vote in because of failure to register during the prescribed period in , was held to have a cause of action for damages against the election officials under the civil rights act of . in the opinion of the court reversing a judgment for the defendants, justice frankfurter said:[ ] "the amendment nullifies sophisticated as well as simple minded modes of discrimination. it hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race." as the selection of candidates by primary elections became general, the denial of the right to vote in the primary assumed dominant importance. for many years the court hesitated to hold that party primaries were elections within the purview of the constitution. during that period the equal protection clause was relied upon to invalidate discrimination against negroes. under the clause, it is necessary to find that inequality is perpetrated by the state.[ ] the court had no difficulty in holding that a state statute which forbade voting by negroes in a party primary was obnoxious to the fourteenth amendment.[ ] the same conclusion was reached with respect to exclusion by action of a party executive committee pursuant to authority conferred by statute.[ ] but at first it refused to extend this rule to a restriction on membership imposed without statutory authority by the state convention of a party.[ ] the latter case was soon overruled; having, in the meanwhile, decided that a primary is an integral part of the electoral machinery,[ ] the court ruled in smith _v._ allwright,[ ] that a restriction on party membership imposed by a state convention was invalid under the fifteenth amendment, where such membership was a prerequisite for voting in the primary. failure has attended the few attempts which have been made to strike down other alleged discriminations in election laws or in their administration. nearly fifty years ago the court rejected a claim that an act forbidding the registration of a voter until one year after his intent to become a legal voter shall have been recorded was a denial of equal protection.[ ] in snowden _v._ hughes,[ ] it held that an alleged erroneous refusal of a state primary canvassing board to certify a person as a successful candidate in a party primary was not, in the absence of a showing of purposeful discrimination, a denial of a constitutional right which would justify a suit for damages against members of the board. three recent attacks on inequalities in the effective voting power of persons residing in different geographical areas were likewise unsuccessful. the court refused, in colegrove _v._ green,[ ] to interfere to prevent the election of representatives in congress by districts in illinois, because of unequal apportionment. two years later, in macdougall _v._ green[ ] it held that a state law requiring candidates of a new political party to obtain a minimum number of signatures on their nominating petitions in each of counties did not withhold equal justice from the overwhelming majority of the voters who resided in the most populous counties. over the dissent of justices black and douglas it affirmed the action of a federal district court in dismissing a complaint challenging the validity of georgia's county unit election system, under which the votes of residents of the most populous county have on the average but one-tenth the weight of those in other counties.[ ] procedure general doctrine the equal protection clause does not exact uniformity of procedure. state legislatures may classify litigation and adopt one type of procedure for one class and a different type for another. the procedure followed in condemnation suits brought by a state need not be the same as in a suit started by a private corporation.[ ] procedural rules may vary in different geographic subdivisions of the state; the state may be given a larger number of peremptory challenges to jurors in capital cases in cities having more than , inhabitants than in other areas.[ ] a state may require that disputes on the amount of loss under fire insurance policies be submitted to arbitration.[ ] it may prescribe the evidence which shall be received and the effect which shall be given it; proof of one fact, or of several facts taken collectively, may be made _prima facie_ evidence of another fact, so long as it is not a mere arbitrary mandate and does not discriminate invidiously between different persons in substantially the same situations.[ ] a plaintiff in a stockholder's derivative suit may be required to give security if he does not own a specified amount of stock; the size of his financial interest may reasonably be considered as some measure of his good faith and responsibility in bringing the suit.[ ] access to courts the legislature may provide for diversity in the jurisdiction of its several courts, both as to subject matter and finality of decision, if all persons within the territorial limits of the respective jurisdiction have an equal right in like cases to resort to them for redress.[ ] there is no denial of equal protection of the law by reason of the fact that in one district the state is allowed an appeal and in another district it is not.[ ] the legislative discretion to grant or withhold equitable relief in any class of cases must, under the equal protection clause, be so exercised as not to grant equitable relief to one, and to deny it to another under like circumstances and in the same territorial jurisdiction. a state law forbidding injunctions in labor disputes is invalid where injunctive relief is available in other similar controversies.[ ] the action of prison officials in suppressing a prisoner's appeal documents during the statutory period for appeal constitutes a denial of equal protection by refusing him privileges of appeal that were available to others.[ ] corporations a statute permitting suits against domestic corporations to be brought in any county in which the cause of action arose, is not void as denying equal protection.[ ] neither is a statute applicable only to corporations requiring the production of books and papers upon notice, with punishment for contempt upon neglect or refusal to comply.[ ] where, however, actions against domestic corporations may be brought only in counties where they may have places of business or where a chief officer resides, a statute authorizing action against a foreign corporation in any county is discriminatory and invalid.[ ] so also is a statute, applicable only to foreign corporations, which requires the corporation, as a condition precedent to maintenance of an action, to send its officer into the state, with papers and books bearing on the matter in controversy, for examination before trial, where nonresident individuals, as well as individuals and corporations within the state, were subject to less onerous requirements.[ ] expenses of litigation a statute which directs that life and health insurance companies who default in payments of their policies shall pay per cent damages, together with reasonable attorney's fees, does not deny the equal protection of the law in failing to impose the same conditions on fire, marine, and inland insurance companies, and on mutual benefit and relief associations.[ ] costs may be allowed to a person who has been subjected to malicious prosecution, with provision for commitment of the prosecutor until paid.[ ] statutes providing for recovery of reasonable attorney's fees in action on small claims against all classes of defendants, individual and corporate,[ ] in mandamus proceedings,[ ] or in actions against railroads for damages caused by fires[ ] have been upheld. but a statute, applicable only to railway corporations, providing for recovery of attorney's fees and costs in actions for certain small claims was found to be repugnant to the equal protection clause.[ ] selection of jury exercising the authority conferred by section of the fourteenth amendment, congress has expressly forbidden the exclusion of any citizen from service as a grand or petit juror in any federal or state court, on the ground of race or color.[ ] jury commissioners are under the duty "not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds."[ ] an accused does not, however, have a legal right to a jury composed in whole or in part of members of his own race.[ ] mere inequality in the numbers of persons selected from different races is not conclusive; discrimination is unlawful only if it is purposeful and systematic.[ ] but where it appeared that no negro had served on a grand or petit jury for thirty years in a county in which per cent of the adult population was colored, the inference of systematic exclusion was not repelled by a showing that few negroes fulfilled the requirement that a juror must be a qualified elector.[ ] to what extent, if at all, the equal protection clause prevents the exclusion from jury service of any class of persons on any basis other than race or color is a still unsettled problem of constitutional interpretation. the selection of jurors may be confined to males, to citizens, to qualified electors, to persons within certain ages, or to persons having prescribed educational qualifications.[ ] certain occupational groups, such as lawyers, preachers, ministers, doctors, dentists, and engineers and firemen of railroad trains may be excluded from jury service.[ ] an issue of even greater consequence is raised by differentiation in the qualifications of persons selected to try different kinds of cases. this was the question on which the supreme court divided five to four in fay _v._ new york[ ] where it upheld a conviction by a "blue ribbon" jury. in that case defendants, officials of certain labor unions, were convicted of extortion, by collecting large sums from contractors for assisting them in avoiding labor troubles. from a "blue ribbon" jury certain categories of persons qualified for ordinary jury duty are excluded; and on this ground defendants claimed that in being tried by such a jury they had been denied "equal protection of the law" and deprived of "due process of law," but especially the former, alleging that such juries had a higher record of conviction than ordinary juries and that their sympathies were "conservative." the court, speaking by justice jackson, answered that "a state is not required to try all offenses to the same forum," but conceded that "a discretion, even if vested in the court, to shunt a defendant before a jury so chosen as greatly to lessen his chances while others accused of a like offense are tried by a jury so drawn as to be more favorable to them, would hardly be 'equal protection of the laws.'"[ ] however, he asserted that the new york statute authorizing "blue ribbon" juries "does not exclude, or authorize the clerk to exclude, any person or class because of race, creed, color or occupation. it imposes no qualification of an economic nature beyond that imposed by the concededly valid general panel statute. each of the grounds of elimination is reasonably and closely related to the juror's suitability for the kind of service the special panel requires or to his fitness to judge the kind of cases for which it is most frequently utilized. not all of the grounds of elimination would appear relevant to the issues of the present case. but we know of no right of defendants to have a specially constituted panel which would include all persons who might be fitted to hear their particular and unique case."[ ] he held further that defendants had failed to shoulder the necessary burden of proof in support of their allegations of discrimination, and added: "at most, the proof shows lack of proportional representation and there is an utter deficiency of proof that this was the result of a purpose to discriminate against this group as such. the uncontradicted evidence is that no person was excluded because of his occupation or economic status. all were subjected to the same tests of intelligence, citizenship and understanding of english. the state's right to apply these tests is not open to doubt even though they disqualify, especially in the conditions that prevail in new york, a disproportionate number of manual workers. a fair application of literacy, intelligence and other tests would hardly act with proportional equality on all levels of life. the most that the evidence does is to raise, rather than answer, the question whether there was an unlawful disproportionate representation of lower income groups on the special jury."[ ] then, as to the due process clause, he pointed out that the jury had had a long and varied history in the course of which it has assumed many forms, and that for that matter the court "* * * has construed it to be inherent in the independent concept of due process that condemnation shall be rendered only after a trial, in which the hearing is a real one, not a sham or pretense. * * * trial must be held before a tribunal not biased by interest in the event. * * * undoubtedly a system of exclusions could be so manipulated as to call a jury before which defendants would have so little chance of a decision on the evidence that it would constitute a denial of due process. a verdict on the evidence, however, is all an accused can claim; he is not entitled to a set-up that will give a chance of escape after he is properly proven guilty. society also has a right to a fair trial. the defendant's right is a neutral jury. he has no constitutional right to friends on the jury."[ ] apportionment of representation section . representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding indians not taxed. but when the right to vote at any election for the choice of electors for president and vice president of the united states, representatives in congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the united states, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. in general the effect of this section in relation to negroes was indicated in elk _v._ wilkins.[ ] "slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of * * * [article i, § , cl. ] of the * * * original constitution as counted only three-fifths of such persons." "indians not taxed" although one authority on the legal status of the american indian observed that this "* * * phrase [was] never * * * more explicitly defined, but probably * * * [meant] * * * indians resident on reservations, that is, on land not taxed by the states,"[ ] the united states attorney general, in , commented as follows upon the difficulty of arriving at any satisfactory construction of these words: "whether the phrase 'indians not taxed' refers ( ) to indians not actually paying taxes or only to those who are not subject to taxation and ( ) to indians not taxed or subject to taxation by any taxing authority or only to those not taxed or subject to taxation by the states in which they reside * * * [presents] questions * * * [which have] been discussed in a number of court decisions but the issue has never been squarely raised in any of the decided cases. some of the cases and some statements appearing in the debates in the constitutional convention lend support to the view that since all indians are now subject to the federal income-tax laws [superintendent _v._ commissioner, u.s. ( )] there are no longer any indians not taxed within the meaning of the constitutional phrase. on the other hand, other decided cases and other statements appearing in the debates in the convention equally support the contrary view. * * *, the answer to * * * [these questions] is not free from doubt."[ ] as to the latest construction which congress has given to this phrase in apportioning seats in the house of representatives, it is pertinent to note that the apportionment act of , at last amended in ,[ ] excludes "indians not taxed" from the computation of the total population of each state. however, in reliance on the above-mentioned decision that all indians are now subject to federal income taxation, the director of the census included all indians in the tabulation of total population in each state, and congress took no action to alter the effects which such inclusion had upon the number of seats distributed to the several states.[ ] right to vote the right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the state; subject, however, to the limitation that the constitution, in article i, section , adopts as qualifications for voting for members of congress those qualifications established by the states for voting for the most numerous branch of their legislatures. to the latter extent the right to vote for members of congress has been declared to be fundamentally based upon the constitution and as never having been intended to be left within the exclusive control of the states.[ ] reduction of state's representation "questions relating to the apportionment of representatives among the several states are political in their nature and reside exclusively within the determination of congress * * *" consequently, a united states district court was obliged to dismiss an action for damages against the virginia secretary of state for the latter's refusal to certify the plaintiff as candidate for the office of congressman at large, inasmuch as the plaintiff's case rested on the theory that the apportionment act of congress and the redistricting act of virginia, by failing to take into account the disenfranchisement of % of the voters occasioned by the poll tax, were both invalid, and that virginia accordingly was entitled to only four instead of nine congressmen, which four were to be elected at large.[ ] "it is well known that the elective franchise has been limited or denied to citizens in various states of the union in past years, but no serious attempt has been made by congress to enforce the mandate of the second section of the fourteenth amendment, and it is noteworthy that there are no instances in which the courts have attempted to revise the apportionment of representatives by congress."[ ] disqualification of officers section . no person shall be a senator or representative in congress, or elector of president and vice president, or hold any office, civil or military, under the united states, or under any state, who, having previously taken an oath, as a member of congress, or as an officer of the united states, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the united states, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. but congress may by a vote of two-thirds of each house, remove such disability. in general the right to remove disabilities imposed by this section was exercised by congress at different times on behalf of enumerated individuals--notably by act of december , ( stat. ). in , the disabilities were removed, by a blanket act, from all persons "except senators and representatives of the thirty-sixth and thirty-seventh congresses, officers in the judicial military, and naval service of the united states, heads of departments, and foreign ministers of the united states" ( stat. ). twenty-six years later, on june , ( stat. ), congress enacted briefly that "the disability imposed by section * * * incurred heretofore [prior to june , ], is hereby removed."[ ] public debt, etc. section . the validity of the public debt of the united states, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. but neither the united states nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the united states, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. although section four "was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the civil war, its language indicates a broader connotation. * * * 'the validity of the public debt' * * * [embraces] whatever concerns the integrity of the public obligations," and applies to government bonds issued after as well as before adoption of the amendment.[ ] enforcement section . the congress shall have power to enforce, by appropriate legislation, the provisions of this article. scope of the provision "* * * until some state law has been passed, or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the fourteenth amendment, no legislation of the united states under said amendment, nor any proceeding under such legislation, can be called into activity: * * * the legislation which congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the states may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the states may commit or take, and which, by the amendment, they are prohibited from committing or taking."[ ] conversely, congress may enforce the provisions of the amendment whenever they are disregarded by either the legislative, the executive, or the judicial department of the state. the mode of the enforcement is left to its discretion. it may secure the right, that is, enforce its recognition, by removing the case from a state court, in which it is denied, into a federal court where it will be acknowledged.[ ] similarly, congress may provide that "no citizen, possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the united states, or of any state, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, * * *"[ ] however, the supreme court declined to sustain congress when, under the guise of enforcing the fourteenth amendment by appropriate legislation, it enacted a statute which was not limited to take effect only in case a state should abridge the privileges of united states citizens, but applied no matter how well the state might have performed its duty, and would subject to punishment private individuals who conspired to deprive anyone of the equal protection of the laws.[ ] whether its powers of enforcement enable congress constitutionally to punish state officers who abuse their authority and act in violation of their state's laws is a question on which the justices only recently have divided. five justices ruled in screws _v._ united states[ ] that section of the criminal code[ ] which provides "whoever, under the color of any law, statute, ordinance, * * *, willfully subjects, * * *, any inhabitant of any state, * * * to the deprivation of any rights, * * * protected by the constitution and laws of the united states, * * *" could be the basis of a prosecution of screws, a georgia sheriff, and others, on charges of having, in the course of arresting a negro, brutally beaten him to death and deprive him of "the right not to be deprived of life without due process of law."[ ] holding that, "abuse of state power" does not create "immunity to federal power" these five justices concluded that ex parte virginia[ ] and united states _v._ classic[ ] had rejected for all time the defense that action by state officers in excess of their powers did not constitute state action "under color of law" and therefore was punishable, if at all, only as a crime against the state.[ ] the conviction of screws was, however, reversed on the ground that the jury should have been instructed to say whether the accused had had the "specific intent" to deprive their victim of his constitutional rights, since in the absence of such a finding § failed for indefiniteness.[ ] but this construction of the word "willfully" appears subsequently to have been abandoned, or at least considerably watered down. in williams _v._ united states,[ ] decided in april , the court ruled, by a bare majority, that a conviction under § was not subject to objection on the ground of the vagueness of the statute where the indictment made it clear that the constitutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[ ] to the same effect is the later case of koehler _v._ united states[ ] in which the court denied certiorari in a case closely resembling that of screws, although the trial judge, while charging the jury that it must find specific intent, nevertheless went on to say:"'the color of the act determines the complexion of the intent. the intent to injure or defraud is presumed when the unlawful act, which results in loss or injury, is proved to have been knowingly committed. it is a well settled rule, which the law applies to both criminal and civil cases, that the intent is presumed and inferred from the result of the action.'"[ ] notes [ ] as to the other categories, see art. i, § , cl. , naturalization (_see_ pp. - ). [ ] scott _v._ sandford, how. ( ). [ ] ibid. - , - , - . [ ] by the civil rights act of april , ( stat. ), enacted two years prior to the fourteenth amendment, "all persons born in the united states and not subject to any foreign power, excluding indians not taxed, are hereby declared to be citizens of the united states; * * *" [ ] u.s. ( ).--thus, a person who was born in the united states of swedish parents then naturalized here did not lose her citizenship and was therefore not subject to deportation because of her removal to sweden during her minority, it appearing that her parents resumed their citizenship in that country, but that she returned here on attaining majority with intention to retain and maintain her citizenship.--perkins _v._ elg, u.s. ( ). [ ] u.s. . [ ] in re look tin sing, f. ( ). [ ] lam mow _v._ nagle, f. ( d) ( ). [ ] united states _v._ gordon, fed. cas. no. , ( ). the term, united states, is defined in the recently enacted immigration and nationality act as follows: "the term, 'united states', except as otherwise specifically herein provided, when used in a geographical sense, means the continental united states, alaska, hawaii, puerto rico, guam, and the virgin islands of the united states." stat. , § ( ). whether the expression is used in the same sense in amendment xiv may be questionable. [ ] slaughter-house cases, wall. , ( ). [ ] arver _v._ united states (selective draft law cases), u.s. , , - ( ). [ ] insurance co. _v._ new orleans, fed. cas. no. , ( ).--not being citizens of the united states, corporations accordingly have been declared unable "to claim the protection of that clause of the fourteenth amendment which secures the privileges and immunities of citizens of the united states against abridgment or impairment by the law of a state."--orient ins. co. _v._ daggs, u.s. , ( ). this conclusion was in harmony with the earlier holding in paul _v._ virginia, wall. ( ) to the effect that corporations were not within the scope of the privileges and immunities clause of state citizenship set out in article , section . _see also_ selover, bates & co. _v._ walsh, u.s. , ( ); berea college _v._ kentucky, u.s. ( ); liberty warehouse co. _v._ burley tobacco growers' co-op. marketing asso., u.s. , ( ); grosjean _v._ american press co., u.s. , ( ). [ ] wall. , , - ( ). [ ] ibid. - . [ ] ibid. , citing crandall _v._ nevada, wall. ( ). decided before ratification of the fourteenth amendment. [ ] u.s. , . [ ] crandall _v._ nevada, wall. ( ). this case has been cited as supporting the claim that "the right to pass freely from state to state" is "among the rights and privileges of national citizenship" (twining _v._ new jersey, u.s. , ( )); but it was pointed out in united states _v._ wheeler, u.s. , ( ), that the statute involved in the crandall case was held to burden directly the performance by the united states of its governmental functions. in williams _v._ fears, u.s. , ( ), a law taxing the business of hiring persons to labor outside the state was upheld on the ground that it affected freedom of egress from the state "only incidentally and remotely." [ ] united states _v._ cruikshank, u.s. ( ). [ ] ex parte yarbrough, u.s. ( ); wiley _v._ sinkler, u.s. ( ). [ ] united states _v._ waddell, u.s. ( ). [ ] logan _v._ united states, u.s. ( ). [ ] re quarles, u.s. ( ). [ ] crutcher _v._ kentucky, u.s. , ( ). [ ] u.s. . [ ] concurring in the result, justice stone contended that the case should have been disposed of by reliance upon the due process, rather than the privileges and immunities, clause, inasmuch as the record disclosed that the complainants had not invoked the latter clause and the evidence failed to indicate that any of the complainants were in fact citizens or that any relation between citizens and the federal government was involved.--ibid. - . [ ] u.s. , - ( ). [ ] justices douglas, black, murphy and jackson. [ ] wall. ( ). [ ] u.s. , ( ). [ ] u.s. . [ ] _see_ madden _v._ kentucky, u.s. , . [ ] u.s. , , - . [ ] u.s. , , . [ ] ibid. . [ ] holden _v._ hardy, u.s. , ( ). [ ] williams _v._ fears, u.s. , ( ). [ ] wilmington star min. co. _v._ fulton, u.s. , ( ). [ ] heim _v._ mccall, u.s. ( ); crane _v._ new york, u.s. ( ). [ ] missouri p.r. co. _v._ castle, u.s. ( ). [ ] western u. teleg. co. _v._ commercial milling co., u.s. ( ). [ ] bradwell _v._ illinois, wall. , ( ); re lockwood, u.s. ( ). [ ] kirtland _v._ hotchkiss, u.s. , ( ). [ ] bartemeyer _v._ iowa, wall. ( ); mugler _v._ kansas, u.s. ( ); crowley _v._ christensen, u.s. , ( ); giozza _v._ tiernan, u.s. ( ). [ ] ex parte kemmler, u.s. ( ). [ ] minor _v._ happersett, wall. ( ). [ ] pope _v._ williams, u.s. ( ). [ ] ferry _v._ spokane, p. & s.r. co., u.s. ( ). [ ] walker _v._ sauvinet, u.s. ( ). [ ] presser _v._ illinois, u.s. , ( ). [ ] maxwell _v._ dow, u.s. , , - ( ). [ ] twining _v._ new jersey, u.s. , - ( ). reaffirmed in adamson _v._ california, u.s. , - ( ). [ ] new york ex rel. bryant _v._ zimmerman, u.s. , ( ). [ ] palko _v._ connecticut, u.s. ( ). [ ] breedlove _v._ suttles, u.s. ( ). [ ] madden _v._ kentucky, u.s. , - ( ); overruling colgate _v._ harvey, u.s. , ( ). [ ] snowden _v._ hughes, u.s. ( ). [ ] macdougall _v._ green, u.s. ( ) [ ] hibben _v._ smith, u.s. , ( ). [ ] carroll _v._ greenwich ins. co., u.s. , ( ). _see also_ french _v._ barber asphalt paving co., u.s. , ( ). [ ] scott _v._ sandford, how. , ( ), is the exception. _see_ pp. - . [ ] wall. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ). [ ] ibid. , , . [ ] u.s. , - ( ). [ ] u.s. , . [ ] wall. , - , , ( ). [ ] savings & loan association _v._ topeka, wall. , ( ).--"there are * * * rights in every free government beyond the control of the state. * * * there are limitations on [governmental power] which grow out of the essential nature of all free governments. implied reservations of individual rights, without which the social compact could not exist, * * *" [ ] "rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. these are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; * * * this right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property and right. * * * a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law."--slaughter-house cases, wall. , , (justice bradley). [ ] u.s. , . [ ] _see_ fletcher _v._ peck, cr. , ( ). [ ] u.s. , , ( ). [ ] ibid. . [ ] u.s. ( ). [ ] ibid. .--"we cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact, * * *, that * * * pauperism, and crime * * * are, in some degree, at least, traceable to this evil." [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , . [ ] u.s. , - ( ). [ ] u.s. , - . [ ] u.s. , - . [ ] u.s. ( .) [ ] u.s. ( ). [ ] ibid. [ ] adkins _v._ children's hospital, u.s. ( ); stettler _v._ o'hara, u.s. ( ); morehead _v._ new york ex rel. tipaldo, u.s. ( ); overruled by west coast hotel co. _v._ parrish, u.s. ( ). [ ] west coast hotel co. _v._ parrish, u.s. ( ). thus the national labor relations act was declared not to "interfere with the normal exercise of the right of the employer to select its employees or to discharge them." however, restraint of the employer for the purpose of preventing an unjust interference with the correlative right of his employees to organize was declared not to be arbitrary.--national labor relations board _v._ jones & laughlin, u.s. , , - ( ). [ ] _see_ especially howard jay graham, "the 'conspiracy theory' of the fourteenth amendment", _selected essays on constitutional law_, i, - ( ). [ ] u.s. .--in a case arising under the fifth amendment, decided almost at the same time, the court explicitly declared the united states "equally with the states * * * are prohibited from depriving persons or corporations of property without due process of law." sinking fund cases, u.s. , - ( ). [ ] smyth _v._ ames, u.s. , , ( ); kentucky finance corp. _v._ paramount auto exch. corp., u.s. , ( ); liggett (louis k.) co. _v._ baldridge, u.s. ( ). [ ] northwestern nat. l. ins. co. _v._ riggs, u.s. , ( ); western turf assoc. _v._ greenberg, u.s. , ( ); pierce _v._ society of the sisters, u.s. , ( ). earlier, in , in northern securities co. _v._ united states, ( u.s. , ), a case interpreting the federal antitrust law, justice brewer, in a concurring opinion, had declared that "a corporation, * * *, is not endowed with the inalienable rights of a natural person." [ ] grosjean _v._ american press co., u.s. , ( ). [ ] yick wo _v._ hopkins, u.s. ( ); terrace _v._ thompson, u.s. , ( ). [ ] columbus & g.r. co. _v._ miller, u.s. ( ); pennie _v._ reis, u.s. ( ); taylor _v._ beckham (no. ), u.s. ( ); straus _v._ foxworth, u.s. ( ); tyler _v._ judges of the court of registration, u.s. , ( ). [ ] pawhuska _v._ pawhuska oil co., u.s. ( ); trenton _v._ new jersey, u.s. ( ); williams _v._ baltimore, u.s. ( ). [ ] boynton _v._ hutchinson gas co., u.s. ( ); south carolina highway dept. _v._ barnwell bros., u.s. ( ). the converse is not true, however; and "the interest of a state official in vindicating the constitution * * * gives him no legal standing to attack the constitutionality of a state statute in order to avoid compliance with it.--smith _v._ indiana, u.s. ( ); braxton county ct. _v._ west virginia, u.s. ( ); marshall _v._ dye, u.s. ( ); stewart _v._ kansas city, u.s. ( ). _see also_ coleman _v._ miller, u.s. , - ( )." [ ] bacon _v._ walker, u.s. ( ); chicago, b. & q.r. co. _v._ illinois ex rel. grimwood, u.s. , ( ); california reduction co. _v._ sanitary reduction works, u.s. , ( ); eubank _v._ richmond, u.s. ( ); schmidinger _v._ chicago, u.s. ( ); sligh _v._ kirkwood, u.s. , - ( ); nebbia _v._ new york, u.s. ( ); nashville c. & st. l.r. co. _v._ walters, u.s. ( ). [ ] hadacheck _v._ sebastian, u.s. ( ); hall _v._ geiger-jones co., u.s. ( ); sligh _v._ kirkwood, u.s. , - ( ); eubank _v._ richmond, u.s. , ( ); erie r. co. _v._ williams, u.s. , ( ); panhandle eastern pipe line co. _v._ state highway commission, u.s. , ( ); hudson county water co. _v._ mccarter, u.s. ( ). [ ] atlantic coast line r. co. _v._ goldsboro, u.s. , ( ). [ ] treigle _v._ acme homestead asso., u.s. , ( ); liggett (louis k.) co. _v._ baldridge, u.s. , - ( ). [ ] pennsylvania coal co. _v._ mahon, u.s. ( ). _see also_ welch _v._ swasey, u.s. , ( ). [ ] noble state bank _v._ haskell, u.s. , ( ). [ ] erie r. co. _v._ williams, u.s. , ( ). [ ] new orleans public service co. _v._ new orleans, u.s. , ( ). [ ] abie state bank _v._ bryan, u.s. , ( ). [ ] meyer _v._ nebraska, u.s. , ( ). [ ] jacobson _v._ massachusetts, u.s. ( ); zucht _v._ king, u.s. ( ). [ ] buck _v._ bell, u.s. ( ). [ ] minnesota _v._ probate court, u.s. ( ). [ ] lanzetta _v._ new jersey, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . even this statement was a dictum. inasmuch as only corporations and no parents were party litigants, the court in fact disposed of the case on the ground that the corporations were being deprived of their "property" without due process of law. [ ] waugh _v._ mississippi university, u.s. , - ( ). [ ] hamilton _v._ university of california, u.s. , ( ). _see also_ p. . [ ] wall. ( ). [ ] u.s. , .--herein liberty of contract was defined as follows: "the liberty mentioned in that [fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." [ ] u.s. , ( ). [ ] chicago, b. & q.r. co. _v._ mcguire, u.s. , , ( ); wolff packing co. _v._ court of industrial relations, u.s. , ( ). [ ] holden _v._ hardy, u.s. ( ). [ ] miller _v._ wilson, u.s. ( ); bosley _v._ mclaughlin, u.s. ( ). _see also_ muller _v._ oregon, u.s. ( ); riley _v._ massachusetts, u.s. ( ); hawley _v._ walker, u.s. ( ). [ ] bunting _v._ oregon, u.s. ( ). [ ] atkin _v._ kansas, u.s. ( ). [ ] consolidated coal co. _v._ illinois, u.s. ( ). [ ] wilmington star min. co. _v._ fulton, u.s. ( ). [ ] barrett _v._ indiana, u.s. ( ). [ ] plymouth coal co. _v._ pennsylvania, u.s. ( ). [ ] booth _v._ indiana, u.s. ( ). [ ] sturges & b. mfg. co. _v._ beauchamp, u.s. ( ). [ ] knoxville iron co. _v._ harbison, u.s. ( ); dayton coal & i. co. _v._ barton, u.s. ( ); keokee consol. coke co. _v._ taylor, u.s. ( ). [ ] erie r. co. _v._ williams, u.s. ( ). [ ] st. louis, i.m. & s.r. co. _v._ paul, u.s. ( ). [ ] rail & river coal co. _v._ yaple, u.s. ( ). _see also_ mcclean _v._ arkansas, u.s. ( ). [ ] west coast hotel co. _v._ parrish, u.s. ( ), overruling adkins _v._ children's hospital, u.s. ( ) (a fifth amendment case); morehead _v._ new york ex rel. tipaldo, u.s. ( ). [ ] day-brite lighting, inc. _v._ missouri, u.s. , ( ). [ ] ibid., - . [ ] new york c.r. co. _v._ white, u.s. , ( ). [ ] arizona copper co. _v._ hammer (arizona employers' liability cases), u.s. , - ( ). [ ] in determining what occupations may be brought under the designation of "hazardous," the legislature may carry the idea to the "vanishing point."--ward & gow _v._ krinsky, u.s. , ( ). [ ] new york c.r. _v._ white, u.s. ( ); mountain timber co. _v._ washington, u.s. ( ). [ ] arizona copper co. _v._ hammer (arizona employers' liability cases), u.s. , - ( ). [ ] hawkins _v._ bleakly, u.s. ( ). [ ] chicago, b. & q.r. co. _v._ mcguire, u.s. ( ). [ ] alaska packers asso. _v._ industrial commission, u.s. ( ). [ ] thornton _v._ duffy, u.s. ( ). [ ] booth fisheries co. _v._ industrial commission, u.s. ( ). [ ] staten island r.t.r. co. _v._ phoenix indemnity co., u.s. ( ). [ ] sheehan co. _v._ shuler, u.s. ( ); new york state r. co. _v._ shuler, u.s. ( ). [ ] new york c.r. co. _v._ bianc, u.s. ( ).--attorneys are not deprived of property or their liberty of contract by restriction imposed by the state on the fees which they may charge in cases arising under the workmen's compensation law.--yeiser _v._ dysart, u.s. ( ). [ ] justice black in lincoln union _v._ northwestern co., u.s. , ( ). _see also_ pp. , - , . in his concurring opinion, contained in the companion case of american federation of labor _v._ american sash co., u.s. , - ( ), justice frankfurter summarized as follows the now obsolete doctrines employed by the court to strike down state laws fostering unionization. "* * * unionization encountered the shibboleths of a premachine age and these were reflected in juridical assumptions that survived the facts on which they were based. adam smith was treated as though his generalizations had been imparted to him on sinai and not as a thinker who addressed himself to the elimination of restrictions which had become fetters upon initiative and enterprise in his day. basic human rights expressed by the constitutional conception of 'liberty' were equated with theories of _laissez faire_. the result was that economic views of confined validity were treated by lawyers and judges as though the framers had enshrined them in the constitution. * * * the attitude which regarded any legislative encroachment upon the existing economic order as infected with unconstitutionality led to disrespect for legislative attempts to strengthen the wage-earners' bargaining power. with that attitude as a premise, adair _v._ united states, u.s. ( ), and coppage _v._ kansas, u.s. ( ), followed logically enough; not even truax _v._ corrigan, u.s. ( ), could be considered unexpected." on grounds of unconstitutional impairment of freedom of contract, or more particularly, of the unrestricted right of the employer to hire and fire, a federal and a state statute attempting to outlaw "yellow dog" contracts whereby, as a condition of obtaining employment, a worker had to agree not to join or to remain a member of a union, were voided in adair _v._ united states and coppage _v._ kansas, respectively. in truax _v._ corrigan, a majority of the court held that an arizona statute which operated, in effect, to make remediless [by forbidding the use of injunction] injury to an employer's business by striking employees and others, through concerted action in picketing, displaying banners advertising the strike, denouncing the employer as unfair to union labor, appealing to customers to withdraw their patronage, and circulating handbills containing abusive and libelous charges against employers, employees, and patrons, and intimidations of injury to future patrons, deprives the owner of the business and the premises of his property without due process of law. in wolff packing co. _v._ industrial court, u.s. ( ); u.s. ( ) and in dorchy _v._ kansas, u.s. ( ), the court had also ruled that a statute compelling employers and employees to submit their controversies over wages and hours of labor to state arbitration was unconstitutional as part of a system compelling employers and employees to continue in business on terms not of their own making. [ ] u.s. ( ). [ ] prudential ins. co. _v._ cheek, u.s. ( ). in conjunction with its approval of this statute, the court also sanctioned judicial enforcement by a state court of a local rule of policy which rendered illegal an agreement of several insurance companies having a monopoly of a line of business in a city that none would employ within two years any man who had been discharged from, or left, the service of any of the others. [ ] chicago, r.i. & p.r. co. _v._ perry, u.s. ( ). [ ] dorchy _v._ kansas, u.s. ( ). [ ] u.s. , ( ). [ ] _see_ p. . [ ] cases disposing of the contention that restraints on picketing amount to a denial of freedom of speech and constitute therefore a deprivation of liberty without due process of law have been set forth under amendment i. [ ] u.s. ( ). [ ] ibid. . justice frankfurter, concurring, declared that "the insistence by individuals on their private prejudices * * *, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of a state to extend the area of nondiscrimination beyond that which the constitution itself exacts." ibid. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , , . in a lengthy opinion, in which he registered his concurrence with both decisions, justice frankfurter set forth extensive statistical data calculated to prove that labor unions not only were possessed of considerable economic power but by virtue of such power were no longer dependent on the closed shop for survival. he would therefore leave to the legislatures the determination "whether it is preferable in the public interest that trade unions should be subjected to state intervention or left to the free play of social forces, whether experience has disclosed 'union unfair labor practices,' and, if so, whether legislative correction is more appropriate than self-discipline and pressure of public opinion--* * *." u.s. , - . [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). other recent cases regulating picketing are treated under amendment i, _see_ p. . [ ] u.s. ( ). [ ] chicago, m. & st. p.r. co. _v._ minnesota, u.s. ( ). [ ] wolff packing co. _v._ court of industrial relations, u.s. , - ( ). [ ] munn _v._ illinois, u.s. ( ); budd _v._ new york, u.s. , ( ); brass _v._ north dakota ex rel. stoeser, u.s. ( ). [ ] cotting _v._ godard, u.s. ( ). [ ] townsend _v._ yeomans, u.s. ( ). [ ] german alliance ins. co. _v._ lewis, u.s. ( ); aetna ins. co. _v._ hyde, u.s. ( ). [ ] o'gorman & young _v._ hartford f. ins. co., u.s. ( ). [ ] williams _v._ standard oil co., u.s. ( ). [ ] tyson & bros.--united theatre ticket offices _v._ banton, u.s. ( ). [ ] new state ice co. _v._ liebmann, u.s. ( ). [ ] nebbia _v._ new york, u.s. , - , - , ( ). in reaching this conclusion the court might be said to have elevated to the status of prevailing doctrine the views advanced in previous decisions by dissenting justices. thus, justice stone, dissenting in ribnik _v._ mcbride, u.s. , - ( ) had declared: "price regulation is within the state's power whenever any combination of circumstances seriously curtails the regulative force of competition so that buyers or sellers are placed at such a disadvantage in the bargaining struggle that a legislature might reasonably anticipate serious consequences to the community as a whole." in his dissenting opinion in new state ice co. _v._ liebmann, u.s. , - ( ), justice brandeis had also observed that: "the notion of a distinct category of business 'affected with a public interest' employing property 'devoted to a public use' rests upon historical error. in my opinion the true principle is that the state's power extends to every regulation of any business reasonably required and appropriate for the public protection. i find in the due process clause no other limitation upon the character or the scope of regulation permissible." [ ] justice mcreynolds, speaking for the dissenting justices, labelled the controls imposed by the challenged statute as a "fanciful scheme to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold." intimating that the new york statute was as efficacious as a safety regulation which required "householders to pour oil on their roofs as a means of curbing the spread of a neighborhood fire," justice mcreynolds insisted that "this court must have regard to the wisdom of the enactment," and must determine "whether the means proposed have reasonable relation to something within legislative power."-- u.s. , , ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). _see also_ peik _v._ chicago & n.w.r. co., u.s. ( ). [ ] rate-making is deemed to be one species of price fixing. power comm'n _v._ pipeline co., u.s. , ( ). [ ] nebbia _v._ new york, u.s. ( ). [ ] u.s. ( ). _see also_ chicago, b. & q.r. co. _v._ chicago, u.s. ( ). [ ] u.s. ( ). [ ] dow _v._ beidelman, u.s. ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] u.s. , ( ). [ ] ibid . insofar as judicial intervention resulting in the invalidation of legislatively imposed rates has involved carriers, it should be noted that the successful complainant invariably has been the carrier, not the shipper. [ ] u.s. ( ).--of course the validity of rates prescribed by a state for services wholly within its limits, must be determined wholly without reference to the interstate business done by a public utility. domestic business should not be made to bear the losses on interstate business, and vice versa. thus a state has no power to require the hauling of logs at a loss or at rates that are unreasonable, even if a railroad receives adequate revenues from the intrastate long haul and the interstate lumber haul taken together. on the other hand, in determining whether intrastate passenger railway rates are confiscatory, all parts of the system within the state (including sleeping, parlor, and dining cars) should be embraced in the computation; and the unremunerative parts should not be excluded because built primarily for interstate traffic or not required to supply local transportation needs.--_see:_ minnesota rate cases (simpson _v._ shepard), u.s. , - ( ); chicago, m. & st. p.r. co. _v._ public utilities commission, u.s. ( ); groesbeck _v._ duluth, s.s. & a.r. co., u.s. ( ). the maxim that a legislature cannot delegate legislative power is qualified to permit creation of administrative boards to apply to the myriad details of rate schedules the regulatory police power of the state. to prevent the conferring upon an administrative agency of authority to fix rates for public service from being a mere delegation of legislative power, and therefore void, the legislature must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its functions, with which the agency must substantially comply to validate its action. wichita railroad & l. co. _v._ public utilities commission, u.s. ( ). [ ] reagan _v._ farmers' loan & trust company, u.s. , ( ). [ ] interstate commerce commission _v._ illinois c.r. co., u.s. , ( ). [ ] u.s. , - ( ). [ ] des moines gas co. _v._ des moines, u.s. ( ). [ ] minnesota rate cases (simpson _v._ shepard), u.s. , ( ). [ ] knoxville _v._ water company, u.s. ( ). [ ] smith _v._ illinois bell teleph. co., u.s. ( ). [ ] willcox _v._ consolidated gas co., u.s. ( ). [ ] u.s. , , ( ). _see also_ minnesota rate cases (simpson _v._ shepard), u.s. , ( ). [ ] san diego land & town co. _v._ jasper, u.s. , , ( ). _see also_ van dyke _v._ geary, u.s. ( ); georgia ry. _v._ r.r. comm., u.s. , ( ). [ ] for its current position, _see_ crowell _v._ benson, u.s. ( ). [ ] u.s. , - ( ). _see also_ interstate comm. comm. _v._ illinois c.r., u.s. , ( ). [ ] u.s. , - ( ). [ ] ibid. . in injunctive proceedings, evidence is freshly introduced whereas in the cases received on appeal from state courts, the evidence is found within the record. [ ] u.s. ( ). [ ] u.s. , , ( ). [ ] u.s. ( ). [ ] u.s. , . [ ] u.s. , .--although this and the previously cited decision arose out of controversies involving the natural gas act of ( stat. ), the principles laid down therein are believed to be applicable to the review of rate orders of state commissions, except insofar as the latter operate in obedience to laws containing unique standards or procedures. [ ] u.s. ( ). [ ] in federal power commission _v._ nat. gas pipeline co., u.s. , , justices black, douglas, and murphy, in a concurring opinion, proposed to travel the road all the way back to munn _v._ illinois, and deprive courts of the power to void rates simply because they deem the latter to be unreasonable. in a concurring opinion, written earlier in in driscoll _v._ edison co., u.s. , , justice frankfurter temporarily adopted a similar position; for therein he declared that "the only relevant function of law * * * [in rate controversies] is to secure observance of those procedural safeguards in the exercise of legislative powers, which are the historic foundations of due process." however, in his dissent in the hope gas case ( u.s. , ), he disassociated himself from this proposal, and asserted that "it was decided [more than fifty years ago] that the final say under the constitution lies with the judiciary." [ ] federal power commission _v._ hope gas co., u.s. , ( ). [ ] federal power comm. _v._ hope gas co., u.s. , ( ), citing chicago & grand trunk ry. co. _v._ wellman, u.s. , - ( ); missouri ex rel. southwestern bell teleph. co. _v._ public service commission, u.s. , ( ). [ ] for this reason there is presented below a survey of the formulas, utilization of which was hitherto deemed essential if due process requirements were to be satisfied. ( ) fair value.--on the premise that a utility is entitled to demand a rate schedule that will yield a "fair return upon the value" of the property which it employs for public convenience, the court in , in smyth _v._ ames ( u.s. , - ), held that determination of such value necessitated consideration of at least such factors as "the original cost of construction, the amount expended in permanent improvements, the amount and market value of * * * [the utility's] bonds and stock, the present as compared with the original cost of construction, [replacement cost], the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses." ( ) reproduction cost.--prior to the demise in of the smyth _v._ ames fair value formula, two of the components thereof were accorded special emphasis, with the second quickly surpassing the first in terms of the measure of importance attributed to it. these were: ( ) the actual cost of the property ("the original cost of construction together with the amount expended in permanent improvements") and ( ) reproduction cost ("the present as compared with the original cost of construction"). if prices did not fluctuate through the years, the controversy which arose over the application of reproduction cost in preference to original cost would have been reduced to a war of words; for results obtained by reliance upon either would have been identical. the instability in the price structure, however, presented the courts with a dilemma. if rate-making is attempted at a time of declining prices, valuation on the basis of present or reproduction cost will advantage the consumer or user, and disadvantage the utility. on the other hand, if the original cost of construction is employed, the benefits are redistributed, with the consumer becoming the loser. similarly, when rates are fixed at a time of rising prices, reliance upon reproduction cost to the exclusion of original cost will produce results satisfactory to the utility and undesirable to the public, and vice versa. notwithstanding the admonition of smyth _v._ ames that original cost, no less than reproduction cost, was to be considered in determining value, the court, in the years which intervened between and , wavered only slightly in its preference for the reproduction cost formula, and moderated its application thereof only in part whenever periods of rising or sustained high prices appeared to require such deviation in behalf of consumer interests. as examples of the varied application by the court of the reproduction cost formula, the following cases are significant: san diego land and town co. _v._ national city, u.s. , ( ); san diego land & town co. _v._ jasper, u.s. , ( ); willcox _v._ consolidated gas co., u.s. , ( ); minnesota rate cases, u.s. ( ); galveston electric co. _v._ galveston, u.s. , ( ); missouri ex rel. southwestern bell teleph. co. _v._ public service commission, u.s. ( ); bluefield waterworks & improv. co. _v._ pub. serv. comm., u.s. ( ); georgia r. & power co. _v._ railroad comm., u.s. , ( ); mccardle _v._ indianapolis water co., u.s. ( ); st. louis & o'fallon ry. _v._ united states, u.s. ( ). ( ) prudent investment (versus reproduction cost).--this method of valuation, which was championed by justice brandeis in a separate opinion filed in southwestern bell teleph. co. _v._ pub. serv. comm. ( u.s. , - , , - ( )), was defined by him as follows: "the compensation which the constitution guarantees an opportunity to earn is the reasonable cost of conducting the business. cost includes not only operating expenses, but also capital charges. capital charges cover the allowance, by way of interest, for the use of the capital, * * *; the allowance for the risk incurred; and enough more to attract capital. * * * where the financing has been proper, the cost to the utility of the capital, required to construct, equip and operate its plant, should measure the rate of return which the constitution guarantees opportunity to earn." advantages to be derived from "adoption of the amount prudently invested as the rate base and the amount of the capital charge as the measure of the rate of return" would, according to justice brandeis, be nothing less than the attainment of a "basis for decision which is certain and stable. the rate base would be ascertained as a fact, not determined as a matter of opinion. it would not fluctuate with the market price of labor, or materials, or money. * * *" as a method of valuation, the prudent investment theory was not accorded any acceptance until the depression of the 's. the sharp decline in prices which occurred during this period doubtless contributed to the loss of affection for reproduction cost; and in los angeles gas co. _v._ r.r. comm'n., u.s. ( ) and r.r. comm'n. _v._ pacific gas co., u.s. , , ( ) the court upheld respectively a valuation from which reproduction cost had been excluded and another in which historical cost served as the rate base. later, in , when in power comm'n. _v._ nat. gas pipeline co., u.s. , the court further emphasized its abandonment of the reproduction cost factor, there developed momentarily the prospect that prudent investment might be substituted. this possibility was quickly negatived, however, by the hope gas case ( u.s. ( )) which dispensed with the necessity of relying upon any formula for the purpose of fixing valid rates. ( ) depreciation.--no less indispensable to the determination of the fair value mentioned in smyth _v._ ames was the amount of depreciation to be allowed as a deduction from the measure of cost employed, whether the latter be actual cost, reproduction cost, or any other form of cost determination. although not mentioned in smyth _v._ ames, the court gave this item consideration in knoxville _v._ knoxville water co., u.s. , - ( ); but notwithstanding its early recognition as an allowable item of deduction in determining value, depreciation continued to be the subject of controversy arising out of the difficulty of ascertaining it and of computing annual allowances to cover the same. indicative of such controversy has been the disagreement as to whether annual allowances granted shall be in such amount as will permit the replacement of equipment at current costs; i.e., present value, or at original cost. in the hope gas case, u.s. , ( ), the court reversed united r. & electric co. _v._ west, u.s. , - ( ), insofar as the latter holding rejected original cost as the basis of annual depreciation allowances. ( ) going concern value and good will.--whether or not intangibles were to be included in valuation was not passed upon in smyth _v._ ames; but shortly thereafter, in des moines gas co. _v._ des moines, u.s. , ( ), the court declared it to be self-evident "that there is an element of value in an assembled and established plant, doing business and earning money, over one not thus advanced, * * * [and that] this element of value is a property right, and should be considered in determining the value of the property, upon which the owner has a right to make a fair return * * *." generally described as going concern value, this element has never been precisely defined by the court, and the latter has accordingly been plagued by the difficulty of determining its worth. in its latest pronouncement on the subject, uttered in power comm'n. _v._ nat. gas pipeline co., u.s. , ( ), the court denied that there is any "constitutional requirement that going concern value, even when it is an appropriate element to be included in a rate base, must be separately stated and appraised as such * * * valuations for rate purposes of a business assembled as a whole * * * [have often been] sustained without separate appraisal of the going concern element. * * * when that has been done, the burden rests on the regulated company to show that this item has neither been adequately covered in the rate base nor recouped from prior earnings of the business." franchise value and good will, on the other hand, have been consistently excluded from valuation; the latter presumably because a utility invariably enjoys a monopoly and consumers have no choice in the matter of patronizing it. the latter proposition has been developed in the following cases: willcox _v._ consolidated gas co., u.s. ( ); des moines gas co. _v._ des moines, u.s. , - ( ); galveston electric co. _v._ galveston, u.s. ( ); los angeles gas & e. corp. _v._ railroad commission, u.s. , ( ). ( ) salvage value.--it is not constitutional error to disregard theoretical reproduction cost for a plant which "no responsible person would think of reproducing." accordingly, where, due to adverse conditions, a street-surface railroad has lost all value except for scrap or salvage, it was permissible for a commission, as the court held in market st. r. co. _v._ comm'n., u.s. , , ( ), to use as a rate base the price at which the utility offered to sell its property to a citizen. moreover, the commission's order was not invalid even though under the prescribed rate the utility would operate at a loss; for the due process cannot be invoked to protect a public utility against business hazards, such as the loss of, or failure to obtain, patronage. on the other hand, in the case of a water company whose franchise has expired (denver _v._ denver union water co., u.s. ( )), but where there is no other source of supply, its plant should be valued as actually in use rather than at what the property would bring for some other use in case the city should build its own plant. ( ) past losses and gains.--"the constitution [does not] require that the losses of * * * [a] business in one year shall be restored from future earnings by the device of capitalizing the losses and adding them to the rate base on which a fair return and depreciation allowance is to be earned." power comm'n. _v._ nat. gas pipeline co., u.s. , ( ). nor can past losses be used to enhance the value of the property to support a claim that rates for the future are confiscatory (galveston electric co. _v._ galveston, u.s. ( )), any more than profits of the past can be used to sustain confiscatory rates for the future (newton _v._ consolidated gas co., u.s. , ( ); public utility commissioners _v._ new york teleg. co., u.s. , - ( )). [ ] atlantic coast line r. co. _v._ north carolina corp. commission, u.s. , ( ), citing chicago, b.& q.r. co. _v._ iowa, u.s. ( ). _see also_ prentis _v._ atlantic coast line co., u.s. ( ); denver & r.g.r. co. _v._ denver, u.s. ( ). [ ] chicago & g.t.r. co. _v._ wellman, u.s. , ( ); mississippi r. commission _v._ mobile & o.r. co., u.s. , ( ). _see also_ missouri p.r. co. _v._ nebraska, u.s. ( ); nashville, c. & st. l.r. co. _v._ walters, u.s. , ( ). [ ] cleveland electric ry. co. _v._ cleveland, u.s. ( ). [ ] detroit united railway co. _v._ detroit, u.s. ( ). _see also_ denver _v._ new york trust co., u.s. ( ). [ ] los angeles _v._ los angeles gas & electric corp., u.s. ( ). [ ] newburyport water co. _v._ newburyport, u.s. ( ). _see also_ skaneateles waterworks co. _v._ skaneateles, u.s. ( ); helena waterworks co. _v._ helena, u.s. ( ); madera waterworks _v._ madera, u.s. ( ). [ ] western union teleg. co. _v._ richmond, u.s. ( ). [ ] pierce oil corp. _v._ phoenix ref co., u.s. ( ). [ ] atlantic coast line r. co. _v._ goldsboro, u.s. , ( ). _see also_ chicago, b. & q.r. co. _v._ chicago, u.s. , ( ); chicago, b. & q.r. co. _v._ illinois ex rel. grimwood, u.s. , - ( ); new orleans public service, inc. _v._ new orleans, u.s. ( ). [ ] consumers' co. _v._ hatch, u.s. ( ). [ ] panhandle eastern pipe line co. _v._ state highway commission, u.s. ( ). [ ] new orleans gas light co. _v._ drainage commission, u.s. ( ). [ ] norfolk & s. turnpike co. _v._ virginia, u.s. ( ). [ ] international bridge co. _v._ new york, u.s. ( ). [ ] chicago, b. & q.r. co. _v._ nebraska, u.s. ( ). [ ] chicago, b. & q.r. co. _v._ illinois ex rel. grimwood, u.s. ( ); chicago & a.r. co. _v._ tranbarger, u.s. ( ); lake shore & m.s.r. co. _v._ clough, u.s. ( ). [ ] pacific gas & electric co. _v._ police ct., u.s. ( ). [ ] chicago, st. p., m. & o.r. co. _v._ holmberg, u.s. ( ). [ ] nashville, c. & st. l.r. co. _v._ walters, u.s. ( ). _see also_ lehigh valley r. co. _v._ public utility comrs., u.s. ( ). [ ] united fuel gas co. _v._ railroad commission, u.s. , - ( ). _see also_ new york ex rel. woodhaven gas light co. _v._ public service commission, u.s. ( ); new york ex rel. new york & o. gas co. _v._ mccall, u.s. ( ). [ ] missouri p.r. co. _v._ kansas ex rel. taylor, u.s. ( ); chesapeake & o.r. co. _v._ public service commission, u.s. ( ); ft. smith light & traction co. _v._ bourland, u.s. ( ). [ ] chesapeake & o.r. co. _v._ public service commission, u.s. , ( ); brooks-scanlon co. _v._ railroad commission, u.s. ( ); railroad commission _v._ eastern texas r. co., u.s. ( ); broad river power co. _v._ south carolina ex rel. daniel, u.s. ( ). [ ] atchison, t. & s.f.r. co. _v._ railroad commission, u.s. , - ( ). [ ] minneapolis & st. l.r. co. _v._ minnesota ex rel. railroad & w. commission, u.s. ( ). [ ] gladson _v._ minnesota, u.s. ( ). [ ] missouri p.r. co. _v._ kansas ex rel. taylor, u.s. ( ). [ ] chesapeake & o.r. co. _v._ public service commission, u.s. ( ). [ ] lake erie & w.r. co. _v._ state public utilities commission ex rel. cameron, u.s. ( ); western & a.r. co. _v._ georgia public service commission, u.s. ( ). [ ] alton r. co. _v._ illinois comm'n, u.s. ( ). [ ] missouri p.r. co. _v._ nebraska, u.s. ( ). [ ] chesapeake & o.r. co. _v._ public service commission, u.s. , ( ). [ ] great northern r. co. _v._ minnesota ex rel. railroad & warehouse commission, u.s. ( ); great northern r. co. _v._ cahill, u.s. ( ). [ ] chicago, m. & st. p.r. co. _v._ wisconsin, u.s. ( ). [ ] washington ex rel. oregon r. & n. co. _v._ fairchild, u.s. , - ( ). _see also_ michigan c.r. co. _v._ michigan railroad commission, u.s. ( ); seaboard air line r. co. _v._ railroad commission, u.s. , ( ). [ ] louisville & n.r. co. _v._ central stockyards co., u.s. ( ). [ ] michigan c.r. co. _v._ michigan railroad commission, u.s. ( ). [ ] chicago, m. & st. p.r. co. _v._ iowa, u.s. ( ). [ ] chicago, m. & st. p.r. co. _v._ minneapolis c. & c. asso., u.s. ( ). nor are railroads denied due process when they are forbidden to exact a greater charge for a shorter distance than for a longer distance. louisville & n.r. co. _v._ kentucky, u.s. , ( ); missouri p.r. co. _v._ mcgrew coal co., u.s. ( ). [ ] wadley southern r. co. _v._ georgia, u.s. ( ). [ ] richmond, f. & p.r. co. _v._ richmond, u.s. ( ). [ ] atlantic coast line r. co. _v._ goldsboro, u.s. ( ). [ ] great northern r. co. _v._ minnesota ex rel. clara city, u.s. ( ). [ ] denver & r.g.r. co. _v._ denver, u.s. ( ). [ ] nashville, c. & st. l.r. co. _v._ white, u.s. ( ). [ ] nashville, c. & st. l.r. co. _v._ alabama, u.s. ( ). [ ] chicago, r.i. & p.r. co. _v._ arkansas, u.s. ( ); st. louis, i.m. & s.r. co. _v._ arkansas, u.s. ( ); missouri p.r. co. _v._ norwood, u.s. ( ). [ ] atlantic coast line r. co. _v._ georgia, u.s. ( ). [ ] erie r. co. _v._ solomon, u.s. ( ). [ ] new york, n.h. & h.r. co. _v._ new york, u.s. ( ). [ ] chicago & n.w.r. co. _v._ nye schneider fowler co., u.s. ( ). _see also_ yazoo & m.v.r. co. _v._ jackson vinegar co., u.s. ( ); _cf._ adams express co. _v._ croninger, u.s. ( ). [ ] atlantic coast line r. co. _v._ glenn, u.s. ( ). [ ] st. louis & s.f.r. co. _v._ mathews, u.s. ( ). [ ] chicago & n.w.r. co. _v._ nye schneider fowler co., u.s. ( ). [ ] kansas city southern r. co. _v._ anderson, u.s. ( ). [ ] st. louis, i.m. & s.r. co. _v._ wynne, u.s. ( ). [ ] chicago, m. & st. p.r. co. _v._ polt, u.s. ( ). [ ] missouri p.r. co. _v._ tucker, u.s. ( ). [ ] st. louis, i.m. & s.r. co. _v._ williams, u.s. , ( ). [ ] missouri p.r. co. _v._ humes, u.s. ( ); minneapolis & st. l.r. co. _v._ beckwith, u.s. ( ). [ ] chicago, b. & q.r. co. _v._ cram, u.s. ( ). [ ] southwestern teleg. & teleph. co. _v._ danaher, u.s. ( ). [ ] new orleans debenture redemption co. _v._ louisiana, u.s. ( ). [ ] lake shore & m.s.r. co. _v._ smith, u.s. , ( ). [ ] national council _v._ state council, u.s. ( ). [ ] munday _v._ wisconsin trust co., u.s. ( ). [ ] state farm ins. co. _v._ duel, u.s. ( ). [ ] asbury hospital _v._ cass county, u.s. ( ). [ ] nebbia _v._ new york, u.s. , - ( ). [ ] smiley _v._ kansas, u.s. ( ). _see_ waters-pierce oil co. _v._ texas, u.s. ( ); national cotton oil co. _v._ texas, u.s. ( ), also upholding antitrust laws. [ ] international harvester co. _v._ missouri, u.s. ( ). _see also_ american seeding machine co. _v._ kentucky, u.s. ( ). [ ] grenada lumber co. _v._ mississippi, u.s. ( ). [ ] aikens _v._ wisconsin, u.s. ( ). [ ] central lumber co. _v._ south dakota, u.s. ( ). [ ] fairmont creamery co. _v._ minnesota, u.s. ( ). [ ] old dearborn distributing co. _v._ seagram-distillers corp., u.s. ( ); the pep boys _v._ pyroil sales co., u.s. ( ). [ ] schmidinger _v._ chicago, u.s. , ( ), citing mclean _v._ arkansas, u.s. , ( ). [ ] merchants exch. _v._ missouri ex rel. barker, u.s. ( ). [ ] hauge _v._ chicago, u.s. ( ). [ ] lemieux _v._ young, u.s. ( ); kidd, d. & p. co. _v._ musselman grocer co., u.s. ( ). [ ] pacific states box & basket co. _v._ white, u.s. ( ). [ ] schmidinger _v._ chicago, u.s. ( ). [ ] burns baking co. _v._ bryan, u.s. ( ). [ ] petersen baking co. _v._ bryan, u.s. ( ). [ ] armour & co. _v._ north dakota, u.s. ( ). [ ] heath & m. mfg. co. _v._ worst, u.s. ( ); corn products ref. co. _v._ eddy, u.s. ( ); national fertilizer asso. _v._ bradley, u.s. ( ). [ ] advance-rumely thresher co. _v._ jackson, u.s. ( ). [ ] hall _v._ geiger-jones co., u.s. ( ); caldwell _v._ sioux falls stock yards co., u.s. ( ); merrick _v._ halsey & co., u.s. ( ). [ ] booth _v._ illinois, u.s. ( ). [ ] otis _v._ parker, u.s. ( ). [ ] brodnax _v._ missouri, u.s. ( ). [ ] house _v._ mayes, u.s. ( ). [ ] rast _v._ van deman & l. co., u.s. ( ); tanner _v._ little, u.s. ( ); pitney _v._ washington, u.s. ( ). [ ] noble state bank _v._ haskell, u.s. ( ); shallenberger _v._ first state bank, u.s. ( ); assaria state bank _v._ dolley, u.s. ( ); abie state bank _v._ bryan, u.s. ( ). [ ] provident inst. for savings _v._ malone, u.s. ( ); anderson national bank _v._ luckett, u.s. ( ). when a bank conservator appointed pursuant to a new statute has all the functions of a receiver under the old law, one of which is the enforcement on behalf of depositors of stockholders' liability, which liability the conservator can enforce as cheaply as could a receiver appointed under the pre-existing statute, it cannot be said that the new statute, in suspending the right of a depositor to have a receiver appointed, arbitrarily deprives a depositor of his remedy or destroys his property without due process of law. the depositor has no property right in any particularly form of remedy.--gibbes _v._ zimmerman, u.s. ( ). [ ] doty _v._ love, u.s. ( ). [ ] farmers & m. bank _v._ federal reserve bank, u.s. ( ). [ ] griffith _v._ connecticut, u.s. ( ). [ ] mutual loan co. _v._ martell, u.s. ( ). [ ] la tourette _v._ mcmaster, u.s. ( ); stipcich _v._ metropolitan l. ins. co., u.s. , ( ). [ ] german alliance ins. co. _v._ lewis, u.s. ( ). [ ] o'gorman and young _v._ hartford insur. co., u.s. ( ). [ ] nutting _v._ massachusetts, u.s. , ( ), distinguishing allgeyer _v._ louisiana, u.s. ( ). _see also_ hooper _v._ california, u.s. ( ). [ ] daniel _v._ family ins. co., u.s. ( ). [ ] osborn _v._ ozlin, u.s. , - ( ). dissenting from the conclusion, justice roberts declared that the plain effect of the virginia law is to compel a nonresident to pay a virginia resident for services which the latter does not in fact render. [ ] california auto. assn. _v._ maloney, u.s. ( ). [ ] allgeyer _v._ louisiana, u.s. ( ). [ ] new york l. ins. co. _v._ dodge, u.s. ( ). [ ] national union f. ins. co. _v._ wanberg, u.s. ( ). [ ] hartford acci. & indem. co. _v._ nelson (n.o.) mfg. co., u.s. ( ). [ ] merchants mut. auto liability ins. co. _v._ smart, u.s. ( ). [ ] orient ins. co. _v._ daggs, u.s. ( ). [ ] hoopeston canning co. _v._ cullen, u.s. ( ). [ ] german alliance ins. co. _v._ hale, u.s. ( ). _see also_ carroll _v._ greenwich ins. co., u.s. ( ). [ ] life & c. ins. co. _v._ mccray, u.s. ( ). [ ] northwestern nat. l. ins. co. _v._ riggs, u.s. ( ). [ ] whitfield ex rel. hadley _v._ aetna l. ins. co., u.s. ( ). [ ] polk _v._ mutual reserve fund life association, u.s. ( ). [ ] neblett _v._ carpenter, u.s. ( ). [ ] brazee _v._ michigan, u.s. ( ).--with four justices dissenting, the court, in adams _v._ tanner, u.s. ( ), "struck down a state law absolutely prohibiting maintenance of private employment agencies." commenting on the "constitutional philosophy" thereof in lincoln union _v._ northwestern co., u.s. , ( ), justice black stated that olsen _v._ nebraska, u.s. ( ), (_see_ p. ) "clearly undermined adams _v._ tanner." [ ] liggett (louis k.) co. _v._ baldridge, u.s. ( ). [ ] mcnaughton _v._ johnson, u.s. , ( ). _see also_ dent _v._ west virginia, u.s. ( ); hawker _v._ new york, u.s. ( ); reetz _v._ michigan, u.s. ( ); watson _v._ maryland, u.s. ( ). [ ] collins _v._ texas, u.s. ( ); hayman _v._ galveston, u.s. ( ). [ ] semler _v._ oregon state dental examiners, u.s. , ( ). _see also_ douglas _v._ noble, u.s. ( ); graves _v._ minnesota, u.s. , ( ). [ ] olsen _v._ smith, u.s. ( ). [ ] nashville, c. &. st. l.r. co. _v._ alabama, u.s. ( ). [ ] smith _v._ texas, u.s. ( ). [ ] western turf asso. _v._ greenberg, u.s. ( ). [ ] cargill (w.w.) co. _v._ minnesota ex rel. railroad & w. commission, u.s. ( ). [ ] lehon _v._ atlanta, u.s. ( ). [ ] gundling _v._ chicago, u.s. , ( ). [ ] bourjois, inc. _v._ chapman, u.s. ( ). [ ] weller _v._ new york, u.s. ( ). [ ] packer corp. _v._ utah, u.s. ( ). [ ] halter _v._ nebraska, u.s. ( ). [ ] mccloskey _v._ tobin, u.s. ( ). [ ] natal _v._ louisiana, u.s. ( ). [ ] murphy _v._ california, u.s. ( ). [ ] rosenthal _v._ new york, u.s. ( ). [ ] thompson _v._ consolidated gas utilities corp., u.s. , - ( ), citing ohio oil co. _v._ indiana (no. ), u.s. ( ); lindsley _v._ natural carbonic gas co., u.s. ( ); oklahoma _v._ kansas natural gas co., u.s. ( ). [ ] champlin ref. co. _v._ corporation commission, u.s. ( ). [ ] railroad commission _v._ oil co., u.s. ( ). _see also_ r.r. commission _v._ oil co., u.s. ( ); r.r. commission _v._ humble oil & refining co., u.s. ( ). [ ] thompson _v._ consolidated gas utilities corp., u.s. ( ). [ ] cities service co. _v._ peerless co., u.s. ( ); phillips petroleum co. _v._ oklahoma, ibid., ( ). [ ] walls _v._ midland carbon co., u.s. ( ). _see also_ henderson co. _v._ thompson, u.s. ( ). [ ] bandini petroleum co. _v._ superior ct., u.s. ( ). [ ] gant _v._ oklahoma city, u.s. ( ). [ ] pennsylvania coal co. _v._ mahon, u.s. ( ). [ ] hudson county water co. _v._ mccarter, u.s. , - ( ). [ ] miller _v._ schoene, u.s. , , ( ). [ ] sligh _v._ kirkwood, u.s. ( ). [ ] bayside fish flour co. _v._ gentry, u.s. , ( ). [ ] manchester _v._ massachusetts, u.s. ( ); geer _v._ connecticut, u.s. ( ). [ ] miller _v._ mclaughlin, u.s. , ( ). [ ] bayside fish flour co. _v._ gentry, u.s. ( ). [ ] geer _v._ connecticut, u.s. ( ). [ ] silz _v._ hesterberg, u.s. ( ). [ ] reinman _v._ little rock, u.s. ( ). [ ] hadacheck _v._ sebastian, u.s. ( ). [ ] fischer _v._ st. louis, u.s. ( ). [ ] reinman _v._ little rock, u.s. ( ). [ ] bacon _v._ walker, u.s. ( ). [ ] northwestern laundry co. _v._ des moines, u.s. ( ). for a case embracing a rather special set of facts, _see_ dobbins _v._ los angeles, u.s. ( ). [ ] welch _v._ swasey, u.s. ( ). [ ] euclid _v._ ambler realty co., u.s. ( ); zahn _v._ board of public works, u.s. ( ); nectaw _v._ cambridge, u.s. ( ); cusack (thomas) co. _v._ chicago, u.s. ( ); st. louis poster advertising co. _v._ st. louis, u.s. ( ). [ ] washington ex rel. seattle title trust co. _v._ roberage, u.s. ( ). [ ] eubank _v._ richmond, u.s. ( ). [ ] gorieb _v._ fox, u.s. ( ). [ ] buchanan _v._ warley, u.s. ( ). [ ] pierce oil corp. _v._ hope, u.s. ( ). [ ] standard oil co. _v._ marysville, u.s. ( ). [ ] barbier _v._ connolly, u.s. ( ); soon hing _v._ crowley, u.s. ( ). [ ] maguire _v._ reardon, u.s. ( ). [ ] queenside hills co. _v._ saxl, u.s. ( ). [ ] compagnie francaise de navigation à vapeur _v._ louisiana state board of health, u.s. ( ). [ ] jacobson _v._ massachusetts, u.s. ( ); new york ex rel. lieberman _v._ van de carr, u.s. ( ). [ ] perley _v._ north carolina, u.s. ( ). [ ] california reduction co. _v._ sanitary reduction works, u.s. ( ). [ ] hutchinson _v._ valdosta, u.s. ( ). [ ] sligh _v._ kirkwood, u.s. , - ( ). [ ] powell _v._ pennsylvania, u.s. ( ); magnano (a.) co. _v._ hamilton, u.s. ( ). [ ] north american cold storage co. _v._ chicago, u.s. ( ). [ ] adams _v._ milwaukee, u.s. ( ). [ ] baccus _v._ louisiana, u.s. ( ). [ ] roschen _v._ ward, u.s. ( ). [ ] minnesota ex rel. whipple _v._ martinson, u.s. , ( ). [ ] hutchinson ice cream co. _v._ iowa, u.s. ( ). [ ] hebe co. _v._ shaw, u.s. ( ). [ ] price _v._ illinois, u.s. ( ). [ ] sage stores _v._ kansas, u.s. ( ). [ ] weaver _v._ palmer bros co., u.s. ( ). [ ] ah sin _v._ wittman, u.s. ( ). [ ] marvin _v._ trout, u.s. ( ). [ ] stone _v._ mississippi ex rel. harris, u.s. ( ); douglas _v._ kentucky, u.s. ( ). [ ] l'hote _v._ new orleans, u.s. ( ). [ ] petit _v._ minnesota, u.s. ( ). [ ] boston beer co. _v._ massachusetts, u.s. , ( ); mugler _v._ kansas, u.s. ( ); kidd _v._ pearson, u.s. ( ); purity extract & tonic co. _v._ lynch, u.s. ( ); james clark distilling co. _v._ western maryland r. co., u.s. ( ); barbour _v._ georgia, u.s. ( ). [ ] mugler _v._ kansas, u.s. , ( ). [ ] hawes _v._ georgia, u.s. ( ); van oster _v._ kansas, u.s. ( ). [ ] stephenson _v._ binford, u.s. ( ). [ ] stanley _v._ public utilities commission, u.s. ( ). [ ] stephenson _v._ binford, u.s. ( ). [ ] michigan public utilities commission _v._ duke, u.s. ( ). [ ] frost _v._ railroad commission, u.s. ( ); smith _v._ cahoon, u.s. ( ). [ ] bradley _v._ pub. util. comm'n., u.s. ( ). [ ] sproles _v._ binford, u.s. ( ). [ ] railway express _v._ new york, u.s. ( ). [ ] reitz _v._ mealey, u.s. ( ). [ ] young _v._ masci, u.s. ( ). [ ] ex parte poresky, u.s. ( ). _see also_ packard _v._ banton, u.s. ( ); sprout _v._ south bend, u.s. ( ); hodge drive-it-yourself co. _v._ cincinnati, u.s. ( ); continental baking co. _v._ woodring, u.s. ( ). [ ] irving trust co. _v._ day, u.s. , ( ). [ ] demorest _v._ city bank co., u.s. , - ( ). [ ] connecticut ins. co. _v._ moore, u.s. ( ). justice jackson and douglas dissented on the ground that new york is attempting to escheat unclaimed funds not located either actually or constructively in new york and which are the property of beneficiaries who may never have been citizens or residents of new york. [ ] u.s. ( ). [ ] snowden _v._ hughes, u.s. ( ). [ ] angle _v._ chicago, st. p.m. & o.r. co., u.s. ( ). [ ] coombes _v._ getz, u.s. , , ( ). [ ] gibbes _v._ zimmerman, u.s. , ( ). [ ] shriver _v._ woodbine sav. bank, u.s. ( ). [ ] chase securities corp. _v._ donaldson, u.s. , - ( ). [ ] sentell _v._ new orleans & c.r. co., u.s. ( ). [ ] soliah _v._ heskin, u.s. ( ). [ ] trenton _v._ new jersey, u.s. ( ). [ ] chicago _v._ sturges, u.s. ( ). [ ] louisiana ex rel. folsom bros. _v._ new orleans, u.s. , ( ). [ ] attorney general ex rel. kies _v._ lowrey, u.s. ( ). [ ] hunter _v._ pittsburgh, u.s. ( ). [ ] stewart _v._ kansas city, u.s. ( ). [ ] tonawanda _v._ lyon, u.s. ( ); cass farm co. _v._ detroit, u.s. ( ). [ ] southwestern oil co. _v._ texas, u.s. , ( ). [ ] citizens' sav. & l. asso. _v._ topeka, wall. ( ); jones _v._ portland, u.s. ( ); green _v._ frazier, u.s. ( ); carmichael _v._ southern coal & coke co., u.s. ( ). [ ] milheim _v._ moffat tunnel improv. dist., u.s. ( ). [ ] jones _v._ portland, u.s. ( ). [ ] green _v._ frazier, u.s. ( ). [ ] nicchia _v._ new york, u.s. ( ). [ ] milheim _v._ moffat tunnel improv. dist, u.s. ( ). [ ] cochran _v._ louisiana state bd. of ed., u.s. ( ). [ ] carmichael _v._ southern coal & coke co., u.s. ( ). [ ] fox _v._ standard oil co., u.s. , ( ). [ ] stewart dry goods co. _v._ lewis, u.s. ( ). _see also_ chapman _v._ zobelein, u.s. ( ); kelly _v._ pittsburgh, u.s. ( ). [ ] nashville, c. & st. l.r. co. _v._ wallace, u.s. ( ); carmichael _v._ southern coal & coke co., u.s. ( ). a taxpayer therefore cannot contest the imposition of an income tax on the ground that, in operation, it returns to his town less income tax than he and its other inhabitants pay.--dane _v._ jackson, u.s. ( ). [ ] stebbins _v._ riley, u.s. , , ( ). [ ] cahen _v._ brewster, u.s. ( ). [ ] keeney _v._ new york, u.s. ( ). [ ] salomon _v._ state tax commission, u.s. ( ). [ ] orr _v._ gilman, u.s. ( ); chanler _v._ kelsey, u.s. ( ). [ ] nickel _v._ cole, u.s. , ( ). [ ] coolidge _v._ long, u.s. ( ). [ ] binney _v._ long, u.s. ( ). [ ] whitney _v._ state tax com., u.s. , ( ). [ ] welch _v._ henry, u.s. , ( ). [ ] hoeper _v._ tax commission, u.s. ( ). [ ] welch _v._ henry, u.s. , - ( ). [ ] puget sound power & light co. _v._ seattle, u.s. ( ). [ ] new york, p. & n. teleg. co. _v._ dolan, u.s. ( ). [ ] barwise _v._ sheppard, u.s. ( ). [ ] nashville, o. & st. l. ky. _v._ browning, u.s. ( ). [ ] paddell _v._ new york, u.s. ( ). [ ] hagar _v._ reclamation district, u.s. ( ). [ ] butters _v._ oakland, u.s. ( ). [ ] missouri p.r. co. _v._ western crawford road improv. dist., u.s. ( ). _see also_ roberts _v._ richland irrig. co., u.s. ( ) in which it was also stated that an assessment to pay the general indebtedness of an irrigation district is valid, even though in excess of the benefits received. [ ] houck _v._ little river drainage dist, u.s. ( ). [ ] road improv. dist. _v._ missouri p.r. co., u.s. ( ). [ ] kansas city southern r. co. _v._ road improv. dist., u.s. ( ). [ ] louisville & n.r. co. _v._ barber asphalt pav. co., u.s. ( ). [ ] myles salt co. _v._ iberia & st. m. drainage dist., u.s. ( ). [ ] wagner _v._ leser, u.s. ( ). [ ] charlotte harbor & n.r. co. _v._ welles, u.s. ( ). [ ] union refrigerator transit co. _v._ kentucky, u.s. , ( ). _see also_ louisville & j. ferry co. _v._ kentucky, u.s. ( ). [ ] carstairs _v._ cochran, u.s. ( ); hannis distilling co. _v._ baltimore, u.s. ( ); frick _v._ pennsylvania, u.s. ( ); blodgett _v._ silberman, u.s. ( ). [ ] new york ex rel. new york, c. & h.r.r. co. _v._ miller, u.s. ( ). [ ] wheeling steel corp _v._ fox, u.s. , - ( ); union refrigerator transit co. _v._ kentucky, u.s. , ( ); johnson oil ref. co. _v._ oklahoma ex rel. mitchell, u.s. ( ). [ ] robert l. howard, state jurisdiction to tax intangibles: a twelve year cycle, missouri law review , - ( ); ralph t. rawlins, state jurisdiction to tax intangibles: some modern aspects, texas law review , - ( ). [ ] kirtland _v._ hotchkiss, u.s. , ( ). [ ] savings & l. soc. _v._ multnomah county, u.s. ( ). [ ] bristol _v._ washington county, u.s. , ( ). [ ] fidelity & c. trust co. _v._ louisville, u.s. ( ). [ ] rogers _v._ hennepin county, u.s. ( ). [ ] citizens nat. bank _v._ durr, u.s. , ( ). [ ] hawley _v._ maiden, u.s. , ( ). [ ] first bank stock corp. _v._ minnesota, u.s. , ( ). [ ] schuylkill trust co. _v._ pennsylvania, u.s. ( ). [ ] harvester co. _v._ dept. of taxation, u.s. ( ). [ ] wisconsin gas co. _v._ united states, u.s. ( ). [ ] new york ex rel. hatch _v._ reardon, u.s. ( ). [ ] graniteville mfg. co. _v._ query, u.s. ( ). [ ] buck _v._ beach, u.s. ( ). [ ] brooke _v._ norfolk, u.s. ( ). [ ] greenough _v._ tax assessors, u.s. , - ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] senior _v._ braden, u.s. ( ). [ ] stebbins _v._ riley, u.s. , - ( ). [ ] u.s. ( ).--in dissenting in state tax commission _v._ aldrich, u.s. , ( ), justice jackson asserted that a reconsideration of this principle had become timely. [ ] u.s. ( ). _see also_ treichler _v._ wisconsin, u.s. ( ); city bank farmers trust co. _v._ schnader, u.s. ( ). [ ] u.s. , ( ).--a decision rendered in which is seemingly in conflict was wachovia bank & trust co. _v._ doughton, u.s. , in which north carolina was prevented from taxing the exercise of a power of appointment through a will executed therein by a resident, when the property was a trust fund in massachusetts created by the will of a resident of the latter state. one of the reasons assigned for this result was that by the law of massachusetts the property involved was treated as passing from the original donor to the appointee. however, this holding was overruled in graves _v._ schmidlapp, u.s. ( ). [ ] u.s. ( ). [ ] rhode island hospital trust co. _v._ doughton, u.s. ( ). [ ] u.s. ( ). [ ] first national bank _v._ maine, u.s. , - ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ).--in dissenting, justice holmes observed that wheeler _v._ sohmer, u.s. ( ), previously mentioned, apparently joined blackstone _v._ miller on the "index expurgatorius." [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , , - , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. , , ( ). [ ] wheat. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] wheeling steel corp. _v._ fox, u.s. ( ). _see also_ memphis gas co. _v._ beeler, u.s. , ( ). [ ] adams express co. _v._ ohio state auditor, u.s. ( ). [ ] alpha portland cement co. _v._ massachusetts, u.s. ( ). [ ] cream of wheat co. _v._ grand forks county, u.s. ( ). [ ] newark fire ins. co. _v._ state board, u.s. , , ( ). although the eight judges affirming this tax were not in agreement as to the reasons to be assigned in justification of this result, the holding appears to be in line with the dictum uttered by the late chief justice stone in curry _v._ mccanless ( u.s. at ) to the effect that the taxation of a corporation by a state where it does business, measured by the value of the intangibles used in its business there, does not preclude the state of incorporation from imposing a tax measured by all its intangibles. [ ] delaware l. & w.r. co. _v._ pennsylvania, u.s. ( ). [ ] louisville & j. ferry co. _v._ kentucky, u.s. ( ). [ ] kansas city ry. _v._ kansas, u.s. ( ); kansas city, m. & b.r. co. _v._ stiles, u.s. ( ). [ ] schwab _v._ richardson, u.s. ( ). [ ] western u. teleg. co. _v._ kansas ex rel. coleman, u.s. ( ); pullman co. _v._ kansas ex rel. coleman, u.s. ( ); looney _v._ crane co., u.s. ( ); international paper co. _v._ massachusetts, u.s. ( ). [ ] cudahy packing co. _v._ hinkle, u.s. ( ). [ ] st. louis s.w.r. co. _v._ arkansas ex rel. norwood, u.s. ( ). [ ] atlantic refining co. _v._ virginia, u.s. ( ). [ ] american mfg co. _v._ st. louis, u.s. ( ). nor does a state license tax on the production of electricity violate the due process clause because it may be necessary, to ascertain, as an element in its computation, the amounts delivered in another jurisdiction.--utah power & light co. _v._ pfost, u.s. ( ). [ ] james _v._ dravo contracting co. u.s. ( ). [ ] union refrigerator transit co. _v._ kentucky, u.s. ( ). [ ] southern pacific co. _v._ kentucky, u.s. ( ). [ ] old dominion steamship co. _v._ virginia, u.s. ( ). [ ] u.s. ( ). [ ] pullman's palace car co. _v._ pennsylvania, u.s. ( ). [ ] northwest airlines _v._ minnesota, u.s. , - , ( ).--the case was said to be governed by new york central railroad _v._ miller, u.s. , ( ). as to the problem of multiple taxation of such airplanes, which had in fact been taxed proportionately by other states, the court declared that the "taxability of any part of this fleet by any other state than minnesota, in view of the taxability of the entire fleet by that state, is not now before us." justice jackson, in a concurring opinion, would treat minnesota's right [to tax as] exclusive of any similar right elsewhere. [ ] johnson oil ref. co. _v._ oklahoma ex rel. mitchell, u.s. ( ). [ ] pittsburgh, c.c. & st. l.r. co. _v._ backus, u.s. ( ). [ ] wallace _v._ hines, u.s. ( ).--for example, the ratio of track mileage within the taxing state to total track mileage cannot be employed in evaluating that portion of total railway property found in said state when the cost of the lines in the taxing state was much less than in other states and the most valuable terminals of the railroad were located in other states. _see also_ fargo _v._ hart, u.s. ( ); union tank line _v._ wright, u.s. ( ). [ ] great northern r. co. _v._ minnesota, u.s. ( ). [ ] illinois cent. r. co. _v._ minnesota, u.s. ( ). [ ] lawrence _v._ state tax commission, u.s. ( ). [ ] shaffer _v._ carter, u.s. ( ); travis _v._ yale & t. mfg. co., u.s. ( ). [ ] new york ex rel. cohn _v._ graves, u.s. ( ). [ ] maguire _v._ trefry, u.s. ( ). [ ] guaranty trust co. _v._ virginia, u.s. , ( ). [ ] whitney _v._ graves, u.s. ( ). [ ] underwood typewriter co. _v._ chamberlain, u.s. ( ); bass, ratcliff & gretton _v._ state tax commission, u.s. ( ). [ ] hans rees' sons _v._ north carolina, u.s. ( ). [ ] matson nav. co. _v._ state board, u.s. ( ). [ ] wisconsin _v._ j.c. penney co., u.s. , - ( ). dissenting, justice roberts, along with chief justice hughes and justices mcreynolds and reed, stressed the fact that the use and disbursement by the corporation at its home office of income derived from operations in many states does not depend on, and cannot be controlled by, any law of wisconsin. the act of disbursing such income as dividends, he contended, is "one wholly beyond the reach of wisconsin's sovereign power, one which it cannot effectively command, or prohibit or condition." the assumption that a proportion of the dividends distributed is paid out of earnings in wisconsin for the year immediately preceding payment is arbitrary and not borne out by the facts. accordingly, "if the exaction is an income tax in any sense it is such upon the stockholders [many of whom are nonresidents] and is obviously bad."--_see also_ wisconsin _v._ minnesota mining co., u.s. ( ). [ ] great a. & p. tea co. _v._ grosjean, u.s. ( ). [ ] equitable l. assur. soc. _v._ pennsylvania, u.s. ( ). [ ] provident sav. life assur. soc. _v._ kentucky, u.s. ( ). [ ] continental co. _v._ tennessee, u.s. , ( ), (emphasis supplied). [ ] palmetto f. ins. co. _v._ connecticut, u.s. ( ). [ ] st. louis cotton compress co. _v._ arkansas, u.s. ( ). [ ] connecticut general co. _v._ johnson, u.s. ( ). [ ] metropolitan l. ins. co. _v._ new orleans, u.s. ( ). [ ] board of assessors _v._ new york l. ins. co., u.s. ( ). [ ] liverpool & l. & g. ins. co. _v._ board of assessors, u.s. ( ). [ ] orient ins. co. _v._ board of assessors, u.s. ( ). [ ] turpin _v._ lemon, u.s. , ( ); glidden _v._ harrington, u.s. ( ). [ ] mcmillen _v._ anderson, u.s. , ( ). [ ] bell's gap r. co. _v._ pennsylvania, u.s. , ( ). [ ] hodge _v._ muscatine county, u.s. ( ). [ ] hagar _v._ reclamation dist. no. , u.s. , - ( ). [ ] hagar _v._ reclamation dist. no. , u.s. , ( ). [ ] mcmillen _v._ anderson, u.s. , ( ). [ ] taylor _v._ secor, (state railroad tax cases), u.s. , ( ). [ ] nickey _v._ mississippi, u.s. , ( ). _see also_ clement nat. bank _v._ vermont, u.s. ( ). [ ] pittsburgh, c.c. & st. l.r. co. _v._ backus, u.s. ( ). [ ] michigan c.r. co. _v._ powers, u.s. , ( ). [ ] pittsburgh, c.c. & st. l.r. co. _v._ board of public works, u.s. , ( ). [ ] st. louis & k.c. land co. _v._ kansas city, u.s. , ( ); paulson _v._ portland, u.s. , ( ); bauman _v._ ross, u.s. , ( ). [ ] tonawanda _v._ lyon, u.s. , ( ). [ ] londoner _v._ denver, u.s. ( ). [ ] withnell _v._ ruecking constr. co., u.s. , ( ); browning _v._ hooper, u.s. , ( ). likewise, the committing to a board of county supervisors of authority to determine, without notice or hearing, when repairs to an existing drainage system are necessary cannot be said to deny due process of law to landowners in the district, who, by statutory requirement, are assessed for the cost thereof in proportion to the original assessments.--breiholz _v._ pocahontas county, u.s. ( ). [ ] fallbrook irrig. district _v._ bradley, u.s. , , ( ); browning _v._ hooper, u s. , ( ). [ ] utley _v._ st. petersburg, u.s. , ( ); french _v._ barber asphalt paving co., u.s. , ( ). _see also_ soliah _v._ heskin, u.s. ( ). [ ] hibben _v._ smith, u.s. , ( ). [ ] hancock _v._ muskogee, u.s. , ( ).--likewise, a taxpayer does not have a right to a hearing before a state board of equalization preliminary to issuance by it of an order increasing the valuation of all property in a city by %.--bi-metallic invest. co. _v._ state bd. of equalization, u.s. ( ). [ ] detroit _v._ parker, u.s. ( ). [ ] paulsen _v._ portland, u.s. , ( ). [ ] londoner _v._ denver, u.s. ( ). _see also_ cincinnati, n.o. & t.p.r. co. _v._ kentucky (kentucky railroad tax cases), u.s. , ( ); winona & st. p. land co. _v._ minnesota, u.s. , ( ); merchants' & mfgrs. nat. bank _v._ pennsylvania, u.s. , ( ); glidden _v._ harrington, u.s. ( ). [ ] corry _v._ baltimore, u.s. , ( ). [ ] leigh _v._ green, u.s. , - ( ). [ ] ontario land co. _v._ yordy, u.s. ( ). _see also_ longyear _v._ toolan, u.s. ( ). [ ] brinkerhoff-faris trust & sav. co. _v._ hill, u.s. ( ). [ ] central of georgia r. co. _v._ wright, u.s. ( ). [ ] carpenter _v._ shaw, u.s. ( ). _see also_ ward _v._ love county, u.s. ( ). [ ] farncomb _v._ denver, u.s. ( ). [ ] pullman co. _v._ knott, u.s. ( ). [ ] bankers trust co. _v._ blodgett, u.s. ( ). [ ] national safe deposit co. _v._ stead, u.s. ( ). [ ] pierce oil corp. _v._ hopkins, u.s. ( ). [ ] carstairs _v._ cochran, u.s. ( ); hannis distilling co. _v._ baltimore, u.s. ( ). [ ] travis _v._ yale & t. mfg. co., u.s. , - ( ). [ ] league _v._ texas, u.s. ( ). [ ] palmer _v._ mcmahon, u.s. , ( ). [ ] scottish union & nat. ins. co. _v._ bowland, u.s. ( ). [ ] king _v._ mullins, u.s. ( ); chapman _v._ zobelein, u.s. ( ). [ ] leigh _v._ green, u.s. ( ). [ ] davidson _v._ new orleans, u.s. , ( ). [ ] dewey _v._ des moines, u.s. ( ). [ ] league _v._ texas, u.s. , ( ). _see also_ straus _v._ foxworth, u.s. ( ). [ ] exercisable as to every description of property, tangibles and intangibles including choses in action, contracts, and charters, but only for a public purpose, the power of eminent domain may also be conferred by the state upon municipal corporations, public utilities, and even upon individuals. like every other governmental power, the power of eminent domain cannot be surrendered by the state or its subdivisions either by contract or by any other means.--long island water supply co. _v._ brooklyn, u.s. ( ); offield _v._ new york, n.h. & h.r. co., u.s. ( ); sweet _v._ rechel, u.s. ( ); clark _v._ nash, u.s. ( ); pennsylvania hospital _v._ philadelphia, u.s. ( ); galveston wharf co. _v._ galveston, u.s. ( ). [ ] green _v._ frazier, u.s. , ( ). [ ] pet. . [ ] u.s. , . [ ] u.s. , , - ( ); _see also_ sweet _v_: rechel, u.s. , ( ). [ ] hairston _v._ danville & w.r. co., u.s. , ( ). [ ] green _v._ frazier, u.s. , ( ); cincinnati _v._ vester, u.s. , ( ). [ ] hairston _v._ danville & w.r. co., u.s. , ( ). [ ] united states ex rel. t.v.a. _v._ welch, u.s. , - , - ( ), citing case _v._ bowles, u.s. , ( ), and new york _v._ united states, u.s. ( )--concurring in the result, justice frankfurter insisted that "the fact that the nature of the subject matter gives the legislative determination nearly immunity from judicial review does not mean that the power to review is wanting." also concurring in the result, justice reed, for himself and chief justice stone, dissented from that portion of the opinion which suggested that "there is no judicial review" of the question whether a "taking is for a public purpose." [ ] justice reed concurring in united states ex rel. t.v.a. _v._ welch, u.s. , ( ). [ ] bragg _v._ weaver, u.s. - ( ).--it is no longer open to question that the state legislature may confer upon a municipality the authority to determine such necessity for itself.--joslin mfg. co. _v._ providence, u.s. , ( ). [ ] rindge co. _v._ los angeles county, u.s. ( ). [ ] pumpelly _v._ green bay company, wall. , - ( ); welch _v._ swasey, u.s. ( ); pennsylvania coal co. _v._ mahon, u.s. ( ). _see also_ comparable cases involving the federal government and discussed under the fifth amendment, united states _v._ lynah, u.s. ( ); united states _v._ cress, u.s. ( ); portsmouth harbor l. & h. co. _v._ united states, u.s. ( ); united states _v._ causby, u.s. ( ). _see also_ the cases hereinafter discussed on the limitations on "uncompensated takings." [ ] long island water supply co. _v._ brooklyn, u.s. ( ) [ ] clark _v._ nash, u.s. ( ). [ ] strickley _v._ highland boy gold mining co., u.s. ( ). [ ] mt. vernon-woodberry cotton duck co. _v._. alabama interstate power co., u.s. ( ). [ ] hendersonville light & power co. _v._. blue ridge interurban r. co., u.s. ( ). [ ] roe _v._ kansas ex rel. smith, u.s. , ( ). [ ] dohany _v._ rogers, u.s. ( ). [ ] hairston _v._ danville & w.r. co., u.s. ( ). [ ] delaware, l. & w.r. co. _v._ morristown, u.s. ( ). [ ] otis co. _v._ ludlow mfg. co., u.s. , , ( ). _see also_ head _v._ amoskeag mfg. co., u.s. , - ( ). [ ] missouri p.r. co. _v._ nebraska ex rel. board of transportation, u.s. , ( ). the state court in this case was declared to have acknowledged that the taking was not for a public use. hence, its reversal by the supreme court did not conflict with the later observation by the court that "no case is recalled where this court has condemned * * * a taking upheld by the state court as a taking for public uses in conformity with its laws."--_see_ hairston _v._ danville & w.r. co., u.s. , ( ). [ ] backus (a.) jr. and sons _v._ port street union depot co., u.s. , , ( ). [ ] mcgovern _v._ new york, u.s. , - ( ). [ ] ibid. . [ ] provo bench canal and irrig. co. _v._ tanner, u.s. ( ); appleby _v._ buffalo, u.s. ( ). [ ] backus (a.) jr. and sons _v._ port street union depot co., u.s. , ( ). [ ] chicago, b. & q.r. co. _v._ chicago, u.s. , ( ); mcgovern _v._ new york, u.s. , ( ). [ ] roberts _v._ new york, u.s. ( ). [ ] dohany _v._ rogers, u.s. ( ). [ ] joslin mfg. co. _v._ providence, u.s. , ( ). [ ] chicago, b. & q.r. co. _v._ chicago, u.s. , ( ). [ ] manigault _v._ springs, u.s. , - ( ). [ ] chicago, b. & q.r. co. _v._ chicago, u.s. , ( ). [ ] darling _v._ newport news, u.s. ( ). [ ] northern transportation co. _v._ chicago, u.s. , ( ). _see also_ marchant _v._ pennsylvania railroad co., u.s. ( ). [ ] meyer _v._ richmond, u.s. ( ). for cases illustrative of the types of impairment or flooding consequent upon erection of dams or aids to navigation which have been deemed to amount to a taking for which compensation must be paid, _see_ pumpelly _v._ green bay company, wall. ( ); united states _v._ lynah, u.s. ( ); united states _v._ cress, u.s. ( ). [ ] sauer _v._ new york, u.s. ( ). [ ] welch _v._ swasey, u.s. ( ). [ ] pennsylvania coal co. _v._ mahon, u.s. , - ( ). for comparable cases involving the federal government _see_ portsmouth harbor l. & h. co. _v._ united states, u.s. ( ) and united states _v._ causby, u.s. ( ). [ ] georgia _v._ chattanooga, u.s. , ( ). [ ] north laramie land co. _v._ hoffman, u.s. , ( ). _see also_ bragg _v._ weaver, u.s. ( ). [ ] bragg _v._ weaver, u.s. ( ); joslin mfg. co. _v._ providence, u.s. , ( ). [ ] bragg _v._ weaver, u.s. , ( ); north laramie land co. _v._ hoffman, u.s. ( ). [ ] bragg _v._ weaver, u.s. , ( ). [ ] long island water supply co. _v._ brooklyn, u.s. , ( ). [ ] hays _v._ seattle, u.s. , ( ); bailey _v._ anderson, u.s. , ( ). [ ] the requirements of due process in tax and eminent domain proceedings are discussed in conjunction with the coverage of these topics. _see_ pp. - , . [ ] hagar _v._ reclamation dist., u.s. , ( ); hurtado _v._ california, u.s. , ( ). [ ] brown _v._ new jersey, u.s. , ( ); hurtado _v._ california, u.s. , ( ); twining _v._ new jersey, u.s. , ( ); anderson nat. bank _v._ luckett, u.s. , ( ). [ ] marchant _v._ pennsylvania r. co., u.s. , ( ). [ ] ballard _v._ hunter, u.s. , ( ); palmer v. mcmahon, u.s. , ( ). [ ] mcmillen _v._ anderson, u.s. , ( ). [ ] r.r. commission _v._ oil co., u.s. ( ). _see also_ railroad commission _v._ oil co., u.s. ( ). [ ] dreyer _v._ illinois, u.s. , - ( ). [ ] new york ex rel. lieberman _v._ van de carr, u.s. , ( ). [ ] ohio ex rel. bryant _v._ akron metropolitan park dist, u.s. , ( ). [ ] carfer _v._ caldwell, u.s. , ( ). [ ] scott _v._ mcneal, u.s. , ( ); pennoyer _v._ neff, u.s. , ( ). [ ] national exchange bank _v._ wiley, u.s. , ( ); iron cliffs co. _v._ negaunee iron co., u.s. , ( ). [ ] arndt _v._ griggs, u.s. , ( ); grannis _v._ ordean, u.s. ( ); pennington _v._ fourth nat. bank, u.s. , ( ). [ ] goodrich _v._ ferris, u.s. , ( ). [ ] pennington _v._ fourth nat. bank, u.s. , ( ). [ ] the jurisdictional requirements for rendering a valid decree in divorce proceedings are considered under the full faith and credit clause, _supra_, pp. - . [ ] pennoyer _v._ neff, u.s. ( ); simon _v._ southern r. co., u.s. , ( ); grannis _v._ ordean, u.s. , , ( ). [ ] louisville & n.r. co. _v._ schmidt, u.s. ( ); mcdonald _v._ mabee, u.s. , , ( ). _see also_ adam _v._ saenger, u.s. ( ). [ ] rees _v._ watertown, wall. ( ); coe _v._ armour fertilizer works, u.s. , ( ); griffin _v._ griffin, u.s. ( ). [ ] sugg _v._ thornton, u.s. ( ). [ ] riverside & dan river cotton mills _v._ menefee, u.s. , ( ); hess _v._ pawloski, u.s. , ( ). _see also_ harkness _v._ hyde, u.s. ( ); wilson _v._ seligman, u.s. ( ). [ ] milliken _v._ meyer, u.s. , - ( ). [ ] mcdonald _v._ mabee, u.s. , ( ). [ ] thus, in an older decision rendered in , the court held that whereas "states could exclude foreign corporations * * *, and therefore establish * * * [appointment of such an agent] as a condition to letting them in," they had no power to exclude individuals; and as a consequence, a statute was ineffective which treated nonresident partners, by virtue of their having done business therein, as having consented to be bound by service of process on a person who was their employee when the transaction sued on arose but was not their agent at the time of service.--flexner _v._ farson, . u.s. , ( ). because it might be construed to negative extension to nonresidents, other than motorists, of the statutory device upheld in hess _v._ pawloski, the doctrine of flexner _v._ farson, "that the mere transaction of business in a state by a nonresident natural person does not imply consent to be bound by the process of its courts," was recently condemned as inadequate "to cope with the increasing problem of practical responsibility of hazardous business conducted in absentia * * *"--sugg _v._ hendrix, f. ( d) , ( ). [ ] hess _v._ pawloski, u.s. ( ); wuchter _v._ pizzutti, u.s. , , ( ). [ ] u.s. , ( ). [ ] u.s. . [ ] philadelphia & reading ry. co. _v._ mckibbin, u.s. , ( ). [ ] in a very few cases, "continuous operations within a state were thought to be so substantial and of such a nature as to justify suits against [a foreign corporation] on causes of action arising from dealings entirely distinct from those" operations.--_see_ st. louis s.w.r. co. _v._ alexander, u.s. ( ); missouri, k. & t.r. co. _v._ reynolds, u.s. ( ). [ ] old wayne life assn. _v._ mcdonough, u.s. , ( ). [ ] simon _v._ southern r. co., u.s. , - ( ).--in neither this case, nor the preceding decision were the defendant corporations notified of the pendency of the action, service having been made only on the insurance commissioner or the secretary of state. [ ] green _v._ chicago, b. & q.r. co., u.s. ( ). _see also_ davis _v._ farmers co-operative co., u.s. , ( ). [ ] pennsylvania f. ins. co. _v._ gold issue min. & m. co., u.s. , - ( ). [ ] rosenberg bros. & co. _v._ curtis brown co., u.s. , ( ). [ ] goldey _v._ morning news, u.s. ( ). [ ] conley _v._ mathieson alkali works, u.s. ( ). [ ] riverside mills _v._ menefee, u.s. , ( ). [ ] mutual life insurance co. _v._ spratley, u.s. ( ). [ ] st. clair _v._ cox, u.s. , ( ). _see_ st. louis s.w.r. co. _v._ alexander, u.s. ( ). [ ] mutual reserve &c. assn. _v._ phelps, u.s. , ( ). [ ] washington _v._ superior court, u.s. , ( ). [ ] u.s. , - ( ). [ ] this departure was recognized by justice rutledge in a subsequent opinion in nippert _v._ richmond, u.s. , ( ). the principle that solicitation of business alone is inadequate to confer jurisdiction for purposes of subjecting a foreign corporation to a suit _in personam_ was established in green _v._ chicago, b. & q.r. co., u.s. ( ); but was somewhat qualified by the later holding in international harvester co. _v._ kentucky, u.s. ( ) to the effect that when solicitation was connected with other activities (in the latter case, the local agents collected from the customers), a foreign corporation was then doing business within the forum state. inasmuch as the international shoe company, in addition to having its agents solicit orders, also permitted them to rent quarters for the display of merchandise, the observation has been made that the court, by applying the qualification of the international harvester case, could have decided international shoe co. _v._ washington, u.s. ( ) as it did without abandoning the "presence" doctrine. [ ] u.s. , - . [ ] ibid. . [ ] u.s. ( ). [ ] ibid. - .--concerning the holding in minnesota ass'n. _v._ benn, u.s. ( ), that a similar minnesota mail order insurance company could not be viewed as doing business in montana where the claimant-plaintiff lived, and that the circumstances under which its montana contracts, executed and to be performed in minnesota, were consummated could not support in implication that the foreign insurer had consented to be sued in montana, the majority asserted that the "narrow grounds relied on by the court in the benn case cannot be deemed controlling." declaring that what is necessary to sustain a suit by a policyholder in virginia against a foreign insurer is not determinative when the state seeks to regulate solicitation within its borders, justice douglas, in a concurring opinion, emphasized that it is the nature of the state's action that determines the degree of activity in a state necessary for satisfying the requirements of due process, and that solicitation by existing members operates as though the insurer "had formally designated virginia members as its agents." insisting that "an _in personam_ judgment cannot be based upon service by registered letter on a nonresident corporation or a natural person, neither of whom has ever been" in virginia, justice minton, with whom justice jackson was associated in a dissenting opinion, would have dismissed the appeal on the ground that "virginia has not claimed the power to require [the insurer] * * * to appoint the secretary of state as their agent for service of process, nor have [its] courts rendered judgment in a suit where service was made in that manner." he would therefore let virginia "go through this shadow-boxing performance in order to publicize the activities of" the insurer.--justices reed and frankfurter joined this dissent on the merits.--ibid. - , , . in perkins _v._ benguet mining co., u.s. ( ) it was held, that the state of ohio was free either to open its courts, or to refuse to do so, to a foreign corporation owning gold and silver mines in the philippine islands, but temporarily (during japanese occupation) carrying on a part of its general business in ohio, including directors meetings, business correspondence, banking, etc. two members of the court dissented, contending that what it was doing was "giving gratuitously an advisory opinion to the ohio supreme court. [they] would dismiss the writ [of certiorari] as improvidently granted." the case is obviously too atypical to offer much promise of importance as a precedent. [ ] arndt _v._ griggs, u.s. , ( ). [ ] ballard _v._ hunter, u.s. , ( ); pennoyer _v._ neff, u.s. ( ). [ ] dewey _v._ des moines, u.s. , ( ); pennoyer _v._ neff, u.s. ( ). [ ] american land co. _v._ zeiss, u.s. ( ). [ ] pennoyer _v._ neff, u.s. ( ); citing boswell _v._ otis, how. ( ); cooper _v._ reynolds, wall. ( ). such remedy, by way of example, is also available to a wife who is enabled thereby to impound local bank deposits of her absent husband for purposes of collecting unpaid instalments by him. moreover, because of the antiquity of the procedure authorized, a statute permitting the impounding of property of an absconding father for the maintenance of his children is not in conflict with due process because it fails to provide for notice, actual or constructive, to the absconder.--pennington _v._ fourth nat. bank, u.s. , ( ); corn exch. bank _v._ coler, u.s. , ( ). likewise, proceedings to attach wages in execution of a judgment for debt may be instituted without any notice or service on the judgment debtor. the latter, having had his day in court when the judgment was rendered, is not entitled to be apprized of what action the judgment creditor may elect to take to enforce collection.--endicott co. _v._ encyclopedia press, u.s. , ( ). [ ] goodrich _v._ ferris, u.s. , ( ). [ ] mccaughey _v._ lyall, u.s. ( ). [ ] robards _v._ lamb, u.s. , ( ). inasmuch as it is within the power of a state to provide that one who has undertaken administration of an estate shall remain subject to the order of its courts until said administration is closed, it follows that there can be no question as to the validity of a judgment for unadministered assets obtained on service of publication plus service personally upon an executor in the state in which he had taken refuge and in which he had been adjudged incompetent.--michigan trust co. _v._ ferry, u.s. ( ). also, when a mother petitions for her appointment as guardian, and no one but the mother and her infant son of tender years, are concerned, failure to serve notice of the petition upon the infant does not invalidate the proceedings resulting in her appointment.--jones _v._ prairie oil & gas co., u.s. ( ). also a pennsylvania statute which establishes a special procedure for appointment of one to administer the estate of absentees, which procedure is distinct from that contained in the general law governing settlement of decedents' estates and provides special safeguards to protect the rights of absentees is not repugnant to the due process clause because it authorizes notice by publication after an absence of seven years.--cunnius _v._ reading school dist., u.s. ( ). [ ] hamilton _v._ brown, u.s. , ( ). [ ] security sav. bank _v._ california, u.s. ( ). [ ] anderson nat. bank _v._ luckett, u.s. ( ). [ ] mullane _v._ central hanover tr. co., u.s. ( ). [ ] voeller _v._ neilston co., u.s. ( ). [ ] grannis _v._ ordean, u.s. , - ( ). [ ] miedreich _v._ lauenstein, u.s. ( ). [ ] twining _v._ new jersey, u.s. , ( ); jacob _v._ roberts, u.s. , ( ). [ ] bi-metallic co. _v._ colorado, u.s. , ( ); bragg _v._ weaver, u.s. , ( ). for the procedural requirements that must be observed in the passage of legislation levying special assessments or establishing assessment districts, _see_ pp. - . [ ] pacific states box & basket co. _v._ white, u.s. ( ); western union telegraph co. _v._ industrial com'n., f. supp. ( ); ralph f. fuchs, procedure in administrative rule-making, harvard law review, ( ). whether action of an administrative agency, which voluntarily affords notice and hearing in proceedings in which due process would require the same, is voided by the fact that the statute in pursuance of which it operates does not expressly provide such protection, is a question as to which the supreme court has developed no definitive answer. it appears to favor the doctrine enunciated by state courts to the effect that such statutes are to be construed as impliedly requiring notice and hearing, although, in a few instances, it has uttered comments rejecting this notice-by-implication theory.--_see_ toombs _v._ citizens bank, u.s. ( ); paulsen _v._ portland, u.s. ( ); bratton _v._ chandler, u.s. ( ); cincinnati, n.o. & t.r. co. _v._ kentucky, u.s. ( ). _contra_: central of georgia r. co. _v._ wright, u.s. ( ); coe _v._ armour fertilizer works, u.s. ( ); wuchter _v._ pizzutti, u.s. ( ). [ ] bratton _v._ chandler, u.s. ( ); missouri ex rel. hurwitz _v._ north, u.s. ( ). [ ] north american cold storage co. _v._ chicago, u.s. , - ( ). for an exposition of the doctrine applicable for determining the tort liability of administrative officers, _see_ miller _v._ horton, mass. ( ). [ ] samuels _v._ mccurdy, u.s. ( ). [ ] u.s. ( ). [ ] ibid. - . [ ] anderson national bank _v._ luckett, u.s. , - ( ). [ ] coffin bros. & co. _v._ bennett, u.s. , ( ). [ ] postal teleg. cable co. _v._ newport, u.s. , ( ); baker _v._ baker, e. & co., u.s. , ( ); louisville & n.r. co. _v._ schmidt, u.s. , ( ). [ ] american surety co _v._ baldwin, u.s. , ( ). [ ] saunders _v._ shaw, u.s. ( ). [ ] _see_ footnote , p. . [transcriber's note: reference is to footnote , above.] [ ] coe _v._ armour fertilizer works, u.s. , ( ); wuchter _v._ pizzutti, u.s. ( ). [ ] roller _v._ holly, u.s. , , ( ). [ ] goodrich _v._ ferris, u.s. , ( ). one may, of course, waive a right to notice and hearing, as in the case of a debtor or surety who consents to the entry of a confessed judgment on the happening of certain conditions.--johnson _v._ chicago & p. elevator co., u.s. ( ); american surety co. _v._ baldwin, u.s. ( ). [ ] _see_ pp. - . [ ] holmes _v._ conway, u.s. , ( ); louisville & n.r. co. _v._ schmidt, u.s. , ( ). [ ] snyder _v._ massachusetts, u.s. , ( ); west _v._ louisiana, u.s. , ( ); chicago, b. & q.r. co. _v._ chicago, u.s. ( ); jordan _v._ massachusetts, u.s. , ( ). the power of a state to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts, in the exercise of its right to regulate practice and procedure; is also subject to the restrictions imposed by the contract, full faith and credit, and privileges and immunities clauses of the federal constitution. angel _v._ bullington, u.s. ( ). [ ] hardware dealers mut. f. ins. co. _v._ glidden co., u.s. , ( ); iowa c.r. co. _v._ iowa, u.s. , ( ); honeyman _v._ hanan, u.s. ( ). [ ] cincinnati street r. co. _v._ snell, u.s. , ( ). [ ] ownbey _v._ morgan, u.s. , ( ). thus, the fourteenth amendment does not constrain the states to accept modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammeled liberty to make amendments. [ ] cohen _v._ beneficial loan corp., u.s. ( ). [ ] young co. _v._ mcneal-edwards co., u.s. ( ); adam _v._ saenger, u.s. ( ). [ ] jones _v._ union guano co., u.s. ( ). [ ] york _v._ texas, u.s. ( ); kauffman _v._ wooters, u.s. , ( ). [ ] grant timber & mfg. co. _v._ gray, u.s. ( ). [ ] ownbey _v._ morgan, u.s. , ( ).--consistently, with due process, a state may provide that the doctrines of contributory negligence, assumption of risk, and fellow servant shall not bar recovery in actions brought against an employer for death or injury resulting from dangerous machinery improperly safeguarded. a person having no vested right to the defense of contributory negligence, a state may take it away altogether, or may provide that said defense, as well as that of assumption of risk, are questions of fact to be left to the jury.--bowersock _v._ smith, u.s. , ( ); chicago, r.i. & p.r. co. _v._ cole, u.s. , ( ); herron _v._ southern p. co., u.s. ( ). [ ] sawyer _v._ piper, u.s. ( ). [ ] ballard _v._ hunter, u.s. , ( ). [ ] missouri k. & t.r. co. _v._ cade, u.s. , ( ). [ ] lowe _v._ kansas, u.s. ( ). [ ] yazoo & m.v.r. co. _v._ jackson vinegar co., u.s. ( ); chicago & n.w.r. co. _v._ nye schneider fowler co., u.s. , - ( ); hartford l. ins. co. _v._ blincoe, u.s. , ( ); life & c. ins. co. _v._ mccray, u.s. ( ). [ ] pizitz dry goods co. _v._ yeldell, u.s. , ( ). [ ] coffey _v._ harlan county, u.s. , , ( ). [ ] wheeler _v._ jackson, u.s. , ( ); kentucky union co. _v._ kentucky, u.s. , ( ). [ ] blinn _v._ nelson, u.s. ( ). [ ] turner _v._ new york, u.s. , ( ). [ ] soper _v._ lawrence bros. co., u.s. ( ). nor is a former owner who had not been in possession for five years after and fifteen years before said enactment thereby deprived of any property without due process. [ ] mattson _v._ department of labor, u.s. , ( ). [ ] campbell _v._ holt, u.s. , , ( ). [ ] chase securities corp. _v._ donaldson, u.s. ( ). [ ] gange lumber co. _v._ rowley, u.s. ( ). [ ] campbell _v._ holt, u.s. , ( ). _see also_ stewart _v._ keyes, u.s. , ( ). [ ] home ins. co. _v._ dick, u.s. , ( ). [ ] hawkins _v._ bleakly, u.s. , ( ); james-dickinson farm mortg. co. _v._ harry, u.s. , ( ). an omission in a criminal trial of any reference to the presumption of innocence effects no denial of due process of law where the state appellate court ruled that such omission did not invalidate the proceedings. howard _v._ fleming, u.s. , ( ). [ ] manley _v._ georgia, u.s. , ( ); western & a.r. co. _v._ henderson, u.s. , ( ); bailey _v._ alabama, u.s. , ( ); mobile, j. & k.c.r. co. _v._ turnipseed, u.s. , ( ). [ ] bailey _v._ alabama, u.s. , ( ). [ ] manley _v._ georgia, u.s. , ( ). [ ] western & a.r. co. _v._ henderson, u.s. ( ). [ ] atlantic coast line r. co. _v._ ford, u.s. ( ). _see also_ mobile, j. & k.c.r. co. _v._ turnipseed, u.s. ( ). [ ] hawes _v._ georgia, u.s. ( ). [ ] bandini petroleum co. _v._ superior ct., u.s. , ( ). [ ] hawker _v._ new york, u.s. ( ). [ ] cockrill _v._ california, u.s. , ( ). [ ] morrison _v._ california, u.s. ( ). [ ] morrison _v._ california, u.s. ( ). [ ] "the limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repeal what has been proved * * *, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression."--ibid. - . [ ] ibid. - , - . [ ] leland _v._ oregon, u.s. ( ). [ ] walker _v._ sauvinet, u.s. ( ); new york c.r. co. _v._ white, u.s. , ( ); snyder _v._ massachusetts, u.s. , ( ). [ ] marvin _v._ trout, u.s. , ( ). [ ] tinsley _v._ anderson, u.s. , ( ); eilenbecker _v._ district court, u.s. , , ( ). [ ] delgado _v._ chavez, u.s. , ( ). [ ] wilson _v._ north carolina ex rel. caldwell, u.s. ( ); foster _v._ kansas ex rel. johnston, u.s. , ( ). [ ] long island water supply co. _v._ brooklyn, u.s. , ( ). [ ] montana company _v._ st. louis min. & mill co., u.s. , ( ); church _v._ kelsey, u.s. ( ). [ ] jordan _v._ massachusetts, u.s. , ( ). [ ] maxwell _v._ dow, u.s. , ( ). [ ] winters _v._ new york, u.s. , - , ( ). _see also_ cline _v._ frink dairy, u.s. ( ); cole _v._ arkansas, u.s. , ( ). [ ] lanzetta _v._ new jersey, u.s. , ( ). [ ] minnesota _v._ probate court, u.s. ( ). [ ] hurtado _v._ california, u.s. , , ( ); brown _v._ new jersey, u.s. , ( ); maxwell _v._ dow, u.s. , ( ); graham _v._ west virginia, u.s. , ( ); jordan _v._ massachusetts, u.s. , ( ). [ ] lem woon _v._ oregon, u.s. , ( ). [ ] gaines _v._ washington, u.s. , ( ). [ ] norris _v._ alabama, u.s. ( ). _see also_ hale _v._ kentucky, u.s. ( ); pierre _v._ louisiana, u.s. ( ); smith _v._ texas, u.s. ( ); shepherd _v._ florida, u.s. ( ). [ ] powell _v._ alabama, u.s. , , ( ). [ ] palko _v._ connecticut, u.s. , - ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. , ( ).--the court presently seems to be holding that in capital cases, notwithstanding the absence even of other circumstances prejudicial to the defendant, the right to counsel is unqualified. _see_ the later cases discussed herein, especially tomkins _v._ missouri, u.s. ( ); williams _v._ kaiser, u.s. ( ); hawk _v._ olson, u.s. ( ); and the court's summary of its rulings in uveges _v._ pennsylvania, u.s. ( ), _supra_, p. . [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. ( ).--in a post mortem comment on this case appearing in the later decision of betts _v._ brady, u.s. , ( ), there is contained the intimation that the mere failure to appoint counsel, alone, in the absence of the proof of other facts tending to show that the whole trial was "a mere sham and a pretense," would not have sufficed to support a finding of a denial of due process. [ ] u.s. , - ( ). [ ] ibid. , . [ ] in powell _v._ alabama, u.s. ( ); avery _v._ alabama, u.s. ( ); and smith _v._ o'grady, u.s. ( ), a state law required the appointment of counsel. [ ] u.s. , - , - ( ).--dissenting, justice black, with whom justices douglas and murphy were in agreement, acknowledged regretfully that the view that the "fourteenth amendment made the sixth applicable to the states * * * has never been accepted by a majority of this court," and submitted a list of citations showing that by judicial decision, as well as by constitutional and statutory provision, a majority of states require that indigent defendants, in noncapital as well as capital cases, be provided with counsel on request. this evidence, he contended, supports the conclusion that "denial to the poor of a request for counsel in proceedings based on serious charges of crime," has "long been regarded throughout this country as shocking to the 'universal sense of justice.'" [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , , ( ). [ ] u.s. , ( ). [ ] u.s. ( ). _see also_ white _v._ ragen, u.s. ( ). [ ] u.s. ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). justices murphy and rutledge dissented, the former contending that "the right to counsel means nothing unless it means the right to counsel at each and every step in a criminal proceeding."--ibid. . [ ] u.s. ( ). [ ] rice _v._ olson, u.s. ( ), was distinguished on the ground that the record in the older case contained specific allegations bearing on the disabilities of the accused to stand prosecution without the aid of counsel and the complete absence of any uncontested finding, as in the instant case, of an intelligent waiver of counsel. dissenting for himself and justices black and rutledge, justice douglas declared that, under the authority of williams _v._ kaiser, u.s. , ( ), "if * * * [the] defendant is not capable of making his own defense, it is the duty of the court, at least in capital cases, to appoint counsel, whether requested so to do or not."-- u.s. , ( ). in a separate dissent, justice murphy observed that while "legal technicalities doubtless afford justification for our pretense of ignoring plain facts before us," facts which emphasize the absence of any intelligent waiver of counsel, "the result certainly does not enhance the high traditions of the judicial process."--ibid. . [ ] u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , ( ).--acknowledging that the decision is in line with the precedent of betts _v._ brady, justice black, who was joined by justices douglas, murphy, and rutledge, lamented that the latter was a "kind of precedent [which he] had hoped that the court would not perpetuate." complaining of the loss of certainty occasioned by the court's refusal to read into the fourteenth amendment the absolute right to counsel set out in the sixth amendment, justice black contends that the fair trial doctrine as enunciated in this and in the adamson _v._ california case (_see_ p. ) decided on the same day is "another example of the consequences which can be produced by the substitution of this court's day-to-day opinion of what kind of trial is fair and decent for the kind of trial which the bill of rights guarantees."--ibid. , .--in a second dissenting opinion meriting the concurrence of justices black, douglas, and murphy, justice rutledge, who also is of the opinion that the absolute right to counsel granted by the sixth amendment should be enjoyed in state criminal trials, insisted that even under the fair trial doctrine, the accused had not been accorded due process. [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] _see_ p. . [ ] u.s. , , - ( ).--as against the assertion of the majority that the due process clause of the fourteenth amendment does not of its own force require appointment of counsel for one simply because he would have a constitutional right to the assistance of counsel in a comparable federal case, the minority, consisting of justices black, murphy, and rutledge speaking through justice douglas, declared that "the bill of rights is applicable to all courts at all times"; for, otherwise, "of what value is the constitutional guarantee of a fair trial if an accused does not have counsel to advise and defend him." noting that all members of the court were in accord on the requirement of counsel in capital offenses, the minority contended that the considerations inducing such unanimity were "equally germane [in noncapital cases] where liberty rather than life hangs in the balance." conceding that "it might not be nonsense to draw the betts _v._ brady line somewhere between that case and the case of one charged with violation of a parking ordinance, and to say the accused is entitled to counsel in the former but not in the latter," the minority concluded as follows: "* * * to draw the line between this case and cases where the maximum penalty is death is to make a distinction which makes no sense in terms of the absence or presence of need for counsel. yet it is the _need_ for counsel that establishes the real standard for determining whether the lack of counsel rendered the trial unfair. and the need for counsel, even by betts _v._ brady standards, is not determined by the complexities of the individual case or the ability of the particular person who stands as an accused before the court. that need is measured by the _nature_ of the _charge_ and the _ability_ of the _average_ man to face it alone, unaided by an expert in the law." [ ] u.s. , ( ). [ ] u.s. , , ( ). [ ] u.s. ( ). [ ] ibid. .--the majority also observed that "trial court's facetiousness casts a somewhat somber reflection on the fairness of the proceeding * * *" although chief justice vinson and justices reed and burton dissented without an opinion in townsend _v._ burke, four justices, black, douglas, and murphy speaking through justice rutledge filed a vigorous dissent in gryger _v._ burke, u.s. , , ( ). justice rutledge declared his inability to "square * * * [this] decision in this case with that made in townsend _v._ burke. i find it difficult to comprehend that the [trial] court's misreading or misinformation concerning the facts of [the] record [townsend _v._ burke] vital to the proper exercise of the sentencing function is prejudicial * * *, but its misreading or misconception of the controlling statute, [gryger _v._ burke] in a matter so vital as imposing mandatory sentence or exercising discretion concerning it, has no such effect. perhaps the difference serves only to illustrate how capricious are the results when the right to counsel is made to depend not upon the mandate of the constitution, but upon the vagaries of whether judges, * * * will regard this incident or that in the course of particular criminal proceedings as prejudicial." [ ] u.s. , - ( ). [ ] u.s. , ( ). [ ] u.s. ( ); _see also_ per curiam opinion granting certiorari in foulke _v._ burke, u.s. ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. , - ( ). [ ] rice _v._ olson, u.s. , - ( ). [ ] wade _v._ mayo, u.s. , - ( ); de meerleer _v._ michigan, u.s. , - ( ); betts _v._ brady, u.s. , ( ); powell _v._ alabama, u.s. , - , ( ). [ ] townsend _v._ burke, u.s. , - ( ); de meerleer _v._ michigan, u.s. , ( ); smith _v._ o'grady, u.s. , - ( ). [ ] rice _v._ olson, u.s. , - ( ). [ ] gibbs _v._ burke, u.s. , - ( ). devotion to the fair trial doctrine has also created another problem for the court, that of a burdensome increase in the volume of its business. inasmuch as accurate appraisal of the effect of absence of counsel on the validity of a state criminal proceeding has been rendered more difficult by the vagueness of that doctrine as well as by the court's acknowledged variation in the application thereof, innumerable state prisoners have been tempted to seek judicial reconsideration of their convictions. to reduce the number of such cases which it is obliged to examine on their merits, the court had been compelled to have recourse to certain protective rules. thus, when a state prisoner seeks to attack the validity of his conviction by way of _habeas corpus_ proceedings begun in a lower federal court, application for that writ will be entertained only after all state remedies available, including all appellate remedies in state courts and in the supreme court by appeal or writ of certiorari, have been exhausted. this rule, however, will not be applied when no adequate state remedy is in fact available. also when a prisoner's petition for release on the grounds of the unconstitutionally of his conviction has been rejected by a state court, a petition for certiorari addressed to the united states supreme court will be denied whenever it appears that the prisoner had not invoked the appropriate state remedy. or stated otherwise, where the state court's conviction or refusal to grant writs of _habeas corpus_ to those under state sentences may fairly be attributed to a rule of local procedure and is not exclusively founded on the denial of a federal claim, such as, right to counsel, the supreme court will refuse to intervene. as in the case of other legal rules, justices of the supreme court have often found themselves in disagreement as to the manner of applying these aforementioned principles; and vigorous dissents arising out of this very issue were recorded in the cases of marino _v._ ragen, u.s. ( ); wade _v._ mayo, u.s. ( ); and uveges _v._ pennsylvania, u.s. ( ). justice frankfurter has frequently, albeit unsuccessfully contended, that "intervention by * * * [the supreme court] in the criminal process of states * * * should not be indulged in unless no reasonable doubt is left that a state denies, or has refused to exercise, means of correcting a claimed infraction of the united states constitution. * * * after all, [it should be borne in mind that] this is the nation's ultimate judicial tribunal, not a super-legal-aid bureau." [ ] u.s. ( ). [ ] u.s. ( ). [ ] jordan _v._ massachusetts, u.s. , . ( ). [ ] maxwell _v._ dow, u.s. ( ). [ ] hallinger _v._ davis, u.s. ( ). [ ] ibid. - . [ ] missouri _v._ lewis, u.s. ( ); maxwell _v._ dow, u.s. , ( ); jordan _v._ massachusetts, u.s. , ( ); snyder _v._ massachusetts, u.s. , ( ). [ ] brown _v._ new jersey, u.s. , , ( ). [ ] ashe _v._ united states ex rel. valotta, u.s. , ( ). [ ] fay _v._ new york, u.s. , ( ); moore _v._ new york, u.s. ( ).--both cases reject the proposition that the commandment of the sixth amendment, which requires a jury trial in criminal cases in the federal courts is picked up by the due process clause of the fourteenth amendment so as to become a limitation upon the states. [ ] fay _v._ new york, u.s. , - ( ).--since congress, by way of enforcing the guarantees contained in the fourteenth amendment, has, by statute [ stat. , ( ); u.s.c. ], made it a crime to exclude a citizen from jury service only on account of race, color, or previous condition of servitude, the supreme court "never has interfered with the composition of state court juries except in cases where this guidance of congress was applicable." without suggesting that "no case of discrimination in jury drawing except those involving race or color can carry such unjust consequences as to amount to a denial of * * * due process," the court has nevertheless required that a defendant, alleging grounds not covered by that statute, "must comply with the exacting requirements of proving clearly" that the procedure in his case was destructive of due process. these statements reflect the views of only five justices. speaking for the minority (justices black, douglas, and rutledge), justice murphy declared that "the vice lies in the very concept of 'blue ribbon' panels--the systematic and intentional exclusion of all but the 'best' or the most learned or intelligent of the general jurors. such panels are completely at war with the democratic theory of our jury system, a theory formulated out of the experience of generations. one is constitutionally entitled to be judged by a fair sampling of all one's neighbors who are qualified, not merely those with superior intelligence or learning. jury panels are supposed to be representative of all qualified classes. within those classes, of course, are persons with varying degrees of intelligence, wealth, education, ability and experience. but it is from that welter of qualified individuals, who meet specified minimum standards, that juries are to be chosen. any method that permits only the 'best' of these to be selected opens the way to grave abuses. the jury is then in danger of losing its democratic flavor and becoming the instrument of the select few." a "blue ribbon jury" is neither "a jury of the * * * [defendant's] peers," nor "a jury chosen from a fair cross-section of the community, * * *"--moore _v._ new york, u.s. , - ( ). [ ] rawlins _v._ georgia, u.s. ( ). the supreme court "has never entertained a defendant's objections to exclusions from the jury except when he was a member of the excluded class."--fay _v._ new york, u.s. , ( ). [ ] u.s. , , - , ; citing missouri _v._ lewis, u.s. ( ); and holden _v._ hardy, u.s. , , ( ). [ ] in several decisions the court, assuming, but without deciding, that a state law requiring a witness to answer incriminating questions would violate the due process clause, has then proceeded to conclude, nevertheless, that a state antitrust law which grants immunity from local prosecution to a witness compelled to testify thereunder is valid even though testimony thus extracted may later serve as the basis of a federal prosecution for violation of federal antitrust laws.--jack _v._ kansas, u.s. , ( ). [ ] snyder _v._ massachusetts, u.s. , ( ). [ ] palko _v._ connecticut, u.s. , - ( ). [ ] u.s. , - ( ). for the significance of this decision as a precedent in favor of a more careful scrutiny by the supreme court of state trials in which a denial of constitutional rights allegedly occurred, see p. . [ ] ibid, - . [ ] u.s. ( ). [ ] ibid. - , - . [ ] u.s. ( ). [ ] u.s. , ( ). this dictum represents the closest approach which the court thus far has made toward inclusion of the privilege against self-incrimination within the due process clause of the fourteenth amendment. in all but a few of the forced confession cases, however, the results achieved by application of the fair trial doctrine differ scarcely at all from those attainable by incorporation of the privilege within that clause. [ ] u.s. ( ). [ ] u.s. ( ). [ ] _see_ baldwin _v._ missouri, u.s. , ( ). [ ] u.s. , - ( ).--all members of the court were in accord, however, in condemning, as no less a denial of due process, the admission at the second trial of ashcraft [ashcraft _v._ tennessee, u.s. ( )] of evidence uncovered in consequence of the written confession, acceptance of which at the first trial had led to the reversal of his prior conviction. [ ] u.s. ( ). [ ] ibid. .--of three justices who dissented, justice murphy, with whom justice black was associated, declared that it was "inconceivable * * * that the second confession was free from the coercive atmosphere that admittedly impregnated the first one"; and added that previous decisions of this court "in effect have held that the fourteenth amendment makes the prohibition [of the fifth pertaining to self-incrimination] applicable to the states."--ibid. - . [ ] u.s. ( ). [ ] chief justice stone, together with justices roberts, reed, and jackson, all of whom dissented, would have sustained the conviction. [ ] justices rutledge and murphy dissented in part, assigning among their reasons therefor their belief that the "subsequent confessions, * * *, were vitiated with all the coercion which destroys admissibility of the first one." according to justice rutledge, "a stricter standard is necessary where the confession tendered follows a prior coerced one than in the case of a single confession * * *. once a coerced confession has been obtained all later ones should be excluded from evidence, wherever there is evidence that the coerced one has been used to secure the later ones."-- u.s. , , - ( ). [ ] in lyons _v._ oklahoma, u.s. , ( ), the court stated that "when the state-approved instruction (to the jury) fairly raises the question of whether or not the challenged confession was voluntary, * * *, the requirements of due process, * * *, are satisfied and this court will not require a modification of local practice to meet views that it might have as to * * * how specific an instruction * * * must be." in malinski _v._ new york, the four dissenting justices declared that "the trial court, * * *, instructed the jury that the evidence with respect to the first confession was adduced only to show that the second was coerced. and * * * that it could consider the second confession, only if it found it voluntary, and that it could convict in that case. in view of these instructions, we cannot say that the first confession was submitted to the jury, or that in the absence of any exception or request to charge more particularly, there was any error, of which the * * * [accused] can complain."-- u.s. , ( ). [ ] the coercive nature of the first oral confession was apparently acknowledged by the prosecuting attorney in his summation to the jury; for he declared that the accused "was not hard to break," and that the purpose of holding him _incommunicado_ and unclothed in a hotel room from a.m. to p.m., when the confession was made, was to "let him think that he is going to get a shellacking (beating)."-- u.s. , ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] adamson _v._ california, u.s. , , , , ( ). [ ] adamson _v._ california, u.s. , - , - , ( ). _see also_ malinski _v._ new york, u.s. , , , ( ). [ ] adamson _v._ california, u.s. , , - , ( ).--dissenting separately, justice murphy, together with justice rutledge, announced their agreement with justice black, subject to one reservation. while agreeing "that the specific guarantees of the bill of rights should be carried over intact into the first section of the fourteenth amendment," they were "not prepared to say that the latter is entirely and necessarily limited by the bill of rights. occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant * * * condemnation in terms of a lack of due process despite the absence of a specific provision in the bill of rights."--ibid. . in a lengthy article based upon a painstaking examination of original data pertaining to the "understanding of the import of the * * * clauses of section of the fourteenth amendment at the time the amendment was adopted"; that is, during the period - , professor charles fairman has marshalled a "mountain of evidence" calculated to prove conclusively the inaccuracy of justice black's reading of history.--charles fairman. does the fourteenth amendment incorporate the bill of rights? the original understanding.-- stanford law review, - ( ). [ ] u.s. ( ). [ ] ibid. - .--in a dissenting opinion, in which chief justice vinson and justices jackson and reed concurred, justice burton remarked that inasmuch as the issue of the voluntariness of the confession was one of fact, turning largely on the credibility of witnesses, the determination thereof by the trial judge and jury should not be overturned upon mere conjecture.--ibid. , . [ ] u.s. , ( ). [ ] u.s. ( ). [ ] the court also held that the procedure of alabama, in requiring the accused to obtain permission from an appellate court before filing a petition in a trial court for a writ of error _coram nobis_ was consistent with due process. alabama was deemed to possess "ample machinery for correcting the constitutional wrong of which the * * * [accused] complained."--ibid. , - . [ ] the accused, in his petition, neither denied his guilt nor any of the acts on which his conviction was based. he simply contended that because of fear generated by coercive police methods applied to him, he had concealed such evidence from his own counsel at the time of the trial and had informed the latter that his confessions were voluntary. his charges of duress were supported by affidavits of three associates in crime, none of whom claims to have seen the alleged beatings of the petitioner.--ibid. - . [ ] in a dissenting opinion, in which justices douglas and rutledge concurred, justice murphy maintained that inasmuch as there was some evidence to substantiate the petitioner's claim, the latter should have been allowed a hearing in the trial court. according to justice murphy, a conviction based on a coerced confession is "void even though the confession is in fact true" and the petitioner is guilty. justice frankfurter criticized this dissenting opinion as having been "written as though this court was a court of criminal appeals for revision of convictions in the state courts."--ibid. , - . [ ] u.s. ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] watts _v._ indiana, u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] watts _v._ indiana, u.s. , ( ); citing malinski _v._ new york, u.s. ( ); haley _v._ ohio, u.s. ( ). [ ] u.s. , ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , ( ). in the , , and terms only one case arose which involved the forced confession issue in any significant way. this was rochin _v._ california, u.s. ( ), which is discussed immediately below in another connection. _see also_ jennings _v._ illinois, u.s. ( ); and stroble _v._ california, u.s. ( ), in which diverse, but not necessarily conflicting, results were reached. [ ] u.s. ( ). [ ] consolidated rendering co. _v._ vermont, u.s. , ( ); hammond packing co. _v._ arkansas, u.s. , ( ). [ ] wolf _v._ colorado, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , - ( ). [ ] ibid. - .--in harmony with his views, as previously stated in malinski _v._ new york, u.s. ( ) and adamson _v._ california, u.s. , - ( ), justice frankfurter amplified his appraisal of the due process clause as follows: "due process of law * * * conveys neither formal nor fixed nor narrow requirements. it is the compendius expression for all those rights which the courts must enforce because they are basic to our free society. but basic rights do not become petrified as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. it is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits of the essentials of fundamental rights. to rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty but ignores the movements of a free society. * * * the real clue to the problem confronting the judiciary in the application of the due process clause is not to ask where the line is once and for all to be drawn but to recognize that it is for the court to draw it by the gradual and empiric process of 'inclusion and exclusion.'"--ibid. . [ ] u.s. , , - ( ). [ ] wolf _v._ colorado, u.s. , - ( ). [ ] ibid. , , , , . [ ] stefanelli _v._ minard, u.s. ( ); rochin _v._ california, u.s. ( ). [ ] u.s. , . [ ] u.s. , , citing malinski _v._ new york, u.s. , , ( ). [ ] ibid., . [ ] u.s. , - ( ). "of course", said justice douglas, citing holt _v._ united states, u.s. , - ( ), "an accused can be compelled to be present at the trial, to stand, to sit, to turn this way or that, and to try on a cap or a coat." u.s. at . _see_ the self-incrimination clause of amendment v. [ ] mooney _v._ holohan, u.s. , ( ). [ ] ibid. .--because judicial process adequate to correct this alleged wrong was believed to exist in california and had not been fully invoked by mooney, the court denied his petition. subsequently, a california court appraised the evidence offered by mooney and ruled that his allegations had not been established.--ex parte mooney, cal. ( d) , p ( d) ( ); certiorari denied, u.s. ( ). mooney later was pardoned by governor olson.--new york times, january , . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). _see also_ new york ex rel. whitman _v._ wilson, u.s. ( ); ex parte hawk, u.s. ( ). [ ] u.s. , , - ( ).--justice black, together with justices douglas and murphy, dissented on the ground that the florida court, "with intimations of approval" by the majority, had never found it necessary to pass on the credibility of hysler's allegations, but had erroneously declared that all his allegations, even if true and fully known to the trial court, would not have precluded a conviction. in an earlier case, lisenba _v._ california, u.s. ( ), the court, without discussion of this principle relating to the use of perjured testimony, sustained a california appellate court's denial of a petition for _habeas corpus_. the accused, after having been convicted and sentenced to death for murder, filed his petition supported by affidavits of a codefendant, who, after pleading guilty and serving as a witness for the state had received a life sentence. the latter affirmed that his testimony at the trial of the petitioner "was obtained by deceit, fraud, collusion, and coercion, and was known to the prosecutor to be false." even though the california court had denied the petition for _habeas corpus_ without taking oral evidence and without requiring the state to answer, the supreme court upheld this action on the ground that there was no adequate showing of a corrupt bargain between the prosecution and the codefendant and that the appraisal of conflicting evidence was for the court below. even if latter's refusal to believe the codefendant's depositions were erroneous, such error, the court added, would not amount to a denial of due process. [ ] u.s. , ( ). [ ] u.s. ( ). certiorari was denied, however, for the reason that the state court's refusal to issue the writ of _habeas corpus_ was based upon an adequate nonfederal ground. [ ] schwab _v._ berggren, u.s. , ( ).--this statement is a dictum, however; for the issue presented by the accused's petition for a writ of _habeas corpus_ was that the state appellate court had denied him due process in ruling on his appeal from his conviction in the absence of both the petitioner and his counsel and without notice to either as to the date of its decision. insofar as a right to be present exists, its application, the supreme court maintained, is limited to courts of original jurisdiction trying criminal cases. [ ] howard _v._ kentucky, u.s. ( ). [ ] u.s. , ( ). [ ] u.s. , ( ). [ ] snyder _v._ massachusetts, u.s. ( ). [ ] ibid. , , , , .--in a dissent, in which justices brandeis, butler, and sutherland concurred, justice roberts insisted that "it * * * [was] not a matter of assumption but a certainty * * * [that] * * * the * * * privilege of the accused to be present throughout his trial is of the very essence of due process," and, in that connection, "the great weight of authority is that" the view by the jury "forms part of the trial." even if "the result would have been the same had the [accused] been present, still the denial of the constitutional right ought not to be condoned. * * * nor ought this court to convert the inquiry from one as to the denial of the right into one as to the prejudice suffered by the denial. to pivot affirmance on the question of the amount of harm done the accused is to beg the constitutional question involved. * * * the guarantee of the fourteenth amendment is not that a just result shall have been obtained, but that the result, whatever it be, shall be reached in a fair way."--ibid. - , , - . [ ] u.s. ( ). [ ] ibid. - , - .--dissenting, justice murphy maintained that the use in a capital case of probation reports which "concededly [would] not have been admissible at the trial, and * * * [were] not subject to examination by the defendant, * * *" violated "the high commands of due process * * *"--ibid. . justice rutledge dissented without an opinion. [ ] u.s. ( ). [ ] ibid. - .--disagreeing, justice frankfurter contended that a state is "precluded by the due process clause from executing a man who has temporarily or permanently become insane"; and thus bereft of unlimited discretion as to "how it will ascertain sanity," a state "must afford rudimentary safeguards for establishing [that] fact."--ibid. , , , - . [ ] in re oliver, u.s. ( ). on application for _habeas corpus_, the prisoner's commitment was reviewed by the michigan appellate court in the light, not of the whole record, but only of fragmentary excerpts showing merely the testimony alleged to be false and evasive. in a concurring opinion, justice rutledge advocated disposing of the case on the ground that the michigan one-man grand jury system was in its entirety in conflict with the requirements of due process. on the ground that the michigan courts had not passed on the constitutionality of the procedure at issue, justices frankfurter and jackson dissented and urged the remanding of the case. _see also_ gaines _v._ washington, u.s. , ( ). [ ] u.s. ( ). [ ] justice douglas, with justice black concurring, dissented on the ground that even if "such elements of misbehavior as expression, manner of speaking, bearing, and attitude * * * [had] a contemptuous flavor. * * * freedom of speech should [not] be so readily sacrificed in a courtroom." stressing that the trial judge penalized fisher only for his forbidden comment and not for his behavior, and that it took a ruling of the texas appellate court to settle the issue whether such comment was improper under texas practice, justice douglas concluded that the record suggests only that "the judge picked a quarrel with this lawyer and used his high position to wreak vengeance." there having been no substantial obstruction of the trial, justice murphy believed that the trial judge's use of his power was inconsistent with due process; whereas justice rutledge, in dissenting, contended "there can be no due process in trial in the absence of calm judgment and action, untinged with anger, from the bench."--ibid. - , , . [ ] tumey _v._ ohio, u.s. ( ). _see also_ jordan _v._ massachusetts, u.s. , ( ). [ ] "unless the costs usually imposed are so small that they may be properly ignored as within the maxim _de minimis non curat lex_."--_see_ tumey _v._ ohio, u.s. , , ( ). [ ] dugan _v._ ohio, u.s. ( ). [ ] frank _v._ mangum, u.s. , ( ). [ ] moore _v._ dempsey, u.s. , ( ). [ ] thiel _v._ southern pacific co., u.s. ( ). _see also_ fay _v._ new york, u.s. ( ), _supra_ p. . [transcriber's note: reference is to footnote , above.] [ ] snyder _v._ massachusetts, u.s. , , ( ). [ ] lisenba _v._ california, u.s. , ( ). [ ] buchalter _v._ new york, u.s. , ( ). the court also declared that the due process clause did "not draw to itself the provisions of state constitutions or state laws." [ ] powell _v._ alabama, u.s. , ( ); snyder _v._ massachusetts, u.s. , ( ). [ ] cole _v._ arkansas, u.s. , ( ). _see also_ williams _v._ north carolina, u.s. , ( ), wherein the court also stated that where a conviction in a criminal prosecution is based upon a general verdict that does not specify the ground on which it rests, and one of the grounds upon which it may rest is invalid under the constitution, the judgment cannot be sustained. [ ] paterno _v._ lyons, u.s. , - ( ). [ ] mckane _v._ durston, u.s. ( ).--the prohibition of the requirement of excessive bail, expressed in the eighth amendment as a restraint against the federal government, has never been deemed to be applicable to the states by virtue of the due process clause of the fourteenth amendment. however, in a recent civil suit, a united states district court judge asserted his belief, by way of dictum, that protection against "unreasonable searches and seizures, invasion of freedom of speech and press, unlawful and unwarranted incarcerations, arrests, and _failure to allow reasonable bail_ would all be fundamental rights protected by [the fourteenth] amendment from state invasion."--international union, etc. _v._ tennessee copper co., f. supp. ( ). [ ] collins _v._ johnston, u.s. , ( ).--in affirming a judgment obtained by texas in a civil suit to recover penalties for violation of its antitrust law, the supreme court proffered the following vague standard for determining the validity of penalties levied by states. "the fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the state. we can only interfere with such legislation and judicial action of the states enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law." however, a fine of $ , , levied in this case against a corporation having assets of $ , , and paying out dividends as high as %, and which was shown to have profited from its wrong doing was not considered to be excessive.--waters-pierce oil co. _v._ texas, u.s. , ( ). [ ] graham _v._ west virginia, u.s. , ( ). _see also_ ughbanks _v._ armstrong, u.s. , ( ). [ ] u.s. , - ( ). [ ] u.s. ( ). [ ] concurring in the result, justice frankfurter concentrated on the problem suggested by the proposed absorption of the bill of rights by the due process clause of the fourteenth amendment, and restated his previously disclosed position as follows: "not until recently was it suggested that the due process clause of the fourteenth amendment was merely a compendious reference to the bill of rights whereby the states were now restricted in devising and enforcing their penal code precisely as is the federal government by the first eight amendments. on this view, the states would be confined in the enforcement of their criminal codes by those views for safeguarding the rights of the individual which were deemed necessary in the eighteenth century. some of these safeguards have perduring validity. some grew out of transient experience or formulated remedies which time might well improve. the fourteenth amendment did not mean to imprison the states into the limited experience of the eighteenth century. it did mean to withdraw from the states the right to act in ways that are offensive to a decent respect for the dignity of man, and heedless of his freedom. "these are very broad terms by which to accommodate freedom and authority. as has been suggested * * *, they may be too large to serve as the basis for adjudication in that they allow much room for individual notions of policy. that is not our concern. the fact is that the duty of such adjudication on a basis no less narrow has been committed to this court. "in an impressive body of decisions this court has decided that the due process clause of the fourteenth amendment expresses a demand for civilized standards which are not defined by the specifically enumerated guarantees of the bill of rights. they neither contain the particularities of the first eight amendments nor are they confined to them. * * * insofar as due process under the fourteenth amendment requires the states to observe any of the immunities 'that are as valid as against the federal government by force of the specific pledges of particular amendments' it does so because they 'have been found to be implicit in the concept of ordered liberty, and thus, through the fourteenth amendment, become valid as against the states,'" [citing palko _v._ connecticut, u.s. , , ( ).]--ibid. - . justice burton, with whom justices murphy, douglas, and rutledge were associated, dissented on the grounds that "the proposed repeated, and at least second, application to the * * * [defendant] of an electric current sufficient to cause death is * * *, a cruel and unusual punishment violative of due process of law."--ibid. . in solesbee _v._ balkcom, u.s. ( ), the court declined to intervene in case coming up from georgia in which appellant, claiming that he had become insane following conviction and sentence of death, sought a postponement of execution from the governor of the state. justice frankfurter dissented, asserting that the due process clause of amendment xiv prohibits a state from executing an insane convict. [ ] u.s. , ( ). _see also_ keerl _v._ montana, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] graham _v._ west virginia, u.s. , ( ). [ ] u.s. ( ). [ ] in a lengthy dictum, justice cardozo, speaking for the court, rejected the defendant's view that "whatever would be a violation of the original bill of rights (amendments one to eight) if done by the federal government is now equally unlawful by force of the fourteenth amendment if done by a state." by a selective process of inclusion and exclusion, he conceded that "the due process clause of the fourteenth amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the first amendment safeguards against encroachment by the congress, * * * or the like freedom of the press, * * * or the free exercise of religion, * * * or the right of peaceable assembly * * *, or the right of one accused of crime to the benefit of counsel." however, insofar as such "immunities, [which] are valid as against the federal government by force of the specific pledges of particular amendments, have become valid as against the states," that result is attributable, not to the absorption by the due process clause of the fourteenth amendment of particular provisions of the bill of rights, but to the fact that such immunities "have been found to be implicit in the concept of ordered liberty * * *" protected by that clause.--ibid. , - . [ ] justice butler dissented without an opinion. [ ] u.s. , , ( ).--in line with its former ruling in graham _v._ west virginia, u.s. ( ), the court reiterated in gryger _v._ burke, u.s. ( ), that a life sentence imposed on a fourth offender under a state habitual criminal act is a stiffened penalty for his latest offense, which is considered to be an aggravated offense because a repetitive one, and is therefore not invalid as subjecting the offender to a new jeopardy. [ ] ex parte hull, u.s. ( ). [ ] white _v._ ragen, u.s. n. ( ). [ ] mckane _v._ durston, u.s. , ( ); andrews _v._ swartz u.s. , ( ); murphy _v._ massachusetts, u.s. , ( ); reetz _v._ michigan, u.s. , ( ). [ ] thus, where on the day assigned for hearing of a writ of error, it appeared that the accused had escaped from jail, the court, without denial of due process, could order that the writ be dismissed unless the accused surrender himself within days or be captured.--allen _v._ georgia, u.s. ( ). [ ] carter _v._ illinois, u.s. , - ( ). [ ] frank _v._ mangum, u.s. ( ). [ ] for rules of self-limitation formulated by the court not only to minimize its opportunities for such interference but also to curtail the volume of litigation reaching it for final disposition, _see_ p. . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] despite the court's contention that moore _v._ dempsey was disposed of in conformity with the principles enunciated in frank _v._ mangum, the two decisions are distinguishable not only by the different results reached therein, but by the fact that the state appellate court in frank _v._ mangum had ruled that the trial court had correctly concluded, on the basis of the evidence submitted, that the allegations of mob violence were unsubstantiated whereas the arkansas appellate court, in moore _v._ dempsey, conceded a similar allegation to be correct but did not deem it sufficient to render the trial a nullity. although in the later case, arkansas demurred and thereby admitted the allegations supporting the _habeas corpus_ petition to be true, that fact is a lesser significance, for even in frank _v._ mangum, the supreme court abided by the rule that the writ of _habeas corpus_ relates to matters of substance and not of mere form, and declared that the petitioner's allegations should be treated as if conceded by the sheriff having custody of the petitioner.-- u.s. , , ( ). [ ] james _v._ appel, u.s. , ( ); pittsburgh, c.c. & st. l.r. co. _v._ backus, u.s. ( ); standard oil co. _v._ missouri ex rel. hadley, u.s. , ( ); baldwin _v._ iowa state traveling men's assoc., u.s. , ( ). [ ] tracy _v._ ginzberg, u.s. ( ); allen _v._ georgia, u.s. , ( ); fallbrook irrig. district _v._ bradley, u.s. , ( ). [ ] thorington _v._ montgomery, u.s. , ( ). [ ] cross _v._ north carolina, u.s. ( ). [ ] ballard _v._ hunter, u.s. , ( ); lyons _v._ oklahoma, u.s. ( ); gryger _v._ burke, u.s. ( ). [ ] mcdonald _v._ oregon r. & nav. co., u.s. , ( ). [ ] caldwell _v._ texas, u.s. , , ( ); bergemann _v._ backer, u.s. , ( ). [ ] rogers _v._ peck, u.s. , ( ). [ ] west _v._ louisiana, u.s. ( ). [ ] chicago l. ins. co. _v._ cherry, u.s. , ( ). [ ] standard oil co. _v._ missouri ex rel. hadley, u.s. , ( ); patterson _v._ colorado ex rel. attorney general, u.s. , ( ); stockholders _v._ sterling, u.s. , ( ) [ ] virginia _v._ rives, u.s. , ( ). [ ] minneapolis & st. l.r. co. _v._ beckwith, u.s. , , ( ). [ ] yick wo _v._ hopkins, u.s. , , ( ). [ ] snowden _v._ hughes, u.s. , ( ). [ ] truax _v._ corrigan, u.s. ( ). [ ] neal _v._ delaware, u.s. ( ). [ ] shelley _v._ kraemer, u.s. ( ). [ ] ibid. . [ ] missouri ex rel. gaines _v._ canada, u.s. , ( ). [ ] smith _v._ allwright, u.s. ( ). _cf._ nixon _v._ herndon, u.s. ( ); nixon _v._ condon, u.s. ( ); grovey _v._ townsend, u.s. ( ). [ ] slaughter-house cases, wall. , ( ). [ ] chicago, b. & q.r. co. _v._ iowa, u.s. ( ); peik _v._ chicago & northwestern r. co., u.s. ( ); chicago, m. & st. p.r. co. _v._ ackley, u.s. ( ); winona & st. p.r. co. _v._ blake, u.s. ( ). [ ] santa clara county _v._ southern p.r. co., u.s. ( ). the ruling stood unchallenged until when justice black asserted in a dissenting opinion that "i do not believe the word 'person' in the fourteenth amendment includes corporations." connecticut general life insurance co. _v._ johnson, u.s. , ( ). more recently justice douglas expressed the same view in a dissenting opinion in which justice black concurred. wheeling steel corporation _v._ glander, u.s. , ( ). [ ] yick wo _v._ hopkins, u.s. , ( ). [ ] newark _v._ new jersey, u.s. ( ); williams _v._ baltimore, u.s. ( ). [ ] _cf._ hillsborough _v._ cromwell, u.s. ( ). [ ] blake _v._ mcclung, u.s. , ( ); sully _v._ american nat. bank, u.s. ( ). [ ] kentucky finance corp. _v._ paramount auto exchange corp., u.s. ( ). [ ] hillsborough _v._ cromwell, u.s. ( ). [ ] wheeling steel corp. _v._ glander, u.s. ( ); hanover insurance co. _v._ harding, u.s. ( ). [ ] fire asso. of philadelphia _v._ new york, u.s. ( ). [ ] yick wo _v._ hopkins, u.s. , ( ). [ ] barbier _v._ connolly, u.s. , ( ). [ ] ibid. - . [ ] truax _v._ corrigan, u.s. , - ( ). [ ] barrett _v._ indiana, u.s. ( ). [ ] watson _v._ maryland, u.s. ( ). [ ] orient ins. co. _v._ daggs, u.s. , ( ). [ ] bachtel _v._ wilson, u.s. , ( ). _see also_ frost _v._ corporation commission, u.s. , ( ); smith _v._ cahoon, u.s. , - ( ). [ ] lindsley _v._ natural carbonic gas co., u.s. ( ). [ ] middleton _v._ texas power & light co., u.s. , ( ); madden _v._ kentucky, u.s. ( ). [ ] crescent cotton oil co. _v._ mississippi, u.s. , ( ). [ ] west coast hotel co. _v._ parrish, u.s. , ( ). [ ] lindsley _v._ natural carbonic gas co., u.s. , ( ). _cf._ united states _v._ petrillo, u.s. , ( ). [ ] dominion hotel _v._ arizona, u.s. , ( ). [ ] west coast hotel _v._ parrish, u.s. , ( ). [ ] dominion hotel _v._ arizona, u.s. , ( ). [ ] watson _v._ maryland, u.s. , ( ). [ ] phelps _v._ board of education, u.s. , ( ). [ ] chicago dock & canal co. _v._ fraley, u.s. , ( ). [ ] davidson _v._ new orleans, u.s. , ( ). [ ] fire asso. of philadelphia _v._ new york, u.s. ( ); santa clara county _v._ southern p.r. co., u.s. ( ). [ ] bell's gap r. co. _v._ pennsylvania, u.s. , ( ). (emphasis supplied.) [ ] louisville gas & e. co. _v._ coleman, u.s. , ( ). classification for purposes of taxation has been held valid in the following situations: _banks:_ a heavier tax on banks which make loans mainly from money of depositors than on other financial institutions which make loans mainly from money supplied otherwise than by deposits. first nat. bank _v._ louisiana tax commission, u.s. ( ). _bank deposits:_ a tax of ¢ per $ on deposits in banks outside a state in contrast with a rate of ¢ per $ on deposits in the state. madden _v._ kentucky, u.s. ( ). _coal:_ a tax of - / percent on anthracite but not on bituminous coal. heisler _v._ thomas colliery co., u.s. ( ). _gasoline:_ a graduated severance tax on oils sold primarily for their gasoline content, measured by resort to baumé gravity. ohio oil co. _v._ conway, u.s. ( ). _chain stores:_ a privilege tax graduated according to the number of stores maintained, state tax comr's. _v._ jackson, u.s. ( ); fox _v._ standard oil co., u.s. ( ); a license tax based on the number of stores both within and without the state, great a. & p. tea co. _v._ grosjean, u.s. ( ). _electricity:_ municipal systems may be exempted, puget sound power & light co. _v._ seattle, u.s. ( ); that portion of electricity produced which is used for pumping water for irrigating lands may be exempted, utah power & light co. _v._ pfost, u.s. ( ). _insurance companies:_ license tax measured by gross receipts upon domestic life insurance companies from which fraternal societies having lodge organizations and insuring lives of members only are exempt, and similar foreign corporations are subject to a fixed and comparatively slight fee for the privilege of doing local business of the same kind. northwestern mutual l. ins. co. _v._ wisconsin, u.s. ( ). _oleomargarine:_ classified separately from butter. magnano co. _v._ hamilton, u.s. ( ). _peddlers:_ classified separately from other vendors. caskey baking co. _v._ virginia, u.s. ( ). _public utilities:_ a gross receipts tax at a higher rate for railroads than for other public utilities, ohio tax cases, u.s. ( ); a gasoline storage tax which places a heavier burden upon railroads than upon common carriers by bus, nashville c. & st. l. co. _v._ wallace, u.s. ( ); a tax on railroads measured by gross earnings from local operations, as applied to a railroad which received a larger net income than others from the local activity of renting, and borrowing cars, illinois central r. co. _v._ minnesota, u.s. ( ); a gross receipts tax applicable only to public utilities, including carriers, the proceeds of which are used for relieving the unemployed, new york rapid transit corp. _v._ new york, u.s. ( ). _wine:_ exemption of wine from grapes grown in the state while in the hands of the producer. cox _v._ texas, u.s. ( ). laws imposing miscellaneous license fees have been upheld as follows: _cigarette dealers:_ taxing retailers and not wholesalers. cook _v._ marshall county, u.s. ( ). _commission merchants:_ requirements that dealers in farm products on commission procure a license, payne _v._ kansas, u.s. ( ). _elevators and warehouses:_ license limited to certain elevators and warehouses on right-of-way of railroad, cargill co. _v._ minnesota, u.s. ( ); a license tax applicable only to commercial warehouses where no other commercial warehousing facilities in township subject to tax, independent warehouse inc. _v._ scheele, u.s. ( ). _laundries:_ exemption from license tax of steam laundries and women engaged in the laundry business where not more than two women are employed. quong wing _v._ kirkendall, u.s. ( ). _merchants:_ exemption from license tax measured by amount of purchases, of manufacturers within the state selling their own product. armour & co. _v._ virginia, u.s. ( ). _sugar refineries:_ exemption from license applicable to refiners of sugar and molasses of planters and farmers grinding and refining their own sugar and molasses. american sugar refining co. _v._ louisiana, u.s. ( ). _theaters:_ license graded according to price of admission. metropolis theatre co. _v._ chicago, u.s. ( ). _wholesalers of oil:_ occupation tax on wholesalers in oil not applicable to wholesalers in other products. southwestern oil co. _v._ texas, u.s. ( ). [ ] bell's gap r. co. _v._ pennsylvania, u.s. , ( ). [ ] quong wing _v._ kirkendall, u.s. , ( ). _see also_ hammond packing co. _v._ montana, u.s. ( ). [ ] puget sound power & light co. _v._ seattle, u.s. , ( ). [ ] colgate _v._ harvey, u.s. , ( ). [ ] southern r. co. _v._ greene, u.s. , ( ); quaker city cab co. _v._ pennsylvania, u.s. , ( ). [ ] keeney _v._ new york, u.s. , ( ); state tax comrs. _v._ jackson, u.s. , ( ). [ ] giozza _v._ tiernan, u.s. , ( ). [ ] louisville gas & e. co. _v._ coleman, u.s. , ( ). _see also_ bell's gap r. co. _v._ pennsylvania, u.s. , ( ). [ ] stewart dry goods co. _v._ lewis, u.s. ( ). _see also_ valentine _v._ great a. & p. tea co., u.s. ( ). [ ] liggett co. _v._ lee, u.s. ( ). [ ] quaker city cab co. _v._ pennsylvania, u.s. ( ). [ ] state tax comrs. _v._ jackson, u.s. , ( ). [ ] colgate _v._ harvey, u.s. , ( ). [ ] darnell _v._ indiana, u.s. , ( ); farmers & m. sav. bank _v._ minnesota, u.s. , ( ). [ ] morf _v._ bingaman, u.s. , ( ). [ ] baltic min. co. _v._ massachusetts, u.s. , ( ). _see also_ cheney bros. co. _v._ massachusetts, u.s. , ( ). [ ] fire asso. of philadelphia _v._ new york, u.s. , ( ). [ ] hanover f. ins. co. _v._ harding, u.s. , ( ). [ ] southern r. co. _v._ greene, u.s. , ( ). [ ] concordia f. ins. co. _v._ illinois, u.s. ( ). [ ] lincoln nat. life ins. co. _v._ read, u.s. ( ). [ ] wheeling steel corp. _v._ glander, u.s. , , ( ). [ ] royster guano co. _v._ virginia, u.s. ( ). [ ] shaffer _v._ carter, u.s. , , ( ); travis _v._ yale & t. mfg. co., u.s. , , ( ). [ ] welch _v._ henry, u.s. ( ). [ ] magoun _v._ illinois trust & sav. bank, u.s. , , ( ). [ ] billings _v._ illinois, u.s. ( ). [ ] campbell _v._ california, u.s. ( ). [ ] salomon _v._ state tax commission, u.s. ( ). [ ] board of education _v._ illinois, u.s. ( ). [ ] maxwell _v._ bugbee, u.s. ( ). [ ] continental baking co. _v._ woodring, u.s. ( ). [ ] dixie ohio express co. _v._ state revenue commission, u.s. , ( ). [ ] alward _v._ johnson, u.s. ( ). [ ] bekins van lines _v._ riley, u.s. ( ). [ ] morf _v._ bingaman, u.s. ( ). [ ] clark _v._ paul gray, inc., u.s. ( ). [ ] carley & hamilton _v._ snook, u.s. ( ). [ ] aero mayflower transit co. _v._ georgia pub. serv. commission, u.s. ( ). [ ] breedlove _v._ suttles, u.s. ( ). [ ] royster guano co. _v._ virginia, u.s. , ( ). [ ] missouri _v._ dockery, u.s. ( ). [ ] kentucky union co. _v._ kentucky, u.s. , ( ). [ ] sunday lake iron co. _v._ wakefield twp., u.s. ( ); raymond _v._ chicago union traction co., u.s. , , ( ). [ ] coulter _v._ louisville & n.r. co., u.s. ( ). _see also_ chicago, b. & q.r. co. _v._ babcock, u.s. ( ). [ ] charleston assn. _v._ alderson, u.s. ( ). nashville, c. & st. l. ry. _v._ browning, u.s. ( ). [ ] sioux city bridge co. _v._ dakota county, u.s. , ( ). [ ] hillsborough _v._ cromwell, u.s. , ( ). [ ] st. louis-san francisco r. co. _v._ middlekamp, u.s. , ( ). [ ] memphis & c.r. co. _v._ pace, u.s. ( ). [ ] kansas city southern r. co. _v._ road improv. dist., u.s. ( ); thomas _v._ kansas city southern r. co., u.s. ( ). [ ] road improv. dist. _v._ missouri p.r. co., u.s. ( ). [ ] branson _v._ bush, u.s. ( ). [ ] columbus & g.r. co. _v._ miller, u.s. ( ). [ ] buck _v._ bell, u.s. , ( ). [ ] classifications under police regulations have been held valid in the following situations: _advertising:_ discrimination between billboard and newspaper advertising of cigarettes, packer corp. _v._ utah, u.s. ( ); prohibition of advertising signs on motor vehicles, except when used in the usual business of the owner, and not used mainly for advertising, fifth ave. coach co. _v._ new york, u.s. ( ); prohibition of advertising on motor vehicles except notices or advertising of products of the owner, railway express inc. _v._ new york, u.s. ( ); prohibition against sale of articles on which there is a representation of the flag for advertising purposes, except newspapers, periodicals and books; halter _v._ nebraska, u.s. ( ). _amusement:_ prohibition against keeping billiard halls for hire, except in case of hotels having twenty-five or more rooms for use of regular guests. murphy _v._ california, u.s. ( ). _barber shops:_ a law forbidding sunday labor except works of necessity or charity, and specifically forbidding the keeping open of barber shops. petit _v._ minnesota, u.s. ( ). _cattle:_ a classification of sheep, as distinguished from cattle, in a regulation restricting the use of public lands for grazing. bacon _v._ walker, u.s. ( ). _see also_ omaechevarria _v._ idaho, u.s. ( ). _cotton gins:_ in a state where cotton gins are held to be public utilities and their rates regulated, the granting of a license to a cooperative association distributing profits ratably to members and nonmembers does not deny other persons operating gins equal protection when there is nothing in the laws to forbid them to distribute their net earnings among their patrons. corporations commission _v._ lowe, u.s. ( ). _fish processing:_ stricter regulation of reduction of fish to flour or meal than of canning. bayside fish flour co. _v._ gentry, u.s. ( ). _food:_ bread sold in loaves must be of prescribed standard sizes, schmidinger _v._ chicago, u.s. ( ); food preservatives containing boric acid may not be sold, price _v._ illinois, u.s. ( ); lard not sold in bulk must be put up in containers holding one, three or five pounds or some whole multiple thereof, armour & co. _v._ north dakota, u.s. ( ); milk industry may be placed in a special class for regulation, new york ex rel. lieberman _v._ van de carr, u.s. ( ); vendors producing milk outside city may be classified separately, adams _v._ milwaukee, u.s. ( ); producing and nonproducing vendors may be distinguished in milk regulations, st. john _v._ new york, u.s. ( ); different minimum and maximum milk prices may be fixed for distributors and storekeepers; nebbia _v._ new york, u.s. ( ); price differential may be granted for sellers of milk not having a well advertised trade name, borden's farm products co. _v._ ten eyck, u.s. ( ); oleomargarine colored to resemble butter may be prohibited, capital city dairy co. _v._ ohio ex rel. attorney general, u.s. ( ); table syrups may be required to be so labelled and disclose identity and proportion of ingredients, corn products ref. co. _v._ eddy, u.s. ( ). _geographical discriminations:_ legislation limited in application to a particular geographical or political subdivision of a state, ft. smith light & traction co. _v._ board of improvement, u.s. , ( ); ordinance prohibiting a particular business in certain sections of a municipality, hadacheck _v._ sebastian, u.s. ( ); statute authorizing a municipal commission to limit the height of buildings in commercial districts to feet and in other districts to to feet, welch _v._ swasey, u.s. ( ); ordinance prescribing limits in city outside of which no woman of lewd character shall dwell, l'hote _v._ new orleans, u.s. , ( ). _hotels:_ requirement that keepers of hotels having over fifty guests employ night watchmen. miller _v._ strahl, u.s. ( ). _insurance companies:_ regulation of fire insurance rates with exemption for farmers mutuals, german alliance ins. co. _v._ lewis, u.s. ( ); different requirements imposed upon reciprocal insurance associations than upon mutual companies, hoopeston canning co. _v._ cullen, u.s. ( ); prohibition against life insurance companies or agents engaging in undertaking business, daniel _v._ family ins. co., u.s. ( ). _intoxicating liquors:_ exception of druggists or manufacturers from regulation. ohio ex rel. lloyd _v._ dollison, u.s. ( ); eberle _v._ michigan, u.s. ( ). _lodging houses:_ requirement that sprinkler systems be installed in buildings of nonfireproof construction is valid as applied to such a building which is safeguarded by a fire alarm system, constant watchman service and other safety arrangements. queenside hills realty co. _v._ saxl, u.s. ( ). _markets:_ prohibition against operation of private market within six squares of public market. natal _v._ louisiana, u.s. ( ). _medicine:_ a uniform standard of professional attainment and conduct for all physicians, missouri ex rel. hurwitz _v._ north, u.s. ( ); reasonable exemptions from medical registration law, watson _v._ maryland, u.s. ( ); exemption of persons who heal by prayer from regulations applicable to drugless physicians, crane _v._ johnson, u.s. ( ); exclusion of osteopathic physicians from public hospitals, hayman _v._ galveston, u.s. ( ); requirement that persons who treat eyes without use of drugs be licensed as optometrists with exception for persons treating eyes by the use of drugs, who are regulated under a different statute, mcnaughton _v._ johnson, u.s. ( ); a prohibition against advertising by dentists, not applicable to other professions, semler _v._ oregon state dental examiners, u.s. ( ). _motor vehicles:_ guest passenger regulation applicable to automobiles but not to other classes of vehicles, silver _v._ silver, u.s. ( ); exemption of vehicles from other states from registration requirement, storaasli _v._ minnesota, u.s. ( ); classification of driverless automobiles for hire as public vehicles, which are required to procure a license and to carry liability insurance, hodge drive-it-yourself co. _v._ cincinnati, u.s. ( ); exemption from limitations on hours of labor for drivers of motor vehicles of carriers of property for hire, of those not principally engaged in transport of property for hire, and carriers operating wholly in metropolitan areas, welch co. _v._ new hampshire, u.s. ( ); exemption of busses and temporary movements of farm implements and machinery and trucks making short hauls from common carriers from limitations in net load and length of trucks, sproles _v._ binford, u.s. ( ); prohibition against operation of uncertified carriers, bradley _v._ public utilities commission, u.s. ( ); exemption from regulations affecting carriers for hire, of persons whose chief business is farming and dairying, but who occasionally haul farm and dairy products for compensation, hicklin _v._ coney, u.s. ( ); exemption of private vehicles, street cars and omnibuses from insurance requirements applicable to taxicabs, packard _v._ banton, u.s. ( ). _peddlers and solicitors:_ a state may classify and regulate itinerant vendors and peddlers, emert _v._ missouri, u.s. ( ); may forbid the sale by them of drugs and medicines, baccus _v._ louisiana, u.s. ( ); prohibit drumming or soliciting on trains for business for hotels, medical practitioners, etc., williams _v._ arkansas, u.s. ( ); or solicitation of employment to prosecute or collect claims, mccloskey _v._ tobin, u.s. ( ). and a municipality may prohibit canvassers or peddlers from calling at private residences unless requested or invited by the occupant to do so. breard _v._ alexandria, u.s. ( ). _property destruction:_ destruction of cedar trees to protect apple orchards from cedar rust. miller _v._ schoene, u.s. ( ). _railroads:_ forbid operation on a certain street, richmond, f. & p.r. co. _v._ richmond, u.s. ( ); require fences and cattle guards and allowed recovery of multiple damages for failure to comply, missouri p.r. co. _v._ humes, u.s. ( ); minneapolis & st. l.r. co. _v._ beckwith, u.s. ( ); minneapolis & st. l.r. co. _v._ emmons, u.s. ( ); charge them with entire expense of altering a grade crossing, new york & n.e.r. co. _v._ bristol, u.s. ( ); makes them responsible for fire communicated by their engines, st. louis & s.f.r. co. _v._ mathews, u.s. ( ); requires cutting of certain weeds, missouri, k. & t.r. co. _v._ may, u.s. ( ); create a presumption against a railroad failing to give prescribed warning signals, atlantic coast line r. co. _v._ ford, u.s. ( ); require use of locomotive headlights of a specified form and power, atlantic coast line r. co. _v._ georgia, u.s. ( ); make railroads liable for damage caused by operation of their locomotives, unless they make it appear that their agents exercised all ordinary and reasonable care and diligence, seaboard air line r. co. _v._ watson, u.s. ( ); require sprinkling of streets between tracks to lay the dust, pacific gas & electric co. _v._ police court, u.s. ( ). _sales in bulk:_ requirement of notice of bulk sale applicable only to retail dealers. lemieux _v._ young, u.s. ( ). _secret societies:_ regulations applied only to one class of oath-bound associations, having a membership of or more persons, where the class regulated has a tendency to make the secrecy of its purpose and membership a cloak for conduct inimical to the personal rights of others and to the public welfare. new york ex rel. bryant _v._ zimmerman, u.s. ( ). _securities:_ a prohibition on the sale of capital stock on margin or for future delivery which is not applicable to other objects of speculation, e.g., cotton, grain. otis _v._ parker, u.s. ( ). _syndicalism:_ a criminal syndicalism statute does not deny equal protection in penalizing those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions while not penalizing those who advocate resort to such methods for maintaining such conditions. whitney _v._ california, u.s. ( ). _telegraph companies:_ a statute prohibiting stipulation against liability for negligence in the delivery of interstate message, which did not forbid express companies and other common carriers to limit their liability by contract. western union teleg. co. _v._ commercial milling co., u.s. ( ). [ ] hartford steam boiler inspection & ins. co. _v._ harrison, u.s. ( ). [ ] smith _v._ cahoon, u.s. ( ). [ ] mayflower farms _v._ ten eyck, u.s. ( ). [ ] buck _v._ bell, u.s. ( ). [ ] skinner _v._ oklahoma, u.s. ( ). [ ] yick wo _v._ hopkins, u.s. ( ). [ ] fisher _v._ st. louis, u.s. ( ). [ ] gorieb _v._ fox, u.s. ( ). [ ] wilson _v._ eureka city, u.s. ( ). [ ] gundling _v._ chicago, u.s. ( ). [ ] kotch _v._ pilot comm'rs., u.s. ( ). [ ] yick wo _v._ hopkins, u.s. ( ). _cf._ hirabayashi _v._ united states, u.s. ( ), where the court sustained the relocation of american citizens of japanese ancestry on the ground that in this case the fact of origin might reasonably be deemed to have some substantial relation to national security. it was careful to point out however, that normally distinctions based on race or national origin are invidious and hence void. [ ] ohio ex rel. clarke _v._ deckebach, u.s. ( ). [ ] patsone _v._ pennsylvania, u.s. ( ). [ ] heim _v._ mccall, u.s. ( ); crane _v._ new york, u.s. ( ). [ ] truax _v._ raich, u.s. ( ). [ ] takahashi _v._ fish & game comm'n., u.s. ( ). [ ] terrace _v._ thompson, u.s. ( ). [ ] u.s. ( ). [ ] ibid. , . [ ] holden _v._ hardy, u.s. ( ). [ ] bunting _v._ oregon, u.s. ( ). [ ] atkin _v._ kansas, u.s. ( ). [ ] keokee consol. coke co. _v._ taylor, u.s. ( ); _see also_ knoxville iron co. _v._ harbison, u.s. ( ). [ ] mclean _v._ arkansas, u.s. ( ). [ ] prudential insurance co. _v._ cheek, u.s. ( ). [ ] chicago, r.i. & p.r. co. _v._ perry, u.s. ( ). [ ] mountain timber co. _v._ washington, u.s. ( ). [ ] new york c.r. co. _v._ white, u.s. ( ); middleton _v._ texas power & light co., u.s. ( ); ward & gow _v._ krinsky, u.s. ( ). [ ] lincoln federal labor union _v._ northwestern co., u.s. ( ). [ ] miller _v._ wilson, u.s. ( ); bosley _v._ mclaughlin, u.s. ( ). [ ] muller _v._ oregon, u.s. ( ). [ ] dominion hotel _v._ arizona, u.s. ( ). [ ] radice _v._ new york, u.s. ( ). [ ] west coast hotel co. _v._ parrish, u.s. ( ); overruling adkins _v._ children's hospital, u.s. ( ); and morehead _v._ tipaldo, u.s. ( ). [ ] goesaert _v._ cleary, u.s. ( ). [ ] ibid. . [ ] mallinckrodt chemical works _v._ missouri ex rel. jones, u.s. ( ). [ ] international harvester co. _v._ missouri ex rel. atty. gen., u.s. ( ). [ ] tigner _v._ texas, u.s. ( ), overruling connolly _v._ union sewer pipe co., u.s. ( ). [ ] standard oil co. _v._ tennessee ex rel. cates, u.s. ( ). [ ] carroll _v._ greenwich ins. co., u.s. ( ). [ ] pacific states box & basket co. _v._ white, u.s. ( ). _see also_ slaughter-house cases, wall. ( ); nebbia _v._ new york, u.s. , ( ). [ ] pace _v._ alabama, u.s. ( ). [ ] collins _v._ johnston, u.s. , ( ); pennsylvania ex rel. sullivan _v._ ashe, u.s. ( ). [ ] mcdonald _v._ massachusetts, u.s. ( ). _see also_ moore _v._ missouri, u.s. ( ); graham _v._ west virginia, u.s. ( ). [ ] carlesi _v._ new york, u.s. ( ). [ ] ughbanks _v._ armstrong, u.s. ( ). [ ] pennsylvania ex rel. sullivan _v._ ashe, u.s. ( ). [ ] finley _v._ california, u.s. ( ). [ ] minnesota _v._ probate court, u.s. ( ). [ ] pace _v._ alabama, u.s. ( ). [ ] francis _v._ resweber, u.s. ( ). [ ] skinner _v._ oklahoma, u.s. ( ). _cf._ buck _v._ bell, u.s. ( ). (sterilization of defectives.) [ ] buchanan _v._ warley, u.s. ( ). [ ] corrigan _v._ buckley, u.s. ( ). [ ] shelley _v._ kraemer, u.s. ( ). _cf._ hurd _v._ hodge, u.s. ( ), where the court held that a restrictive covenant was unenforceable in the federal court of the district of columbia for reasons of public policy. [ ] plessy _v._ ferguson, u.s. ( ). _cf._ morgan _v._ virginia, u.s. ( ), where a state statute requiring segregation of passengers on interstate journeys was held to be an unlawful restriction on interstate commerce. _see also_ hall _v._ de cuir, u.s. ( ), where a state law forbidding steamboats on the mississippi to segregate passengers according to race was held unconstitutional under the commerce clause, and bob-lo excursion co. _v._ michigan, u.s. ( ), where a michigan statute forbidding discrimination was held valid as applied to an excursion boat operating on the detroit river; and henderson _v._ united states, u.s. ( ), where segregation in a dining car operated by an interstate railroad was held to violate a federal statute. [ ] mccabe _v._ atchison, t. & s.f.r. co., u.s. ( ). [ ] cumming _v._ county board of education, u.s. ( ). [ ] gong lum _v._ rice, u.s. ( ). [ ] u.s. ( ). [ ] sipuel _v._ oklahoma, u.s. ( ). [ ] fisher _v._ hurst, u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). the "separate but equal" doctrine took its rise in chief justice shaw's opinion in roberts _v._ city of boston, mass. , ( ), for an excellent account of which _see_ the article by leonard w. levy and harlan b. phillips in american historical review, - (april, ). _see also_ judge danforth's opinion in gallagher _v._ king, n.y. ( ). in a case in which negro children brought a suit in the federal district court for the eastern district of south carolina, to enjoin certain school officials from making any distinctions based upon race or color in providing educational facilities, the court found that statutes of south carolina which required separate schools for the two races did not of themselves violate the fourteenth amendment, but ordered the school officials to proceed at once to furnish equal educational facilities and to report to the court within six months as to the action taken. on appeal to the supreme court the case was remanded for further proceedings in order that the supreme court may "have the benefit of the views of the district court upon the additional facts brought to the attention of that court in the report which it ordered." briggs _v._ elliott, u.s. , ( ). recently, the fourth united states circuit court of appeals, sitting at richmond, ruled that negroes must be admitted to the white university of north carolina law school in terms which flatly rejected the thesis of separate but equal facilities. "it is a definite handicap to the colored student to confine his association in the law school with people of his own class," said the opinion of judge morris a. soper.--mckissick _v._ carmichael, f. d , ( ). [ ] guinn _v._ united states, u.s. ( ). [ ] williams _v._ mississippi, u.s. ( ). [ ] giles _v._ harris, u.s. , ( ). [ ] lane _v._ wilson, u.s. , ( ). [ ] _see_ p. , _ante_. [ ] nixon _v._ herndon, u.s. ( ). [ ] nixon _v._ condon, u.s. , ( ). [ ] grovey _v._ townsend, u.s. ( ). [ ] united states _v._ classic, u.s. ( ). [ ] u.s. ( ). [ ] pope _v._ williams, u.s. ( ). [ ] u.s. ( ). [ ] u.s. , ( ). justice black dissented on the ground that the equal protection clause was violated. [ ] u.s. , , ( ). justice douglas, with whom justices black and murphy concurred, dissented saying that the statute lacked "the equality to which the exercise of political rights is entitled under the fourteenth amendment." [ ] south _v._ peters, u.s. ( ). [ ] dohany _v._ rogers, u.s. , ( ). [ ] hayes _v._ missouri, u.s. ( ). [ ] hardware dealers mut. f. ins. co. _v._ glidden co., u.s. ( ). [ ] lindsley _v._ natural carbonic gas co., u.s. , , ( ); _see also_ mobile, j. & k.c.r. co. _v._ turnipseed, u.s. ( ); adams _v._ new york, u.s. ( ). [ ] cohen _v._ beneficial loan corp., u.s. , ( ). [ ] bowman _v._ lewis, u.s. , ( ). _see also_ duncan _v._ missouri, u.s. ( ); ohio ex rel. bryant _v._ akron metropolitan park dist, u.s. ( ). [ ] mallett _v._ north carolina, u.s. ( ); _see also_ bowman _v._ lewis, u.s. , ( ). [ ] truax _v._ corrigan, u.s. ( ). [ ] cochran _v._ kansas, u.s. ( ). [ ] bain peanut co. _v._ pinson, u.s. ( ). [ ] consolidated rendering co. _v._ vermont, u.s. ( ). _see also_ hammond packing co. _v._ arkansas, u.s. ( ). [ ] power mfg. co. _v._ saunders, u.s. ( ). [ ] kentucky finance corp. _v._ paramount auto exch. corp., u.s. ( ). [ ] fidelity mut. life asso. _v._ mettler, u.s. , ( ). _see also_ manhattan l. ins. co. _v._ cohen, u.s. ( ). [ ] lowe _v._ kansas, u.s. ( ). [ ] missouri, k. & t.r. co. _v._ cade, u.s. ( ); _see also_ missouri, k. & t.r. co. _v._ harris, u.s. ( ). [ ] missouri p.r. co. _v._ larabee, u.s. ( ). [ ] atchison, t. & s.f.r. co. _v._ matthews, u.s. ( ). [ ] gulf, c. & s.f.r. co. _v._ ellis, u.s. ( ). _see also_ atchison, t. & s.f.r. co. _v._ vosburg, u.s. ( ). [ ] stat. ( ); u.s.c. § ( ). [ ] cassell _v._ texas, u.s. ( ); hill _v._ texas, u.s. , ( ); smith _v._ texas, u.s. ( ); pierre _v._ louisiana, u.s. ( ); virginia _v._ rives, u.s. ( ). [ ] virginia _v._ rives, u.s. , , ( ). [ ] akins _v._ texas, u.s. , ( ). [ ] patton _v._ mississippi, u.s. ( ). _see also_ shepherd _v._ florida, u.s. ( ). [ ] gibson _v._ mississippi, u.s. ( ). [ ] rawlins _v._ georgia, u.s. ( ). [ ] u.s. ( ). in an interesting footnote to his opinion, justice jackson asserted that "it is unnecessary to decide whether the equal protection clause of the fourteenth amendment might of its own force prohibit discrimination on account of race in the selection of jurors, so that such discrimination would violate the due process clause of the same amendment." ibid. . earlier cases dealing with racial discrimination have indicated that the discrimination was forbidden by the equal protection clause as well as by the civil rights act of . _see_ cases cited to the preceding paragraph. [transcriber's note: reference is to section "selection of jury", above.] [ ] ibid. . [ ] ibid. , . [ ] ibid. . [ ] ibid. , , , . four justices, speaking by justice murphy dissented, saying: "the proof here is adequate enough to demonstrate that this panel, like every discriminatorily selected 'blue ribbon' panel, suffers from a constitutional infirmity. that infirmity is the denial of equal protection to those who are tried by a jury drawn from a 'blue ribbon' panel. such a panel is narrower and different from that used in forming juries to try the vast majority of other accused persons. to the extent of that difference, therefore, the persons tried by 'blue ribbon' juries receive unequal protection." "in addition, as illustrated in this case, the distinction that is drawn in fact between 'blue ribbon' jurors and general jurors is often of such a character as to destroy the representative nature of the 'blue ribbon' panel. there is no constitutional right to a jury drawn from a group of uneducated and unintelligent persons. nor is there any right to a jury chosen solely from those at the lower end of the economic and social scale. but there is a constitutional right to a jury drawn from a group which represents a cross-section of the community. and a cross-section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. under our constitution, the jury is not to be made the representative of the most intelligent, the most wealthy or the most successful, nor of the least intelligent, the least wealthy or the least successful. it is a democratic institution, representative of all qualified classes of people. * * * to the extent that a 'blue ribbon' panel fails to reflect this democratic principle, it is constitutionally defective." [ ] u.s. , ( ). [ ] w.g. rice, esq., jr., university of wisconsin law school, the position of the american indian in the law of the united states, journal of comp. leg. , ( ). [ ] op. atty. gen. , . [ ] stat. ; stat. ; u.s.c.a. § a (a). [ ] cong. rec., th cong., st sess., vol. , p. , january , . [ ] mcpherson _v._ blacker, u.s. ( ); ex parte yarbrough, u.s. , ( ). [ ] saunders _v._ wilkins, f. ( d) ( ); certiorari denied, u.s. ( ); rehearing denied, u.s. ( ). [ ] saunders _v._ wilkins, f. ( d) , - , citing willoughby, constitution, d ed., pp. , . [ ] legislation by congress providing for removal was necessary to give effect to the prohibition of section ; and until removed in pursuance of such legislation, the exercise of functions by persons in office before promulgation of the fourteenth amendment was not unlawful. (griffin's case, fed. cas. no. ( )). nor were persons who had taken part in the civil war and had been pardoned therefor by the president before the adoption of this amendment precluded by this section from again holding office under the united states. ( op. atty. gen. ( )). the phrase, "engaged in rebellion" has been construed as implying a voluntary effort to assist an insurrection and to bring it to a successful termination; and accordingly as not embracing acts done under compulsion of force or of a well grounded fear of bodily harm. thus, while the mere holding of a commission of justice of the peace under the confederate government was not viewed as involving, of itself, "adherence or countenance to the rebellion," action by such officer in furnishing a substitute for himself to the confederate army amounted to such participation in a rebellion unless said action could be shown to have resulted from fear of conscription and to have sprung, not from repugnance to military service, but from want of sympathy with the insurrectionary movement. (united states _v._ powell, fed. cas. no. , ( )). [ ] perry _v._ united states, u.s. , ( ) in which the court concluded "that the joint resolution of june , , insofar as it attempted to override" the gold-clause obligation in a fourth liberty loan gold bond, "went beyond the congressional power." _see also_ branch _v._ haas, f. ( ), citing hanauer _v._ woodruff, wall. ( ) and thorington _v._ smith, wall. ( ) in which it was held that inasmuch as bonds issued by the confederate states were rendered illegal by section four, a contract for the sale and delivery before october , of confederate coupon bonds at the rate of $ was void, and a suit for damages for failure to deliver could not be maintained. _see also_ the pietro campanella, f. supp. ( ) which arose out of a suit for the forfeiture, prior to our entry into world war ii, of italian vessels in an american port and their subsequent requisition by the maritime commission. the attorney general, as successor to the alien property custodian, was declared to be entitled to the fund thereafter determined to be due as compensation for the use and subsequent loss of the vessels; and the order of the alien property custodian vesting in himself, for the united states, under authority of the trading with the enemy act and executive order, all rights of claimants in the vessels and to the fund substituted therefor was held not to be a violation of section four. an attorney for certain of the claimants, who had asserted a personal right to a lien upon the fund for his services, had argued that when the government requisitioned ships under the applicable statute providing for compensation, and at a time before this country was at war with italy, the united states entered into a binding agreement with the owners for compensation and that this promise constituted a valid obligation of the united states which could not be repudiated without violating section four. [ ] civil rights cases, u.s. , ( ). _see also_ united states _v._ wheeler, u.s. ( ) on which it was held that the united states is without power to punish infractions by individuals of the right of citizen to reside peacefully in the several states, and to have free ingress into and egress from such states. authority to deal with the forcible eviction by a mob of individuals across state boundaries is exclusively within the power reserved by the constitution to the states. [ ] virginia _v._ rives, u.s. , ( ); strauder _v._ west virginia, u.s. ( ). [ ] ex parte virginia, u.s. , ( ). [ ] united states _v._ harris, u.s. ( ). _see also_ baldwin _v._ franks, u.s. , ( ). [ ] u.s. ( ). [ ] u.s.c.a. § . [ ] no "opinion of the court" was given. in announcing the judgment of the court, justice douglas, who was joined by chief justice stone and justices black and reed, declared that the trial judge had erred in not charging the jury that the defendants must be found to have had the specific intention of depriving their victim of his right to a fair trial in accordance with due process of law, that this was the force of the word, "willfully," in section , and that any other construction of section would be void for want of laying down an "ascertainable standard of guilt." to avoid a stalemate on the court, justice rutledge concurred in the result; but, on the merits of the case, he would have affirmed the conviction. justice murphy announced that he favored affirming the conviction and therefore dissented. justice roberts, with whom justices frankfurter and jackson were associated, dissented for reasons stated in the text. [ ] u.s. , ( ). [ ] u.s. , ( ). [ ] u.s. , - ( ). _but see_ barney _v._ city of new york, u.s. , , ( ). [ ] ibid. - . the majority supporting this proposition was not the same majority as the one which held that "state" action was involved. [ ] u.s. ( ). [ ] ibid. - . [ ] u.s. . [ ] ibid. - . amendment right of citizens to vote page affirmative interpretation negative application; the "grandfather clause" application to party primaries enforcement amendment .--right of citizens to vote amendment section . the right of citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of race, color, or previous condition of servitude. section . the congress shall have power to enforce this article by appropriate legislation. affirmative interpretation in its initial appraisals of this amendment the court appeared disposed to emphasize only its purely negative aspects. "the fifteenth amendment," it announced, did "not confer the right * * * [to vote] upon any one," but merely "invested the citizens of the united states with a new constitutional right which is * * * exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude."[ ] within less than ten years, however, in ex parte yarbrough,[ ] the court ventured to read into the amendment an affirmative as well as a negative purpose. conceding "that this article" had originally been construed as giving "no affirmative right to the colored man to vote," and as having been "designed primarily to prevent discrimination against him," justice miller, in behalf of his colleagues, disclosed their present ability "to see that under some circumstances it may operate as the immediate source of a right to vote. in all cases where the former slave-holding states had not removed from their constitutions the words 'white man' as a qualification for voting, this provision did, in effect, confer on him the right to vote, because, * * *, it annulled the discriminating word _white_, and thus left him in the enjoyment of the same right as white persons. and such would be the effect of any future constitutional provision of a state which should give the right of voting exclusively to white people, * * *" negative application; the "grandfather clause" the subsequent history of the fifteenth amendment has been largely a record of belated judicial condemnation of various attempts by states to disfranchise the negro either overtly through statutory enactment, or covertly through inequitable administration of their electoral laws or by toleration of discriminatory membership practices of political parties. of several devices which have been voided, one of the first to be held unconstitutional was the "grandfather clause." without expressly disfranchising the negro, but with a view to facilitating the permanent placement of white residents on the voting lists while continuing to interpose severe obstacles upon negroes seeking qualification as voters, several states, beginning in , enacted temporary laws whereby persons who were voters, or descendants of voters on january , , could be registered notwithstanding their inability to meet any literacy requirements. unable because of the date to avail themselves of the same exemption, negroes were thus left exposed to disfranchisement on grounds of illiteracy while whites no less illiterate were enabled to become permanent voters. with the achievement of this intended result, most states permitted their laws to lapse; but oklahoma's grandfather clause was enacted as a permanent amendment to the state constitution; and when presented with an opportunity to pass on its validity, a unanimous court condemned the standard of voting thus established as recreating and perpetuating "the very conditions which the [fifteenth] amendment was intended to destroy."[ ] nor, when oklahoma followed up this defeat with a statute of which provided that all persons, except those who voted in , who were qualified to vote in but who failed to register between april and may , (sick persons and persons absent had a second opportunity to register between may and june , ) should be perpetually disfranchised, did the court experience any difficulty in holding the same to be repugnant to the amendment.[ ] that amendment, justice frankfurter declared, "nullifies sophisticated as well as simple-minded modes of discrimination. it hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race."[ ] more precisely, the effect of this statute, as discerned by the court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registry lists in by virtue of the hitherto invalidated grandfather clause; whereas negroes, prevented from registering by that clause, were afforded only a twenty-day registration opportunity to avoid permanent disfranchisement. application to party primaries indecision was displayed by the court, however, when it was first called upon to deal with the exclusion of negroes from participation in primary elections.[ ] prior to its becoming convinced that primary contests were in fact elections,[ ] the court had relied upon the equal protection clause to strike down a texas white primary law[ ] and a subsequent texas statute which contributed to a like exclusion by limiting voting in primaries to members of state political parties as determined by the central committees thereof.[ ] when exclusion of negroes was thereafter perpetuated by political parties acting not in obedience to any statutory command, this discrimination was for a time viewed as not constituting state action and therefore not prohibited by either the fourteenth or the fifteenth amendments.[ ] but this holding was reversed nine years later when the court, in smith _v._ allwright,[ ] declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a state agency, and hence may not under this amendment exclude negroes from such elections. at a very early date the court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face, and in the absence of proof of discriminatory enforcement could not be viewed as denying the equal protection of the laws guaranteed by the fourteenth amendment.[ ] more recently, the boswell amendment to the constitution of alabama, which provided that only persons who understood and could explain the constitution of the united states to the reasonable satisfaction of boards of registrars was found, both in its object as well as in the manner of its administration, to be contrary to the fifteenth amendment. the legislative history of the adoption of the alabama provision disclosed that "the ambiguity inherent in the phrase 'understand and explain' * * * was purposeful * * * and was intended as a grant of arbitrary power in an attempt to obviate the consequences of" smith _v._ allwright.[ ] enforcement two major questions have presented themselves for decision as a consequence of the exercise by congress of its powers to enforce this article, an amendment which the court has acknowledged to be self-executing.[ ] these have pertained to the limitations which the amendment imposes on the competency of congress legislating thereunder to punish racial discrimination founded upon more than a denial of suffrage and to penalize such denials when perpetrated by private individuals not acting under color of public authority. rulings on both these issues were made very early; and the court thus far has manifested no disposition to depart from them, although their compatibility with more recent holdings may be doubtful. thus, when the enforcement act of ,[ ] which penalized state officers for refusing to receive the vote of any qualified citizen, was employed to support a prosecution of such officers for having prevented a qualified negro from voting, the court held it to be in excess of the authority conferred upon congress.[ ] the fifteenth amendment, chief justice waite maintained, did not confer "authority to impose penalties for every wrongful refusal to receive * * * [a] vote * * *, [but] only when the wrongful refusal * * * is because of race, color, or previous condition of servitude, * * *" voided for the like reason that this amendment "relates solely to action 'by the united states or by any state,' and does not contemplate wrongful individual acts" was another provision of the same act, which authorized prosecution of private individuals for having prevented citizens from voting at a congressional election.[ ] notes [ ] united states _v._ reese, u.s. , - ( ); united states _v._ cruikshank, u.s. , ( ). [ ] u.s. , ( ); citing neal _v._ delaware, u.s. , ( ). this affirmative view was later reiterated in guinn _v._ united states, u.s. , ( ). [ ] guinn _v._ united states, u.s. , , - ( ). [ ] lane _v._ wilson, u.s. ( ). [ ] ibid. . [ ] cases involving this and related issues are also discussed under the equal protection clause, p. . [ ] united states _v._ classic, u.s. ( ); smith _v._ allwright, u.s. ( ). [ ] nixon _v._ herndon, u.s. ( ). [ ] nixon _v._ condon, u.s. , ( ). [ ] grovey _v._ townsend, u.s. , ( ). [ ] u.s. ( ). notwithstanding that the south carolina legislature, after the decision in smith _v._ allwright, repealed all statutory provisions regulating primary elections and political organizations conducting them, a political party thus freed of control is not to be regarded as a private club and for that reason exempt from the constitutional prohibitions against racial discrimination contained in the fifteenth amendment. rice _v._ elmore, f. ( d) ( ); certiorari denied, u.s. ( ). _see also_ brown _v._ baskin, f. supp. , ( ) which held violative of the fifteenth amendment a requirement of a south carolina political party, which excluded negroes from membership, that white as well as negro qualified voters, as a prerequisite for voting in its primary, take an oath that they will support separation of the races. [ ] williams _v._ mississippi, u.s. , ( ). [ ] davis _v._ schnell, f. supp. , , ( ); affirmed, u.s. ( ). [ ] united states _v._ amsden, f. ( ). [ ] stat. . [ ] united states _v._. reese, u.s. , ( ). [ ] james _v._ bowman, u.s. , ( ) _see also_ karem _v._ united states, f. , ( ). amendment income tax page history and purpose of the amendment meaning of income as distinguished from capital corporate dividends: when taxable as income the "stock dividends case" other corporate earnings or receipts: when taxable as income gains in the form of real estate: when taxable as income gains in the form of bequests: when taxable as income diminution of loss: not income dates applicable in computation of taxable gains deductions: exemptions, etc. illegal gains as income income tax amendment the congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration. history and purpose of the amendment the ratification of this amendment was the direct consequence of the decision in [ ] whereby the attempt of congress the previous year to tax incomes uniformly throughout the united states[ ] was held by a divided court to be unconstitutional. a tax on incomes derived from property,[ ] the court declared, was a "direct tax" which congress under the terms of article i, section , clause , and section , clause , could impose only by the rule of apportionment according to population; although scarcely fifteen years prior the justices had unanimously sustained[ ] the collection of a similar tax during the civil war,[ ] the only other occasion preceding amendment sixteen in which congress had ventured to utilize this method of raising revenue.[ ] during the interim between the pollock decision in , and the ratification of the sixteenth amendment in , the court gave evidence of a greater awareness of the dangerous consequences to national solvency which that holding threatened, and partially circumvented it, either by taking refuge in redefinitions of "direct tax" or, and more especially, by emphasizing, virtually to the exclusion of the former, the history of excise taxation. thus, in a series of cases, notably nicol v. ames,[ ] knowlton _v._ moore[ ] and patton _v._ brady[ ] the court held the following taxes to have been levied merely upon one of the "incidents of ownership" and hence to be excises; a tax which involved affixing revenue stamps to memoranda evidencing the sale of merchandise on commodity exchanges, an inheritance tax, and a war revenue tax upon tobacco on which the hitherto imposed excise tax had already been paid and which was held by the manufacturer for resale. thanks to such endeavors the court thus found it possible, in ,[ ] to sustain a corporate income tax as an excise "measured by income" on the privilege of doing business in corporate form. the adoption of the sixteenth amendment, however, put an end to speculation as to whether the court, unaided by constitutional amendment, would persist along these lines of construction until it had reversed its holding in the pollock case. indeed, in its initial appraisal[ ] of the amendment it classified income taxes as being inherently "indirect." "the command of the amendment that all income taxes shall not be subject to apportionment by a consideration of the sources from which the taxed income may be derived, forbids the application to such taxes of the rule applied in the pollock case by which alone such taxes were removed from the great class of excises, duties, and imposts subject to the rule of uniformity and were placed under the other or direct class.[ ] * * * the sixteenth amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged * * *"[ ] meaning of "income" as distinguished from capital building upon definitions formulated in cases construing the corporation tax act of ,[ ] the court initially described income as the "gain derived from capital, from labor, or from both combined," inclusive of the "profit gained through a sale or conversion of capital assets";[ ] and in the following array of factual situations has subsequently applied this definition to achieve results that have been productive of extended controversy. corporate dividends: when taxable as income rendered in conformity with the belief that all income "in the ordinary sense of the word" became taxable under the sixteenth amendment, the earliest decisions of the court on the taxability of corporate dividends occasioned little comment. emphasizing that in all such cases the stockholder is to be viewed as "a different entity from the corporation," the court in lynch _v._ hornby[ ] held that a cash dividend equal to % of the par value of outstanding stock and made possible largely by the conversion into money of assets earned prior to the adoption of the amendment, was income taxable to the stockholder for the year in which he received it, notwithstanding that such an extraordinary payment might appear "to be a mere realization in possession of an inchoate and contingent interest * * * [of] the stockholder * * * in a surplus of corporate assets previously existing." in peabody _v._ eisner,[ ] decided on the same day and deemed to have been controlled by the preceding case, the court ruled that a dividend paid in the stock of another corporation, although representing earnings that had accrued before ratification of the amendment, was also taxable to the shareholder as income. the dividend was likened to a distribution in specie. the "stock dividends case" two years later the court decided eisner _v._ macomber,[ ] and the controversy which that decision precipitated still endures. departing from the interpretation placed upon the sixteenth amendment in the earlier cases; namely, that the purpose of the amendment was to correct the "error" committed in the pollock case and to restore income taxation to "the category of indirect taxation to which it inherently belonged," justice pitney, who delivered the opinion in the eisner case, indicated that the sole purpose of the sixteenth amendment was merely to "remove the necessity which otherwise might exist for an apportionment among the states of taxes laid on income." he thereupon undertook to demonstrate how what was not income, but an increment of capital when received, could later be transmitted into income upon sale or conversion, and could be taxed as such without the necessity of apportionment. in short, the term "income" reacquired to some indefinite extent a restrictive significance. specifically, the justice held that a stock dividend was capital when received by a stockholder of the issuing corporation and did not become taxable without apportionment; that is, as "income," until sold or converted, and then only to the extent that a gain was realized upon the proportion of the original investment which such stock represented. "a stock dividend," justice pitney maintained, "far from being a realization of profits to the stockholder, * * * tends rather to postpone such realization, in that the fund represented by the new stock has been transferred from surplus to capital, and no longer is available for actual distribution. * * * not only does a stock dividend really take nothing from * * * the corporation and add nothing to that of the shareholder, but * * * the antecedent accumulation of profits evidenced thereby, while indicating that the shareholder is richer because of an increase of his capital, at the same time shows [that] he has not realized or received any income in" what is no more than a "bookkeeping transaction." but conceding that a stock dividend represented a gain, the justice concluded that the only gain taxable as "income" under the amendment was "a gain, a profit, something of exchangeable value _proceeding from_ the property, _severed from_ the capital however invested or employed, and _coming in_, being '_derived_,' that is, _received_ or _drawn by_ the recipient [the taxpayer] for his _separate_ use, benefit, and disposal; * * *." only the latter, in his opinion, answered the description of income "derived" from property; whereas "a gain accruing to capital, not a _growth_ or an _increment_ of value _in_ the investment" did not.[ ] although steadfastly refusing to depart from the principle[ ] which it asserted in eisner _v._ macomber, the court in subsequent decisions has, however, slightly narrowed the application thereof. thus, the distribution, as a dividend, to stockholders of an existing corporation of the stock of a new corporation to which the former corporation, under a reorganization, had transferred all its assets, including a surplus of accumulated profits, was treated as taxable income. the fact that a comparison of the market value of the shares in the older corporation immediately before, with the aggregate market value of those shares plus the dividend shares immediately after, the dividend showed that the stockholders experienced no increase in aggregate wealth was declared not to be a proper test for determining whether taxable income had been received by these stockholders.[ ] on the other hand, no taxable income was held to have been produced by the mere receipt by a stockholder of rights to subscribe for shares in a new issue of capital stock, the intrinsic value of which was assumed to be in excess of the issuing price. the right to subscribe was declared to be analogous to a stock dividend, and "only so much of the proceeds obtained upon the sale of such rights as represents a realized profit over cost" to the stockholders was deemed to be taxable income.[ ] similarly, on grounds of consistency with eisner _v._ macomber, the court has ruled that inasmuch as they gave the stockholder an interest different from that represented by his former holdings, a dividend in common stock to holders of preferred stock,[ ] or a dividend in preferred stock accepted by a holder of common stock[ ] was income taxable under the sixteenth amendment. other corporate earnings or receipts: when taxable as income on at least two occasions the court has rejected as untenable the contention that a tax on undistributed corporate profits is essentially a penalty rather than a tax or that it is a direct tax on capital and hence is not exempt from the requirement of apportionment. inasmuch as the exaction was permissible as a tax, its validity was held not to be impaired by its penal objective, namely, "to force corporations to distribute earnings in order to create a basis for taxation against the stockholders." as to the added contention that, because liability was assessed upon a mere purpose to evade imposition of surtaxes against stockholders, the tax was a direct tax on a state of mind, the court replied that while "the existence of the defined purpose was a condition precedent to the imposition of the tax liability, * * * this * * * [did] not prevent it from being a true income tax within the meaning of the sixteenth amendment."[ ] subsequently, in helvering _v._ northwest steel mills,[ ] this appraisal of the constitutionality of the undistributed profits tax was buttressed by the following observation: "it is true that the surtax is imposed upon the annual income only if it is not distributed, but this does not serve to make it anything other than a true tax on income within the meaning of the sixteenth amendment. nor is it true, * * *, that because there might be an impairment of the capital stock, the tax on the current annual profit would be the equivalent of a tax upon capital. whether there was an impairment of the capital stock or not, the tax * * * was imposed on profits earned during * * *--a tax year--and therefore on profits constituting income within the meaning of the sixteenth amendment."[ ] likening a cooperative to a corporation, federal courts have also declared to be taxable income the net earnings of a farmers' cooperative, a portion of which was used to pay dividends on capital stock without reference to patronage. the argument that such earnings were in reality accumulated savings of its patrons which the cooperative held as their bailee was rejected as unsound for the reason that "while those who might be entitled to patronage dividends have, * * *, an interest in such earnings, such interest never ripens into an individual ownership * * * until and if a patronage dividend be declared." had such net earnings been apportioned to all of the patrons during the year, "there might be * * * a more serious question as to whether such earnings constituted 'income' [of the cooperative] within the amendment."[ ] similarly, the power of congress to tax the income of an unincorporated joint stock association has been held to be unaffected by the fact that under state law the association is not a legal entity and cannot hold title to property, or by the fact that the shareholders are liable for its debts as partners.[ ] whether subsidies paid to corporations in money or in the form of grants of land or other physical property constitute taxable income has also concerned the court. in edwards _v._ cuba railroad co.[ ] it ruled that subsidies of lands, equipment, and money paid by cuba for the construction of a railroad were not taxable income but were to be viewed as having been received by the railroad as a reimbursement for capital expenditures in completing such project. on the other hand, sums paid out by the federal government to fulfil its guarantee of minimum operating revenue to railroads during the six months following relinquishment of their control by that government were found to be taxable income. such payments were distinguished from those excluded from computation of income in the preceding case in that the former were neither bonuses, nor gifts, nor subsidies; "that is, contributions to capital."[ ] gains in the form of real estate; when taxable as income when through forfeiture of a lease in , a landlord became possessed of a new building erected on his land by the outgoing tenant, the resulting gain to the former was taxable to him in that year. although "economic gain is not always taxable as income, it is settled that the realization of gain need not be in cash derived from the sale of an asset. * * * the fact that the gain is a portion of the value of the property received by the * * * [landlord] does not negative its realization. * * * [nor is it necessary] to recognition of taxable gain that * * * [the landlord] should be able to sever the improvement begetting the gain from his original capital." hence, the taxpayer was incorrect in contending that the amendment "does not permit the taxation of such [a] gain without apportionment amongst the states."[ ] consistently with this holding the court has also ruled that when an apartment house was acquired by bequest subject to an unassumed mortgage, and several years thereafter was sold for a price slightly in excess of the mortgage, the basis for determining the gain from that sale was the difference between the selling price, undiminished by the amount of the mortgage, and the value of the property at the time of the acquisition, less deductions for depreciation during the years the building was held by the taxpayer. the latter's contention that the revenue act, as thus applied, taxed something which was not revenue was declared to be unfounded.[ ] gains in the form of bequests; when taxable as income as against the argument of a donee that a gift of stock became a capital asset when received and that therefore, when disposed of, no part of that value could be treated as taxable income to said donee, the court has declared that it was within the power of congress to require a donee of stock, who sells it at a profit, to pay income tax on the difference between the selling price and the value when the donor acquired it.[ ] moreover, "the receipt in cash or property * * * not [being] the only characteristic of realization of income to a taxpayer on the cash receipts basis," it follows that one who is normally taxable only on the receipt of interest payments cannot escape taxation thereon by giving away his right to such income in advance of payment. when "the taxpayer does not receive payment of income in money or property, realization may occur when the last step is taken by which he obtains the fruition of the economic gain which has already accrued to him." hence an owner of bonds, reporting on the cash receipts basis, who clipped interest coupons therefrom before their due date and gave them to his son, was held to have realized taxable income in the amount of said coupons, notwithstanding that his son had collected them upon maturity later in the year.[ ] diminution of loss, not income mere diminution of loss is neither gain, profit, nor income. accordingly, one who in borrowed a sum of money to be repaid in german marks and who subsequently lost said money in a business transaction cannot be taxed on the curtailment of debt effected by using depreciated marks in to settle a liability of $ , for $ , , the "saving" having been exceeded by a loss on the entire operation.[ ] dates applicable in computation of taxable gains with a frequency that for obvious reasons is progressively diminishing, the court has also been called upon to resolve questions as to whether gains, realized after , on transactions consummated prior to ratification of the sixteenth amendment are taxable, and if so, how such tax is to be determined. the court's answer generally has been that if the gain to the person whose income is under consideration became such subsequently to the date at which the amendment went into effect; namely, march , , and is a real and not merely an apparent gain, said gain is taxable. thus, one who purchased stock in for $ could not limit his taxable gain to the difference between $ , the value of the stock on march , and $ , , the price obtained on the sale thereof in ; but was obliged to pay tax on the entire gain, that is, the difference between the original purchase price and the proceeds of the sale.[ ] conversely, one who acquired stock in for $ , and who sold the same in for only $ , , incurred a loss and could not be taxed at all, notwithstanding the fact that on march , , his stock had depreciated to $ , .[ ] on the other hand, although the difference between the amount of life insurance premiums, paid as of , and the amount distributed in , when the insured received the amount of his policy plus cash dividends apportioned thereto since , constituted a gain, that portion of the latter which accrued between and was deemed to be an accretion of capital and hence not taxable.[ ] deductions; exemptions, etc. notwithstanding the authorization contained in the sixteenth amendment to tax income "from whatever source derived," congress has been held not to be precluded thereby from granting exemptions.[ ] thus, the fact that "under the revenue acts of , , , and , stock fire insurance companies were taxed * * * upon gains realized from the sale * * * of property accruing subsequent to march , ," but were not so taxed by the revenue acts of , , and , did not prevent congress, under the terms of the revenue act of , from taxing all the gain attributable to increase in value after march , which such a company realized from a sale of property in . the constitutional power of congress to tax a gain being well established, congress, was declared competent to choose "the moment of its realization and the amount realized"; and "its failure to impose a tax upon the increase in value in the earlier years * * * [could not] preclude it from taxing the gain in the year when realized * * *"[ ] congress is equally well equipped with the "power to condition, limit, or deny deductions from gross incomes in order to arrive at the net that it chooses to tax."[ ] accordingly, even though the rental value of a building used by its owner does not constitute income within the meaning of the amendment,[ ] congress was competent to provide that an insurance company shall not be entitled to deductions for depreciation, maintenance, and property taxes on real estate owned and occupied by it unless it includes in its computation of gross income the rental value of the space thus used.[ ] illegal gains as income in united states _v._ sullivan[ ] the court held, in , that gains derived from illicit traffic in liquor were taxable income under the act of .[ ] said justice holmes for the unanimous court: "we see no reason * * * why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay."[ ] but in commissioner _v._ wilcox,[ ] decided in , justice murphy, speaking for a majority of the court, held that embezzled money was not taxable income to the embezzler, although any gain he derived from the use of it would be. justice burton dissented on the basis of the sullivan case. in rutkin _v._ united states,[ ] decided in , a sharply divided court cuts loose from the metaphysics of the wilcox case and holds that congress has the power under amendment xvi to tax as income monies received by an extortioner. notes [ ] pollock _v._ farmers' loan & trust co., u.s. ( ); u.s. ( ). [ ] stat. . [ ] the court conceded that taxes on incomes from "professions, trades, employments, or vocations" levied by this act were excise taxes and therefore valid. the entire statute, however, was voided on the ground that congress never intended to permit the entire "burden of the tax to be borne by professions, trades, employments, or vocations" after real estate and personal property had been exempted. u.s. , ( ). [ ] springer _v._ united states, u.s. ( ). [ ] stat. ( ). [ ] for an account of the pollock decision _see_ pp. - . [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] flint _v._ stone tracy co., u.s. ( ). [ ] brushaber _v._ union p.r. co., u.s. ( ); stanton _v._ baltic min. co., u.s. ( ); tyee realty co. _v._ anderson, u.s. ( ). [ ] brushaber _v._ union p.r. co., u.s. , - ( ). [ ] stanton _v._ baltic min. co., u.s. , ( ). [ ] stratton's independence _v._ howbert, u.s. ( ); doyle _v._ mitchell bros. co., u.s. ( ). [ ] eisner _v._ macomber, u.s. ( ); bowers _v._ kerbaugh-empire co., u.s. ( ). [ ] u.s. , ( ).--on the other hand, in lynch _v._ turrish, u.s. ( ), the single and final dividend distributed upon liquidation of the entire assets of a corporation, although equalling twice the par value of the capital stock, was declared to represent only the intrinsic value of the latter earned prior to the effective date of the amendment, and hence was not taxable as income to the shareholder in the year in which actually received. similarly, in southern p. co. _v._ lowe, u.s. ( ) dividends paid out of surplus accumulated before the effective date of the amendment by a railway company whose entire capital stock was owned by another railway company and whose physical assets were leased to and used by the latter was declared to be a nontaxable bookkeeping transaction between virtually identical corporations. [ ] u.s. ( ). [ ] u.s. , - ( ). [ ] eisner _v._ macomber, u.s. , , - ( ). this decision has been severely criticized, chiefly on the ground that gains accruing to capital over a period of years are not income and are not transformed into income by being dissevered from capital through sale or conversion. critics have also experienced difficulty in understanding how a tax on income which has been severed from capital can continue to be labeled a "direct" tax on the capital from which the severance has thus been made. finally, the contention has been made that in stressing the separate identities of a corporation and its stockholders, the court overlooked the fact that when a surplus has been accumulated, the stockholders are thereby enriched, and that a stock dividend may therefore be appropriately viewed simply as a device whereby the corporation reinvests money earned in their behalf. _see also_ merchants' loan & t. co. _v._ smietanka, u.s. ( ). [ ] reconsideration was refused in helvering _v._ griffiths, u.s. ( ). [ ] united states _v._ phellis, u.s. ( ); rockefeller _v._ united states, u.s. ( ). _see also_ cullinan _v._ walker, u.s. ( ). in marr _v._ united states, u.s. , - ( ) it was held that the increased market value of stock issued by a new corporation in exchange for stock of an older corporation, the assets of which it was organized to absorb, was subject to taxation as income to the holder, notwithstanding that the income represented profits of the older corporation and that the capital remained invested in the same general enterprise. weiss _v._ stearn, u.s. ( ), in which the additional value in new securities was held not taxable, was likened to eisner _v._ macomber, and distinguished from the aforementioned cases on the ground of preservation of corporate identity. although the "new corporation had * * * been organized to take over the assets and business of the old * * *, the corporate identity was deemed to have been substantially maintained because the new corporation was organized under the laws of the same state with presumably the same powers as the old. there was also no change in the character of the securities issued," with the result that "the proportional interest of the stockholder after the distribution of the new securities was deemed to be exactly the same." [ ] miles _v._ safe deposit & trust co., u.s. ( ). [ ] koshland _v._ helvering, u.s. ( ) [ ] helvering _v._ gowran, u.s. ( ). [ ] helvering _v._ national grocery co., u.s. , - ( ). in helvering _v._ mitchell, u.s. ( ) the defendant contended the collection of % of any deficiency in addition to the deficiency alleged to have resulted from a fraudulent intent to evade the income tax amounted to the imposition of a criminal penalty. the court, however, described the additional sum as a civil and not a criminal sanction, and one which could be constitutionally employed to safeguard the government against loss of revenue. in contrast, the exaction upheld in helvering _v._ national grocery co., though conceded to possess the attributes of a civil sanction, was declared to be sustainable as a tax. [ ] u.s. ( ). _see also_ crane-johnson co. _v._ helvering, u.s. ( ). [ ] u.s. , . another provision of the revenue act, requiring undistributed net income of a foreign personal holding company to be included in the gross income of citizens or residents who are shareholders in such company, was upheld as constitutional in rodney _v._ hoey, f. supp. , - ( ). [ ] farmers union co-op co. _v._ commissioner of int. rev., f. ( d) , , ( ). [ ] burk-waggoner oil asso. _v._ hopkins, u.s. ( ). [ ] u.s. ( ). [ ] texas & p. ry. co. _v._ united states, u.s. , ( ); continental tie & lumber co. _v._ united states, u.s. ( ). [ ] helvering _v._ bruun, u.s. , - ( ). _see also_ hewitt realty co. _v._ commissioner of internal revenue, f. ( d) ( ). [ ] crane _v._ commissioner, u.s. , - ( ). [ ] the donor could not, "by mere gift, enable another to hold this stock free from * * * the right of the sovereign to take part of any increase in its value when separated through sale or conversion and reduced to possession."--taft _v._ bowers, u.s. , , ( ). [ ] helvering _v._ horst, u.s. , - ( ). [ ] bowers _v._ kerbaugh-empire co., u.s. ( ). [ ] goodrich _v._ edwards, u.s. ( ). [ ] ibid. _see also_ walsh _v._ brewster, u.s. ( ). [ ] lucas _v._ alexander, u.s. ( ). however, a litigant who, in , reduced to judgment, a suit pending on february , for an accounting under a patent infringement, was unable to have treated as capital, and excluded from the taxable income produced by such settlement, that portion of his claim which had accrued prior to march , . income within the meaning of the amendment was interpreted to be the fruit that is born of capital, not the potency of fruition. all that the taxpayer possessed in was a contingent chose in action which was inchoate, uncertain, and contested.--united states _v._ safety car heating & l. co., u.s. ( ). similarly, purchasers of coal lands subject to mining leases executed before adoption of the amendment could not successfully contend that royalties received during - were payments for capital assets sold before march , , and hence not taxable. such an exemption, these purchasers argued, would have been in harmony with applicable local law whereunder title to coal passes immediately to the lessee on execution of such leases. to the court, on the other hand, such leases were not to be viewed "as a 'sale' of the mineral content of the soil" inasmuch as minerals "may or may not be present in the leased premises and may or may not be found [therein]. * * * if found, their abstraction * * * is a time consuming operation and the payments made by the lessee * * * do not normally become payable as the result of a single transaction." the result for tax purposes would have been the same even had the lease provided that title to the minerals would pass only "on severance by the lessee."--bankers pocahontas coal co. _v._ burnet, u.s. ( ); burnet _v._ harmel, u.s. , - , ( ). [ ] brushaber _v._ union pac. r. co., u.s. ( ). [ ] maclaughlin _v._ alliance ins. co., u.s. , ( ). [ ] helvering _v._ independent l. ins. co., u.s. , ( ); helvering _v._ winmill, u.s. , ( ). [ ] a tax on the rental value of property so occupied is a direct tax on the land and must be apportioned.--helvering _v._ independent l. ins. co., u.s. , - ( ). [ ] u.s. .--expenditures incurred in the prosecution of work under a contract for the purpose of earning profits are not capital investments, the cost of which, if converted, must first be restored from the proceeds before there is a capital gain taxable as income. accordingly, a dredging contractor, recovering a judgment for breach of warranty of the character of the material to be dredged, must include the amount thereof in the gross income of the year in which it was received, rather than of the years during which the contract was performed, even though it merely represents a return of expenditures made in performing the contract and resulting in a loss. the gain or profit subject to tax under the sixteenth amendment is the excess of receipts over allowable deductions during the accounting period, without regard to whether or not such excess represents a profit ascertained on the basis of particular transactions of the taxpayer when they are brought to a conclusion.--burnet _v._ sanford & b. co., u.s. ( ). [ ] u.s. ( ). [ ] stat. , , . [ ] at . [ ] u.s. ( ). [ ] u.s. ( ). amendment popular election of senators page historical origin right to vote for senators popular election of senators amendment clause . the senate of the united states shall be composed of two senators from each state, elected by the people thereof, for six years; and each senator shall have one vote. the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures. clause . when vacancies happen in the representation of any state in the senate, the executive authority of such state shall issue writs of election to fill such vacancies: _provided_ that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. clause . this amendment shall not be so construed as to affect the election or term of any senator chosen before it becomes valid as part of the constitution. historical origin the ratification of this amendment was the outcome of increasing popular dissatisfaction with the operation of the originally established method of electing senators. as the franchise became exercisable by greater numbers of people, the belief became widespread that senators ought to be popularly elected in the same manner as representatives. acceptance of this idea was fostered by the mounting accumulation of evidence of the practical disadvantages and malpractices attendant upon legislative selection, such as deadlocks within legislatures resulting in vacancies remaining unfilled for substantial intervals, the influencing of legislative selection by corrupt political organizations and special interest groups through purchase of legislative seats, and the neglect of duties by legislators as a consequence of protracted electoral contests. prior to ratification, however, many states had perfected arrangements calculated to afford the voters more effective control over the selection of senators. state laws regulating direct primaries were amended so as to enable voters participating in primaries to designate their preference for one of several party candidates for a senatorial seat: and nominations unofficially effected thereby were transmitted to the legislature. although their action rested upon no stronger foundation than common understanding, the legislatures generally elected the winning candidate of the majority, and, indeed, in two states, candidates for legislative seats were required to promise to support, without regard to party ties, the senatorial candidate polling the most votes. as a result of such developments, at least states by , one year before ratification, were nominating senators on a popular basis; and, as a consequence, the constitutional discretion of the legislatures had been reduced to little more than that retained by presidential electors. right to vote for senators very shortly after ratification it was established that if a person possessed the qualifications requisite for voting for a senator, his right to vote for such an officer was not derived merely from the constitution and laws of the state in which they are chosen but has its foundation in the constitution of the united states.[ ] consistently with this view, federal courts more recently have declared that when local party authorities, acting pursuant to regulations prescribed by a party's state executive committee, refused to permit a negro, on account of his race, to vote in a primary to select candidates for the office of united states senator, they deprived him of a right secured to him by the constitution and laws, in violation of this amendment.[ ] an illinois statute, on the other hand, which required that a petition to form, and to nominate candidates for, a new political party be signed by at least , voters from at least counties was held not to impair any right under amendment xvii, notwithstanding that % of the state's voters were residents of one county, % were residents of counties, and only % resided in the least populous counties.[ ] notes [ ] united states _v._ aczel, f. ( ), citing ex parte yarbrough, u.s. ( ). [ ] chapman _v._ king, f. ( d) ( ); certiorari denied, u.s. ( ). [ ] macdougall _v._ green, u.s. ( ). amendment prohibition of intoxicating liquors page validity of adoption enforcement repeal prohibition of intoxicating liquors amendment section . after one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the united states and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. section . the congress and the several states shall have concurrent power to enforce this article by appropriate legislation. section . this article shall be inoperative unless it shall have been ratified as an amendment to the constitution by the legislatures of the several states, as provided in the constitution, within seven years from the date of the submission hereof to the states by the congress. validity of adoption cases relating to this question are presented and discussed under article v. enforcement cases produced by enforcement and arising under amendments four and five are considered in the discussion appearing under the latter amendments. repeal this amendment was repealed by the twenty-first amendment, and titles i and ii of the national prohibition act[ ] were subsequently specifically repealed by the act of august , .[ ] federal prohibition laws effective in various districts and territories were repealed as follows: district of columbia--april , , and january , ;[ ] puerto rico and virgin islands--march , ;[ ] hawaii--march , ;[ ] and panama canal zone--june , .[ ] taking judicial notice of the fact that ratification of the twenty-first amendment was consummated on december , , the supreme court held that the national prohibition act, insofar as it rested upon a grant of authority to congress by amendment xviii thereupon became inoperative; with the result that prosecutions for violations of the national prohibition act, including proceedings on appeal, pending on, or begun after, the date of repeal, had to be dismissed for want of jurisdiction. only final judgments of conviction rendered while the national prohibition act was in force remained unaffected.[ ] likewise a heavy "special excise tax," insofar as it could be construed as part of the machinery for enforcing the eighteenth amendment, was deemed to have become inapplicable automatically upon the latter's repeal.[ ] however, liability on a bond conditioned upon the return on the day of trial of a vessel seized for illegal transportation of liquor was held not to have been extinguished by repeal when the facts disclosed that the trial took place in and had resulted in conviction of the crew. the liability became complete upon occurrence of the breach of the express contractual condition and a civil action for recovery was viewed as unaffected by the loss of penal sanctions.[ ] notes [ ] stat. . [ ] stat. . [ ] stat. , § ; stat. . [ ] stat. . [ ] stat. . [ ] stat. . [ ] united states _v._ chambers, u.s. , - ( ). _see also_ ellerbee _v._ aderhold, f. supp. ( ); united states ex rel. randall _v._ united states marshal for eastern dist. of new york, f. ( d) ( ).--the twenty-first amendment containing "no saving clause as to prosecutions for offenses theretofore committed," these holdings were rendered unavoidable by virtue of the well-established principle that after "the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force * * *"--yeaton _v._ united states, cr. , ( ), quoted in united states _v._ chambers at pages - . [ ] united states _v._ constantine, u.s. ( ). the court also took the position that even if the statute embodying this "tax" had not been "adopted to penalize [a] violations of the amendment," but merely to ordain a penalty for violations of state liquor laws, "it ceased to be enforceable at the date of repeal"; for with the lapse of the unusual enforcement powers contained in the eighteenth amendment, congress could not, without infringing upon powers reserved to the states by the tenth amendment, "impose cumulative penalties above and beyond those specified by state law for infractions of * * * [a] state's criminal code by its own citizens." justice cardozo, with whom justices brandeis and stone were associated, dissented on the ground that, on its face, the statute levying this "tax" was "an appropriate instrument of * * * fiscal policy * * * classification by congress according to the nature of the calling affected by a tax * * * does not cease to be permissible because the line of division between callings to be favored and those to be reproved corresponds with a division between innocence and criminality under the statutes of a state."--ibid. , , - . in earlier cases it was nevertheless recognized that congress also may tax what it forbids and that the basic tax on distilled spirits remained valid and enforceable during as well as after the life of the amendment--_see_ united states _v._ yuginovich, u.s. , ( ); united states _v._ stafoff, u.s. ( ); united states _v._ rizzo, u.s. ( ). [ ] united states _v._ mack, u.s. ( ). amendment equal suffrage page origin of the amendment validity of adoption effect of amendment equal suffrage amendment clause . the right of the citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of sex. clause . congress shall have power to enforce this article by appropriate legislation. origin of the nineteenth amendment the adoption of this amendment is attributable in great measure to its advocacy since by certain long term supporters of women suffrage who had despaired of attaining their goal through modification of individual state laws. agitation in behalf of women suffrage was recorded as early as the jackson administration, but the initial results were meager. beginning in , kentucky did authorize women to vote in school elections, and its action was later copied by a number of other states. kansas in even granted women unlimited rights to vote in municipal elections. not until , however, when wyoming, as a territory, accorded women suffrage on terms of equality with men and continued to grant such privileges after its admission as a state in , did these advocates register a notable victory. progress thereafter proved discouraging, only ten additional other states having been added to the fold as of ; and as a consequence sponsors of equal voting rights for women concentrated on obtaining ratification of this amendment. validity of adoption cases relating to this question are presented and discussed under article v. effect of amendment although owning that the nineteenth amendment "applies to men and women alike and by its own force supersedes inconsistent measures, whether federal or state," the court was unable to concede that a georgia statute levying on inhabitants of the state a poll tax payment of which is made a prerequisite for voting but exempting females who do not register for voting, in any way abridged the right of male citizens to vote on account of their sex. to accept the appellant's contention, the court urged, would make the nineteenth amendment a limitation on the taxing power.[ ] notes [ ] breedlove _v._ suttles, u.s. , - ( ). although other interpretive decisions of federal courts are unavailable, many state courts, taking their cue from pronouncements of the supreme court as to the operative effect of the similarly phrased fifteenth amendment, have proclaimed that the nineteenth amendment did not confer upon women the right to vote but only prohibits discrimination against them in the drafting and administration of laws relating to suffrage qualifications and the conduct of elections. like the fifteenth amendment, the nineteenth amendment, according to these state tribunals, is self-executing and by its own force and effect legally expunged the word, "male," and the masculine pronoun from state constitutions and laws defining voting qualifications and the right to vote to the end that such provisions now apply to both sexes.--_see_ state _v._ mittle, s.c. ( ); writ of error dismissed, u.s. ( ); graves _v._ eubank, ala. ( ); in re cavellier, misc. (n.y.) ; n.y.s. ( ). amendment commencement of the terms of the president, vice president, and members of congress, etc. page extension of presidential succession commencement of the terms of the president, vice president, and members of congress, etc. amendment section . the terms of the president and vice president shall end at noon on the th day of january, and the terms of senators and representatives at noon on the d day of january, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. section . the congress shall assemble at least once in every year, and such meeting shall begin at noon on the d day of january, unless they shall by law appoint a different day. section . if, at the time fixed for the beginning of the term of the president, the president elect shall have died, the vice president elect shall become president. if a president shall not have been chosen before the time fixed for the beginning of his term, or if the president elect shall have failed to qualify, then the vice president elect shall act as president until a president shall have qualified; and the congress may by law provide for the case wherein neither a president elect nor a vice president elect shall have qualified, declaring who shall then act as president, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a president or vice president shall have qualified. section . the congress may by law provide for the case of the death of any of the persons from whom the house of representatives may choose a president whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the senate may choose a vice president whenever the right of choice shall have devolved upon them. section . sections and shall take effect on the th day of october following the ratification of this article. section . this article shall be inoperative unless it shall have been ratified as an amendment to the constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission. extension of presidential succession pursuant to the authority conferred upon it by section of this amendment, congress shaped the presidential succession act of [ ] to meet the situation which would arise from the failure of both president elect and vice president elect to qualify on or before the time fixed for the beginning of the new presidential term. notes [ ] stat. , ; u.s.c.a. ; _see_ p. . amendment repeal of eighteenth amendment page effect of repeal scope of the regulatory power conferred upon the states discrimination as between domestic and imported products regulation of transportation and "through" shipments regulation of imports destined for a federal area effect on federal regulation repeal of eighteenth amendment amendment section . the eighteenth article of amendment to the constitution of the united states is hereby repealed. section . the transportation or importation into any state, territory, or possession of the united states for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. section . this article shall be inoperative unless it shall have been ratified as an amendment to the constitution by conventions in the several states, as provided in the constitution, within seven years from the date of the submission hereof to the states by the congress. effect of repeal the operative effect of section , repealing the eighteenth amendment, is considered under the latter amendment. scope of the regulatory power conferred upon the states discrimination as between domestic and imported products in a series of interpretive decisions rendered shortly after ratification of this amendment, the court established the proposition that states are competent to adopt legislation discriminating against imported intoxicating liquors in favor of those of domestic origin and that such discrimination offends neither the commerce clause of article i nor the equal protection and due process clauses of the fourteenth amendment. thus, in state board of equalization _v._ young's market co.[ ] a california statute was upheld which exacted a $ annual license fee for the privilege of importing beer from other states and a $ fee for the privilege of manufacturing beer; and in mahoney _v._ triner corp.[ ] a minnesota statute was sustained which prohibited a licensed manufacturer or wholesaler from importing any brand of intoxicating liquor containing more than % of alcohol by volume and ready for sale without further processing, unless such brand was registered in the united states patent office. also validated in indianapolis brewing co. _v._ liquor commission[ ] and finch & co. _v._ mckittrick[ ] were retaliation laws enacted by michigan and missouri, respectively, by the terms of which sales in each of these states of beer manufactured in a state already discriminating against beer produced in michigan or missouri were rendered unlawful. conceding, in state board of equalization _v._ young's market co.,[ ] that "prior to the twenty-first amendment it would obviously have been unconstitutional to have imposed any fee for * * * the privilege of importation * * * even if the state had exacted an equal fee for the privilege of transporting domestic beer from its place of manufacture to the [seller's] place of business," the court proclaimed that this amendment "abrogated the right to import free, so far as concerns intoxicating liquors." inasmuch as the states were viewed as having acquired therefrom an unconditioned authority to prohibit totally the importation of intoxicating beverages, it logically followed that any discriminatory restriction falling short of total exclusion was equally valid, notwithstanding the absence of any connection between such restriction and public health, safety or morals. as to the contention that the unequal treatment of imported beer would contravene the equal protection clause, the court succinctly observed that a "classification recognized by the twenty-first amendment cannot be deemed forbidden by the fourteenth."[ ] regulation of transportation and "through" shipments lately, however, when passing upon the constitutionality of legislation regulating the carriage of liquor interstate, a majority of the justices have been disposed to by-pass the twenty-first amendment and to resolve the issue exclusively in terms of the commerce clause and state police power. this trend toward devaluation of the twenty-first amendment was set in motion by ziffrin, inc. _v._ reeves[ ] wherein a kentucky statute, forbidding the transportation of intoxicating liquors by carriers other than licensed common carriers, was enforced as to an indiana corporation, engaged in delivering liquor obtained from kentucky distillers to consignees in illinois; but licensed only as a contract carrier under the federal motor carriers act. after acknowledging that "the twenty-first amendment sanctions the right of a state to legislate concerning intoxicating liquors brought from without, unfettered by the commerce clause,"[ ] the court then proceeded to found its ruling largely upon decisions antedating the amendment which sustained similar state regulations as a legitimate exercise of the police power not unduly burdening interstate commerce. in the light of the cases enumerated in the preceding paragraph, wherein the twenty-first amendment was construed as according a plenary power to the states, such extended emphasis on the police power and the commerce clause would seem to have been unnecessary. thereafter, a total eclipse of the twenty-first amendment was recorded in duckworth _v._ arkansas[ ] and carter _v._ virginia[ ] wherein, without even considering that amendment, a majority of the court upheld, as not contravening the commerce clause, statutes regulating the transport through the state of liquor cargoes originating and ending outside the regulating state's boundaries.[ ] regulation of imports destined for a federal area intoxicating beverages brought into a state for ultimate delivery at a national park located therein but over which the united states retained exclusive jurisdiction has been construed as not constituting "transportation * * * into [a] state for delivery and use therein" within the meaning of section of this amendment. the importation having had as its objective delivery and use in a federal area over which the state retained no jurisdiction, the increased powers which the latter acquired from the twenty-first amendment were declared to be inapplicable. california therefore could not extend the importation license and other regulatory requirements of its alcoholic beverage control act to a retail liquor dealer doing business in the park.[ ] effect on federal regulation the twenty-first amendment of itself did not, it was held, bar a prosecution under the federal sherman antitrust law of producers, wholesalers, and retailers charged with conspiring to fix and maintain retail prices of alcoholic beverages in colorado.[ ] in a concurring opinion, supported by justice roberts, justice frankfurter took the position that if the state of colorado had in fact "* * * authorized the transactions here complained of, the sherman law could not override such exercise of state power. * * * [since] the sherman law, * * *, can have no greater potency than the commerce clause itself, it must equally yield to state power drawn from the twenty-first amendment."[ ] all other efforts to invoke the twenty-first amendment as a limitation upon the constitutional powers of the national government, notably to invalidate the imposition, pursuant to the war power, of federal price controls on retail sales of liquors, have been equally abortive.[ ] notes [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. ( ). [ ] u.s. , ( ). [ ] ibid - . in the three decisions rendered subsequently, the court merely restated these conclusions. the contention that discriminatory regulation of imported liquors violated the due process clause was summarily rejected in indianapolis brewing co. _v._ liquor commission, u.s. , ( ). [ ] u.s. ( ). [ ] ibid. . [ ] u.s. ( ). [ ] u.s. ( ). _see also_ cartlidge _v._ rainey, f. ( d) ( ); certiorari denied, u.s. ( ). [ ] arkansas required a permit for the transportation of liquor across its territory, but granted the same upon application and payment of a nominal fee. virginia required carriers engaged in similar through-shipments to use the most direct route, carry a bill of lading describing that route, and post a $ bond conditioned on lawful transportation; and also stipulated that the true consignee be named in the bill of lading and be one having the legal right to receive the shipment at destination. [ ] collins _v._ yosemite park, u.s. , - ( ). [ ] united states _v._ frankfort distilleries, inc., u.s. , - ( ). [ ] ibid. - . [ ] jatros _v._ bowles, f. ( d) , ( ); barnett _v._ bowles, f. ( d) , ( ), certiorari denied, u.s. ( ); dowling bros. distilling co. _v._ united states, f. ( d) , ( ), certiorari denied, (gould et al. _v._ united states) u.s. ( ); rehearing denied, u.s. ( ). amendment presidential tenure section . no person shall be elected to the office of the president more than twice, and no person who has held the office of president, or acted as president, for more than two years of a term to which some other person was elected president shall be elected to the office of the president more than once. but this article shall not apply to any person holding the office of president when this article was proposed by congress, and shall not prevent any person who may be holding the office of president, or acting as president, during the term within which this article becomes operative from holding the office of president or acting as president during the remainder of such term. section . this article shall be inoperative unless it shall have been ratified as an amendment to the constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the congress. acts of congress held unconstitutional in whole or in part by the supreme court of the united states . act of september , ( stat. , sec. , in part). provision that "* * * [the supreme court] shall have power to issue * * * writs of mandamus, in cases warranted by the principles and usages of law, to any * * * persons holding office, under authority of the united states" as applied to the issue of mandamus to the secretary of state requiring him to deliver to plaintiff a commission (duly signed by the president) as justice of the peace in the district of columbia, _held_ an attempt to enlarge the original jurisdiction of the supreme court, fixed by article iii, section . marbury _v._ madison, cr. (february , ). . act of february , ( stat. , ch. ). provisions authorizing land officers to examine into "validity of claims to land * * * which are derived from confirmations made * * * by the governors of the northwest * * * territory", _held_ not to authorize annulment of title confirmed by governor st. clair in , nor to validate a subsequent sale and patent by the united states. (_see_ fifth amendment.) reichert _v._ felps, wallace (march , ). . act of march , ( stat. , sec. , proviso). the missouri compromise, prohibiting slavery within the louisiana territory north of ° ', except missouri, _held_ not warranted as a regulation of territory belonging to the united states under article iv, section , clause (and _see_ fifth amendment). dred scott _v._ sandford, howard (march , ). . act of february , ( stat. , sec. ); july , ( stat. , sec. ); march , ( stat. , sec. ), each in part only. "legal tender clauses", making noninterest-bearing united states notes legal tender in payment of "all debts, public and private", so far as applied to debts contracted before passage of the act, _held_ not within express or implied powers of congress under article i, section , and inconsistent with article i, section , and fifth amendment. hepburn _v._ griswold, wallace (february , ); overruled in knox _v._ lee (legal tender cases), wallace (may , ). . act of march , ( stat. , ch. , sec. ). "so much of the fifth section * * * as provides for the removal of a judgment in a state court, and in which the cause was tried by a jury to the circuit court of the united states for a retrial on the facts and law, is not in pursuance of the constitution, and is void" under the seventh amendment. the justices _v._ murray, wallace (march , ). . act of march , ( stat. , ch. , sec. ). provision for an appeal from the court of claims to the supreme court--there being, at the time, a further provision (sec. ) requiring an estimate by the secretary of the treasury before payment of final judgments, _held_ to contravene the judicial finality intended by the constitution, article iii. gordon _v._ united states, wallace (march , ). (case was dismissed without opinion; the grounds upon which this decision was made were stated in a posthumous opinion by chief justice taney printed in the appendix to volume of the u.s. reports at p. .) . act of june , ( stat. , ch. , sec. ). provision that "any prize cause now pending in any circuit court shall, on the application of all parties in interest * * * be transferred by that court to the supreme court * * *", as applied in a case where no action had been taken in the circuit court on the appeal from the district court, _held_ to propose an appeal procedure not within article iii, section . the "alicia", wallace (january , ). . act of january , ( stat. , ch. ). requirement of a test oath (disavowing actions in hostility to the united states) before admission to appear as attorney in a federal court by virtue of any previous admission, _held_ invalid as applied to an attorney who had been pardoned by the president for all offenses during the rebellion--as _ex post facto_ (art. i, sec. , clause ) and an interference with the pardoning power (art. ii, sec. , clause ). ex parte garland, wallace (january , ). . act of july , ( stat. ), amending act of june , ( stat. , ch. , sec. ). tax on indebtedness of railroads, "* * * to whatsoever party or person the same may be payable", as applied to railroad bonds held by a municipal corporation under authority of the state, _held_ an infringement of reserved state sovereignty. united states _v._ baltimore & o.r. co., wallace (april , ). . act of march , ( stat. , ch. , sec. ), amending act of june , ( stat. , sec. ). tax on income of "* * * every person residing in the united states * * * whether derived from * * * salaries * * * or from any source whatever * * *", as applied to income of state judges, _held_ an interference with reserved powers of state. (_see_ tenth amendment.) the collector _v._ day, wallace (april , ). . act of march , ( stat. , ch. , sec. ). general prohibition on sale of naphtha, etc., for illuminating purposes, if inflammable at less temperature than ° f., _held_ invalid "except so far as the section named operates within the united states, but without the limits of any state," as being a mere police regulation. united states _v._ dewitt, wallace (february , ). . act of may , ( stat. , ch. , sees. , ). provisions penalizing ( ) refusal of local election officials to permit voting by persons offering to qualify under state laws, applicable to any citizens; and ( ) hindering of any person from qualifying or voting, _held_ invalid under fifteenth amendment. united states _v._ reese et al., u.s. (march , ). . act of july , ( stat. , ch. ). provision making presidential pardons inadmissible in evidence in court of claims, prohibiting their use by that court in deciding claims or appeals, and requiring dismissal of appeals by the supreme court in cases where proof of loyalty had been made otherwise than as prescribed by law, _held_ an interference with judicial power under article iii, section , and with the pardoning power under article ii, section , clause . united states _v._ klein, wallace (january , ). . act of june , ( stat. , sec. ). provision authorizing federal courts to require production of documents in proceedings, other than criminal, under the revenue laws (the allegations expected to be proved thereby to be taken as proved, on failure to produce such documents), _held_ as applied to a suit for forfeiture under the customs laws, to constitute unreasonable search in violation of the fourth amendment. boyd _v._ united states, u.s. (february , ). . revised statutes (act of may , , stat. ). provision that "all persons within the jurisdiction of the united states shall have the same right in every state and territory to make and enforce contracts * * * as is enjoyed by white citizens * * *," _held_ invalid under the thirteenth amendment. hodges _v._ united states, u.s. (may , ). . revised statutes - (act of july , , stat. ), and act of august , ( stat. ). original trademark law, applying to marks "for exclusive use within the united states," and a penal act designed solely for the protection of rights defined in the earlier measure, _held_ not supportable by article i, section , clause (copyright clause), nor article i, section , clause (interstate commerce). trade-mark cases, u.s. (november , ). . revised statutes , subdivision (act of march , , stat. ). provision penalizing "any person respecting whom bankruptcy proceedings are commenced * * * who, within months before the commencement of proceedings in bankruptcy, under the false color and pretense of carrying on business and dealing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud * * *," _held_ a police regulation not within the bankruptcy power (art. i, sec. , clause ). united states _v._ fox, u.s. (january , ). . revised statutes (act of may , , stat. , sec. ). provision penalizing "every person who prevents, hinders, controls, or intimidates another from exercising * * * the right of suffrage, to whom that right is guaranteed by the fifteenth amendment to the constitution of the united states, by means of bribery * * *," _held_ not authorized by the said fifteenth amendment. james _v._ bowman, u.s. (may , ). . revised statutes (act of april , , stat. , ch. , sec. ). section providing punishment in case "two or more persons in any state * * * conspire * * * for the purpose of depriving * * * any person * * * of the equal protection of the laws * * * or for the purpose of preventing or hindering the constituted authorities of any state * * * from giving or securing to all persons within such state * * * the equal protection of the laws * * *," _held_ invalid for punishment of conspiracy within a state--as not supported by the thirteenth to fifteenth amendments. united states _v._ harris, u.s. (january , ). in baldwin _v._. franks, u.s. (march , ), an attempt was made to distinguish the harris case, and apply it to conspiracy against aliens, though within a state, and _held_, the provision was not separable in such case. . revised statutes of the district of columbia, section (act of june , , stat. , ch. , sec. ). provision that "prosecutions in the police court [of the district of columbia] shall be by information under oath, without indictment by grand jury or trial by petit jury," as applied to punishment for conspiracy, _held_ to contravene article iii, section , clause , requiring jury trial of all crimes. callan _v._ wilson, u.s. (may , ). . act of march , ( stat. , secs. , ). provision "that all persons within the jurisdiction of the united states shall be entitled to the full and equal enjoyment of the accommodations * * * of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude"--subject to penalty, _held_ not to be supported by the thirteenth or fourteenth amendments. civil rights cases, u.s. (october , ), as to operation within states. butts _v._ merchants and miners transportation co., u.s. (june , ) as to operation outside the states. . act of march , ( stat. , ch. , sec. ). provision that "if the party [i.e., a person stealing property from the united states] has been convicted, then the judgment against him shall be conclusive evidence in the prosecution against [the] receiver that the property of the united states therein described has been embezzled, stolen, or purloined," _held_ to contravene the sixth amendment. kirby _v._ united states, u.s. (april , ). . act of july , ( stat. , sec. , in part). provision that "postmasters of the first, second, and third classes * * * may be removed by the president by and with the advice and consent of the senate," _held_ to infringe the executive power under article ii, section , clause . myers _v._ united states, u.s. (october , ). . act of august , ( stat. , trademark act), _see_ revised statutes . . act of august , ( stat. ). clause, in a provision for the purchase or condemnation of a certain lock and dam in the monongahela river, that "* * * in estimating the sum to be paid by the united states, the franchise of said corporation to collect tolls shall not be considered or estimated * * *," _held_ to contravene the fifth amendment. monongahela navigation co. _v._ united states, u.s. (march , ). . act of may , ( stat. , ch. , sec. ). provision of a chinese exclusion act, that chinese persons "convicted and adjudged to be not lawfully entitled to be or remain in the united states shall be imprisoned at hard labor for a period not exceeding year and thereafter removed from the united states * * *" (such conviction and judgment being had before a justice, judge, or commissioner upon a summary hearing), _held_ to contravene the fifth and sixth amendments. wong wing _v._ united states, u.s. (may , ). . joint resolution of august , ( stat. , no. ). provision authorizing the secretary of the interior to approve a second lease of certain land by an indian chief in minnesota (granted to lessor's ancestor by art. of a treaty with the chippewa indians), _held_ an interference with judicial interpretation of treaties under article iii, section , clause (and repugnant to the fifth amendment). jones _v._ meehan, u.s. (october , ). . act of august , ( stat. - , secs. - ). income tax provisions of the tariff act of . "the tax imposed by sections and , inclusive * * * so far as it falls on the income of real estate and of personal property, being a direct tax within the meaning of the constitution, and, therefore, unconstitutional and void because not apportioned according to representation [art. i, sec. , clause ], all those sections, constituting one entire scheme of taxation, are necessarily invalid" ( u.s. , ). pollock _v._ farmers' loan and trust co., u.s. (april , ) and rehearing, u.s. (may , ). . act of january , ( stat. , ch. ). prohibition on sale of liquor "* * * to any indian to whom allotment of land has been made while the title to the same shall be held in trust by the government * * *," _held_ a police regulation infringing state powers, and not warranted by the commerce clause, article i, section , clause . matter of heff, u.s. (april , ) overruled in united states _v._ nice, u.s. ( ). . act of june , ( stat. ). section , penalizing "any employer subject to the provisions of this act" who should "threaten any employee with loss of employment * * * because of his membership in * * * a labor corporation, association, or organization" (the act being applicable "to any common carrier * * * engaged in the transportation of passengers, or property * * * from one state * * * to another state * * *," etc.), _held_ an infringement of the fifth amendment, not supported by the commerce clause. adair _v._ united states, u.s. (january , ). . act of june , ( stat. , ). stamp tax on foreign bills of lading, _held_ a tax on exports in violation of article i, section . fairbank _v._ united states, u.s. (april , ). . same ( stat. , ). tax on charter parties, as applied to shipments exclusively from ports in united states to foreign ports, _held_ a tax on exports in violation of article i, section . united states _v._ hvoslef, u.s. (march , ). . same ( stat. , ). tax on policies of marine insurance, as applied to insurance during voyage to foreign ports, _held_ a tax on exports in violation of article i, section . thames and mersey marine insurance co. _v._ united states, u.s. (april , ). . act of june , ( stat. , sec. ). section of the alaska code providing for a six-person jury in trials for misdemeanors, _held_ repugnant to the sixth amendment, requiring "jury" trial of crimes. rassmussen _v._ united states, u.s. (april , ). . act of march , ( stat. , sec. ). section of the district of columbia code granting the same right of appeal, in criminal cases, to the united states or the district of columbia as to the defendant, but providing that a verdict was not to be set aside for error found in rulings during trial, _held_ an attempt to take an advisory opinion, contrary to article iii, section . united states _v._ evans, u.s. (april , ). . act of june , ( stat. , ch. ). act providing that "every common carrier engaged in trade or commerce in the district of columbia * * * or between the several states * * * shall be liable to any of its employees * * * for all damages which may result from the negligence of any of its officers * * * or by reason of any defect * * * due to its negligence in its cars, engines * * * roadbed", etc., _held_ not supportable under article i, section , clause as applied to employees engaged in moving trains in interstate commerce. employers' liability cases, u.s. (january , ). [the act was upheld as to the district of columbia in hyde _v._ southern r. co., app. d.c. [ ]; and as to territories, in el paso and northeastern r. co. _v._ gutierrez, u.s. [ ].] . act of june , ( stat. , sec. ). provision of oklahoma enabling act restricting relocation of the state capital prior to , _held_ not supportable by article iv, section , authorizing admission of new states. coyle _v._ oklahoma (smith), u.s. (may , ). . act of february , ( stat. , sec. ). provision in the immigration act of penalizing "whoever * * * shall keep, maintain, control, support, or harbor in any house or other place, for the purpose of prostitution * * * any alien woman or girl, within years after she shall have entered the united states," _held_ an exercise of police power not within the control of congress over immigration (whether drawn from the commerce clause or based on inherent sovereignty). keller _v._ united states, u.s. (april , ). . act of march , ( stat. ). provisions authorizing certain indians "to institute their suits in the court of claims to determine the validity of any acts of congress passed since * * * , insofar as said acts * * * attempt to increase or extend the restrictions upon alienation * * * of allotments of lands of cherokee citizens * * *," and giving a right of appeal to the supreme court, _held_ an attempt to enlarge the judicial power restricted by article iii, section , to cases and controversies. muskrat _v._ united states and brown and gritts _v._ united states, u.s. (january , ). . act of may , ( stat. , sec. ). provision making locally taxable "all land [of indians of the five civilized tribes] from which restrictions have been or shall be removed," _held_ a violation of the fifth amendment, in view of the atoka agreement, embodied in the curtis act of june , , providing tax-exemption for allotted lands while title in original allottee, not exceeding years. choate _v._ trapp, u.s. (may , ). . act of august , ( stat. ). a proviso in section of the federal corrupt practices act fixing a maximum authorized expenditure by a candidate for senator "in any campaign for his nomination and election," as applied to a primary election, _held_ not supported by article i, section , giving congress power to regulate the manner of holding elections for senators and representatives. newberry _v._ united states, u.s. (may , ). . act of june , ( stat. , sec. ). part of section giving the juvenile court of the district of columbia (proceeding upon information) concurrent jurisdiction of desertion cases (which were, by law, misdemeanors punishable by fine or imprisonment in the workhouse at hard labor for year), _held_ invalid under the fifth amendment, which gives right to presentment by a grand jury in case of infamous crimes. united states _v._ moreland, u.s. (april , ). . act of march , ( stat. , part of par. ). provision of the district of columbia public utility commission act authorizing appeal to the united states supreme court from decrees of the district of columbia court of appeals modifying valuation decisions of the utilities commission, _held_ an attempt to extend the appellate jurisdiction of the supreme court to cases not strictly judicial within the meaning of article iii, section . keller _v._ potomac electric power co. et al., u.s. (april , ). . act of september , ( stat. , ch. , entire). the original child labor law, providing "that no producer * * * shall ship * * * in interstate commerce * * * any article or commodity the product of any mill * * * in which within days prior to the removal of such product therefrom children under the age of years have been employed or permitted to work more than hours in any day, or more than days in any week * * *," _held_ not within the commerce power of congress. hammer _v._ dagenhart, u.s. (june , ). . act of september , ( stat. , sec. (a) in part). provision of the income-tax law of , that a "stock dividend shall be considered income, to the amount of its cash value," _held_ invalid (in spite of the sixteenth amendment) as an attempt to tax something not actually income, without regard to apportionment under article i, section , clause . eisner _v._ macomber, u.s. (march , ). . act of october , ( stat. , secs. , , secs. and , sec. (amending stat. , sec. )); and act of february , ( stat. , secs. and , sec. ). income and excess-profits taxes on income of "every corporation," as applied to income of an oil corporation from leases of land granted by the united states to a state, for the support of common schools, etc., _held_ an interference with state governmental functions. (_see_ tenth amendment.) burnet _v._ coronado oil & gas co., u.s. (april , ). . same ( stat. , sec. (f)). the tax "upon all tennis rackets, golf clubs, baseball bats * * * balls of all kinds, including baseballs * * * sold by the manufacturer, producer, or importer * * *" as applied to articles sold by a manufacturer to a commission merchant for exportation, _held_ a tax on exports within the prohibition of article i, section . spalding & bros. _v._ edwards, u.s. (april , ). . act of october , ( stat. , ch. , in part). the amendment of sections and of the judicial code (which prescribe the jurisdiction of district courts) "saving * * * to claimants the rights and remedies under the workmen's compensation law of any state," _held_ an attempt to transfer legislative power to the states--the constitution, by article iii, section , and article i, section , having adopted rules of general maritime law. knickerbocker ice co. _v._ stewart, u.s. (may , ). . act of september , ( stat. , ch. ). specifically, that part of the minimum wage law of the district of columbia which authorized the wage board "to ascertain and declare * * * (a) standards of minimum wages for women in any occupation within the district of columbia, and what wages are inadequate to supply the necessary cost of living to any such women workers to maintain them in good health and to protect their morals * * *," _held_ to interfere with freedom of contract under the fifth amendment. adkins et al. _v._ children's hospital and adkins et al. _v._ lyons, u.s. (april , )--overruled in west coast hotel co. _v._ parrish, u.s. (march , ). . act of february , ( stat. , ch. , sec. , in part). that part of section of the revenue act of which provided that "* * * for the purposes of this title * * * the term 'gross income' * * * includes gains, profits, and income derived from salaries, wages, or compensation for personal service (including in the case of * * * judges of the supreme and inferior courts of the united states * * * the compensation received as such) * * *" as applied to a judge in office when the act was passed, _held_ a violation of the guaranty of judges' salaries, in article iii, section . evans _v._ gore, u.s. (june , ). miles _v._ graham ( u.s. , june , ), held it invalid as applied to a judge taking office subsequent to the date of the act. . act of february , ( stat. , sec. (c)). that part of the estate tax providing that "gross estate" of a decedent should include value of all property "to the extent of any interest therein of which the decedent has at any time made a transfer or with respect to which he had at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this act), except in case of a _bona fide_ sale * * *" as applied to a transfer of property made prior to the act and intended to take effect "in possession or enjoyment" at death of grantor, but not in fact testamentary or designed to evade taxation, _held_ confiscatory, contrary to fifth amendment. nichols, collector _v._ coolidge et al., executors, u.s. (may , ). . act of february , , title xii ( stat. , entire title). the child labor tax act, providing that "every person * * * operating * * * any * * * factory [etc.] * * * in which children under the age of years have been employed or permitted to work * * * shall pay * * * in addition to all other taxes imposed by law, an excise tax equivalent to percent of the entire net profits received * * * for such year from the sale * * * of the product of such * * * factory * * *," _held_ beyond the taxing power under article i, section , clause , and an infringement of state authority. bailey _v._ drexel furniture co. (child labor tax case), u.s. (may , ). . act of october , ( stat. , sec. ), amending act of august , ( stat. , sec. ). section of the lever act, providing in part "that it is hereby made unlawful for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries * * *" and fixing a penalty, _held_ invalid to support an indictment for charging an unreasonable price on sale--as not setting up an ascertainable standard of guilt within the requirement of the sixth amendment. united states _v._ cohen grocery co., u.s. (february , ). . same. that provision of section making it unlawful "to conspire, combine, agree, or arrange with any other person to * * * exact excessive prices for any necessaries" and fixing a penalty, _held_ invalid to support an indictment, on the reasoning of the cohen case. weeds, inc., _v._ united states, u.s. (february , ) . act of august , ( stat. , ch. , future trading act). (_a_) section (and interwoven regulations) providing a "tax of cents a bushel on every bushel involved therein, upon each contract of sale of grain for future delivery, except * * * where such contracts are made by or through a member of a board of trade which has been designated by the secretary of agriculture as a 'contract market' * * *," _held_ not within the taxing power under article i, section . hill _v._ wallace, u.s. (may , ). (_b_) section , providing "that in addition to the taxes now imposed by law there is hereby levied a tax amounting to cents per bushel on each bushel involved therein, whether the actual commodity is intended to be delivered or only nominally referred to, upon each * * * option for a contract either of purchase or sale of grain * * *", _held_ invalid on the same reasoning. trusler _v._ crooks, u.s. (jan. , ). . act of november , ( stat. , sec. , part). provision of revenue act of abating the deduction ( percent of mean reserves) allowed from taxable income of life-insurance companies in general by the amount of interest on their tax-exempts, and so according no relative advantage to the owners of the tax-exempt securities, _held_ to destroy a guaranteed exemption. (_see_ fifth amendment.) national life insurance co. _v._ united states, u.s. (june , ). . act of june , ( stat. , ch. ). a second attempt to amend sections and of the judicial code, relating to jurisdiction of district courts, by saving "to claimants for compensation for injuries to or death of persons other than the master or members of the crew of a vessel, their rights and remedies under the workmen's compensation law of any state * * *" _held_ invalid on authority of knickerbocker ice co. _v._ stewart. industrial accident commission of california _v._ rolph et al., and washington _v._ dawson & co., u.s. (february , ). . act of june , ( stat. ). the gift tax provisions of the revenue act of , _held_ invalid under the fifth amendment as applied to _bona fide_ gifts made before passage of the act. untermeyer _v._ anderson, u.s. (april , ). . revenue act of june , ( stat. , sec. , in part). excise tax on certain articles "sold or leased by the manufacturer", measured by sale price [specifically, "( ) * * * motorcycles * * * per centum"]--as applied to sale of motorcycle to a municipality for police use, _held_ an infringement of state immunity under the principle of collector _v._ day. indian motorcycle co. _v._ united states, u.s. (may , ). . act of february , ( stat. , ch. , in part). (_a_). section in part ( stat. ). second sentence, defining, for purposes of the estate tax, the term "made in contemplation of death" as including the value, over $ , , of property transferred by a decedent, by trust, etc., without full consideration in money or money's worth, "within years prior to his death but after the enactment of this act", although "not admitted or shown to have been made in contemplation of or intended to take effect in possession or enjoyment at or after his death", _held_ as applied to a transfer completed wholly between the living, spoliation without due process of law under the fifth amendment. heiner _v._ donnan, u.s. (march , ). (_b_). section in part ( stat. ). provision imposing a special excise tax of $ , on liquor dealers in states where such business is illegal, _held_ a penalty, without constitutional support following repeal of the eighteenth amendment. united states _v._ constantine, u.s. (december , ). . act of march , ( stat. , sec. , in part). clause in the economy act of providing "* * * all laws granting or pertaining to yearly renewable term insurance are hereby repealed", _held_ invalid to abrogate an outstanding contract of insurance, which is a vested right protected by the fifth amendment. lynch _v._ united states, u.s. (june , ). . act of may , ( stat. ). agricultural adjustment act providing for processing taxes on agricultural commodities and benefit payments therefrom to farmers, _held_ not within the taxing power under article i, section , clause . united states _v._ wm. m. butler et al., receivers of hoosac mills corp., u.s. (january , ). . joint resolution of june , ( stat. , sec. ). abrogation of gold clause in government obligations, _held_ a repudiation of the pledge implicit in the power to borrow money (art. i, sec. , clause ), and within the prohibition of the fourteenth amendment, against questioning the validity of the public debt. [the majority of the court, however, held plaintiff not entitled to recover under the circumstances.] perry _v._ u.s., u.s. (february , ). . act of june , ( stat. , ch. , the national industrial recovery act). a. title i, except section . provisions relating to codes of fair competition, authorized to be approved by the president in his discretion "to effectuate the policy" of the act, _held_ invalid as a grant of legislative power (_see_ art. i, sec. ) and not within the commerce power. schechter poultry corp. _v._ united states, u.s. (may , ). b. section (c). clause of the oil regulation section authorizing the president "to prohibit the transportation in interstate * * * commerce of petroleum * * * produced or withdrawn from storage in excess of the amount permitted * * * by any state law * * *" and prescribing a penalty for violation of orders issued thereunder, _held_ invalid as a grant of legislative power. panama refining co. et al. _v._ ryan et al. and amazon petroleum corp., et al. _v._ ryan et al., u.s. (january , ). . act of june , ( stat. , sec. ). temporary reduction of percent in retired pay of "judges (whose compensation, prior to retirement or resignation, could not, under the constitution, have been diminished)", as applied to circuit or district judges retired from active service, but still subject to perform judicial duties under the act of march , ( stat. ), _held_ a violation of the guaranty of judges' salaries under article iii, section . booth _v._ united states (together with amidon _v._ united states), u.s. (february , ). . act of april , ( stat. , sec. ), amending section (i) of home owners' loan act of . provision for conversion of state building and loan associations into federal associations, upon vote of percent of the votes cast at a meeting of stockholders called to consider such action, _held_ an encroachment on reserved powers of state. hopkins federal savings & loan association _v._ cleary, u.s. (december , ). . act of may , ( stat. , ch. ). provision for readjustment of municipal indebtedness, _held_ invalid, though "adequately related" to the bankruptcy power, as an interference with state sovereignty. ashton _v._ cameron county water improvement district no. , u.s. (may , ). . act of june , ( stat. , ch. entire). the railroad retirement act, establishing a detailed compulsory retirement system for employees of carriers subject to the interstate commerce act, _held_, not a regulation of commerce within the meaning of article i, section , clause . railroad retirement board _v._ alton r.r. et al., u.s. (may , ). . act of june , ( stat. , ch. ). the frazier-lemke act, adding subsection (s) to section of the bankruptcy act, designed to preserve to mortgagors the ownership and enjoyment of their farm property and providing specifically, in paragraph , that a bankrupt left in possession has the option at any time within years of buying at the appraised value--subject meanwhile to no monetary obligation other than payment of reasonable rental, _held_ a violation of property rights, under the fifth amendment. louisville joint stock land bank _v._ radford, u.s. (may , ). . act of august , ( stat. , ch. , title i). agricultural adjustment act amendments, _held_ not within the taxing power. rickert rice mills _v._ fontenot, u.s. (january , ). . act of august , ( stat. , ch. ). bituminous coal conservation act of , _held_ to impose not a tax within article i, section , but a penalty not sustained by the commerce clause. carter _v._ carter coal co., u.s. (may , ). . act of june , ( stat. , ch. , sec. (f)). federal firearms act, section (f), establishing a presumption of guilt based on a prior conviction and present possession of a firearm, _held_ to violate the test of due process under the fifth amendment. tot _v._ united states, u.s. (june , ). . act of november , ( stat. , ch. , sec. ). urgent deficiency appropriation act of , section , providing that no salary should be paid to certain, named federal employees out of moneys appropriated, _held_ to violate article i, section , clause , forbidding enactment of bill of attainder or _ex post facto_ law. united states _v._ lovett, u.s. (june , ). table of cases a abby dodge, the, u.s. ( ), abie state bank _v._ bryan, u.s. ( ), , ableman _v._ booth, how. ( ), , , , , abrams _v._ united states, u.s. ( ), , , , , adair _v._ bank of america assn., u.s. ( ), adair _v._ united states, u.s. ( ), , , adam _v._ saenger, u.s. ( ), , , , adams _v._ bellaire stamping co., u.s. ( ), adams _v._ milwaukee, u.s. ( ), , adams _v._ new york, u.s. ( ), , adams _v._ storey, fed. cas. no. ( ), adams _v._ tanner, u.s. ( ), adams _v._ united states, u.s. ,( ), , adams express co. _v._ croninger, u.s. ( ), , adams express co. _v._ kentucky, u.s. ( ), adams express co. _v._ ohio, u.s. ( ), , , adams express co. _v._ ohio, u.s. ( ), adams mfg. co. _v._ storen, u.s. ( ), , , adamson _v._ california, u.s. ( ), , , , , , , , , , addyston pipe & steel co. _v._ united states, u.s. ( ), , , , adirondack r. co. _v._ new york, u.s. ( ), adkins _v._ children's hospital, u.s. ( ), , , , , , , , adler _v._ board of education, u.s. ( ), admiral peoples, the, u.s. ( ), advance-rumely thresher co. _v._ jackson, u.s. ( ), aero mayflower transit co. _v._ board of r.r. commrs., u.s. ( ), aero mayflower transit co. _v._ georgia pub. serv. commission, u.s. ( ), , aetna ins. co. _v._ hyde, u.s. ( ), aetna ins. co. _v._ kennedy, u.s. ( ), aetna life ins. co. _v._ dunken, u.s. ( ), aetna life ins. co. _v._ haworth, u.s. ( ), , , , aetna life ins. co. _v._ tremblay, u.s. ( ), ager _v._ murray, u.s. ( ), agnello _v._ united states, u.s. ( ), , ah sin _v._ wittman, u.s. ( ), aikens _v._ wisconsin, u.s. ( ), akins _v._ texas, u.s. ( ), akron c. & y.r. co. _v._ united states, u.s. ( ), alabama _v._ arizona, u.s. ( ), alabama _v._ king & boozer, u.s. ( ), alabama comm'n. _v._ southern r. co., u.s. ( ), alabama power co. _v._ ickes, u.s. ( ), , , alabama state federation of labor _v._ mcadory, u.s. ( ), , , , , alaska _v._ troy, u.s. ( ), alaska fish salting & by-products co. _v._ smith, u.s. ( ), alaska packers asso. _v._ industrial acci. commission, u.s. ( ), alaska packers asso. _v._ industrial acci. commission, u.s. ( ), , albrecht _v._ united states, u.s. ( ), , albrecht _v._ united states, u.s. ( ), algoma plywood & veneer co. _v._ wisconsin, u.s. ( ), allen _v._ alleghany co., u.s. ( ), allen _v._ baltimore & o.r. co., u.s. ( ), , allen _v._ georgia, u.s. ( ), , allen _v._ mckean, fed. cas. no. ( ), allen _v._ pullman's palace car co., u.s. ( ), allen _v._ regents of university system of georgia, u.s. ( ), , allen _v._ riley, u.s. ( ), allen _v._ smith, u.s. ( ), allen bradley co. _v._ union, u.s. ( ), allen-bradley local _v._ employment relations board, u.s. ( ), allgeyer _v._ louisiana, u.s. ( ), , alma motor co. _v._ timken-detroit axle co., u.s. ( ), almy _v._ california, how. ( ), , alpha portland cement co. _v._ massachusetts, u.s. ( ), , , altman & co. _v._ united states, u.s. ( ), alton r. co. _v._ illinois comm'n., u.s. ( ), altvater _v._ freeman, u.s. ( ), alward _v._ johnson, u.s. ( ), , american communications asso. _v._ douds, u.s. ( ), american construction co. _v._ jacksonville t. & k.w.r. co., u.s. ( ), american express co. _v._ caldwell, u.s. ( ), , , american express co. _v._ mullins, u.s. ( ), , , american federation of labor _v._ american sash co., u.s. ( ), , , , american federation of labor _v._ swing, u.s. ( ), american fire ins. co. _v._ king lumber co., u.s. ( ), american ins. co. _v._ canter, pet. ( ), , , , american land co. _v._ zeiss, u.s. ( ), american manufacturing co. _v._ st. louis, u.s. ( ), , american medical assn. _v._ united states, u.s. ( ), american mills co. _v._ american surety co., u.s. ( ), american power & light co. _v._ securities & exchange commission, u.s. ( ), , , american publishing co. _v._ fisher, u.s. ( ), american school of magnetic healing _v._ mcannulty, u.s. ( ), american seeding machine co. _v._ kentucky, u.s. ( ), american steel & wire co. _v._ speed, u.s. ( ), american sugar refining co. _v._ louisiana, u.s. ( ), american surety co. _v._ baldwin, u.s. ( ), , , american telephone & telegraph co. _v._ united states, u.s. ( ), american tobacco co. _v._ united states, u.s. ( ), american tobacco co. _v._ werckmeister, u.s. ( ), american toll bridge co. _v._ railroad com. of california et al., u.s. ( ), ames _v._ kansas ex rel. johnston, u.s. ( ), , amos _v._ united states, u.s. ( ), anderson _v._ dunn, wheat. ( ), , anderson _v._ santa anna, u.s. ( ), anderson nat. bank _v._ luckett, u.s. ( ), , , , andres _v._ united states, u.s. ( ), , andrews _v._ andrews, u.s. ( ), , , , andrews _v._ swartz, u.s. ( ), andrews _v._ wall, how. ( ), angel _v._ bullington, u.s. ( ), angle _v._ chicago, st. p.m. & o.r. co., u.s. ( ), anglo-american provision co. _v._ davis provision co., u.s. ( ), , anglo-chilean nitrate sales corp. _v._ alabama, u.s. ( ), , anniston mfg. co. _v._ davis, u.s. ( ), antelope, the, wheat. ( ), anti-fascist committee _v._ mcgrath, u.s. ( ), antoni _v._ greenhow, u.s. ( ), appalachian coals, inc. _v._ united states, u.s. ( ), appleby _v._ buffalo, u.s. ( ), appleby _v._ delaney, u.s. ( ), appleyard _v._ massachusetts, u.s. ( ), arizona _v._ california, u.s. ( ), , , , arizona _v._ california, u.s. ( ), arizona cooper co. _v._ hammer (arizona employers' liability cases), u.s. ( ), arkadelphia milling co. _v._ st. louis s.w.r. co., u.s. ( ), arkansas _v._ kansas & t.c. co. & s.f.r., u.s. ( ), arkansas land & cattle co. _v._ mann, u.s. ( ), arkansas louisiana gas co. _v._ dept. of public utilities, u.s. ( ), arlington hotel co. _v._ fant, u.s. ( ), armour & co. _v._ north dakota, u.s. ( ), , , armour & co. _v._ virginia, u.s. ( ), armour & co. _v._ wantock, u.s. ( ), armour packing co. _v._ lacy, u.s. ( ), armour packing co. _v._ united states, u.s. ( ), , armstrong _v._ united states, wall. ( ), armstrong's foundry _v._ united states, wall. ( ), arndstein _v._ mccarthy, u.s. ( ), arndt _v._ griggs, u.s. ( ), , arrowsmith _v._ gleason, u.s. ( ), arver _v._ united states (selective draft law cases), u.s. ( ), , , asbell _v._ kansas, u.s. ( ), asbury hospital _v._ cass county, u.s. ( ), , ashcraft _v._ tennessee, u.s. ( ), , ashcraft _v._ tennessee, u.s. ( ), ashe _v._ united states ex rel. valotta, u.s. ( ), asher _v._ texas, u.s. ( ), ashton _v._ cameron county water improvement dist, u.s. ( ), , , ashwander _v._ tennessee valley authority, u.s. ( ), , , , , , , , , askren _v._ continental oil co., u.s. ( ), , assaria state bank _v._ dolley, u.s. ( ), associated press _v._ national labor relations board, u.s. ( ), , associated press _v._ united states, u.s. ( ), atchison, t. & s.f.r. co. _v._ harold, u.s. ( ), atchison, t. & s.f.r. co. _v._ matthews, u.s. ( ), atchison, t. & s.f.r. co. _v._ o'connor, u.s. ( ), , , atchison, t & s.f.r. co. _v._ railroad commission, u.s. ( ), , atchison, t. & s.f.r. co. _v._ sowers, u.s. ( ), , atchison, t. & s.f.r. co. _v._ vosburg, u.s. ( ), atherton _v._ atherton, u.s. ( ), atkin _v._ kansas, u.s. ( ), , atkins _v._ moore, u.s. ( ), atkinson _v._ state tax commission, u.s. ( ), , atlantic & p. teleg. co. _v._ philadelphia, u.s. ( ), atlantic cleaners & dyers, inc. _v._ united states, u.s. ( ), , atlantic coast line r. co. _v._ daughton, u.s. ( ), atlantic coast line r. co. _v._ ford, u.s. ( ), , atlantic coast line r. co. _v._ georgia, u.s. ( ), , atlantic coast line r. co. _v._ glenn, u.s. ( ), atlantic coast line r. co. _v._ goldsboro, u.s. ( ), , , , , atlantic coast line r. co. _v._ north carolina corp. commission, u.s. ( ), atlantic coast line r. co. _v._ phillips, u.s. ( ), atlantic lumber co. _v._ commissioner, u.s. ( ), , atlantic refining co. _v._ virginia, u.s. ( ), , atlantic works _v._ brady, u.s. ( ), atlee _v._ northwestern union p. co., wall. ( ), attorney general ex rel. kies _v._ lowrey, u.s. ( ), , audubon _v._ shufeldt, u.s. ( ), auffmordt _v._ hedden, u.s. ( ), , austin _v._ tennessee, u.s. ( ), austin _v._ united states, u.s. ( ), automobile workers _v._ o'brien, u.s. ( ), auto workers _v._ wis. board, u.s. ( ), , , , , , avent _v._ united states, u.s. ( ), avery _v._ alabama, u.s. ( ), , ayer & l. tie co. _v._ kentucky, u.s. ( ), ayers, ex parte, u.s. ( ), , , , b bacardi corp. _v._ domenech, u.s. ( ), baccus _v._ louisiana, u.s. ( ), bachtel _v._ wilson, u.s. ( ), backus _v._ lebanon, n.h. ( ), backus (a.) jr. & sons _v._ port street union depot co., u.s. ( ), bacon _v._ howard, how. ( ), bacon _v._ illinois, u.s. ( ), bacon _v._ texas, u.s. ( ), bacon _v._ walker, u.s. ( ), , , bacon & sons _v._ martin, u.s. ( ), badders _v._ united states, u.s. ( ), baender _v._ barnett, u.s. ( ), bagnell _v._ broderick, pet. ( ), bailey _v._ alabama, u.s. ( ), , , , bailey _v._ anderson, u.s. ( ), bailey _v._ drexel furniture co. (child labor tax case), u.s. ( ), , , bain, ex parte, u.s. ( ), bain peanut co. _v._ pinson, u.s. ( ), baiz, in re, u.s. ( ), , baizley iron works _v._ span, u.s. ( ), , bakelite corporation, ex parte, u.s. ( ), , , baker _v._ baker, e. & co., u.s. ( ), baker _v._ grice, u.s. ( ), baker _v._ morton, wall. ( ), baker _v._ selden, u.s. ( ), bakery & pastry drivers _v._ wohl, u.s. ( ), baldwin _v._ franks, u.s. ( ), , , baldwin _v._ iowa state traveling men's assoc., u.s. ( ), , baldwin _v._ missouri, u.s. ( ), , baldwin _v._ seelig, (g.a.f.), u.s. ( ), , , ballard _v._ hunter, u.s. ( ), , , , baltic min. co. _v._ massachusetts, u.s. ( ), , baltimore & c. line _v._ redman, u.s. ( ), , , baltimore nat. bank _v._ state tax comm'n., u.s. ( ), baltimore & o.r. co. _v._ baugh, u.s. ( ), baltimore & o.r. co. _v._ hostetter, u.s. ( ), baltimore & o.r. co. _v._ interstate commerce comm., u.s. ( ), , , baltimore & s.r. co. _v._ nesbit, how. ( ), baltimore shipbuilding & dry dock co. _v._ baltimore, u.s. ( ), balzac _v._ porto rico, u.s. ( ), , bandini petroleum co. _v._ superior court, u.s. ( ), , banholzer _v._ new york l. ins. co., u.s. ( ), bank of alabama _v._ dalton, how. ( ), bank of augusta _v._ earle, pet. ( ), , , bank of kentucky _v._ wister, pet. ( ), bank of minden _v._ clement, u.s. ( ), bank of united states _v._ deveaux, cr. ( ), , , bank of united states _v._ halstead, wheat. ( ), bank of the united states _v._ planters' bank of ga., wheat. ( ), banker bros. co. _v._ pennsylvania, u.s. ( ), bankers pocahontas coal co. _v._ burnet, u.s. ( ), bankers trust co. _v._ blodgett, u.s. ( ), , barber _v._ barber, how. ( ), barber _v._ barber, u.s. ( ), barbier _v._ connolly, u.s. ( ), , barbour _v._ georgia, u.s. ( ), barnes _v._ barnes, jones l. (n.c.) ( ), barnett _v._ bowles, f. ( d) ( ), barnett _v._ bowles, u.s. ( ), barney _v._ baltimore, wall. ( ), barney _v._ city of new york, u.s. ( ), barnitz _v._ beverly, u.s. ( ), barrett _v._ indiana, u.s. ( ), , barrett _v._ new york, u.s. ( ), barron _v._ baltimore, pet. ( ), , barron _v._ burnside, u.s. ( ), barrow s.s. co. _v._ kane, u.s. ( ), barry, ex parte, how. ( ), barry _v._ mercein, how. ( ), barry _v._ united states ex rel. cunningham, u.s. ( ), , barsky _v._ united states, u.s. ( ), barsky _v._ united states, f. ( d) ( ), bartell _v._ united states, u.s. ( ), bartemeyer _v._ iowa, wall. ( ), barton _v._ barbour, u.s. ( ), barwise _v._ sheppard, u.s. ( ), bas _v._ tingy, dall. ( ), , bass, ratcliff & gretton _v._ state tax commission, u.s. ( ), , , bassing _v._ cady, u.s. ( ), , bates _v._ bodie, u.s. ( ), battle _v._ united states, u.s. ( ), bauman _v._ ross, u.s. ( ), , baumgartner _v._ united states, u.s. ( ), , baylis _v._ travelers' ins. co., u.s. ( ), bayside fish flour co. _v._ gentry, u.s. ( ), , , , , beal _v._ missouri pacific r. co., u.s. ( ), beall _v._ new mexico ex rel. griffin, wall. ( ), beauharnais _v._ illinois, u.s. ( ), , beavers _v._ haubert, u.s. ( ), beavers _v._ henkel, u.s. ( ), beazell _v._ ohio, u.s. ( ), becker steel co. _v._ cummings, u.s. ( ), bedford _v._ united states, u.s. ( ), bedford co. _v._ stone cutters assn., u.s. ( ), beidler _v._ south carolina tax commission, u.s. ( ), bekins van lines _v._ riley, u.s. ( ), "belfast," the, _v._ boon, wall. ( ), belknap _v._ schild, u.s. ( ), , bell _v._ bell, u.s. ( ), bell _v._ hood, u.s. ( ), , bell's gap r. co. _v._ pennsylvania, u.s. ( ), , , bell tele. co. _v._ pennsylvania public util. com., u.s. ( ), benner _v._ porter, how. ( ), bennett _v._ butterworth, how. ( ), benson _v._ united states, u.s. ( ), berea college _v._ kentucky, u.s. ( ), , , bergemann _v._ backer, u.s. ( ), berizzi bros. co. _v._ s.s. pesaro, u.s. ( ), bernheimer _v._ converse, u.s. ( ), bessette _v._ w.b. conkey co., u.s. ( ), best & co. _v._ maxwell, u.s. ( ), bethlehem motors corp. _v._ flynt, u.s. ( ), bethlehem steel co. _v._ new york labor relations bd., u.s. ( ), betts _v._ brady, u.s. ( ), , , , biddinger _v._ police comr., u.s. ( ), biddle _v._ perovich, u.s. ( ), , bier _v._ mcgehee, u.s. ( ), bigelow _v._ old dominion copper min. & s. co., u.s. ( ), , , billings _v._ illinois, u.s. ( ), billings _v._ united states, u.s. ( ), , bilokumsky _v._ tod, u.s. ( ), bi-metallic co. _v._ colorado, u.s. ( ), , binderup _v._ pathe exchange, u.s. ( ), bingaman _v._ golden eagle western lines, u.s. ( ), , binghamton bridge, the, wall. ( ), binney _v._ long, u.s. ( ), binns _v._ united states, u.s. ( ), , bishop _v._ united states, u.s. ( ), black & white taxicab & t. co. _v._ brown & yellow taxicab & t. co., u.s. ( ), blackmer _v._ united states, u.s. ( ), , blackstone _v._ miller, u.s. ( ), , blair _v._ chicago, u.s. ( ), blake _v._ mcclung, u.s. ( ), , , , blake _v._ united states, u.s. ( ), blau _v._ united states, u.s. ( ), blau _v._ united states, u.s. ( ), bleistein _v._ donaldson lithographing co., u.s. ( ), blinn _v._ nelson, u.s. ( ), block _v._ hirsh, u.s. ( ), , blodgett _v._ holden, u.s. ( ), blodgett _v._ silberman, u.s. ( ), , , , bloomer _v._ mcquewan, how. ( ), , bloomer _v._ millinger, wall. ( ), bluefield waterworks & improv. co. _v._ pub. serv. comm., u.s. ( ), blumenstock bros. _v._ curtis pub. co., u.s. ( ), board of assessors _v._ new york l. ins. co., u.s. ( ), board of comms. _v._ seber, u.s. ( ), board of councilmen of frankfort _v._ state national bank, u.s. ( ), board of education _v._ barnette, u.s. ( ), , , , board of education _v._ illinois, u.s. ( ), board of liquidation _v._ mccomb, u.s. ( ), , , board of public works _v._ columbia college, wall. ( ), , bob-lo excursion co. _v._ michigan, u.s. ( ), , bollman, ex parte, cr. ( ), , , , , , , , , , bonaparte _v._ camden & a.r. co., fed. cas. no. , ( ), bonaparte _v._ tax court, u.s. ( ), bond _v._ hume, u.s. ( ), , boom co. _v._ patterson, u.s. ( ), booth _v._ illinois, u.s. ( ), booth _v._ indiana, u.s. ( ), booth fisheries co. _v._ industrial commission, u.s. ( ), borden company _v._ borella, u.s. ( ), borden's farm products co. _v._ ten eyck, u.s. ( ), borer _v._ chapman, u.s. ( ), börs _v._ preston, u.s. ( ), boske _v._ comingore, u.s. ( ), bosley _v._ mclaughlin, u.s. ( ), , boston beer co. _v._ massachusetts, u.s. ( ), , , boston & montana consolidated copper & silver mining co. _v._ montana ore purchasing co., u.s. ( ), boswell _v._ otis, how. ( ), bothwell _v._ buckbee-mears co., u.s. ( ), botiller _v._ dominguez, u.s. ( ), , bourjois, inc. _v._ chapman, u.s. ( ), , boutell _v._ walling, u.s. ( ), bowen _v._ johnston, u.s. ( ), bowers _v._ kerbaugh-empire co., u.s. ( ), , bowersock _v._ smith, u.s. ( ), bowles _v._ willingham, u.s. ( ), , , , , bowman _v._ chicago, & n.w.r. co., u.s. ( ), , , , bowman _v._ continental oil co., u.s. ( ), , bowman _v._ lewis, u.s. ( ), boyce's executors _v._ grundy, pet. ( ), boyd _v._ nebraska ex rel. thayer, u.s. ( ), , boyd _v._ united states, u.s. ( ), , , boyd _v._ united states, u.s. ( ), boyer, ex parte, u.s. ( ), boynton _v._ hutchinson gas co., u.s. ( ), bozza _v._ united states, u.s. ( ), brader _v._ james, u.s. ( ), bradfield _v._ roberts, u.s. ( ), bradford electric light co. _v._ clapper, u.s. ( ), , bradley _v._ lightcap, u.s. ( ), bradley _v._ public utilities commission, u.s. ( ), , , bradwell _v._ illinois, wall. ( ), , brady _v._ roosevelt s.s. co., u.s. ( ), bragg _v._ weaver, u.s. ( ), , , branch _v._ haas, f. ( ), brannan _v._ stark, u.s. ( ), bransford, ex parte, u.s. ( ), branson _v._ bush, u.s. ( ), brass _v._ north dakota ex rel. stoeser, u.s. ( ), bratton _v._ chandler, u.s. ( ), , braxton county court _v._ west virginia, u.s. ( ), , brazee _v._ michigan, u.s. ( ), breard _v._ alexandria, u.s. ( ), , breedlove _v._ suttles, u.s. ( ), , , , breese _v._ united states, u.s. ( ), breiholz _v._ pocahontas county, u.s. ( ), brennan _v._ titusville, u.s. ( ), , brewing co. _v._ liquor comm'n., u.s. ( ), bridge proprietors _v._ hoboken co., wall. ( ), bridges _v._ california, u.s. ( ), , , , , , brig ann, the, cr. ( ), brigantine william, the, fed. cas. , ( ), brig aurora, the, cr. ( ), , briggs _v._ elliott, u.s. ( ), brillhart _v._ excess insurance co., u.s. ( ), , brimmer _v._ rebman, u.s. ( ), , , brinegar _v._ united states, u.s. ( ), , brinkerhoff-faris trust & sav. co. _v._ hill, u.s. ( ), briscoe _v._ bank of kentucky, pet. ( ), , briscoe _v._ rudolph, u.s. ( ), bristol _v._ washington county, u.s. ( ), broad river power co. _v._ south carolina ex rel. daniel, u.s. ( ), broderick _v._ rosner, u.s. ( ), , brodnax _v._ missouri, u.s. ( ), , brolan _v._ united states, u.s. ( ), , bromley _v._ mccaughn, u.s. ( ), , bronson _v._ kinzie, how. ( ), brooke _v._ norfolk, u.s. ( ), brooks _v._ united states, u.s. ( ), , brooks _v._ united states, f. ( d) ( ), brooks _v._ united states, u.s. ( ), brooks-scanlon co. _v._ railroad commission, u.s. ( ), brown _v._ baskin, f. supp. ( ), brown _v._ duchesne, how. ( ), brown _v._ elliott, u.s. ( ), brown _v._ fletcher, u.s. ( ), , , , brown _v._ grant, u.s. ( ), brown _v._ houston, u.s. ( ), , , brown _v._ maryland, wheat. ( ), , , , , , , , , , , , brown _v._ mississippi, u.s. ( ), , , , brown _v._ new jersey, u.s. ( ), , , brown _v._ penobscot bank, mass. ( ), brown _v._ piper, u.s. ( ), brown _v._ smart, u.s. ( ), brown _v._ united states, cr. ( ), brown _v._ united states, u.s. ( ), , brown _v._ walker, u.s. ( ), , , , brown _v._ western ry. co. of alabama, u.s. ( ), brown (marcus) holding co. _v._ feldman, u.s. ( ), , browne _v._ strode, cr. ( ), browning _v._ hooper, u.s. ( ), browning _v._ waycross, u.s. ( ), , bruno _v._ u.s., u.s. ( ), brushaber _v._ union pacific r. co., u.s. ( ), , , , , , , bryant, in re, fed. cas. no. ( ), buchalter _v._ new york, u.s. ( ), buchanan _v._ warley, u.s. ( ), , buck _v._ beach, u.s. ( ), buck _v._ bell, u.s. ( ), , , , buck _v._ california, u.s. ( ), buck _v._ colbath, wall. ( ), , buck _v._ kuykendall, u.s. ( ), buckstaff bath house _v._ mckinley, u.s. ( ), budd _v._ new york, u.s. ( ), , , bugajewitz _v._ adams, u.s. ( ), , building service employees union _v._ gazzam, u.s. ( ), bullen _v._ wisconsin, u.s. ( ), bunting _v._ oregon, u.s. ( ), , , burbank _v._ ernst, u.s. ( ), burdeau _v._ mcdowell, u.s. ( ), , burdick _v._ united states, u.s. ( ), , burford, ex parte, cr. ( ), burgess _v._ salmon, u.s. ( ), , burgess _v._ seligman, u.s. ( ), , burk-waggoner oil asso. _v._ hopkins, u.s. ( ), burnes nat. bank _v._ duncan, u.s. ( ), burnet _v._ coronado oil & gas co., u.s. ( ), , burnet _v._ harmel, u.s. ( ), burnet _v._ sanford & b. co., u.s. ( ), burns baking co. _v._ bryan, u.s. ( ), burroughs _v._ united states, u.s. ( ), burrow-giles lithographic co. _v._ sarony, u.s. ( ), burstyn (joseph), inc. _v._ wilson, u.s. ( ), burton _v._ united states, u.s. ( ), , , , , bus employees _v._ wisconsin board, u.s. ( ), , , bush & sons co. _v._ maloy, u.s. ( ), butchers' union co. _v._ crescent city co., u.s. ( ), bute _v._ illinois, u.s. ( ), , butler _v._ boston & savannah s.s. co., u.s. ( ), butler _v._ goreley, u.s. ( ), butler _v._ pennsylvania, how. ( ), butler _v._ perry, u.s. ( ), , butler bros. _v._ mccolgan, u.s. ( ), butte city water co. _v._ baker, u.s. ( ), butters _v._ oakland, u.s. ( ), butterworth _v._ hoe, u.s. ( ), , buttfield _v._ stranahan, u.s. ( ), , buzard _v._ houston, u.s. ( ), byars _v._ united states, u.s. ( ), , , byrne _v._ missouri, pet. ( ), c cafeteria employees union _v._ angelos, u.s. ( ), cahen _v._ brewster, u.s. ( ), cairo & f.r. co. _v._ hecht, u.s. ( ), calder _v._ bull, dall. ( ), , , , , , , calder _v._ michigan, u.s. ( ), caldwell _v._ north carolina, u.s. ( ), caldwell _v._ sioux falls stock yards co., u.s. ( ), , caldwell _v._ texas, u.s. ( ), california _v._ central pacific railroad, u.s. ( ), , california _v._ deseret water, oil & irrig. co., u.s. ( ), california _v._ southern pacific co., u.s. ( ), , , california _v._ thompson, u.s. ( ), , , , , california _v._ united states, u.s. ( ), california _v._ zook, u.s. ( ), california auto ass'n. _v._ maloney, u.s. ( ), california reduction co. _v._ sanitary reduction works, u.s. ( ), , callan _v._ wilson, u.s. ( ), , , , camfield _v._ united states, u.s. ( ), caminetti _v._ united states, u.s. ( ), cammeyer _v._ newton, u.s. ( ), campbell _v._ boyreau, how. ( ), campbell _v._ california, u.s. ( ), campbell _v._ holt, u.s. ( ), canadian aviator _v._ united states, u.s. ( ), canadian n.r. co. _v._ eggen, u.s. ( ), canizio _v._ new york, u.s. ( ), cannon _v._ new orleans, wall. ( ), canton r. co. _v._ rogan, u.s. ( ), cantwell _v._ connecticut, u.s. ( ), , , , , capital city dairy co. _v._ ohio ex rel. attorney general, u.s. ( ), capital traction co. _v._ hof, u.s. ( ), , , , , capital trust co. _v._ calhoun, u.s. ( ), capitol greyhound lines _v._ brice, u.s. ( ), cardillo _v._ liberty mutual co., u.s. ( ), cardwell _v._ american river bridge co., u.s. ( ), carfer _v._ caldwell, u.s. ( ), cargill co. _v._ minnesota, u.s. ( ), , , carlesi _v._ new york, u.s. ( ), , carley & hamilton _v._ snook, u.s. ( ), carlisle _v._ united states, wall. ( ), carll, ex parte, u.s. ( ), carlson _v._ california, u.s. ( ), carlson _v._ landon, u.s. ( ), , carmichael _v._ southern coal & coke co., u.s. ( ), carmichael _v._ southern coal & coke co., u.s. ( ), carneal _v._ banks, wheat. ( ), carolene products co. _v._ united states, u.s. ( ), carolina glass co. _v._ south carolina, u.s. ( ), carondelet canal co. _v._ louisiana, u.s. ( ), carpenter _v._ pennsylvania, how. ( ), carpenter _v._ shaw, u.s. ( ), , carpenters & joiners union _v._ ritter's cafe, u.s. ( ), , carr _v._ united states, u.s. ( ), carroll _v._ becker, u.s. ( ), carroll _v._ greenwich ins. co., u.s. ( ), , , carroll _v._ united states, u.s. ( ), , , carson _v._ roane-anderson co., u.s. ( ), carson petroleum co. _v._ vial, u.s. ( ), carstairs _v._ cochran, u.s. ( ), , carter _v._ carter coal co., u.s. ( ), , , , , , carter _v._ illinois, u.s. ( ), , carter _v._ mcclaughry, u.s. ( ), carter _v._ roberts, u.s. ( ), carter _v._ virginia, u.s. ( ), , cartlidge _v._ rainey, f. ( d) ( ), carver _v._ jackson ex dem. astor, pet. ( ), cary _v._ curtis, how. ( ), , , , , case _v._ bowles, u.s. ( ), , , case of jefferson davis, fed. cas. no. a ( ), case of the state tax on foreign-held bonds, wall. ( ), , , caskey baking co. _v._ virginia, u.s. ( ), , cass farm co. _v._ detroit, u.s. ( ), cassell _v._ texas, u.s. ( ), cavanaugh _v._ looney, u.s. ( ), cavellier, in re, misc. (n.y.) ( ), central greyhound lines, inc. _v._ mealey, u.s. ( ), central hanover bank & t. co. _v._ kelly, u.s. ( ), central land co. _v._ laidley, u.s. ( ), central lumber co. _v._ south dakota, u.s. ( ), central national bank _v._ stevens, u.s. ( ), central of georgia r. co. _v._ murphey, u.s. ( ), central of georgia r. co. _v._ wright, u.s. ( ), , , central p.r. co. _v._ gallatin (sinking-fund cases), u.s. ( ), , , central union trust co. _v._ garvan, u.s. ( ), chae chan ping _v._ united states, u.s. ( ), chaffin _v._ taylor, u.s. ( ), chalker _v._ birmingham & m.w.r. co., u.s. ( ), chambers _v._ baltimore & o.r. co., u.s. ( ), , chambers _v._ florida, u.s. ( ), , , champion _v._ ames (the lottery case), u.s. ( ), , , , champlain realty co. _v._ brattleboro, u.s. ( ), champlin ref. co. _v._ corporation commission, u.s. ( ), champlin refining co. _v._ united states, u.s. ( ), chandler _v._ dix, u.s. ( ), , chandler _v._ wise, u.s. ( ), chanler _v._ kelsey, u.s. ( ), chaplinsky _v._ new hampshire, u.s. ( ), , , chapman _v._ brewer, u.s. ( ), chapman _v._ king, f. ( d) ( ), chapman _v._ king, u.s. ( ), chapman _v._ zobelein, u.s. ( ), , chapman, in re, u.s. ( ), - , , , chappell _v._ united states, u.s. ( ), charles river bridge co. _v._ warren bridge co., pet. ( ), , , charleston assn. _v._ alderson, u.s. ( ), charlotte, c. & a.r. co. _v._ gibbes, u.s. ( ), charlotte harbor & n.r. co. _v._ welles, u.s. ( ), charlton _v._ kelly, u.s. ( ), , , , chase national bank _v._ united states, u.s. ( ), chase securities corp. _v._ donaldson, u.s. ( ), , chassaniol _v._ greenwood, u.s. ( ), chastleton corp. _v._ sinclair, u.s. ( ), , cheatham et al. _v._ united states, u.s. ( ), , cheever _v._ wilson, wall. ( ), , chelentis _v._ luckenbach s.s. co., u.s. ( ), chemung canal bank _v._ lowery, u.s. ( ), cheney bros. co. _v._ massachusetts, u.s. ( ), , , cherokee nation _v._ georgia, pet. ( ), , , cherokee nation _v._ southern kansas r. co., u.s. ( ), , , cherokee tobacco, the, wall. ( ), , , chesapeake & o.r. co. _v._ miller, u.s. ( ), chesapeake & o.r. co. _v._ public service commission, u.s. ( ), , chicago _v._ sturges, u.s. ( ), chicago & a.r. co. _v._ tranbarger, u.s. ( ), , , , chicago & a.r. co. _v._ wiggins ferry co., u.s. ( ), , , chicago & grand trunk ry. co. _v._ wellman, u.s. ( ), , , , , chicago & n.w.r. co. _v._ fuller, wall. ( ), chicago & n.w.r. co. _v._ nye schneider fowler co., u.s. ( ), , chicago & n.w.r. co. _v._ whitton, wall. ( ), chicago & s. airlines _v._ waterman steamship corp., u.s. ( ), , , , chicago, b. & k.c.r. co. _v._ guffey, u.s. ( ), chicago, b. & q.r. co. _v._ babcock, u.s. ( ), chicago, b. & q.r. co. _v._ chicago, u.s. ( ), , , , , , , chicago, b. & q.r. co. _v._ cram, u.s. ( ), chicago, b. & q.r. co. _v._ harrington, u.s. ( ), chicago, b. & q.r. co. _v._ illinois ex rel. grimwood, u.s. ( ), , , chicago, b. & q.r. co. _v._ iowa, u.s. ( ), , chicago, b. & q.r. co. _v._ mcguire, u.s. ( ), , chicago, b. & q.r. co. _v._ nebraska, u.s. ( ), chicago, b. & q.r. co. _v._ wisconsin r.r. com., u.s. ( ), chicago board of trade _v._ olsen, u.s. ( ), chicago city _v._ robbins, bl. ( ), chicago dock & canal co. _v._ fraley, u.s. ( ), chicago, i. & l.r. co. _v._ united states, u.s. ( ), chicago, i. & l.r. co. _v._ united states, u.s. ( ), chicago l. ins. co. _v._ cherry, u.s. ( ), chicago, m. & st. p.r. co. _v._ ackley, u.s. ( ), chicago, m. & st. p.r. co. _v._ iowa, u.s. ( ), chicago, m. & st. p.r. co. _v._ minneapolis c. & c. asso., u.s. ( ), chicago, m. & st. p.r. co. _v._ minnesota, u.s. ( ), , , chicago, m. & st. p.r. co. _v._ polt, u.s. ( ), chicago, m. & st. p.r. co. _v._ public utilities commission, u.s. ( ), chicago, m. & st. p.r. co. _v._ solan, u.s. ( ), chicago, m. & st. p.r. co. _v._ wisconsin, u.s. ( ), , chicago, r.i. & p.r. co. _v._ arkansas, u.s. ( ), , chicago, r.i. & p.r. co. _v._ cole, u.s. ( ), chicago, r.i. & p.r. co. _v._ cramer, u.s. ( ), chicago, r.i. & p.r. co. _v._ hardwick farmers elevator co., u.s. ( ), chicago, r.i. & p.r. co. _v._ mcglinn, u.s. ( ), chicago, r.i. & p.r. co. _v._ perry, u.s. ( ), , chicago, r.i. & p.r. co. _v._ sturm, u.s. ( ), chicago, r.i. & p.r. co. _v._ united states, u.s. ( ), chicago, st. p., m. & o.r. co. _v._ holmberg, u.s. ( ), chicago title & trust co. _v._ wilcox bldg. corp., u.s. ( ), chinese exclusion case, u.s. ( ), chin tow _v._ united states, u.s. ( ), chirac _v._ chirac, wheat. ( ), , chisholm _v._ georgia, dall. ( ), , , , , , , , , , , choate _v._ trapp, u.s. ( ), , choctaw o. & g.r. co. _v._ harrison, u.s. ( ), christ church _v._ philadelphia county, how. ( ), christian _v._ atlantic & n.c.r. co., u.s. ( ), christmas _v._ russell, wall. ( ), , christoffel _v._ united states, u.s. ( ), , , church _v._ hubbart, cr. ( ), church _v._ kelsey, u.s. ( ), church of jesus christ of l.d.s. _v._ united states, u.s. ( ), chy lung _v._ freeman, u.s. ( ), cincinnati _v._ louisville & n.r. co., u.s. ( ), cincinnati _v._ vester, u.s. ( ), , cincinnati, n.o. & t.p.r. co. _v._ interstate commerce commission, u.s. ( ), cincinnati, n.o. & t.p.r. co. _v._ kentucky, u.s. ( ), , cincinnati, p.b.s. & p. packet co. _v._ catlettsburg, u.s. ( ), cincinnati soap co. _v._ united states, u.s. ( ), , , cincinnati street r. co. _v._ snell, u.s. ( ), cities service co. _v._ peerless co., u.s. ( ), , cities service co. _v._ mcgrath, u.s. ( ), citizens nat. bank _v._ durr, u.s. ( ), citizens savings & loan association _v._ topeka, wall. ( ), , city bank farmers trust co. _v._ schnader, u.s. ( ), city of panama, the, u.s. ( ), , civil rights cases, u.s. ( ), , , , claflin _v._ houseman, u.s. ( ), , , , clallam county _v._ united states, u.s. ( ), , , clark _v._ allen, u.s. ( ), , clark _v._ barnard, u.s. ( ), clark _v._ graham, wheat. ( ), clark _v._ nash, u.s. ( ), , clark _v._ paul gray, inc., u.s. ( ), , clark _v._ poor, u.s. ( ), clark _v._ smith, pet. ( ), clark _v._ willard, u.s. ( ), clark _v._ wooster, u.s. ( ), clark distilling co. _v._ western maryland r. co., u.s. ( ), , , , clark thread co. _v._ willimantic linen co., u.s. ( ), clarke _v._ clarke, u.s. ( ), clarke, ex parte, u.s. ( ), , clason _v._ indiana, u.s. ( ), clement nat. bank _v._ vermont, u.s. ( ), cleveland _v._ united states, u.s. ( ), , cleveland _v._ united states, u.s. ( ), cleveland, c.c. & st. l.r. co. _v._ backus, u.s. ( ), cleveland electric ry. co. _v._ cleveland, u.s. ( ), cline _v._ frink dairy, u.s. ( ), clinton _v._ englebrecht, wall. ( ), cloverleaf co. _v._ patterson, u.s. ( ), cluett _v._ claflin, u.s. ( ), clyatt _v._ united states, u.s. ( ), , clyde mallory lines _v._ alabama ex rel. state docks commission, u.s. ( ), cochran _v._ kansas, u.s. ( ), cochran _v._ louisiana state bd. of ed., u.s. ( ), , cockrill _v._ california, u.s. ( ), coe _v._ armour fertilizer works, u.s. ( ), , , coe _v._ coe, u.s. ( ), , coe _v._ errol, u.s. ( ), , , coffey _v._ harlan county, u.s. ( ), coffey _v._ united states, u.s. ( ), coffin _v._ coffin, mass. ( ), , coffin bros. & co. _v._ bennett, u.s. ( ), coffman _v._ breeze corporations, inc., u.s. ( ), , , , cohen _v._ beneficial industrial loan corp., u.s. ( ), , , , cohens _v._ virginia, wheat ( ), , , , , , , , , , , , , cole _v._ arkansas, u.s. ( ), cole _v._ arkansas, u.s. ( ), cole _v._ cunningham, u.s. ( ), , , colegrove _v._ green, u.s. ( ), , , , coleman _v._ miller, u.s. ( ), , , , , , colgate _v._ harvey, u.s. ( ), , , , collector _v._ day, wall. ( ), , , collins, ex parte, u.s. ( ), collins _v._ hardyman, u.s. ( ), collins _v._ johnston, u.s. ( ), , collins _v._ loisel, u.s. ( ), collins _v._ new hampshire, u.s. ( ), collins _v._ texas, u.s. ( ), collins _v._ yosemite park & curry co., u.s. ( ), , , colorado _v._ united states, u.s. ( ), colorado central consol. min. co. _v._ turck, u.s. ( ), colorado nat. bank _v._ bedford, u.s. ( ), colorado-wyoming co. _v._ comm'n., u.s. ( ), columbia r. gas & e. co. _v._ south carolina, u.s. ( ), columbus & g.r. co. _v._ miller, u.s. ( ), , commercial & railroad bank of vicksburg _v._ slocomb, pet. ( ), commercial pub. co. _v._ beckwith, u.s. ( ), commercial trust co. of new jersey _v._ miller, u.s. ( ), commissioner _v._ wilcox, u.s. ( ), commonwealth _v._ blanding, pick. (mass.) ( ), commonwealth _v._ gordon, d & c (pa.) ( ), commonwealth _v._ pouliot, mass. ( ), communications comm'n. _v._ n.b.c, u.s. ( ), compania espanola de navegacion maritima, s.a. _v._ the navemar, u.s. ( ), , compagnie francaise de navigation à vapeur _v._ louisiana state board of health, u.s. ( ), , concordia p. ins. co. _v._ illinois, u.s. ( ), concrete appliances co. _v._ gomery, u.s. ( ), confiscation cases, the. _see_ united states _v._ clarke. conley _v._ mathieson alkali works, u.s. ( ), connecticut general life insurance co. _v._ johnson, u.s. ( ), , connecticut ins. co. _v._ moore, u.s. ( ), , connecticut mut. l. ins. co. _v._ cushman, u.s. ( ), connecticut mut. ins. co. _v._ spratley, u.s. ( ), conner _v._ elliott, how. ( ), connolly _v._ union sewer pipe co., u.s. ( ), conrad _v._ waples, u.s. ( ), consolidated coal co. _v._ illinois, u.s. ( ), consolidated edison co. _v._ national labor relations board, u.s. ( ), , consolidated rendering co. _v._ vermont, u.s. ( ), , consumers' co. _v._ hatch, u.s. ( ), continental baking co. _v._ woodring, u.s. ( ), , , , , , continental co. _v._ tennessee, u.s. ( ), continental ill. nat. bank & t. co. _v._ chicago, r.i., & p.r. co., u.s. ( ), , , , continental tie & lumber co. _v._ united states, u.s. ( ), converse _v._ hamilton, u.s. ( ), conway _v._ taylor, bl. ( ), cook _v._ cook, u.s. ( ), cook _v._ hart, u.s. ( ), cook _v._ marshall county, u.s. ( ), cook _v._ pennsylvania, u.s. ( ), , cook _v._ tait, u.s. ( ), cook _v._ united states, u.s. ( ), , cook _v._ united states, u.s. ( ), cooke _v._ united states, u.s. ( ), , cooley _v._ board of wardens of port of philadelphia, how. ( ), , , , , , , , , coolidge _v._ long, u.s. ( ), , coombes _v._ getz, u.s. ( ), , , cooney _v._ mountain states telephone & telegraph co., u.s. ( ), , , cooper _v._ newell, u.s. ( ), cooper _v._ reynolds, wall. ( ), , cooper _v._ united states, u.s. ( ), coppage _v._ kansas, u.s. ( ), , corfield _v._ coryell, fed. cas. ( ), , corn exch. bank _v._ coler, u.s. ( ), corn products ref. co. _v._ eddy, u.s. ( ), , , , cornell _v._ coyne, u.s. ( ), cornell steamboat co. _v._ united states, u.s. ( ), coronado coal co. _v._ united mine workers, u.s. ( ), corp. of brick church _v._ mayor et al., cowen (n.y.) ( ), corporations commission _v._ lowe, u.s. ( ), corrigan _v._ buckley, u.s. ( ), corry _v._ baltimore, u.s. ( ), corson _v._ maryland, u.s. ( ), cotting _v._ godard, u.s. ( ), coughran _v._ bigelow, u.s. ( ), coulter _v._ louisville & n.r. co., u.s. ( ), counselman _v._ hitchcock, u.s. ( ), , covell _v._ heyman, u.s. ( ), , , coverdale _v._ arkansas-louisiana pipe line co., u.s. ( ), , covington _v._ kentucky, u.s. ( ), covington & c. bridge co. _v._ kentucky, u.s. ( ), , , , cox _v._ lott (state tonnage tax cases), wall. ( ), cox _v._ new hampshire, u.s. ( ), cox _v._ texas, u.s. ( ), cox _v._ wood, u.s. ( ), coy, in re, u.s. ( ), coyle _v._ smith, u.s. ( ), craig _v._ harney, u.s. ( ), craig _v._ hecht, u.s. ( ), craig _v._ missouri, pet. ( ), crain _v._ united states, u.s. ( ), cramer _v._ united states, u.s. ( ), , , crandall _v._ nevada, wall. ( ), , , , , crane _v._ commissioner, u.s. ( ), crane _v._ hahlo, u.s. ( ), crane _v._ johnson, u.s. ( ), crane _v._ new york, u.s. ( ), , crane-johnson co. _v._ helvering, u.s. ( ), crawford _v._ branch bank of alabama, how. ( ), crawford _v._ united states, u.s. ( ), cream of wheat co. _v._ grand forks county, u.s. ( ), crenshaw _v._ arkansas, u.s. ( ), crenshaw _v._ united states, u.s. ( ), , crescent cotton oil co. _v._ mississippi, u.s. ( ), crew levick co. _v._ pennsylvania, u.s. ( ), cross _v._ burke, u.s. ( ), cross _v._ north carolina, u.s. ( ), crossman _v._ lurman, u.s. ( ), crowell _v._ benson, u.s. ( ), , , crowley _v._ christensen, u.s. ( ), crutcher _v._ kentucky, u.s. ( ), , , , cudahy packing co. _v._ hinkle, u.s. ( ), , cudahy packing co. _v._ minnesota, u.s. ( ), cudahy packing co. _v._ parramore, u.s. ( ), cullinan _v._ walker, u.s. ( ), cumming _v._ county board of education, u.s. ( ), cummings _v._ deutsche bank, u.s. ( ), cummings _v._ missouri, wall. ( ), , , , cummings _v._ nat. bank, u.s. ( ), cunningham _v._ macon & brunswick r. co., u.s. ( ), , , cunningham _v._ neagle, u.s. ( ), cunnius _v._ reading school dist., u.s. ( ), cuno corp. _v._ automatic devices corp., u.s. ( ), , curran _v._ arkansas, how. ( ), , , currin _v._ wallace, u.s. ( ), , , , , , curry _v._ mccanless, u.s. ( ), , , curry _v._ united states, u.s. ( ), curtis, ex parte, u.s. ( ), , , curtis _v._ whitney, wall. ( ), cusack co. _v._ chicago, u.s. ( ), cuyahoga river power co. _v._ akron, u.s. ( ), d dahnke-walker milling co. _v._ bondurant, u.s. ( ), , dallemagne _v._ moisan, u.s. ( ), dalton _v._ jennings, u.s. ( ), dane _v._ jackson, u.s. ( ), danforth _v._ united states, u.s. ( ), daniel ball, the, wall. ( ), , , , daniel _v._ family security life ins. co., u.s. ( ), , , danzer co. _v._ gulf & s.i.r. co., u.s. ( ), darby _v._ mayer, wheat. ( ), d'arcy _v._ ketchum, how. ( ), darling _v._ newport news, u.s. ( ), darnell _v._ indiana, u.s. ( ), darnell & son co. _v._ memphis, u.s. ( ), darrington _v._ bank of alabama, how. ( ), dartmouth college _v._ woodward, wheat. ( ), , , , , davidson _v._ new orleans, u.s. ( ), , , , , davis, the, wall. ( ), , davis _v._ beason, u.s. ( ), , , davis _v._ brig seneca, fed. cas. no. , ( ), davis _v._ cleveland, c.c. & st. l.r. co., u.s. ( ), davis _v._ davis, u.s. ( ), davis _v._ department of labor, u.s. ( ), , davis _v._ elmira savings bank, u.s. ( ), davis _v._ farmers co-operative co., u.s. ( ), davis _v._ gray, wall. ( ), davis _v._ massachusetts, u.s. ( ), , davis _v._ hildebrant. _see_ ohio ex rel. davis _v._ hildebrant. davis _v._ schnell, f. supp. ( ), davis _v._ united states, u.s. ( ), davis _v._ virginia, u.s. ( ), day-brite lighting, inc. _v._ missouri, u.s. ( ), dayton coal & i. co. _v._ barton, u.s. ( ), dayton-goose creek r. co. _v._ united states, u.s. ( ), dean milk co. _v._ madison, u.s. ( ), debs, in re, u.s. ( ), , , , , debs _v._ united states, u.s. ( ), , , decatur _v._ paulding, pet. ( ), , de geofroy _v._ riggs, u.s. ( ), , de groot _v._ united states, wall. ( ), , , de jonge _v._ oregon, u.s. ( ), , , delaware, l. & w.r. co. _v._ morristown, u.s. ( ), delaware, l. & w.r. co. _v._ pennsylvania, u.s. ( ), delaware railroad tax, wall. ( ), delgado _v._ chavez, u.s. ( ), . de lima _v._ bidwell, u.s. ( ), de meerleer _v._ michigan, u.s. ( ), , demorest _v._ city bank co., u.s. ( ), den ex dem. murray _v._ hoboken land & improvement co., how. ( ), , , , dennick _v._ r.r., u.s. ( ), , dennis _v._ united states, u.s. ( ), dennis _v._ united states, u.s. ( ), , , , , , denny _v._ bennett, u.s. ( ), dent _v._ west virginia, u.s. ( ), denver _v._ denver union water co., u.s. ( ), denver _v._ new york trust co., u.s. ( ), denver & r.g.r. co. _v._ denver, u.s. ( ), , , , denver union stock yards co. _v._ united states, u.s. ( ), dept. of treasury of indiana _v._ mfg. co., u.s. ( ), dept. of treasury of indiana _v._ wood corp., u.s. ( ), , des moines gas co. _v._ des moines, u.s. ( ), , , des moines nat. bank _v._ fairweather, u.s. ( ), de treville _v._ smalls, u.s. ( ), detroit _v._ osborne, u.s. ( ), detroit _v._ parker, u.s. ( ), detroit bank _v._ united states, u.s. ( ), , detroit trust company _v._ the "thomas barlum," u.s. ( ), detroit united railway co. _v._ detroit, u.s. ( ), detroit united railway co. _v._ michigan, u.s. ( ), dewey _v._ des moines, u.s. ( ), , dewing _v._ perdicaries, u.s. ( ), diamond glue co. _v._ united states glue co., u.s. ( ), diamond match co. _v._ ontonagon, u.s. ( ), diamond rubber co. _v._ consolidated tire co., u.s. ( ), dick _v._ united states, u.s. ( ), , , dier _v._ banton, u.s. ( ), dietzsch _v._ huidekoper, u.s. ( ), diggs _v._ wolcott, cr. ( ), dillon _v._ gloss, u.s. ( ), , , , dimick _v._ schiedt, u.s. ( ), , di santo _v._ pennsylvania, u.s. ( ), , , district of columbia _v._ bailey, u.s. ( ), , district of columbia _v._ brooke, u.s. ( ), district of columbia _v._ clawans, u.s. ( ), district of columbia _v._ colts, u.s. ( ), dixie ohio express co. _v._ state revenue commission, u.s. ( ), dobbins _v._ erie county, pet. ( ), dobbins _v._ los angeles, u.s. ( ), dodge _v._ board of education of chicago, u.s. ( ), dodge _v._ brady, u.s. ( ), dodge _v._ osborn, u.s. ( ), , dodge _v._ woolsey, how. ( ), , , doe _v._ braden, how. ( ), doe ex dem. governeur's heirs _v._ robertson, wheat. ( ), dohany _v._ rogers, u.s. ( ), , , doherty & co. _v._ goodman, u.s. ( ), dominion hotel _v._ arizona, u.s. ( ), , donald _v._ philadelphia & r. coal & i. co, u.s. ( ), donaldson _v._ read magazine, u.s. ( ), , , , dooley _v._ united states, u.s. ( ), dooley _v._ united states, u.s. ( ), dorchy _v._ kansas, u.s. ( ), doremus _v._ board of education, u.s. ( ), , dorr _v._ united states, u.s. ( ), doty _v._ love, u.s. ( ), double-pointed tack co. _v._ two rivers mfg. co., u.s. ( ), douglas _v._ kentucky, u.s. ( ), douglas _v._ new york, n.h. & h.r. co., u.s. ( ), , douglas _v._ noble, u.s. ( ), dow _v._ beidelman, u.s. ( ), dow _v._ johnson, u.s. ( ), dow chemical co. _v._ halliburton co., u.s. ( ), dowling bros. distilling co. _v._ united states, f. ( d) ( ), downes _v._ bidwell, u.s. ( ), , , , downham _v._ alexandria, wall. ( ), doyle _v._ continental ins. co., u.s. ( ), doyle _v._ mitchell bros. co., u.s. ( ), dozier _v._ alabama, u.s. ( ), draper _v._ united states, u.s. ( ), dred scott case: _see_ scott _v._ sandford. drew _v._ thaw, u.s. ( ), dreyer _v._ illinois, u.s. ( ), , driscoll _v._ edison co., u.s. ( ), drivers union _v._ meadowmoor co., u.s. ( ), , dubuque & s.c.r. co. _v._ richmond, wall. ( ), duckworth _v._ arkansas, u.s. ( ), , , dugan _v._ ohio, u.s. ( ), dugan _v._ united states, wheat. ( ), duhne _v._ new jersey, u.s. ( ), duignan _v._ united states, u.s. ( ), duke _v._ united states, u.s. ( ), dumbra _v._ united states, u.s. ( ), duncan _v._ darst, how. ( ), duncan _v._ kahanamoku, u.s. ( ), duncan _v._ kahanamoku, u.s. ( ), duncan _v._ mccall, u.s. ( ), duncan _v._ missouri, u.s. ( ), , dunham _v._ dennison mfg. co., u.s. ( ), duplex printing press co. _v._ deering, u.s. ( ), , durand _v._ hollins, blatch. ( ), durousseau _v._ united states, cr. ( ), dynes _v._ hoover, how. ( ), e east hartford _v._ hartford bridge co., how. ( ), east new york savings bank _v._ hahn, u.s. ( ), east ohio gas co. _v._ tax com. of ohio, u.s. ( ), , eastern air transport, inc. _v._ south carolina tax comm., u.s. ( ), , easton, ex parte, u.s. ( ), eberle _v._ michigan, u.s. ( ), eberly _v._ moore, how. ( ), economy light and power co. _v._ united states, u.s. ( ), , edelman _v._ boeing air transport, inc., u.s. ( ), educational films corp. _v._ ward, u.s. ( ), edwards _v._ california, u.s. ( ), , , , , edwards _v._ cuba railroad, u.s. ( ), edwards _v._ elliott, wall. ( ), edwards _v._ kearzey, u.s. ( ), edwards _v._ united states, u.s. ( ), edye _v._ robertson (head money cases), u.s. ( ), , , effinger _v._ kenney, u.s. ( ), eichholz _v._ public service com. of missouri, u.s. ( ), eilenbecker _v._ district court, u.s. ( ), eisner _v._ macomber, u.s. ( ), , , , electric bond & share co. _v._ securities & exchange commission, u.s. ( ), , , , elk _v._ wilkins, u.s. ( ), , elkison _v._ deliesseline, fed. cas. no. ( ), ellerbee _v._ aderhold, f. supp. ( ), ellis _v._ united states, u.s. ( ), el paso & n.e.r. co. _v._ gutierrez, u.s. ( ), emblem _v._ lincoln land co., u.s. ( ), , embry _v._ palmer, u.s. ( ), , , , emert _v._ missouri, u.s. ( ), , employers' liability assurance co. _v._ cook, u.s. ( ), employers' liability cases. _see_ howard _v._ illinois c.r. co. endicott co. _v._ encyclopedia press, u.s. ( ), endicott johnson corp. _v._ perkins, u.s. ( ), endo, ex parte, u.s. ( ), engel _v._ o'malley, u.s. ( ), english _v._ richardson, u.s. ( ), equitable l. assur. soc. _v._ brown, u.s. ( ), equitable l. assur. soc. _v._ pennsylvania, u.s. ( ), erb _v._ morasch, u.s. ( ), erhardt _v._ boaro, u.s. ( ), erie r. co. _v._ erie & western t. co., u.s. ( ), erie r. co. _v._ new york, u.s. ( ), erie r. co. _v._ public utility commission, u.s. ( ), erie r. co. _v._ solomon, u.s. ( ), erie r. co. _v._ tompkins, u.s. ( ), , erie r. co. _v._ williams, u.s. ( ), , escanaba & l.m. transp. co. _v._ chicago, u.s. ( ), , esenwein _v._ commonwealth, u.s. ( ), , essanay film mfg. co. _v._ kane, u.s. ( ), essex _v._ new england teleg. co., u.s. ( ), essgee co. _v._ united states, u.s. ( ), estin _v._ estin, u.s. ( ), , ettor _v._ tacoma, u.s. ( ), eubank _v._ richmond, u.s. ( ), , euclid _v._ ambler realty co., u.s. ( ), eunson _v._ dodge, wall. ( ), eureka pipe line co. _v._ hallanan, u.s. ( ), , , evans _v._ eaton, wheat ( ), evans _v._ gore, u.s. ( ), , evans _v._ jordan, cr. ( ), , everard's breweries _v._ day, u.s. ( ), everett _v._ everett, u.s. ( ), everson _v._ board of education, u.s. ( ), , exchange, the _v._ mcfaddon, cr. ( ), f fahey _v._ mallonee, u.s. ( ), fair, the, _v._ kohler die co., u.s. ( ), fairbank _v._ united states, u.s. ( ), fairchild _v._ hughes, u.s. ( ), , fairfax's devisee _v._ hunter's lessee, cr. ( ), fair haven & w.r. co. _v._ new haven, u.s. ( ), fairmont creamery co. _v._ minnesota, u.s. ( ), faitoute iron & steel co. _v._ asbury park, u.s. ( ), , fall _v._ eastin, u.s. ( ), , fallbrook irrig. district _v._ bradley, u.s. ( ), , fargo _v._ hart, u.s. ( ), fargo _v._ michigan (fargo _v._ stevens), u.s. ( ), farish _v._ state banking board, u.s. ( ), farmers' & mechanics' nat. bank _v._ dearing, u.s. ( ), farmers & merchants bank _v._ federal reserve bank, u.s. ( ), , farmers & m. sav. bank _v._ minnesota, u.s. ( ), farmers' loan & trust co. _v._ lake st. elev. r. co., u.s. ( ), , farmers' loan & trust co. _v._ minnesota, u.s. ( ), farmers' union co-op _v._ commissioner of int. rev., f. ( d) ( ), farncomb _v._ denver, u.s. ( ), farrington _v._ tokushige, u.s. ( ), fassett, in re, u.s. ( ), fauntleroy _v._ lum, u.s. ( ), , , fay _v._ new york, u.s. ( ), , , , fayerweather _v._ ritch, u.s. ( ), federal baseball club _v._ national league, u.s. ( ), federal communications commission _v._ pottsville broadcasting co., u.s. ( ), federal communications commission _v._ wjr, u.s. ( ), federal compress & warehouse co. _v._ mclean, u.s. ( ), federal housing authority _v._ burr, u.s. ( ), federal land bank _v._ bismarck lumber co., u.s. ( ), federal land bank _v._ priddy, u.s. ( ), federal power commission _v._ east ohio gas co., u.s. ( ), , federal power commission _v._ hope natural gas co., u.s. ( ), , , , federal power commission _v._ national gas pipeline co., u.s. ( ), , , , , federal power commission _v._ pacific power & light co., u.s. ( ), federal radio commission _v._ general electric co., u.s. ( ), , , , federal radio commission _v._ nelson bros. bond & mortgage co., u.s. ( ), , , , federal trade commission _v._ american tobacco co., u.s. ( ), federal trade commission _v._ bunte bros., u.s. ( ), federal trade commission _v._ pacific states paper trade assoc., u.s. ( ), feiner _v._ new york, u.s. ( ), , feldman _v._ united states, u.s. ( ), felsenheld _v._ united states, u.s. ( ), felt & tarrant manufacturing co. _v._ gallagher, u.s. ( ), felts _v._ murphy, u.s. ( ), fenner _v._ boykin, u.s. ( ), fernandez _v._ wiener, u.s. ( ), , , , ferry _v._ corbett, u.s. ( ), ferry _v._ spokane p. & s.r. co., u.s. ( ), , fertilizing co. _v._ hyde park, u.s. ( ), ficklen _v._ shelby county taxing district, u.s. ( ) , fidelity & c. trust co. _v._ louisville, u.s. ( ), fidelity & d. co. _v._ united states, u.s. ( ), fidelity mut. life asso. _v._ mettler, u.s. ( ), fidelity national bank & trust co. _v._ swope, u.s. ( ) , fidelity union trust co. _v._ field, u.s. ( ), field _v._ clark, u.s. ( ), , , , , , field _v._ seabury, how. ( ), fifth ave. coach co. _v._ new york, u.s. ( ), filer & s. co. _v._ diamond iron works, f. ( ), filer & s. co. _v._ diamond iron works, u.s. ( ), finch & co. _v._ mckittrick, u.s. ( ), , fink _v._ o'neil, u.s. ( ), finley _v._ california, u.s. ( ), fire asso. of philadelphia _v._ new york, u.s. ( ), , , , first bank stock corp. _v._ minnesota, u.s. ( ), first nat. bank _v._ adams, u.s. ( ), first nat. bank _v._ fellows ex rel. union trust co., u.s. ( ), , first nat. bank _v._ kentucky, wall. ( ), first nat. bank _v._ louisiana tax commission, u.s. ( ), first nat. bank _v._ maine, u.s. ( ), , first nat. bank _v._ united air lines, u.s. ( ), first nat. bank _v._ yankton county, u.s. ( ), fischer _v._ st. louis, u.s. ( ), , fisher _v._ hurst, u.s. ( ), fisher _v._ pace, u.s. ( ), fisher's blend station _v._ state tax commission, u.s. ( ), , , fisheries _v._ holyoke water power co., mass. ( ), fisk _v._ jefferson police jury, u.s. ( ), , fiske _v._ kansas, u.s. ( ), , , fitts _v._ mcghee, u.s. ( ), , fitzgerald co. _v._ pedersen, u.s. ( ), flanagan _v._ federal coal co., u.s. ( ), fleming _v._ mohawk wrecking & lumber co., u.s. ( ), fleming _v._ page, how. ( ), , fleming _v._ rhodes, u.s. ( ), , , fletcher _v._ peck, cr. ( ), , , , , , flexner _v._ farson, u.s. ( ), flint _v._ stone tracy co., u.s. ( ), , , , , , , florida _v._ georgia, how. ( ), florida _v._ mellon, u.s. ( ), , , florsheim _v._ schilling, u.s. ( ), follett _v._ town of mccormick, u.s. ( ), , fonda, ex parte, u.s. ( ), fong yue ting _v._ united states, u.s. ( ), , , , foote & co. _v._ stanley, u.s. ( ), , ford _v._ delta & pine land co., u.s. ( ), ford _v._ surget, u.s. ( ), ford motor co. _v._ beauchamp, u.s. ( ), , ford motor co. _v._ dept. of treasury of indiana, u.s. ( ), , forsyth _v._ hammond, u.s. ( ), fort leavenworth r. co. _v._ lowe, u.s. ( ), , ft. smith light & traction co. _v._ board of improv., u.s. ( ), ft. smith light & traction co. _v._ bourland, u.s. ( ), foster _v._ davenport, how. ( ), foster _v._ illinois, u.s. ( ), , foster _v._ kansas ex rel. johnston, u.s. ( ), foster _v._ master & wardens of port of new orleans, u.s. ( ), foster _v._ neilson, pet. ( ), , , , , , , foster-fountain packing co. _v._ haydel u.s. ( ), , foulke _v._ burke, u.s. ( ), fourteen diamond rings _v._ united states, u.s. ( ), fowler _v._ lindsay, dall. ( ), fox _v._ ohio, how. ( ), , fox _v._ standard oil co., u.s. ( ), , fox _v._ washington, u.s. ( ), , , fox film corp. _v._ doyal, u.s. ( ), , francis _v._ resweber, u.s. ( ), francis _v._ southern pacific co., u.s. ( ), francis wright, the, u.s. ( ), frank _v._ mangum, u.s. ( ), , , , , , , frasch _v._ moore, u.s. ( ), , frazier _v._ united states, u.s. ( ), frederickson _v._ louisiana, how. ( ), freeborn _v._ the "protector," wall. ( ), freeborn _v._ smith, wall. ( ), freeman _v._ hewit, u.s. ( ), , , freeman _v._ howe, how. ( ), , , french _v._ barber asphalt paving co., u.s. ( ), , french _v._ hay, wall. ( ), french _v._ weeks, u.s. ( ), frick _v._ pennsylvania, u.s. ( ), , fries case, fed. cas. no. ( ), fries case, fed. cas. no. ( ), frisbie _v._ united states, u.s. ( ), frohwerk _v._ united states, u.s. ( ), , , frost _v._ corporation commission, u.s. ( ), frost _v._ railroad commission, u.s. ( ), frothingham _v._ mellon, u.s. ( ), fuller, ex parte, u.s. ( ), , funk bros. seed co. _v._ kalo co., u.s. ( ), g gagnon _v._ united states, u.s. ( ), gaines _v._ fuentes, u.s. ( ), , gaines _v._ washington, u.s. ( ), , gallegos _v._ nebraska, u.s. ( ), galloway _v._ united states, u.s. ( ), , galpin _v._ page, wall. ( ), galveston electric co. _v._ galveston, u.s. ( ), , galveston, h. & s.a. ry. co. _v._ texas, u.s. ( ), , galveston, h. & s.a. ry. co. _v._ texas, u.s. ( ), , , galveston wharf co. _v._ galveston, u.s. ( ), gambino _v._ united states, u.s. ( ), games _v._ dunn, pet. ( ), gange lumber co. _v._ rowley, u.s. ( ), gant _v._ oklahoma city, u.s. ( ), gardner _v._ collector, wall. ( ), garfield _v._ united states, u.s. ( ), garland, ex parte, wall. ( ), , , , , , garner _v._ los angeles board, u.s. ( ), garnett, in re, u.s. ( ), , , garrison _v._ new york, wall. ( ), gasoline products co. _v._ champlin refining co., u.s. ( ), gasquet _v._ fenner, u.s. ( ), gasquet _v._ lapeyre, u.s. ( ), gassies _v._ ballon, pet. ( ), gayes _v._ new york, u.s. ( ), gee wah lee _v._ united states, f. ( d) ( ), gee wah lee _v._ united states, u.s. ( ), geer _v._ connecticut, u.s. ( ), , , , gelfert _v._ national city bank, u.s. ( ), gelpcke _v._ dubuque, wall. ( ), , , gemsco inc. _v._ walling, u.s. ( ), general investment co. _v._ new york central r. co., u.s. ( ), general oil co. _v._ crain, u.s. ( ), general railway signal co. _v._ virginia, u.s. ( ), general smith, the, wheat. ( ), general trading company _v._ state tax commission, u.s. ( ), genesee chief, the, how. ( ), geofroy _v._ riggs, u.s. ( ), , georgia _v._ brailsford, dall. ( ), georgia _v._ chattanooga, u.s. ( ), georgia _v._ evans, u.s. ( ), georgia _v._ pennsylvania r. co., u.s. ( ), georgia _v._ stanton, wall. ( ), , , , georgia _v._ tennessee copper co., u.s. ( ), , , georgia r. & power co. _v._ decatur, u.s. ( ), georgia r. & power co. _v._ railroad comm., u.s. ( ), , georgia r. co. _v._ redwine, u.s. ( ), , gerling _v._ baltimore & o.r. co., u.s. ( ), german alliance ins. co. _v._ hale, u.s. ( ), german alliance ins. co. _v._ lewis, u.s. ( ), , , german savings loan society _v._ dormitzer, u.s. ( ), gibbes _v._ zimmerman, u.s. ( ), , gibbons _v._ district of columbia, u.s. ( ), gibbons _v._ ogden, wheat ( ), , , , , , , , , , , , , , , , , , , , gibbons _v._ united states, wall. ( ), gibbs _v._ burke, u.s. ( ), , giboney _v._ empire storage co., u.s. ( ), , gibson _v._ chouteau, wall. ( ), , gibson _v._ lyon, u.s. ( ), gibson _v._ mississippi, u.s. ( ), , gibson _v._ united states, u.s. ( ), , gilbert _v._ minnesota, u.s. ( ), , gilchrist _v._ interborough rapid transit co., u.s. ( ), , giles _v._ harris, u.s. ( ), , gilfillan _v._ union canal co., u.s. ( ), gillespie _v._ oklahoma, u.s. ( ), gilman _v._ philadelphia, wall. ( ), , giozza _v._ tiernan, u.s. ( ), , girouard _v._ united states, u.s. ( ), , gitlow _v._ new york, u.s. ( ), , , , , given _v._ wright, u.s. ( ), givens _v._ zerbst, u.s. ( ), gladson _v._ minnesota, u.s. ( ), , , glasgow _v._ moyer, u.s. ( ), glasser _v._ united states, u.s. ( ), glenn _v._ garth, u.s. ( ), , glidden _v._ harrington, u.s. ( ), , gloucester ferry co. _v._ pennsylvania, u.s. ( ), , , , go-bart importing co. _v._ united states, u.s. ( ), goesaert _v._ cleary, u.s. ( ), goldey _v._ morning news, u.s. ( ), , goldman _v._ united states, u.s. ( ), goltra _v._ weeks, u.s. ( ), , , gompers _v._ bucks stove & range co., u.s. ( ), , , gompers _v._ united states, u.s. ( ), , , gong lum _v._ rice, u.s. ( ), gonsalves _v._ morse dry dock co., u.s. ( ), goodrich _v._ edwards, u.s. ( ), goodrich _v._ ferris, u.s. ( ), , , gordon _v._ united states, wall. ( ), gordon _v._ united states, u.s. decided ( ) reported ( ), , , , , gorieb _v._ fox, u.s. ( ), , gorin _v._ united states, u.s. ( ), goto _v._ lane, u.s. ( ), gould et al. _v._ united states, u.s. ( ), gould et al. _v._ united states, u.s. ( ), gouled _v._ united states, u.s. ( ), , governor of georgia _v._ madrazo, pet. ( ), , graham _v._ folsom, u.s. ( ), graham _v._ goodcell, u.s. ( ), graham _v._ west virginia, u.s. ( ), , , , , , grand lodge, f. & a.m. _v._ new orleans, u.s. ( ), grand trunk western r. co. _v._ railroad commission, u.s. ( ), granger cases, u.s. ( ), , graniteville mfg. co. _v._ query, u.s. ( ), grannis _v._ ordean, u.s. ( ), , , grant _v._ united states, u.s. ( ), grant smith-porter ship co. _v._ rohde, u.s. ( ), , grant timber & mfg. co. _v._ gray, u.s. ( ), grapeshot, the, _v._ wallerstein, wall. ( ), graves _v._ elliott, u.s. ( ), graves _v._ eubank, ala. ( ), graves _v._ minnesota, u.s. ( ), graves _v._ new york ex rel. o'keefe, u.s. ( ), , , graves _v._ o'keefe, u.s. ( ), graves _v._ schmidlapp, u.s. ( ), , graves _v._ texas co., u.s. ( ), , great a. & p. tea co. _v._ grosjean, u.s. ( ), , great atlantic & pacific tea co. _v._ supermarket equipment, u.s. ( ), , , great lakes co. _v._ huffman, u.s. ( ), great northern ins. co. _v._ read, u.s. ( ), , , great northern r. co. _v._ cahill, u.s. ( ), great northern r. co. _v._ minnesota, u.s. ( ), , great northern r. co. _v._ minnesota ex rel. clara city, u.s. ( ), , great northern r. co. _v._ minnesota ex rel. railroad & warehouse commission, u.s. ( ), great northern r. co. _v._ washington, u.s. ( ), great southern fire proof hotel co. _v._ jones, u.s. ( ), great western telegraph co. _v._ purdy, u.s. ( ), greeley _v._ lowe, u.s. ( ), green, in re, u.s. ( ), green _v._ biddle, wheat. ( ), , green _v._ chicago, b. & q.r. co., u.s. ( ), , green _v._ frazier, u.s. ( ), , , green _v._ van buskirk, wall. ( ), green bay & m. canal co. _v._ patten paper co., u.s. ( ), greene, in re, fed. ( ), greene _v._ louisville & i.r. co., u.s. ( ), greenough _v._ tax assessors, u.s. ( ), greenwood _v._ union freight r. co., u.s. ( ), , gregory, in re, u.s. ( ), greiner _v._ lewellyn, u.s. ( ), grenada lumber co. _v._ mississippi, u.s. ( ), griffin _v._ griffin, u.s. ( ), , griffin _v._ mccoach, u.s. ( ), griffin _v._ thompson, how. ( ), , griffin's case, fed. cas. no. ( ), griffith _v._ connecticut, u.s. ( ), grimley, in re, u.s. ( ), gring _v._ ives, u.s. ( ), groesbeck _v._ duluth, s.s. & a.r. co., u.s. ( ), grosjean _v._ american press co., u.s. ( ), , , grossman, ex parte, u.s. ( ), , grover & b. sewing-mach. co. _v._ radcliffe, u.s. ( ), , , groves _v._ slaughter, pet. ( ), , grovey _v._ townsend, u.s. ( ), , , , grubb _v._ public utilities commission, u.s. ( ), gruber, ex parte, u.s. ( ), gryger _v._ burke, u.s. ( ), , , , guaranty trust co. _v._ united states, u.s. ( ), , , guaranty trust co. _v._ virginia, u.s. ( ), guaranty trust co. _v._ york, u.s. ( ), guessefeldt _v._ mcgrath, u.s. ( ), guinn _v._ united states, u.s. ( ), , , gulf, c. & s.f.r. co. _v._ ellis, u.s. ( ), gulf fisheries co. _v._ macinerney, u.s. ( ), , gully _v._ first national bank, u.s. ( ), gumbel _v._ pitkin, u.s. ( ), , gundling _v._ chicago, u.s. ( ), , gunter _v._ atlantic c.l.r. co., u.s. ( ), gusik _v._ schilder, u.s. ( ), gut _v._ minnesota, wall. ( ), guthrie nat. bank _v._ guthrie, u.s. ( ), guy _v._ baltimore, u.s. ( ), gwin _v._ breedlove, how. ( ), gwin, white & prince _v._ henneford, u.s. ( ), , , , , h haas _v._ henkel, u.s. ( ), haavik _v._ alaska packers' association, u.s. ( ), , hadacheck _v._ sebastian, u.s. ( ), , , haddock _v._ haddock, u.s. ( ), , hagar _v._ reclamation dist. no. , u.s. ( ), , , , hagner _v._ united states, u.s. ( ), hagood _v._ southern, u.s. ( ), , hague _v._ c.i.o., u.s. ( ), , , , , hairston _v._ danville & w.r. co., u.s. ( ), , , hale _v._ bimco trading co., u.s. ( ), hale _v._ henkel, u.s. ( ), , , hale _v._ iowa state board of assessment, u.s. ( ), hale _v._ kentucky, u.s. ( ), haley _v._ ohio, u.s. ( ), , , hall _v._ de cuir, u.s. ( ), , , hall _v._ geiger-jones co., u.s. ( ), , , hall _v._ wisconsin, u.s. ( ), hallinger _v._ davis, u.s. ( ), halter _v._ nebraska, u.s. ( ), , halvey _v._ halvey, u.s. ( ), hamilton _v._ brown, u.s. ( ), hamilton _v._ dillin, wall. ( ), , , hamilton _v._ kentucky distilleries & wine co., u.s. ( ), , , hamilton _v._ regents, u.s. ( ), , hamilton mfg. co. _v._ massachusetts, wall. ( ), hammer _v._ dagenhart, u.s. ( ), , , , , , , , , hammond packing co. _v._ arkansas, u.s. ( ), , , hammond packing co. _v._ montana, u.s. ( ), hampton, the, wall. ( ), hampton _v._ mcconnell, wheat. ( ), , , , hampton & co. _v._ united states, u.s. ( ), , , , , hanauer _v._ doane, wall. ( ), , hanauer _v._ woodruff, wall. ( ), hancock _v._ muskogee, u.s. ( ), hancock national bank _v._ farnum, u.s. ( ), , hanford _v._ davies, u.s. ( ), hanley _v._ donoghue, u.s. ( ), , hanley _v._ kansas city southern r. co., u.s. ( ), hannegan _v._ esquire, inc., u.s. ( ), , hannibal & st. l.r. co. _v._ husen, u.s. ( ), hannibal bridge co. _v._ united states, u.s. ( ), hannis distilling co. _v._ baltimore, u.s. ( ), , hanover insurance co. _v._ harding, u.s. ( ), , hanover nat. bank _v._ moyses, u.s. ( ), , , hans _v._ louisiana, u.s. ( ), hans rees' sons _v._ north carolina, u.s. ( ), , harding _v._ harding, u.s. ( ), hardware dealers mut. f. ins. co. _v._ glidden co., u.s. ( ), , harisiades _v._ shaughnessy, u.s. ( ), harkin _v._ brundage, u.s. ( ), harkness _v._ hyde, u.s. ( ), harkrader _v._ wadley, u.s. ( ), , , harman _v._ chicago, u.s. ( ), harriman _v._ interstate commerce comm., u.s. ( ), harris, re, u.s. ( ), harris _v._ balk, u.s. ( ), harris _v._ south carolina, u.s. ( ), , harris _v._ united states, u.s. ( ), harrisburg, the, u.s. ( ), harrison _v._ st. louis & s.f.r. co., u.s. ( ), hart _v._ united states, u.s. ( ), , hartford accident & indemnity co. _v._ illinois ex rel. mclaughlin, u.s. ( ), hartford acci. & indem. co. _v._ nelson (n.o.) mfg. co., u.s. ( ), hartford l. ins. co. _v._ barber, u.s. ( ), hartford l. ins. co. _v._ blincoe, u.s. ( ), hartford l. ins. co. _v._ ibs, u.s. ( ), hartford steam boiler inspection & ins. co. _v._ harrison, u.s. ( ), hartzel _v._ united states, u.s. ( ), harvester co. _v._ dept. of taxation, u.s. ( ), harvester co. _v._ dept. of treasury, u.s. ( ), hauenstein _v._ lynham, u.s. ( ), hauge _v._ chicago, u.s. ( ), haupt _v._ united states, u.s. ( ), , havemeyer _v._ iowa county, wall. ( ), haver _v._ yaker, wall. ( ), , hawaii _v._ mankichi, u.s. ( ), hawes _v._ georgia, u.s. ( ), , hawes _v._ oakland, u.s. ( ), hawk, ex parte, u.s. ( ), hawk _v._ olson, u.s. ( ), , hawke _v._ smith, u.s. ( ), , hawker _v._ new york, u.s. ( ), , , hawkins _v._ barney, pet. ( ), hawkins _v._ bleakly, u.s. ( ), , hawks _v._ hamill, u.s. ( ), hawley _v._ malden, u.s. ( ), hawley _v._ walker, u.s. ( ), hayburn's case, dall. ( ), , , , , hayes _v._ missouri, u.s. ( ), , hayman _v._ galveston, u.s. ( ), , hays _v._ pacific mail s.s. co., how. ( ), hays _v._ seattle, u.s. ( ), head _v._ amoskeag mfg. co., u.s. ( ), head money cases, u.s. ( ), , , heald _v._ district of columbia, u.s. ( ), heath & m. mfg. co. _v._ worst, u.s. ( ), hebe co. _v._ shaw, u.s. ( ), , heckers _v._ fowler, wall. ( ), heff, in re, u.s. ( ), hegeman farms corp. _v._ baldwin, u.s. ( ), heim _v._ mccall, u.s. ( ), , heine _v._ levee commissioners, wall. ( ), heiner _v._ donnan, u.s. ( ), heisler _v._ thomas colliery co., u.s. ( ), , helena waterworks co. _v._ helena, u.s. ( ), helis _v._ ward, u.s. ( ), helson & randolph _v._ kentucky, u.s. ( ), , , , helvering _v._ bruun, u.s. ( ), helvering _v._ bullard, u.s. ( ), helvering _v._ davis, u.s. ( ), , , , helvering _v._ gerhardt, u.s. ( ), , , helvering _v._ gowran, u.s. ( ), helvering _v._ griffiths, u.s. ( ), , helvering _v._ horst, u.s. ( ), helvering _v._ independent l. ins. co., u.s. ( ), helvering _v._ lerner stores corp., u.s. ( ), helvering _v._ mitchell, u.s. ( ), , , , helvering _v._ mountain producers corp., u.s. ( ), helvering _v._ national grocery co., u.s. ( ), , , helvering _v._ northwest steel mills, u.s. ( ), , , helvering _v._ powers, u.s. ( ), helvering _v._ winmill, u.s. ( ), helwig _v._ united states, u.s. ( ), hemphill _v._ orloff, u.s. ( ), henderson _v._ new york, u.s. ( ), , , henderson _v._ united states, u.s. ( ), henderson co. _v._ thompson, u.s. ( ), henderson's distilled spirits, wall. ( ), hendersonville light & power co. _v._ blue ridge interurban r. co., u.s. ( ), hendrick _v._ maryland, u.s. ( ), , , , hendry (c.j.) co. _v._ moore, u.s. ( ), , hendy _v._ miners' iron works, u.s. ( ), henkels _v._ sutherland, u.s. ( ), henley _v._ myers, u.s. ( ), henneford _v._ silas mason co., u.s. ( ), hennen, ex parte, pet. ( ), , hennen, ex parte, pet. ( ), hennington _v._ georgia, u.s. ( ), henry ford & son _v._ little falls fibre co., u.s. ( ), hepburn _v._ ellzey, cr. ( ), , hepburn _v._ griswold, wall. ( ), , , hepner _v._ united states, u.s. ( ), herndon _v._ chicago, r.i. & p.r. co., u.s. ( ), herndon _v._ lowry, u.s. ( ), , , herron _v._ southern p. co., u.s. ( ), hess _v._ pawloski, u.s. ( ), , , hester _v._ united states, u.s. ( ), hewitt realty co. _v._ commissioner of internal rev., f. ( d) ( ), heyman _v._ hays, u.s. ( ), , hiatt _v._ brown, u.s. ( ), , hibben _v._ smith, u.s. ( ), , hibernia sav. & l. soc. _v._ san francisco, u.s. ( ), hicklin _v._ coney, u.s. ( ), , , hickman _v._ jones, wall. ( ), higginbotham _v._ baton rouge, u.s. ( ), highland _v._ russell car & snow plow co., u.s. ( ), highland farms dairy, inc. _v._ agnew, u.s. ( ), , hill _v._ florida, u.s. ( ), , hill _v._ martin, u.s. ( ), hill _v._ merchants' mut. ins. co., u.s. ( ), hill _v._ texas, u.s. ( ), hill _v._ united states, how. ( ), hill _v._ united states ex rel. weiner, u.s. ( ), hill _v._ wallace, u.s. ( ), , , hillsborough _v._ cromwell, u.s. ( ), , hilton _v._ guyot, u.s. ( ), hinderlider _v._ la plata co., u.s. ( ), , hine, the, _v._ trevor, wall. ( ), hines _v._ davidowitz et al., u.s. ( ), , , , hines _v._ lowrey, u.s. ( ), hinson _v._ lott, wall. ( ), hipp _v._ babin, how. ( ), hirabayashi _v._ united states, u.s. ( ), , , , , hirota _v._ macarthur, u.s. ( ), hodge _v._ muscatine county, u.s. ( ), hodge drive-it-yourself co. _v._ cincinnati, u.s. ( ), , hodges _v._ easton, u.s. ( ), hodges _v._ united states, u.s. ( ), , hodgson & thompson _v._ bowerbank, cr. ( ), , hoeper _v._ tax commissioner, u.s. ( ), hoffman _v._ united states, u.s. ( ), hoke _v._ henderson, n.c. ( dev. ), ( ), hoke _v._ united states, u.s. ( ), , holden _v._ hardy, u.s. ( ), , , , , holden _v._ joy, wall. ( ), holden _v._ minnesota, u.s. ( ), holland _v._ challen, u.s. ( ), hollingsworth _v._ virginia, dall. ( ), , hollister _v._ benedict & b. mfg. co., u.s. ( ), , holmes _v._ conway, u.s. ( ), holmes _v._ goldsmith, u.s. ( ), holmes _v._ hurst, u.s. ( ), holmes _v._ jennison, pet. ( ), , , , holmgren _v._ united states, u.s. ( ), , holt _v._ united states, u.s. ( ), , holyoke water power co. _v._ lyman, wall. ( ), home bldg. & loan asso. _v._ blaisdell, u.s. ( ), , , , , , home ins. co. _v._ dick, u.s. ( ), home ins. co. _v._ morse, wall. ( ), home ins. co. _v._ new york, u.s. ( ), home of friendless _v._ rouse, wall. ( ), , , , home telephone & telegraph co. _v._ los angeles, u.s. ( ), home telephone co. _v._ los angeles, u.s. ( ), , honeyman _v._ hanan, u.s. ( ), honeyman _v._ jacobs, u.s. ( ), hood _v._ du mond, u.s. ( ), hood _v._ mcgehee, u.s. ( ), hood, h.p. & sons _v._ united states, u.s. ( ), hooe _v._ jamieson, u.s. ( ), hooe _v._ united states, u.s. ( ), hooe _v._ werner, u.s. ( ), hooper _v._ california, u.s. ( ), hoopeston canning co. _v._ cullen, u.s. ( ), , hooven & allison co. _v._ evatt, u.s. ( ), , , , hope gas case, u.s. , ( ), hope natural gas co. _v._ hall, u.s. ( ), hopkins _v._ clemson agricultural college, u.s. ( ), , , hopkins federal savings & loan asso. _v._ cleary, u.s. ( ), hopkirk _v._ bell, cr. ( ), hopt _v._ utah, u.s. ( ), , horn _v._ lockhart, wall. ( ), hornbuckle _v._ toombs, wall. ( ), horstmann co. _v._ united states, u.s. ( ), hotchkiss _v._ greenwood, how. ( ), hotel & restaurant employees' alliance _v._ board, u.s. ( ), houck _v._ little river drainage dist., u.s. ( ), house _v._ mayes, u.s. ( ), house _v._ mayo, u.s. ( ), , houston _v._ moore, wheat. ( ), , , , houston _v._ ormes, u.s. ( ), houston, e. & w.t.r. co. _v._ united states, u.s. ( ), , houston & texas central r.r. co. _v._ texas, u.s. ( ), , hovey _v._ elliott, u.s. ( ), howard _v._ fleming, u.s. ( ), howard _v._ gipsy oil co., u.s. ( ), howard _v._ illinois central r. co., u.s. ( ), , , , howard _v._ kentucky, u.s. ( ), howe machine co. _v._ gage, u.s. ( ), , , hoxie _v._ new york, n.h. & h.r. co., conn. ( ), hubert _v._ new orleans, u.s. ( ), hudson _v._ guestier, cr. ( ), hudson county water co. _v._ mccarter, u.s. , ( ), , , , , hughes _v._ edwards, wheat. ( ), hughes _v._ fetter, u.s. ( ), , hughes _v._ gault, u.s. ( ), hughes _v._ superior court of california, u.s. ( ), hughes bros. timber co. _v._ minnesota, u.s. ( ), hull _v._ burr, u.s. ( ), hull, ex parte, u.s. ( ), hump hairpin mfg. co. _v._ emerson, u.s. ( ), , humphrey _v._ pegues, wall. ( ), humphrey _v._ united states, u.s. ( ), , hunt _v._ palao, how. ( ), hunter _v._ pittsburgh, u.s. ( ), , hunter _v._ wood, u.s. ( ), huntington _v._ attrill, u.s. ( ), , huntington _v._ texas, wall. ( ), hurd _v._ hodge, u.s. ( ), , hurley _v._ kincaid, u.s. ( ), hurtado _v._ california, u.s. ( ), , , , , , , huse _v._ glover, u.s. ( ), , , husty _v._ united states, u.s. ( ), hutchings _v._ low, wall. ( ), hutchinson _v._ valdosta, u.s. ( ), hutchinson ice cream co. _v._ iowa, u.s. ( ), hyatt _v._ new york ex rel. corkran, u.s. ( ), hyde _v._ united states, u.s. ( ), hygrade provision co. _v._ sherman, u.s. ( ), , hylton _v._ united states, dall. ( ), , hysler _v._ florida, u.s. ( ), i ickes _v._ fox, u.s. ( ), illinois _v._ economy power light co., u.s. ( ), illinois central r. co. _v._ behrens, u.s. ( ), illinois central r. co. _v._ bosworth, u.s. ( ), , illinois central r. co. _v._ decatur, u.s. ( ), illinois central r. co. _v._ illinois, u.s. ( ), , , illinois c.r. co. _v._ illinois ex rel. butler, u.s. ( ), illinois central r. co. _v._ mckendree, u.s. ( ), , illinois cent. r. co. _v._ minnesota, u.s. ( ), , , , illinois central r. co. _v._ peery, u.s. ( ), illinois c.r. co. _v._ public utilities commission, u.s. ( ), illinois ex rel. mccollum _v._ board of education, u.s. ( ), illinois gas co. _v._ public service co., u.s. ( ), , illinois natural gas co. _v._ central pub. serv. co., u.s. ( ), independent warehouses inc. _v._ scheele, u.s. ( ), , indian motorcycle co. _v._ united states, u.s. ( ), indian territory illuminating oil co. _v._ oklahoma, u.s. ( ), indiana ex rel. anderson _v._ brand trustee, u.s. ( ), , indianapolis, city of, _v._ chase national bank, u.s. ( ), indianapolis brewing co. _v._ liquor commission, u.s. ( ), industrial commn. _v._ mccartin, u.s. ( ), ingels _v._ morf, u.s. ( ), ingenohl _v._ olsen, u.s. ( ), inland empire council _v._ millis, u.s. ( ), inman steamship co. _v._ tinker, u.s. ( ), innes _v._ tobin, u.s. ( ), , insurance co. _v._ new orleans, fed. cas. no. , ( ), intermountain rate cases (united states _v._ atchison, t. & s.p.r. co.) u.s. ( ), international bridge co. _v._ new york, u.s. ( ), international brotherhood _v._ western u. tel. co., f. ( d) ( ), international brotherhood _v._ western u. tel. co., u.s. ( ), international harvester co. _v._ evatt, u.s. ( ), international harvester co. _v._ kentucky, u.s. ( ), , , international harvester co. _v._ missouri, u.s. ( ), international milling co. _v._ columbia t. co., u.s. ( ), , international paper co. _v._ massachusetts, u.s. ( ), , international paper co. _v._ united states, u.s. ( ), international postal supply co. _v._ bruce, u.s. ( ), international shoe co. _v._ pinkus, u.s. ( ), international shoe co. _v._ shartel, u.s. ( ), international shoe co. _v._ washington, u.s. ( ), , , international text book co. _v._ pigg, u.s. ( ), international union, etc. _v._ tennessee copper co., f. supp. ( ), interstate amusement co. _v._ albert, u.s. ( ), interstate busses corp. _v._ blodgett, u.s. ( ), interstate busses corp. _v._ holyoke street r. co., u.s. ( ), interstate commerce com. _v._ alabama midland r. co., u.s. ( ), interstate commerce commission _v._ baird, u.s. ( ), interstate commerce commission _v._ brimson, u.s. ( ), , , , , , , interstate commerce commission _v._ goodrich transit co., u.s. ( ), , interstate commerce commission _v._ illinois c.r. co., u.s. ( ), , interstate commerce comn. _v._ louisville & n.r. co., u.s. ( ), interstate commerce commission _v._ union pacific r. co., u.s. ( ), interstate commerce commission _v._ united states ex rel. humboldt s.s. co., u.s. ( ), interstate natural gas co. _v._ federal power com., u.s. ( ), interstate oil pipe line co. _v._ stone, u.s. ( ), , interstate transit _v._ lindsey, u.s. ( ), , iowa c.r. co. _v._ iowa, u.s. ( ), iron cliffs co. _v._ negaunee iron co., u.s. ( ), irvine _v._ marshall, how. ( ), , irving trust co. _v._ day, u.s. ( ), irwin _v._ wright, u.s. ( ), isbrandtsen-moller co. _v._ united states, u.s. ( ), j jack _v._ kansas, u.s. ( ), jackson _v._ lamphire, pet. ( ), , jackson _v._ roby, u.s. ( ), jackson _v._ steamboat magnolia, how. ( ), jackson _v._ twentyman, pet. ( ), jackson _v._ united states, u.s. ( ), jackson, ex parte, u.s. ( ), , jacob _v._ roberts, u.s. ( ), jacobs _v._ marks, u.s. ( ), jacobs _v._ united states, u.s. ( ), , , jacobson _v._ massachusetts, u.s. ( ), , , , jaehne _v._ new york, u.s. ( ), james _v._ appel, u.s. ( ), james _v._ bowman, u.s. ( ), james _v._ campbell, u.s. ( ), , james _v._ dravo contracting co., u.s. ( ), , , , , , , james-dickinson farm mortg. co. _v._ harry, u.s. ( ), james stewart & co. _v._ sadrakula, u.s. ( ), jamison _v._ texas, u.s. ( ), janney _v._ columbian ins. co., wheat. ( ), , japanese immigrant case, u.s. ( ), jaster _v._ currie, u.s. ( ), jatros _v._ bowles, f. ( d) ( ), jefferson branch bank _v._ skelly, bl. ( ), jefferson city gaslight co. _v._ clark, u.s. ( ), jennings _v._ carson, cr. ( ), jennings _v._ illinois, u.s. ( ), jensen _v._ continental life ins. co., f. ( d) ( ), jensen _v._ continental life ins. co., u.s. ( ), jerome _v._ united states, u.s. ( ), johannessen _v._ united states, u.s. ( ), , , john _v._ paullin, u.s. ( ), john hancock mut. life ins. co. _v._ yates, u.s. ( ), johnson _v._ chicago & p. elevator co., u.s. ( ), , , johnson _v._ eisentrager, u.s. ( ), , , johnson _v._ gearlds, u.s. ( ), johnson _v._ lankford, u.s. ( ), johnson _v._ maryland, u.s. ( ), , , johnson _v._ muelberger, u.s. ( ), johnson _v._ new york life ins. co., u.s. ( ), johnson _v._ sayre, u.s. ( ), , johnson _v._ united states, u.s. ( ), johnson _v._ united states, u.s. ( ), , johnson _v._ yellow cab co., u.s. ( ), johnson _v._ zerbst, u.s. ( ), johnson oil ref. co. _v._ oklahoma ex rel. mitchell, u.s. ( ), , johnson steel str. rail co. _v._ wharton, u.s. ( ), jones _v._ buffalo creek coal & coke co., u.s. ( ), jones _v._ league, how. ( ), jones _v._ meehan, u.s. ( ), jones _v._ opelika, u.s. ( ), jones _v._ opelika, u.s. ( ), , jones _v._ portland, u.s. ( ), jones _v._ prairie oil & gas co., u.s. ( ), jones _v._ union guano co., u.s. ( ), jones _v._ united states, u.s. ( ), , , jones _v._ van zandt, how. ( ), jordan _v._ massachusetts, u.s. ( ), , , , , joseph _v._ carter & weekes stevedoring co., u.s. ( ), joslin mfg. co. _v._ providence, u.s. ( ), , , jourdan _v._ barrett, how. ( ), joy _v._ st. louis, u.s. ( ), juilliard _v._ greenman (legal tender cases), wall. ( ), , , , , juilliard _v._ greenman (legal tender cases), u.s. ( ), , , , julian _v._ central trust co., u.s. ( ), , jurney _v._ maccracken, u.s. ( ), , just _v._ chambers, u.s. ( ), , justices of the supreme court _v._ united states ex rel. murray, wall. ( ), , , k kahn _v._ anderson u.s. ( ), kalb _v._ feuerstein, u.s. ( ), kalem co. _v._ harper bros., u.s. ( ), kane _v._ new jersey, u.s. ( ), , , kansas _v._ colorado, u.s. ( ), , , , , , kansas _v._ united states, u.s. ( ), kansas city, m. & b.r. co. _v._ stiles, u.s. ( ), , kansas city ry. _v._ kansas, u.s. ( ), , kansas city southern r. co. _v._ anderson, u.s. ( ), kansas city southern r. co. _v._ kaw valley drainage district, u.s. ( ), , kansas city southern r. co. _v._ road improv. dist., u.s. ( ), kansas city southern r. co. _v._ road improv. dist., u.s. ( ), kansas city structural steel co. _v._ arkansas, u.s. ( ), kansas indians, the (blue jacket _v._ johnson county), wall. ( ), , karem _v._ united states, f. ( ), kauffman _v._ wooters, u.s. ( ), kaukauna water power co. _v._ green bay & m. canal co., u.s. ( ), kawakita _v._ united states, u.s. ( ), , kawananakoa _v._ polyblank, u.s. ( ), kay _v._ united states, u.s. ( ), kearney, ex parte, wheat. ( ), keefe _v._ clark, u.s. ( ), keeney _v._ new york, u.s. ( ), , keerl _v._ montana, u.s. ( ), kehrer _v._ stewart, u.s. ( ), keifer & keifer _v._ reconstruction finance corp. & regional agricultural credit corp., u.s. ( ), keim _v._ united states, u.s. ( ), keith _v._ clark, u.s. ( ), keller _v._ potomac electric power co., u.s. ( ), , , , , keller _v._ united states, u.s. ( ), , , kelley _v._ rhoads, u.s. ( ), , kelly _v._ pittsburgh, u.s. ( ), kelly _v._ washington ex rel. foss co., u.s. ( ), , , kemmler, ex parte, u.s. ( ), , kendall _v._ united states ex rel. stokes, pet. ( ), , , , , kendall _v._ winsor, how. ( ), kennecott copper corp. _v._ state tax commission, u.s. ( ), , , kennedy _v._ becker, u.s. ( ), kenney _v._ supreme lodge, u.s. ( ), kennon _v._ gilmer, u.s. ( ), kenosha _v._ lamson, wall. ( ), kentucky _v._ dennison, how. ( ), , , , , kentucky _v._ indiana, u.s. ( ), kentucky _v._ powers, u.s. ( ), kentucky finance corp. _v._ paramount auto exch. corp., u.s. ( ), , , kentucky union co. _v._ kentucky, u.s. ( ), , , kentucky whip & collar co. _v._ illinois c.r. co., u.s. ( ), , , , kenward _v._ "admiral peoples," the. _see_ "admiral peoples," the. keokee consol. coke co. _v._ taylor, u.s. ( ), , keokuk & hamilton bridge co. _v._ united states, u.s. ( ), keokuk northern line packet co. _v._ keokuk, u.s. ( ), kepner _v._ united states, u.s. ( ), ker _v._ illinois, u.s. ( ), kerr _v._ devisees of moon, wheat. ( ), kersh lake drainage dist. _v._ johnson, u.s. ( ), keystone mfg. co. _v._ adams, u.s. ( ), kidd _v._ pearson, u.s. ( ), , , , kidd, d. & p. co. _v._ musselman grocer co., u.s. ( ), kiernan _v._ portland, u.s. ( ), kilbourn _v._ thompson, u.s. ( ), , , , , killian _v._ ebbinghaus, u.s. ( ), kimball laundry co. _v._ united states, u.s. ( ), , , kimmish _v._ ball, u.s. ( ), king _v._ cross, u.s. ( ), king _v._ mullins, u.s. ( ), king _v._ order of united commercial travelers, u.s. ( ), kirby _v._ united states, u.s. ( ), kirschbaum _v._ walling, u.s. ( ), kirtland _v._ hotchkiss, u.s. ( ), , , klaxon co. _v._ stentor, u.s. ( ), klein, in re, how. ( ), kline _v._ burke construction co., u.s. ( ), , , , klinger _v._ missouri, wall. ( ), knapp _v._ morss, u.s. ( ), knapp, stout & co. _v._ mccaffrey, u.s. ( ), , knauer _v._ united states, u.s. ( ), , knauff _v._ shaughnessy, u.s. ( ), kneedler _v._ lane, pa. ( ), knickerbocker ice co. _v._ stewart, u.s. ( ), , , knight _v._ united land asso., u.s. ( ), knights of pythias _v._ meyer, u.s. ( ), knote _v._ united states, u.s. ( ), , , , knowlton _v._ moore, u.s. ( ), , , knox _v._ greenleaf, dall. ( ), knox _v._ lee, wall. ( ), , , , knoxville _v._ water company, u.s. ( ), , knoxville iron co. _v._ harbison, u.s. ( ), , knoxville water co. _v._ knoxville, u.s. ( ), koehler _v._ united states, u.s. ( ), , koenig _v._ flynn, u.s. ( ), kohl _v._ united states, u.s. ( ), , , kohn _v._ central distributing co., u.s. ( ), kollock, in re, u.s. ( ), , korematsu _v._ united states, u.s. ( ), , , korn _v._ mutual assur. soc, cr. ( ), koshland _v._ helvering, u.s. ( ), kotch _v._ pilot comm'rs., u.s. ( ), kovacs _v._ cooper, u.s. ( ), , , , , kraus & bros. _v._ united states, u.s. ( ), , kreiger _v._ kreiger, u.s. ( ), , kring _v._ missouri, u.s. ( ), krippendorf _v._ hyde, u.s. ( ), kryger _v._ wilson, u.s. ( ), , kuehner _v._ irving trust co., u.s. ( ), kuhn _v._ fairmont coal co., u.s. ( ), , kunz _v._ new york, u.s. ( ), , kurtz _v._ moffitt, u.s. ( ), , kwock jan fat _v._ white, u.s. ( ), l la abra silver mining co. _v._ united states, u.s. ( ), , , , , labelle iron works _v._ united states, u.s. ( ), , labor board _v._ virginia power co., u.s. ( ), lacassagne _v._ chapuis, u.s. ( ), ladew _v._ tennessee copper co., u.s. ( ), lafayette insurance co. _v._ french et al., how. ( ), lake erie & w.r. co. _v._ state public utilities comm. ex rel. cameron, u.s. ( ), lake shore & m.s.r. co. _v._ clough, u.s. ( ), lake shore & m.s.r. co. _v._ ohio ex rel. lawrence, u.s. ( ), , lake shore & m.s.r. co. _v._ prentice, u.s. ( ), lake shore & m.s.r. co. _v._ smith, u.s. ( ), , lamar _v._ united states, u.s. ( ), lam mow _v._ nagle, f. ( d) ( ), lampasas _v._ bell, u.s. ( ), land _v._ dollar, u.s. ( ), , lane _v._ vick, how. ( ), , lane _v._ wilson, u.s. ( ), , , lange, ex parte, wall. ( ), langnes _v._ green, u.s. ( ), lankford _v._ platte iron works, u.s. ( ), lanzetta _v._ new jersey, u.s. ( ), , lapeyre _v._ united states, wall. ( ), large oil co. _v._ howard, u.s. ( ), largent _v._ texas, u.s. ( ), , larson _v._ domestic & foreign corp., u.s. ( ), , , , , , , lascelles _v._ georgia, u.s. ( ), la tourette _v._ mcmaster, u.s. ( ), , , latta & t. constr. co. _v._ the raithmoor, u.s. ( ), lauf _v._ e.g. shinner & co., u.s. ( ), , , laura, the, u.s. ( ), la vengeance, dall. ( ), , lawrence _v._ state tax commission, u.s. ( ), lawton _v._ steele, u.s. ( ), league _v._ texas, u.s. ( ), lee _v._ mississippi, u.s. ( ), lee _v._ osceola & l. river road improv. dist, u.s. ( ), lee, on _v._ united states, u.s. ( ), legal tender cases (juilliard _v._ greenman), wall. ( ), , , , , legal tender cases (juilliard _v._ greenman), u.s. ( ), , lehigh valley r. co., in re, u.s. ( ), lehigh valley r. co. _v._ barlow, u.s. ( ), lehigh valley r. co. _v._ public utility comrs., u.s. ( ), lehmann _v._ state board of public accountancy, u.s. ( ), lehon _v._ atlanta, u.s. ( ), leigh _v._ green, u.s. ( ), , leisy _v._ hardin, u.s. ( ), , , leland _v._ oregon, u.s. ( ), leloup _v._ port of mobile, u.s. ( ), , lemieux _v._ young, u.s. ( ), , lemke _v._ farmers grain co., u.s. ( ), , lem woon _v._ oregon, u.s. ( ), leser _v._ garnett, u.s. ( ), , , , lessee of livingston _v._ moore, pet. ( ), levering & garrigues co. _v._ morrin, u.s. ( ), levitt, ex parte, u.s. ( ), , , levy leasing co. _v._ siegel, u.s. ( ), lewis _v._ cocks, wall. ( ), lewis blue point oyster cultivation co. _v._ briggs, u.s. ( ), lewis publishing co. _v._ morgan, u.s. ( ), l'hote _v._ new orleans, u.s. ( ), , liberato _v._ royer, u.s. ( ), liberty warehouse co. _v._ burley tobacco growers' co-op. marketing asso., u.s. ( ), , liberty warehouse co. _v._ grannis, u.s. ( ), , license cases, how. ( ), , license tax cases, wall. ( ), , lichter _v._ united states, u.s. ( ), , , , life & c. ins. co. _v._ mccray, u.s. ( ), , liggett co. _v._ lee, u.s. ( ), liggett (louis k.) co. _v._ baldridge, u.s. ( ), , , light _v._ united states, u.s. ( ), lincoln county _v._ luning, u.s. ( ), , lincoln federal labor union _v._ northwestern co., u.s. ( ), , , , , lincoln nat. life ins. co. _v._ read, u.s. ( ), lindenmuller _v._ the people, barbour (n.y.) ( ), lindsay & phelps co. _v._ mullen, u.s. ( ), lindsey _v._ washington, u.s. ( ), lindsley _v._ natural carbonic gas co., u.s. ( ), , , , ling su fan _v._ united states, u.s. ( ), l'invincible, wheat. ( ), lipke _v._ lederer, u.s. ( ), , lisenba _v._ california, u.s. ( ), , , litchfield _v._ webster co., u.s. ( ), little _v._ barreme, cr. ( ), , , liverpool & l. & g. ins. co. _v._ board of assessors, u.s. ( ), livingston _v._ moore, pet. ( ), lloyd _v._ matthews, u.s. ( ), local _v._ united states, u.s. ( ), loche _v._ new orleans, wall. ( ), , lochner _v._ new york, u.s. ( ), , , locke _v._ dane, mass. ( ), lockerty _v._ phillips, u.s. ( ), , , lockwood, in re, u.s. ( ), locomobile co. of america _v._ massachusetts, u.s. ( ), loewe _v._ lawlor, u.s. ( ), logan _v._ united states, u.s. ( ), , , londoner _v._ denver, u.s. ( ), , , lonergan _v._ united states, u.s. ( ), lone star gas co. _v._ texas, u.s. ( ), , lone wolf _v._ hitchcock, u.s. ( ), , loney, in re, u.s. ( ), , long _v._ ansell, u.s. ( ), long _v._ rockwood, u.s. ( ), , long island water supply co. _v._ brooklyn, u.s. ( ), , , , long sault development co. _v._ call, u.s. ( ), longyear _v._ toolan, u.s. ( ), look tin sing, in re, f. ( ), looney _v._ crane company, u.s. ( ), , , looney _v._ eastern texas r. co., u.s. ( ), lorain journal _v._ united states, u.s. ( ), lord _v._ steamship co., u.s. ( ), lord de la warre's case, co. rep. a, eng. repr. ( ), los angeles _v._ los angeles gas & electric corp., u.s. ( ), los angeles gas co. _v._ r.r. comm'n., u.s. ( ), , lothrop _v._ stedman, fed. cas. no. , ( ), lottawanna, the (rodd _v._ heartt), wall. ( ), , , , lottery cases, the (champion _v._ ames), u.s. ( ), , , , loughborough _v._ blake, wheat. ( ), , loughran _v._ loughran, u.s. ( ), louisiana _v._ cummins, u.s. ( ), louisiana _v._ garfield, u.s. ( ), louisiana _v._ mcadoo, u.s. ( ), , louisiana _v._ pilsbury, u.s. ( ), louisiana _v._ texas, u.s. ( ), , louisiana ex rel. elliott _v._ jumel, u.s. ( ), , louisiana ex rel. folsom bros. _v._ new orleans, u.s. ( ), , louisiana ex rel. francis _v._ resweber, u.s. ( ), , louisiana ex rel. nelson _v._ st. martin's parish, u.s. ( ), louisiana ex rel. ranger _v._ new orleans, u.s. ( ), louisiana public service comm. _v._ texas & n.o.r. co., u.s. ( ), , , louisiana ry. & nav. co. _v._ new orleans, u.s. ( ), louisville & j. ferry co. _v._ kentucky, u.s. ( ), , louisville & n.r. co. _v._ barber asphalt pav. co., u.s. ( ), louisville & n.r. co. _v._ central stockyards co., u.s. ( ), , louisville & n.r. co. _v._ deer, u.s. ( ), louisville & n.r. co. _v._ garrett, u.s. ( ), , , louisville & n.r. co. _v._ greene, u.s. ( ), louisville & n.r. co. _v._ kentucky, u.s. ( ), louisville & n.r. co. _v._ mottley, u.s. ( ), , louisville & n.r. co. _v._ palmes, u.s. ( ), louisville & n.r. co. _v._ parker, u.s. ( ), louisville & n.r. co. _v._ schmidt, u.s. ( ), , , louisville, cincinnati & charleston r. co. _v._ letson, how. ( ), louisville gas & e. co. _v._ coleman, u.s. ( ), , louisville joint stock bank _v._ radford, u.s. ( ), , , louisville water co. _v._ clark, u.s. ( ), , , lovell _v._ city of griffin, u.s. ( ), , , low _v._ austin, wall. ( ), , lowe _v._ kansas, u.s. ( ), , lucas _v._ alexander, u.s. ( ), luckenbach s.s. co. _v._ united states, u.s. ( ), ludecke _v._ watkins, u.s. ( ), , , , , ludwig _v._ western union teleg. co., u.s. ( ), lugo _v._ suazo, f. ( d) ( ), luke _v._ lyde, burr. ( ), luria _v._ united states, u.s. ( ), , lustig _v._ united states, u.s. ( ), luther _v._ borden, how. ( ), , , , , luxton _v._ north river bridge co., u.s. ( ), , lynch _v._ hornby, u.s. ( ), , lynch _v._ turrish, u.s. ( ), lynch _v._ united states, u.s. ( ), , , lynde _v._ lynde, u.s. ( ), lyon _v._ mutual benefit health & accident assn., u.s. ( ), lyons _v._ oklahoma, u.s. ( ), , , m mabee _v._ white plains publishing co., u.s. ( ), macallen _v._ massachusetts, u.s. ( ), macdougall _v._ green, u.s. ( ), , , , mackay teleg. & cable co. _v._ little rock, u.s. ( ), mackenzie _v._ hare, u.s. ( ), , mackin _v._ united states, u.s. ( ), maclaughlin _v._ alliance ins. co., u.s. ( ), madden _v._ kentucky, u.s. ( ), , , , , , madera waterworks _v._ madera, u.s. ( ), , madisonville traction co. _v._ st. bernard min. co., u.s. ( ), madsen _v._ kinsella, u.s. ( ), , mager _v._ grima, how. ( ), magnano co. _v._ hamilton, u.s. ( ), , , magniac _v._ thompson, pet. ( ), magnolia petroleum co. _v._ hunt, u.s. ( ), magoun _v._ illinois trust & sav. bank, u.s. ( ), maguire _v._ reardon, u.s. ( ), maguire _v._ trefry, u.s. ( ), mahler _v._ eby, u.s. ( ), , , mahn _v._ hardwood, u.s. ( ), mahnich _v._ southern s.s. co., u.s. ( ), mahon _v._ justice, u.s. ( ), mahoney _v._ triner corp., u.s. ( ), maine _v._ grand trunk r. co., u.s. ( ), , maiorano _v._ baltimore & o.r. co., u.s. ( ), malinski _v._ new york, u.s. ( ), , , , , , mallett _v._ north carolina, u.s. ( ), , mallinckrodt chemical works _v._ missouri ex rel. jones, u.s. ( ), malloy _v._ south carolina, u.s. ( ), manchester _v._ massachusetts, u.s. ( ), , mandeville _v._ canterbury, u.s. ( ), mandeville is. farms _v._ american c.s. co., u.s. ( ), , manhattan l. ins. co. _v._ cohen, u.s. ( ), manigault _v._ springs, u.s. ( ), , , mankin _v._ chandler & co., brock. ( ), manley _v._ georgia, u.s. ( ), , mantle lamp co. _v._ aluminum co., u.s. ( ), manuel _v._ wulff, u.s. ( ), marbles _v._ creecy, u.s. ( ), marbury _v._ madison, cr. ( ), , , , , , , , , , , , , marchant _v._ pennsylvania railroad co., u.s. ( ), , marconi wireless teleg. co. _v._ united states, u.s. ( ), margolin _v._ united states, u.s. ( ), marianna flora, the, wheat. ( ), maricopa county _v._ valley national bank, u.s. ( ), marin _v._ augedahl, u.s. ( ), marino _v._ ragen, u.s. ( ), , marine r. & coal co. _v._ united states, u.s. ( ), market st. r. co. _v._ comm'n., u.s. ( ), markham _v._ allen, u.s. ( ), marr _v._ united states, u.s. ( ), marron _v._ united states, u.s. ( ), , marsh _v._ alabama, u.s. ( ), , marshall _v._ baltimore & ohio r. co., how. ( ), marshall _v._ dye, u.s. ( ), , marshall _v._ gordon, u.s. ( ), , marshall _v._ holmes, u.s. ( ), martin _v._ hunter, wheat. ( ), , , , , , , , martin _v._ lankford, u.s. ( ), martin _v._ mott, wheat. ( ), , , , martin _v._ pittsburgh & l.e.r. co., u.s. ( ), martin _v._ struthers, u.s. ( ), , martin _v._ waddell, pet. ( ), martin _v._ west, u.s. ( ), martino _v._ michigan window cleaning company, u.s. ( ), marvin _v._ trout, u.s. ( ), , maryland _v._ soper, u.s. ( ), , , maryland _v._ soper, u.s. ( ), maryland _v._ west virginia, u.s. ( ), maryland casualty co. _v._ pacific coal & oil co., u.s. ( ), mason _v._ haile, wheat. ( ), mason _v._ united states, u.s. ( ), mason _v._ united states, u.s. ( ), massachusetts _v._ mellon, u.s. ( ), , , , , , , massachusetts _v._ missouri, u.s. . ( ), massachusetts state grange _v._ benton, u.s. ( ), , mast, foos & co. _v._ stover mfg. co., u.s. ( ), mathews _v._ zane, wheat. ( ), matson navigation co. _v._ state board, u.s. ( ), , , mattingly _v._ district of columbia, u.s. ( ), mattox _v._ united states, u.s. ( ), mattson _v._ department of labor, u.s. ( ), maul _v._ united states, u.s. ( ), maurer _v._ hamilton, u.s. ( ), , maxwell _v._ bugbee, u.s. ( ), , , maxwell _v._ dow, u.s. ( ), , , , , , , , maxwell _v._ stewart, wall. ( ), may _v._ new orleans, u.s. ( ), , mayfield _v._ richards, u.s. ( ), mayflower farms _v._ ten eyck, u.s. ( ), maynard _v._ hill, u.s. ( ), mayo _v._ united states, u.s. ( ), mayor of vidalia _v._ mcneely, u.s. ( ), mayor _v._ cooper, wall. ( ), , , , , mcallister _v._ united states, u.s. ( ), mccabe _v._ atchison, t. & s.f.r. co., u.s. ( ), , , , mccall _v._ california, u.s. ( ), , mccandless _v._ united states, u.s. ( ), mccardle, ex parte, wall. ( ), mccardle, ex parte, wall. ( ), , mccardle _v._ indianapolis water co., u.s. ( ), mccarroll _v._ dixie greyhound lines, u.s. ( ), , , , , mccarthy _v._ arndstein, u.s. ( ), , mccarthy _v._ arndstein, u.s. ( ), , mccaughey _v._ lyall, u.s. ( ), mccloskey _v._ tobin, u.s. ( ), , mcclung _v._ silliman, wheat. ( ), mcclurg _v._ kingsland, how. ( ), mccollum _v._ board of education, u.s. ( ), , , mccormick _v._ sullivant, wheat. ( ), mccoy _v._ union elev. co., u.s. ( ), mccracken _v._ hayward, how. ( ), mccray _v._ united states, u.s. ( ), , , mccready _v._ virginia, u.s. ( ), mccrone _v._ united states, u.s. ( ), mcculloch _v._ maryland, wheat. ( ), , , , , , , , , , , , , , , , , , , , , , mccullough _v._ virginia, u.s. ( ), mcdermott _v._ wisconsin, u.s. ( ), , mcdonald _v._ mabee, u.s. ( ), , , mcdonald _v._ massachusetts, u.s. ( ), , mcdonald _v._ oregon r. & nav. co., u.s. ( ), mcdonald _v._ pless, u.s. ( ), mcdonald _v._ united states, u.s. ( ), mcelmoyle _v._ cohen, pet. ( ), mcelrath _v._ united states, u.s. ( ), , mcfaddin _v._ evans-snider-buel co., u.s. ( ), mcgahey _v._ virginia, u.s. ( ), , mcgoldrick _v._ berwind-white coal mining co., u.s. ( ), , mcgoldrick _v._ compagnie generale, u.s. ( ), mcgoldrick _v._ felt & tarrant co., u.s. ( ), mcgoldrick _v._ gulf oil corp., u.s. ( ), mcgovern _v._ new york, u.s. ( ), mcgrain _v._ daugherty, u.s. ( ), - , , , mcguire _v._ united states, u.s. ( ), mcintire _v._ wood, cr. ( ), , mckane _v._ durston, u.s. ( ), , , mckim _v._ voorhies, cr. ( ), mckinley _v._ united states, u.s. ( ), mckissick _v._ carmichael, f. d ( ), mcknett _v._ st. louis & s.f.r. co., u.s. ( ), mclaurin _v._ oklahoma state regents, u.s. ( ), mclean _v._ arkansas, u.s. ( ), , , mclean _v._ meek, how. ( ), mcleod _v._ dilworth co., u.s. ( ), mcleod _v._ threlkeld, u.s. ( ), mcmillen _v._ anderson, u.s. ( ), , , mcnabb _v._ united states, u.s. ( ), mcnally _v._ hill, u.s. ( ), mcnaughton _v._ johnson, u.s. ( ), , mcneill _v._ southern r. co., u.s. ( ), mcniel, ex parte, wall. ( ), , mcpherson _v._ blacker, u.s. ( ), , , mechanics' & traders' bank _v._ debolt, how. ( ), medley, ex parte, u.s. ( ), meehan _v._ valentine, u.s. ( ), meeker _v._ lehigh valley r. co., u.s. ( ), memphis _v._ united states, u.s. ( ), memphis & c.r. co. _v._ pace, u.s. ( ), memphis gas co. _v._ beeler, u.s. ( ), , memphis & l.r.r. co. _v._ berry, u.s. ( ), memphis natural gas co. _v._ stone, u.s. ( ), , memphis steam laundry _v._ stone, u.s. ( ), merchants' bank _v._ pennsylvania, u.s. ( ), merchants exch. _v._ missouri ex rel. barker, u.s. ( ), merchants' loan & t. co. _v._ smietanka, u.s. ( ), merchants mut. auto liability ins. co. _v._ smart, u.s. ( ), merchants nat. bank _v._ united states, u.s. ( ), meriwether _v._ garrett, u.s. ( ), merrick _v._ halsey & co., u.s. ( ), , merryman, ex parte, fed. cas. no. ( ), metcalf _v._ mitchell, u.s. ( ), metropolis theatre co. _v._ chicago, u.s. ( ), metropolitan casualty ins. co. _v._ brownell, u.s. ( ), metropolitan l. ins. co. _v._ new orleans, u.s. ( ),, metropolitan r. co. _v._ district of columbia, u.s. ( ), meyer _v._ nebraska, u.s. ( ), meyer _v._ richmond, u.s. ( ), meyer _v._ wells, fargo & co., u.s. ( ), michaelson _v._ united states, u.s. ( ), , , , michigan c.r. co. _v._ michigan railroad commission, u.s. ( ), michigan c.r. co. _v._ powers, u.s. ( ), michigan public utilities commission _v._ duke, u.s. ( ), michigan trust co. _v._ ferry, u.s. ( ), , middleton _v._ texas power & light co., u.s. ( ), , midland realty co. _v._ kansas city p. & l. co., u.s. ( ), miedreich _v._ lauenstein, u.s. ( ), miles _v._ graham, u.s. ( ), , , miles _v._ illinois c.r. co., u.s. ( ), miles _v._ safe deposit & trust co., u.s. ( ), milheim _v._ moffat tunnel improv. dist., u.s. ( ), milk control board _v._ eisenberg farm products, u.s. ( ), , , milk wagon drivers' union _v._ lake valley farm products, u.s. ( ), , millard _v._ roberts, u.s. ( ), miller _v._ foree, u.s. ( ), miller _v._ horton, mass. ( ), miller _v._ mclaughlin, u.s. ( ), miller _v._ milwaukee, u.s. ( ), miller _v._ new york, wall. ( ), miller _v._ schoene, u.s. ( ), , miller _v._ standard nut margarine co., u.s. ( ), miller _v._ strahl, u.s. ( ), miller _v._ united states, wall. ( ), , , , miller _v._ wilson, u.s. ( ), , millers' underwriters _v._ braud, u.s. ( ), milligan, ex parte, wall. ( ), , , , , , , milliken _v._ meyer, u.s. ( ), , mills _v._ duryee, cr. ( ), , , mills _v._ green, u.s. ( ), millsaps college _v._ jackson, u.s. ( ), milwaukee county _v._ white (m.e.), co., u.s. ( ), , , , milwaukee social democratic publishing co. _v._ burleson, u.s. ( ), mimmack _v._ united states, u.s. ( ), minersville school dist. _v._ gobitis, u.s. ( ), mine safety appliances co. _v._ forrestal, u.s. ( ), minneapolis & st. l.r. co. _v._ beckwith, u.s. ( ), , , minneapolis & st. l.r. co. _v._ bombolis, u.s. ( ), minneapolis & st. l.r. co. _v._ emmons, u.s. ( ), , minneapolis & st. l.r. co. _v._ minnesota ex rel. railroad & w. commission, u.s. ( ), minnesota _v._ barber, u.s. ( ), minnesota _v._ blasius, u.s. ( ), , , minnesota _v._ hitchcock, u.s. ( ), minnesota _v._ northern securities co., u.s. ( ), , minnesota _v._ probate court, u.s. ( ), , , minnesota _v._ united states, u.s. ( ), , minnesota assn. _v._ benn, u.s. ( ), minnesota ex rel. whipple _v._ martinson, u.s. ( ), minnesota rate cases (simpson _v._ shepard) u.s. ( ), , , , minor _v._ happersett, wall. ( ), , , mintz _v._ baldwin, u.s. ( ), , , mississippi _v._ johnson, wall. ( ), , , , mississippi r. commission _v._ mobile & o.r. co., u.s. ( ), mississippi use of robertson _v._ miller, u.s. ( ), missouri _v._ canada, u.s. ( ), missouri _v._ dockery, u.s. ( ), missouri _v._ fiske, u.s. ( ), , missouri _v._ holland, u.s. ( ), , , , missouri _v._ illinois, u.s. ( ), , missouri _v._ lewis, u.s. ( ), , missouri _v._ missouri pacific r. co., u.s. ( ), missouri & a. lumber & min. co _v._ greenwood dist., u.s. ( ), missouri ex rel. barrett _v._ kansas natural gas co., u.s. ( ), , missouri ex rel. gaines _v._ canada, u.s. ( ), missouri ex rel. hurwitz _v._ north, u.s. ( ), , missouri ex rel. southwestern bell teleph. co. _v._ public service commission, u.s. ( ), , missouri, k. & t.r. co. _v._ cade, u.s. ( ), , missouri, k. & t.r. co. _v._ haber, u.s. ( ), , missouri, k. & t.r. _v._ harris, u.s. ( ), missouri, k. & t.r. co. _v._ may, u.s. ( ), missouri, k. & t.r. co. _v._ reynolds, u.s. ( ), missouri, k. & t.r. co. _v._ texas, u.s. ( ), missouri p.r. co. _v._ castle, u.s. ( ), missouri p.r. co. _v._ humes, u.s. ( ), , missouri p.r. co. _v._ kansas, u.s. ( ), , missouri p.r. co. _v._ kansas ex rel. taylor, u.s. ( ), , missouri p.r. co. _v._ larabee, u.s. ( ), missouri p.r. co. _v._ larabee flour mills co., u.s. ( ), missouri p.r. co. _v._ mcgrew coal co., u.s. ( ), missouri p.r. co. _v._ nebraska, u.s. ( ), , missouri p.r. co. _v._ nebraska ex rel. board of transportation, u.s. ( ), missouri p.r. co. _v._ norwood, u.s. ( ), , missouri p.r. co. _v._ porter, u.s. ( ), missouri p.r. co. _v._ tucker, u.s. ( ), missouri p.r. co. _v._ western crawford road improv. dist, u.s. ( ), mitchell _v._ clark, u.s. ( ), , mitchell _v._ harmony, how. ( ), , , , mitchell _v._ united states, u.s. ( ), mittle _v._ state of south carolina, u.s. ( ), mobile _v._ watson, u.s. ( ), mobile & ohio r.r. co. _v._ tennessee, u.s. ( ), mobile county _v._ kimball, u.s. ( ), , mobile, j. & k.c.r. co. _v._ turnipseed, u.s. ( ), , , modern woodmen _v._ mixer, u.s. ( ), moffitt _v._ kelly, u.s. ( ), monaco _v._ mississippi, u.s. ( ), monamotor oil co. _v._ johnson, u.s. ( ), mondou _v._ new york, n.h. & h.r. co. (second employers' liability cases), u.s. ( ), , , , monongahela bridge co. _v._ united states, u.s. ( ), monongahela nav. co. _v._ united states, u.s. ( ), , , , , montana catholic missions _v._ missoula county, u.s. ( ), montana company _v._ st louis min. & mill co., u.s. ( ), montello, the, wall. ( ), montoya _v._ gonzales, u.s. ( ), mooney _v._ holohan, u.s. ( ), , mooney _v._ smith, u.s. ( ), mooney, ex parte, cal. ( d) , p. ( d) ( ), moore _v._ dempsey, u.s. ( ), , , moore _v._ fidelity & deposit co., u.s. ( ), moore _v._ houston, s. & r. (pa.) ( ), moore _v._ illinois, how. ( ), moore _v._ missouri, u.s. ( ), moore _v._ mitchell, u.s. ( ), moore _v._ new york, u.s. ( ), , moran _v._ sturges, u.s. ( ), moran, in re, u.s. ( ), more _v._ steinbach, u.s. ( ), morehead _v._ new york ex rel. tipaldo, u.s. ( ), , , morf _v._ bingaman, u.s. ( ), , , morgan _v._ devine, u.s. ( ), morgan _v._ gay, wall. ( ), morgan _v._ louisiana, u.s. ( ), morgan _v._ tva, f. supp. ( ), morgan _v._ united states, u.s. ( ), morgan _v._ virginia, u.s. ( ), , morgan envelope co. _v._ albany perforated wrapping paper co., u.s. ( ), morgan's l. & t.r. & s.s. co. _v._ louisiana bd. of health, u.s. ( ), , , , , morley _v._ lake shore & m.s.r. co., u.s. ( ), , morris _v._ duby, u.s. ( ), morris _v._ jones, u.s. ( ), morris _v._ united states, u.s. ( ), morrison _v._ california, u.s. ( ), morrison _v._ california, u.s. ( ), morrison _v._ work, u.s. ( ), morrissey, in re, u.s. ( ), morton salt co. _v._ suppiger co., u.s. ( ), moses taylor, the, _v._ hammons, wall. ( ), , mosher _v._ phoenix, u.s. ( ), motes _v._ united states, u.s. ( ), , motion picture co. _v._ universal film co., u.s. ( ), motor freight carriers _v._ national war labor board, f. ( d) ( ), mountain timber co. _v._ washington, u.s. ( ), , , mt. vernon-woodberry cotton duck co. _v._ alabama interstate power co., u.s. ( ), moyer _v._ peabody, u.s. ( ), mugler _v._ kansas, u.s. ( ), , , , , , muhlker _v._ new york & h.r. co., u.s. ( ), mulford _v._ smith, u.s. ( ), , , mullan _v._ united states, u.s. ( ), , mullan _v._ united states, u.s. ( ), mullane _v._ central hanover tr. co., u.s. ( ), mullaney _v._ anderson, u.s. ( ), muller _v._ dows, u.s. ( ), muller _v._ oregon, u.s. ( ), , , munday _v._ wisconsin trust co., u.s. ( ), munn _v._ illinois, u.s. ( ), , , , , , , , , , , , , munsey _v._ clough, u.s. ( ), murdock _v._ pennsylvania, u.s. ( ), , , murphy _v._ california, u.s. ( ), , murphy _v._ massachusetts, u.s. ( ), , murphy _v._ ramsey, u.s. ( ), , murray _v._ charleston, u.s. ( ), murray _v._ hoboken land & improvement co., how. ( ), murray _v._ wilson distilling co., u.s. ( ), , , muskrat _v._ united states, u.s. ( ), , , , , , , , musser _v._ utah, u.s. ( ), mutual assur. soc. _v._ watts, wheat. ( ), mutual ben. l. ins. co. _v._ tisdale, u.s. ( ), mutual film corp. _v._ hodges, u.s. ( ), mutual film corp. _v._ industrial commission, u.s. ( ), mutual l. ins. co. _v._ harris, u.s. ( ), mutual life ins. co. _v._ johnson, u.s. ( ), mutual life insurance co. _v._ spratley, u.s. ( ),, mutual loan co. _v._ martell, u.s. ( ), mutual reserve, etc. assn. _v._ phelps, u.s. ( ),, myers _v._ irwin, sergeant & rawle's (pa.) ( ), myers _v._ united states, u.s. ( ), myers _v._ united states, u.s. ( ), , , myles salt co. _v._ iberia & st. m. drainage dist., u.s. ( ), n napier _v._ atlantic coast line r. co., u.s. ( ),, nardone _v._ united states, u.s. ( ), nardone _v._ united states, u.s. ( ), nash _v._ united states, u.s. ( ), nashville, c. & st. l.r. co. _v._ alabama, u.s. ( ), , , , nashville, c. & st. l. ry. _v._ browning, u.s. ( ), , , , nashville, c. & st. l.r. co. _v._ wallace, u.s. ( ), , , , , , nashville, c. & st. l.r. co. _v._ walters, u.s. , ( ), , , nashville, c. & st. l.r. co. _v._ white, u.s. ( ), natal _v._ louisiana, u.s. ( ), , nathan _v._ louisiana, how. ( ), , nathanson _v._ united states, u.s. ( ), national association of manufacturers _v._ mcgrath, f. supp. ( ), national broadcasting co. _v._ united states, u.s. ( ), , national cotton oil co. _v._ texas, u.s. ( ), national council _v._ state council, u.s. ( ), national exchange bank _v._ peters, u.s. ( ), national exchange bank _v._ wiley, u.s. ( ), , national fertilizer asso. _v._ bradley, u.s. ( ), national gas pipeline co. _v._ slattery, u.s. ( ), national labor relations board _v._ fainblatt, u.s. ( ), national labor relations board _v._ friedman-harry marks clothing co., u.s. ( ), national labor relations board _v._ fruehauf trailer co., u.s. ( ), national labor relations board _v._ jones & laughlin steel corporation, u.s. ( ), , , , , , , national labor relations board _v._ mackay co., u.s. ( ), , national labor relations board _v._ stowe spinning co., u.s. ( ), national mutual b. & l. asso. _v._ brahan, u.s. ( ), , , national mutual insurance co. _v._ tidewater transfer co., u.s. ( ) , , national paper & type co. _v._ bowers, u.s. ( ), , national prohibition cases. _see_ rhode island _v._ palmer. national safe deposit co. _v._ stead, u.s. ( ), , national union f. ins. co. _v._ wanberg, u.s. ( ), natural gas pipeline co. _v._ slattery, u.s. ( ), neagle, in re, u.s. ( ), , , , neal _v._ delaware, u.s. ( ), , near _v._ minnesota, u.s. ( ), , nebbia _v._ new york, u.s. ( ), , , , , , , , neblett _v._ carpenter, u.s. ( ), , nebraska _v._ wyoming, u.s. ( ), nectaw _v._ cambridge, u.s. ( ), neely _v._ hankel, u.s. ( ), , , , nelson _v._ montgomery ward & company, u.s. ( ), nelson _v._ sears, roebuck & company, u.s. ( ), newark _v._ new jersey, u.s. ( ), newark fire ins. co. _v._ state board, u.s. ( ), new bedford dry dock co. _v._ purdy, u.s. ( ), newberry _v._ united states, u.s. ( ), , new brunswick _v._ united states, u.s. ( ), newburyport water co. _v._ newburyport, u.s. ( ), , new england divisions case. _see_ akron, c. & y.r. co. _v._ united states. new england m. inc. co. _v._ dunham, wall. ( ), new hampshire _v._ louisiana, u.s. ( ), , new haven & n. co. _v._ hamersley, u.s. ( ), new jersey _v._ new york, u.s. ( ), new jersey _v._ new york, pet. ( ), new jersey _v._ sargent, u.s. ( ), , new jersey _v._ wilson, cr. ( ), new jersey _v._ yard, u.s. ( ), new jersey bell telephone co. _v._ state bd. of taxes & assessments, u.s. ( ), , , new jersey steam nav. co. _v._ merchants' bank, how. ( ), , , new mexico _v._ lane, u.s. ( ), new mexico ex rel. mclean _v._ denver & r.g.r. co., u.s. ( ), new negro alliance _v._ sanitary grocery co., u.s. ( ), , new orleans _v._ new orleans waterworks co., u.s. ( ), new orleans _v._ winter, wheat. ( ), , new orleans & lake r. co. _v._ louisiana, u.s. ( ), new orleans debenture redemption co. _v._ louisiana, u.s. ( ), new orleans gas light co. _v._ drainage commission, u.s. ( ), new orleans gas co. _v._ louisiana light co., u.s. ( ), , new orleans public service, inc., _v._ new orleans, u.s. ( ), , new orleans waterworks co. _v._ louisiana sugar ref. co., u.s. ( ), new orleans waterworks co. _v._ rivers, u.s. ( ), newport & cincinnati bridge co. _v._ united states, u.s. ( ), new state ice co. _v._ liebmann, u.s. ( ), , newton _v._ consolidated gas co., u.s. ( ), newton _v._ mahoning county, u.s. ( ), new york _v._ compagnie générale transatlantique, u.s. ( ), new york _v._ eno, u.s. ( ), new york _v._ illinois, u.s. ( ), new york _v._ irving trust co., u.s. ( ), new york _v._ miln, pet. ( ), , , , new york _v._ united states, u.s. ( ), , , new york _v._ united states, u.s. ( ), , , new york _v._ united states, u.s. ( ), new york _v._ united states, u.s. ( ), new york central _v._ miller, u.s. ( ), new york c. & h.r.r. co. _v._ bd. of chosen freeholders, u.s. ( ), , new york c.r. co. _v._ bianc, u.s. ( ), new york c.r. co. _v._ white, u.s. ( ), , , , , new york central securities corp _v._ united states, u.s. ( ), , new york, ex parte, u.s. ( ), new york ex rel. bank of commerce _v._ comrs. of taxes & assessments, bl. ( ), new york ex rel. bryant _v._ zimmerman, u.s. ( ), , new york ex rel. burke _v._ wells, u.s. ( ), new york ex rel. cohn _v._ graves, u.s. ( ), new york ex rel. hatch _v._ reardon, u.s. ( ), , new york ex rel. lieberman _v._ van de carr, u.s. ( ), , , new york ex rel. new york, c. & h.r.r. co. _v._ miller, u.s. ( ), , new york ex rel. new york electric lines co. _v._ squire, u.s. ( ), new york ex rel. new york & o. gas co. _v._ mccall, u.s. ( ), new york ex rel. rogers _v._ graves, u.s. ( ), new york ex rel. whitman _v._ wilson, u.s. ( ), new york ex rel. woodhaven gas light co. _v._ public service commission, u.s. ( ), new york indians, the, wall. ( ), , new york life ins. co. _v._ cravens, u.s. ( ), , new york l. ins. co. _v._ deer lodge county, u.s. ( ), new york l. ins. co. _v._ dodge, u.s. ( ), new york life ins. co. _v._ head, u.s. ( ), new york & n.e.r. co. _v._ bristol, u.s. ( ), , new york, n.h. & h.r. co. _v._ new york, u.s. ( ), , , new york, p. & n. teleg. co. _v._ dolan, u.s. ( ), new york rapid transit co. _v._ city of new york, u.s. ( ), , new york state r. co. _v._ shuler, u.s. ( ), new york trust co. _v._ eisner, u.s. ( ), ng fung ho _v._ white, u.s. ( ), nicchia _v._ new york, u.s. ( ), nichols _v._ coolidge, u.s. ( ), nichols _v._ united states, wall. ( ), nickel _v._ cole, u.s. ( ), nickey _v._ mississippi, u.s. ( ), nicol _v._ ames, u.s. ( ), , nielsen, ex parte, u.s. ( ), nielsen _v._ johnson, u.s. ( ), , niemotko _v._ maryland, u.s. ( ), nigro _v._ united states, u.s. ( ), nippert _v._ richmond, u.s. ( ), , nishimura ekiu _v._ united states, u.s. ( ), nixon _v._ condon, u.s. ( ), , , nixon _v._ herndon, u.s. ( ), , , noble _v._ union river logging r. co., u.s. ( ), , noble state bank _v._ haskell, u.s. ( ), , nogueira _v._ new york, n.h. & h.r. co., u.s. ( ), , norfolk & s. turnpike co. _v._ virginia, u.s. ( ), norfolk & w.r. co. _v._ pendleton, u.s. ( ), norfolk & w.r. co. _v._ pennsylvania, u.s. ( ), norfolk & w.r. co. _v._ sims, u.s. ( ), norman _v._ baltimore & o.r. co., u.s. ( ), , , norris _v._ alabama, u.s. ( ), north american cold storage co. _v._ chicago, u.s. ( ), , north american co. _v._ s.e.c., u.s. ( ), north carolina _v._ temple, u.s. ( ), north carolina _v._ united states, u.s. ( ), north laramie land co. _v._ hoffman, u.s. ( ), north pacific s.s. co. _v._ hall brothers m.r. & s. co., u.s. ( ), northern assur. co. _v._ grand view bldg. asso., u.s. ( ), northern coal & dock co. _v._ strand, u.s. ( ), northern pac. r.r. _v._ babcock, u.s. ( ), northern pac. r. co. _v._ minnesota, u.s. ( ), northern p.r. co. _v._ myers, u.s. ( ), northern p.r. co. _v._ north dakota, u.s. ( ), northern securities co. _v._ united states, u.s. ( ), , , , northern transp. co. _v._ chicago, u.s. ( ), , northwest airlines _v._ minnesota, u.s. ( ), , , northwestern bell teleph. co. _v._ nebraska state r. com., u.s. ( ), northwestern electric co. _v._ federal power commission, u.s. ( ), , northwestern laundry co. _v._ des moines, u.s. ( ), northwestern mutual l. ins. co. _v._ wisconsin, u.s. ( ), northwestern mutual l. ins. co. _v._ wisconsin, u.s. ( ), northwestern nat. l. ins. co. _v._ riggs, u.s. ( ), , , northwestern union packet co. _v._ st. louis, u.s. ( ), norton co. _v._ dept. of revenue, u.s. ( ), nortz _v._ united states, u.s. ( ), nutting _v._ massachusetts, u.s. ( ), nye _v._ united states, u.s. ( ), , o o'brien _v._ miller, u.s. ( ), oceanic steam nav. co. _v._ stranahan, u.s. ( ), , ochoa _v._ hernandez y morales, u.s. ( ), octavia, the, wheat. ( ), o'donnell _v._ great lakes dredge & dock co., u.s. ( ), , o'donoghue _v._ united states, u.s. ( ), , , , oetjen _v._ central leather co., u.s. ( ), , , offield _v._ new york, n.h. & h.r. co., u.s. ( ), ogden _v._ saunders, wheat. ( ), , , , , ogden _v._ witherspoon, fed. cas. no. , ( ), o'gorman & young _v._ hartford f. ins. co., u.s. ( ) , ohio _v._ chattanooga boiler & tank co., u.s. ( ), ohio _v._ helvering, u.s. ( ), ohio _v._ thomas, u.s. ( ), , ohio ex rel. bryant _v._ akron metropolitan park dist., u.s. ( ), , , , ohio ex rel. clarke _v._ deckebach, u.s. ( ), ohio ex rel. davis _v._ hildebrant, u.s. ( ), , ohio ex rel. lloyd _v._ dollison, u.s. ( ), ohio ex rel. popovici _v._ agler, u.s. ( ), , ohio life insurance co. _v._ debolt, how. ( ), ohio oil co. _v._ conway, u.s. ( ), ohio oil co. _v._ indiana (no. ), u.s. ( ), ohio tax cases, u.s. ( ), ohio valley water company _v._ ben avon borough, u.s. ( ), okanogan indians _v._ united states, u.s. ( ), oklahoma _v._ atchison, topeka & santa fe r. co., u.s. ( ), , , , oklahoma _v._ atkinson co., u.s. ( ), , , oklahoma _v._ kansas natural gas co., u.s. ( ), , , oklahoma _v._ texas, u.s. ( ), oklahoma _v._ united states civil service commission, u.s. ( ), , , oklahoma ex rel. johnson _v._ cook, u.s. ( ), , , oklahoma ex rel. phillips _v._ atkinson co., u.s. ( ), oklahoma gas co. _v._ packing co., u.s. ( ), oklahoma packing co. _v._ oklahoma gas and electric co., u.s. ( ), oklahoma press publishing co. _v._ walling, u.s. ( ), , , , , , oklahoma tax comm'n. _v._ barnsdall refiners, u.s. ( ), oklahoma tax comm'n. _v._ texas co., u.s. ( ), olcott _v._ fond du lac county, wall. ( ), old colony trust co. _v._ commissioner of internal revenue, u.s. ( ), old colony trust co. _v._ seattle, u.s. ( ), old dearborn distributing co. _v._ seagram-distillers corp., u.s. ( ), old dominion land co. _v._ united states, u.s. ( ), , old dominion s.s. co. _v._ gilmore (the "hamilton"), u.s. ( ), , , old dominion s.s. co. _v._ virginia, u.s. ( ), , old wayne life assn. _v._ mcdonough, u.s. ( ), , olin _v._ kitzmiller, u.s. ( ), oliver iron company _v._ lord, u.s. ( ), , oliver, in re, u.s. ( ), olmstead _v._ united states, u.s. ( ), olmsted _v._ olmsted, u.s. ( ), olsen _v._ nebraska, u.s. ( ), , olsen _v._ smith, u.s. ( ), olson _v._ united states, u.s. ( ), omaechevarria _v._ idaho, u.s. ( ), o'malley _v._ woodrough, u.s. ( ), , omnia commercial co. _v._ united states, u.s. ( ), o'neil _v._ vermont, u.s. ( ), , o'neill _v._ leamer, u.s. ( ), ontario land co. _v._ yordy, u.s. ( ), opp cotton mills _v._ administrator, u.s. ( ), , , order of travelers _v._ wolfe, u.s. ( ), oregon _v._ hitchcock, u.s. ( ), , oregon & c.r. co. _v._ united states, u.s. ( ), oregon short line & utah n. ry. co. _v._ skottowe, u.s. ( ), oregon-washington r. & nav. co. _v._ washington, u.s. ( ), orient ins. co. _v._ board of assessors, u.s. ( ), orient ins. co. _v._ daggs, u.s. ( ), , , orleans, the, _v._ phoebus, pet. ( ), orr _v._ gilman, u.s. ( ), , orr _v._ hodgson, wheat. ( ), orton _v._ smith, how. ( ), , osborn _v._ bank of the united states, wheat. ( ), , , , , , , , , , , osborn _v._ ozlin, u.s. ( ), osborne _v._ florida, u.s. ( ), osborne _v._ mobile, wall. ( ), oshkosh waterworks co. _v._ oshkosh, u.s. ( ), osman _v._ douds, u.s. ( ), osterman _v._ baldwin, wall. ( ), otis _v._ parker, u.s. ( ), , otis co. _v._ ludlow mfg. co., u.s. ( ), ott _v._ mississippi barge line co., u.s. ( ), ouachita packet co. _v._ aiken, u.s. ( ), , overnight motor co. _v._ missel, u.s. ( ), overstreet _v._ north shore corp., u.s. ( ), owensboro nat. bank _v._ owensboro, u.s. ( ), owings _v._ speed, wheat. ( ), ownbey _v._ morgan, u.s. ( ), , oyama _v._ california, u.s. ( ), , , ozan lumber co. _v._ union county nat. bank, u.s. ( ), ozark pipe line _v._ monier, u.s. ( ), p pace _v._ alabama, u.s. ( ), pace _v._ burgess, u.s. ( ), pacific coast dairy _v._ dept. of agriculture, u.s. ( ), , pacific gas & electric co. _v._ police court, u.s. ( ), , pacific ins. _v._ comm'n., u.s. ( ), pacific ins. co. _v._ soule, wall. ( ), pacific railroad removal cases (union p.r. co. _v._ myers), u.s. ( ), , pacific railway cases, u.s. ( ), pacific railway commission, in re, fed. ( ), pacific r. co. _v._ maguire, wall. ( ), pacific states box & basket co. _v._ white, u.s. ( ), , , pacific states telephone & telegraph co. _v._ oregon, u.s. ( ), , pacific steam whaling co. _v._ united states, u.s. ( ), pacific telephone & telegraph co. _v._ gallagher, u.s. ( ), pacific teleph. & teleg. co. _v._ tax commission, u.s. ( ), , , packard _v._ banton, u.s. ( ), , packer corp. _v._ utah, u.s. ( ), , packet co. _v._ keokuk, u.s. ( ), , paddell _v._ new york, u.s. ( ), page (miller) _v._ united states, wall. ( ), page _v._ united states, u.s. ( ), paine lumber co. _v._ neal, u.s. ( ), palko _v._ connecticut, u.s. ( ), , , , , , , , palmer _v._ ashe, u.s. ( ), palmer _v._ barrett, u.s. ( ), palmer _v._ mcmahon, u.s. ( ), , palmetto f. ins. co. _v._ connecticut, u.s. ( ), panama r. co. _v._ johnson, u.s. ( ), panama refining co. _v._ ryan, u.s. ( ), , , , panhandle co. _v._ michigan comm'n., u.s. ( ), panhandle eastern pipe line co. _v._ public serv. commission of indiana, u.s. ( ), , panhandle eastern pipe line co. _v._ state highway commission, u.s. ( ), , panhandle oil co. _v._ knox, u.s. ( ), paquete habana, the, u.s. ( ), paramino lumber co. _v._ marshall, u.s. ( ), , parker _v._ brown, u.s. ( ), , , , parker _v._ motor boat sales, u.s. ( ), parkersburg & o. transp. co. _v._ parkersburg, u.s. ( ), , , parkinson _v._ united states, u.s. ( ), parsons _v._ armor, pet. ( ), parsons _v._ bedford, pet. ( ), , parsons _v._ district of columbia, u.s. ( ), parsons _v._ united states, u.s. ( ), passaic bridges, the, wall. ( ), passavant _v._ united states, u.s. ( ), passenger cases, how. ( ), patapsco guano co. _v._ board of agriculture, u.s. ( ), , , patent clothing co. _v._ glover, u.s. ( ), paterno _v._ lyons, u.s. ( ), patsone _v._ pennsylvania, u.s. ( ), patterson _v._ colorado, u.s. ( ), , , , , patterson _v._ the "eudora," u.s. ( ), patterson _v._ kentucky, u.s. ( ), , patton _v._ brady, u.s. ( ), , , patton _v._ mississippi, u.s. ( ), patton _v._ united states, u.s. ( ), paul _v._ virginia, wall. ( ), , , , , , paulsen _v._ portland, u.s. ( ), , pawhuska _v._ pawhuska oil co., u.s. ( ), pawlet _v._ clark, cr. ( ), payne _v._ kansas, u.s. ( ), peabody _v._ eisner, u.s. ( ), peabody _v._ united states, u.s. ( ), , pearson _v._ mcgraw, u.s. ( ), pearson _v._ yewdall, u.s. ( ), pease _v._ peck, how. ( ), pease _v._ rathbun-jones eng. co., u.s. ( ), peck _v._ jenness, how. ( ), , peck & co. _v._ lowe, u.s. ( ), pedersen _v._ delaware l. & w.r. co., u.s. ( ), peete _v._ morgan, wall. ( ), peggy, the. _see_ united states _v._ schooner peggy. peik _v._ chicago & northwestern r. co., u.s. ( ), , , penfield co. _v._ securities & exchange commission, u.s. ( ), penhallow _v._ doane, dall. ( ), , penn dairies _v._ milk control comm'n., u.s. ( ), pennekamp _v._ florida, u.s. ( ), , pennie _v._ reis, u.s. ( ), pennington _v._ fourth nat. bank, u.s. ( ), , pennington _v._ gibson, how. ( ), pennock _v._ dialogue, pet. ( ), pennoyer _v._ mcconnaughy, u.s. ( ), , , pennoyer _v._ neff, u.s. ( ), , , , , pennsylvania _v._ quicksilver min. co., wall. ( ), , pennsylvania _v._ west virginia, u.s. ( ), , , , pennsylvania _v._ wheeling bridge co., how. ( ), , , , pennsylvania _v._ wheeling & b. bridge co., how. ( ), , , , , pennsylvania coal co. _v._ mahon, u.s. ( ), , , , pennsylvania college cases, wall. ( ), , pennsylvania ex rel. sullivan _v._ ashe, u.s. ( ), pennsylvania f. ins. co. _v._ gold issue min. & mill. co., u.s. ( ), , pennsylvania hospital _v._ philadelphia, u.s. ( ), , , pennsylvania natural gas co. _v._ public serv. com., u.s. ( ), pennsylvania r. co. _v._ illinois brick co., u.s. ( ), pensacola teleg. co. _v._ western u. teleg. co., u.s. ( ), , , , , , peonage cases, f. ( ), people _v._ board of supervisors, wall. ( ), people _v._ croswell, johns (n.y.) ( ), peoples natural gas co. _v._ public serv. com., u.s. ( ), pep boys, the _v._ pyroil sales co., u.s. ( ), perkins _v._ benguet mining co., u.s. ( ), perkins _v._ elg, u.s. ( ), , , perkins, secretary of labor _v._ lukens steel co., u.s. ( ), perley _v._ north carolina, u.s. ( ), perlman _v._ united states, u.s. ( ), permoli _v._ new orleans, how. ( ), , , perrin _v._ united states, u.s. ( ), perry _v._ haines, u.s. ( ), perry _v._ united states, u.s. ( ), , , , , pervear _v._ massachusetts, wall. ( ), , petersen baking co. _v._ bryan, u.s. ( ), peterson, ex parte, u.s. ( ), , , , petit _v._ minnesota, u.s. ( ), , pettibone _v._ nichols, u.s. ( ), , peyroux _v._ howard, pet. ( ), phalen _v._ virginia, how. ( ), phelps _v._ board of education, u.s. ( ), , phelps _v._ united states, u.s. ( ), phelps dodge corp. _v._ national labor relations bd., u.s. ( ), philadelphia, b. & w.r. co. _v._ schubert, u.s. ( ), philadelphia co. _v._ stimson, u.s. ( ), , , , philadelphia & reading ry. co. _v._ mckibbin, u.s. ( ), philadelphia & r.r. _v._ pennsylvania, wall. ( ), , , , philadelphia & s. mail s.s. co. _v._ pennsylvania, u.s. ( ), , , phillips _v._ comr. of internal revenue, u.s. ( ), , phillips _v._ dime trust & safe deposit co., u.s. ( ), phillips _v._ payne, u.s. ( ), phillips _v._ united states, u.s. ( ), phillips co. _v._ walling, u.s. ( ), phillips petroleum co. _v._ jenkins, u.s. ( ), phillips petroleum co. _v._ oklahoma, ibid., ( ), phipps _v._ cleveland refining co., u.s. ( ), phoenix f. & m. insurance co. _v._ tennessee, u.s. ( ), picard _v._ east tennessee virginia & georgia r. co., u.s. ( ), pickard _v._ pullman southern car co., u.s. ( ), pierce _v._ carskadon, wall. ( ), , pierce _v._ creecy, u.s. ( ), pierce _v._ society of sisters, u.s. ( ), , , pierce _v._ united states, u.s. ( ), pierce _v._ united states, u.s. ( ), , pierce oil corp. _v._ hope, u.s. ( ), pierce oil corp. _v._ hopkins, u.s. ( ), pierce oil corp. _v._ phoenix ref. co., u.s. ( ), pierre _v._ louisiana, u.s. ( ), , pietro campanella, the, f. supp. ( ), pink _v._ a.a.a. highway express, u.s. ( ), pinkerton _v._ united states, u.s. ( ), pipe line cases. _see_ united states _v._ ohio oil co. piqua branch of the state bank _v._ knoop, how. ( ), pitney _v._ washington, u.s. ( ), , pittman _v._ home owners' loan corp., u.s. ( ), , pittsburgh, c.c. & st. l.r. co. _v._ backus, u.s. ( ), , , , pittsburgh, c.c. & st. l.r. co. _v._ board of public works, u.s. ( ), pittsburgh & s. coal co. _v._ bates, u.s. ( ), , pizitz dry goods co. _v._ yeldell, u.s. ( ), plaquemines tropical fruit co. _v._ henderson, u.s. ( ), pleasants _v._ fant, wall. ( ), plessy _v._ ferguson, u.s. ( ), , plumley _v._ massachusetts, u.s. ( ), , plummer _v._ coler, u.s. ( ), plymouth coal co. _v._ pennsylvania, u.s. ( ), poe _v._ seaborn, u.s. ( ), poindexter _v._ greenhow, u.s. ( ), , , , polish alliance _v._ labor board, u.s. ( ), polk _v._ mutual reserve fund life association, u.s. ( ), pollard _v._ hagan, how. ( ), , , , pollock _v._ farmers' loan & trust co., u.s. ( ), , , , , - pollock _v._ farmers' loan & trust co., u.s. ( ), , , - pollock _v._ williams, u.s. ( ), ponzi _v._ fessenden, u.s. ( ), poole _v._ fleeger, pet. ( ), , pope mfg. co. _v._ gormully mfg. co., u.s. ( ), pope _v._ united states, u.s. ( ), , , pope _v._ williams, u.s. ( ), , poresky, ex parte, u.s. ( ), portland railway, light & power co. _v._ railroad com. of oregon, u.s. ( ), port richmond & bergen point ferry co. _v._ bd. of chosen freeholders, u.s. ( ), portsmouth harbor land & hotel co. _v._ united states, u.s. ( ), portsmouth harbor land & hotel co. _v._ united states, u.s. ( ), , , , postal teleg. cable co. _v._ adams, u.s. ( ), postal teleg. cable co. _v._ new hope, u.s. ( ), postal teleg. cable co. _v._ newport, u.s. ( ), postal teleg. cable co. _v._ richmond, u.s. ( ), postal teleg. cable co. _v._ taylor, u.s. ( ), postum cereal co. _v._ california fig nut co., u.s. ( ), , , potter _v._ united states, u.s. ( ), potts _v._ creager, u.s. ( ), pound _v._ turck, u.s. ( ), powell _v._ alabama, u.s. ( ), , , , , powell _v._ pennsylvania, u.s. ( ), , , power comm'n. _v._ pipeline co., u.s. ( ), , , power mfg. co. _v._ saunders, u.s. ( ), prentis _v._ atlantic coast line co., u.s. ( ), , presser _v._ illinois, u.s. ( ), , , preston _v._ manard, u.s. ( ), price _v._ illinois, u.s. ( ), , price _v._ johnston, u.s. ( ), , price _v._ pennsylvania r. co., u.s. ( ), prigg _v._ pennsylvania, pet. ( ), , , , , , , , prince _v._ massachusetts, u.s. ( ), , princess lida of thurn & taxis _v._ thompson, u.s. ( ), principality of monaco _v._ mississippi, u.s. ( ), prize cases, the, black ( ), , propper _v._ clark, u.s. ( ), prosser _v._ northern p.r. co., u.s. ( ), prout _v._ starr, u.s. ( ), , providence bank _v._ billings, pet. ( ), , , providence & n.y.s.s. co. _v._ hill mfg. co., u.s. ( ), provident inst. for savings _v._ malone, u.s. ( ), provident inst. for savings _v._ massachusetts, wall. ( ), provident sav. life assur. soc. _v._ kentucky, u.s. ( ), provo bench canal & irrig. co. _v._ tanner, u.s. ( ), prudential ins. co. _v._ cheek, u.s. ( ), , , prudential insurance co. _v._ benjamin, u.s. ( ), , , , public bank, ex parte, u.s. ( ), public clearing house _v._ coyne, u.s. ( ), , , , public service co. _v._ corboy, u.s. ( ), public utilities com. _v._ attleboro steam & electric co., u.s. ( ), , public utilities com. _v._ landon, u.s. ( ), public utilities commission _v._ pollak, u.s. ( ), public utility commissioners _v._ new york telegh. co., u.s. ( ), public utility comrs. _v._ ynchausti & co., u.s. ( ), puget sound power & light co. _v._ seattle, u.s. ( ), , , puget sound stevedoring co. _v._ tax commission of washington, u.s. ( ), , , puget sound traction, light & p. co. _v._ reynolds, u.s. ( ), pullman co. _v._ adams, u.s. ( ), pullman co. _v._ kansas ex rel. coleman, u.s. ( ), pullman co. _v._ knott, u.s. ( ), pullman co. _v._ richardson, u.s. ( ), pullman's palace car co. _v._ pennsylvania, u.s. ( ), , , , pumpelly _v._ green bay company, wall. ( ), , pure oil co. _v._ minnesota, u.s. ( ), , purity extract & tonic co. _v._ lynch, u.s. ( ), pyle _v._ kansas, u.s. ( ), , q quackenbush _v._ united states, u.s. ( ), quaker city cab co. _v._ pennsylvania, u.s. ( ), quarles, in re, u.s. ( ), , queenside hills realty co. _v._ saxl, u.s. ( ), , quick bear _v._ leupp, u.s. ( ), quicksall _v._ michigan, u.s. ( ), quirin, ex parte, u.s. ( ), , , , quong wing _v._ kirkendall, u.s. ( ), , quon quon poy _v._ johnson, u.s. ( ), , r radice _v._ new york, u.s. ( ), radio comm. _v._ nelson bros. co., u.s. ( ), ragan _v._ merchants transfer & w. co., u.s. ( ), rahrer, in re, u.s. ( ), , , rail & river coal co. _v._ yaple, u.s. ( ), railroad co. _v._ georgia, u.s. ( ), railroad co. _v._ grant, u.s. ( ), railroad co. _v._ husen, u.s. ( ), railroad co. _v._ mcclure, wall. ( ), railroad co. _v._ peniston, wall. ( ), , railroad commission _v._ eastern texas r. co., u.s. ( ), railroad commission _v._ oil co., u.s. ( ), r.r. commission _v._ humble oil & refining co., u.s. ( ), r.r. commission _v._ oil co., u.s. ( ), , r.r. commission _v._ pacific gas co., u.s. ( ), railroad retirement board _v._ alton r. co., u.s. ( ), , , railroad retirement board _v._ duquesne warehouse company, u.s. ( ), railway express agency _v._ new york, u.s. ( ), , , , , railway mail assn. _v._ corsi, u.s. ( ), , rainey _v._ united states, u.s. ( ), rakes _v._ united states, u.s. ( ), randall _v._ baltimore & o.r. co., u.s. ( ), rapier, in re, u.s. ( ), , rassmussen _v._ united states, u.s. ( ), , , rast _v._ van deman & lewis, u.s. ( ), , rathbun, executor _v._ united states (humphrey _v._ united states, u.s. ( )), ratterman _v._ western union teleg. co., u.s. ( ), , rawlins _v._ georgia, u.s. ( ), , ray _v._ blair, u.s. ( ), , - raymond _v._ chicago union traction co., u.s. ( ), reagan _v._ farmers' loan & trust co., u.s. ( ), , , , , reagan _v._ mercantile trust co., u.s. ( ), real silk hosiery mills _v._ portland, u.s. ( ), rearick _v._ pennsylvania, u.s. ( ), reaves _v._ ainsworth, u.s. ( ), reckendorfer _v._ faber, u.s. ( ), , red "c" oil mfg. co. _v._ board of agriculture, u.s. ( ), , red cross line _v._ atlantic fruit co., u.s. ( ), red river valley nat. bank _v._ craig, u.s. ( ), reed, ex parte, u.s. ( ), reed _v._ director general of railroads, u.s. ( ), rees _v._ watertown, wall ( ), , reeside _v._ walker, how. ( ), reetz _v._ michigan, u.s. ( ), , , reggel, ex parte, u.s. ( ), reichelderfer _v._ quinn, u.s. ( ), reichert _v._ felps, wall. ( ), reid _v._ colorado, u.s. ( ), reily _v._ lamar, cr. ( ), reiman, in re, fed. cas. no. , ( ), reinecke _v._ smith, u.s. ( ), , reinman _v._ little rock, u.s. ( ), reitz _v._ mealey, u.s. ( ), , renaud _v._ abbott, u.s. ( ), republic of colombia, ex parte, u.s. ( ), republic of peru, ex parte, u.s. ( ), rescue army _v._ municipal court of los angeles, u.s. ( ), respublica _v._ oswald, dall. ( ), reynolds _v._ crawfordsville first nat. bank, u.s. ( ), reynolds _v._ stockton, u.s. ( ), , reynolds _v._ united states, u.s. ( ), , , , , , rhode island _v._ massachusetts, pet. ( ), , , , , , rhode island _v._ palmer, u.s. ( ), rhode island hospital trust co. _v._ doughton, u.s. ( ), rhodes _v._ iowa, u.s. ( ), ribnik _v._ mcbride, u.s. ( ), ricaud _v._ american metal co., u.s. ( ), rice _v._ chicago board of trade, u.s. ( ), rice _v._ elmore, f. ( d) ( ), rice _v._ elmore, u.s. ( ), rice _v._ m. & n.w.r. co., bl. ( ), rice _v._ olson, u.s. ( ), , , rice _v._ rice, u.s. ( ), rice _v._ santa fe elevator corp., u.s. ( ), , richards _v._ washington terminal co., u.s. ( ), richfield oil corp. _v._ state board of equalization, u.s. ( ), richmond & a.r. co. _v._ patterson tobacco co., u.s. ( ), richmond, f. & p.r. co. _v._ richmond, u.s. ( ), , rickert rice mills _v._ fontenot, u.s. ( ), riehle _v._ margolies, u.s. ( ), , riggs _v._ del drago, u.s. ( ), riley _v._ massachusetts, u.s. ( ), , riley _v._ new york trust company, u.s. ( ), rindge co. _v._ los angeles county, u.s. ( ), , ritchie _v._ mcmullen, u.s. ( ), riverdale cotton mills _v._ alabama & georgia mfg. co., u.s. ( ), , riverside mills _v._ menefee, u.s. ( ), , riverside oil co. _v._ hitchcock, u.s. ( ), road improv. dist. _v._ missouri p.r. co., u.s. ( ), , robards _v._ lamb, u.s. ( ), robbins _v._ shelby county taxing district, u.s. ( ), , , roberts _v._ new york, u.s. ( ), roberts _v._ reilly, u.s. ( ), , roberts _v._ richland irrig. co., u.s. ( ), robertson _v._ baldwin, u.s. ( ), , , , , robertson _v._ pickrell, u.s. ( ), , robertson _v._ california, u.s. ( ), robinson, ex parte, wall. ( ), roche _v._ mcdonald, u.s. ( ), , rochester r. co. _v._ rochester, u.s. ( ), rochin _v._ california, u.s. ( ), , , rockefeller _v._ united states, u.s. ( ), rodd _v._ heartt (the "lottawanna"), wall. ( ), , rodman _v._ pothier, u.s. ( ), rodney _v._ hoey, f. supp. ( ), roe _v._ kansas ex rel. smith, u.s. ( ), rogers _v._ alabama, u.s. ( ), rogers _v._ arkansas, u.s. ( ), rogers _v._ hennepin county, u.s. ( ), rogers _v._ peck, u.s. ( ), rogers _v._ united states, u.s. ( ), rogers _v._ united states, u.s. ( ), , , rogers park water co. _v._ fergus, u.s. ( ), roland co. _v._ walling, u.s. ( ), , roller _v._ holly, u.s. ( ), rolston _v._ missouri fund commissioners, u.s. ( ), romeu _v._ todd, u.s. ( ), rooney _v._ north dakota, u.s. ( ), , root _v._ woolworth, u.s. ( ), rorick _v._ commissioners, u.s. ( ), roschen _v._ ward, u.s. ( ), rosen _v._ united states, u.s. ( ), rosenberg bros. & co. _v._ curtis brown co., u.s. ( ), rosenberger _v._ pacific exp. co., u.s. ( ), rosengrant, ex parte, ala. ( ), rosengrant _v._ havard, u.s. ( ), rosenthal _v._ new york, u.s. ( ), ross, in re, u.s. ( ), , , , , ross _v._ oregon, u.s. ( ), , rowan _v._ runnels, how. ( ), royal arcanum _v._ green, u.s. ( ), royall, ex parte, u.s. ( ), royster guano co. _v._ virginia, u.s. ( ), , rubber-tip pencil co. _v._ howard, wall. ( ), , ruddy _v._ rossi, u.s. ( ), ruhlin _v._ new york life ins. co., u.s. ( ), rumely _v._ united states, f. d , - ( ), runkle _v._ united states, u.s. ( ), , ruppert _v._ caffey, u.s. ( ), russian volunteer fleet _v._ united states, u.s. ( ), ruthenberg _v._ united states, u.s. ( ), rutkin _v._ united states, u.s. ( ), s sacher _v._ united states, u.s. ( ), safe deposit and trust co. _v._ virginia, u.s. ( ), sage stores _v._ kansas, u.s. ( ), saia _v._ new york, u.s. ( ), , , st. anthony falls water power co. _v._ board of water commissioners, u.s. ( ), st. clair _v._ cox, u.s. ( ), st. germain _v._ brunswick, u.s. ( ), st. john _v._ new york, u.s. ( ), st. joseph stock yards co. _v._ united states, u.s. ( ), , st. lawrence, the, bl. ( ), st. louis & k.c. land co. _v._ kansas city, u.s. ( ), , st. louis & o'fallon ry. _v._ united states, u.s. ( ), st. louis & s.f.r. co. _v._ james, u.s. ( ), , st. louis & s.f.r. co. _v._ mathews, u.s. ( ), , , st. louis & s.f.r. co. _v._ middlekamp, u.s. ( ), st. louis & s.f.r. co. _v._ public service com., u.s. ( ), st. louis & s.f.r. co. _v._ public service com., u.s. ( ), , st. louis cotton compress co. _v._ arkansas, u.s. ( ), st. louis, i.m. & s.r. co. _v._ arkansas, u.s. ( ), , st. louis, i.m. & s.r. co. _v._ edwards, u.s. ( ), st. louis, i.m. & s.r. co. _v._ paul, u.s. ( ), st. louis, i.m. & s.r. co. _v._ taylor, u.s. ( ), , st. louis, i.m. & s.r. co. _v._ williams, u.s. ( ), st. louis, i.m. & s.r. co. _v._ wynne, u.s. ( ), st. louis poster advertising co. _v._ st. louis, u.s. ( ), st. louis, s.f. & t.r. co. _v._ seale, u.s. ( ), st. louis, s.w.r. co. _v._ alexander, u.s. ( ), , st. louis, s.w.r. co. _v._ arkansas, u.s. ( ), st. louis, s.w.r. co. _v._ arkansas ex rel. norwood, u.s. ( ), st. louis, s.w. ry. co. _v._ united states, u.s. ( ), st. pierre _v._ united states, u.s. ( ), salinger _v._ loisel, u.s. ( ), , salinger _v._ united states, u.s. ( ), salomon _v._ state tax commission, u.s. ( ), salt co. _v._ east saginaw, wall. ( ), samuel, the, wheat. ( ),, samuels _v._ mccurdy, u.s. ( ), , sanborn, in re, u.s. ( ), , sanders _v._ armour fertilizer works, u.s. ( ), san diego land & town co. _v._ jasper, u.s. ( ), , san diego land & town company _v._ national city, u.s. ( ), , sands _v._ manistee r. imp. co., u.s. ( ), , sanitary district of chicago _v._ united states, u.s. ( ), santa clara county _v._ southern p.r. co., u.s. ( ), , santa cruz fruit packing co. _v._ n.l.r.b., u.s. ( ),, santiago _v._ nogueras, u.s. ( ), , santovincenzo _v._ egan, u.s. ( ), sapphire, the, wall. ( ), sarah, the, wheat. ( ), , satterlee _v._ matthewson, pet. ( ), , sauer _v._ new york, u.s. ( ), , sanders _v._ armour fertilizer works, u.s. ( ), saunders _v._ shaw, u.s. ( ), saunders _v._ wilkins, f. ( d) ( ), saunders _v._ wilkins, u.s. ( ), saunders _v._ wilkins, u.s. ( ), savage _v._ jones, u.s. ( ), , , , savings & loan association _v._ topeka, wall. ( ), savings & l. soc. _v._ multnomah county, u.s. ( ), sawyer _v._ kochersperger, u.s. ( ), sawyer _v._ piper, u.s. ( ), sawyer, in re, u.s. ( ), schaefer _v._ united states, u.s. ( ), , schechter poultry corporation _v._ united states, u.s. ( ), , , , , schenck _v._ united states, u.s. ( ), , , , , , , scher _v._ united states, u.s. ( ),, schick _v._ united states, u.s. ( ), schmidinger _v._ chicago, u.s. ( ), , , , schneider _v._ irvington (state), u.s. ( ), , , schneiderman _v._ united states, u.s. ( ), schnell _v._ davis, u.s. ( ), schoenthal _v._ irving trust co., u.s. ( ), scholey _v._ rew, wall. ( ), schollenberger _v._ pennsylvania, u.s. ( ), , schooner betsey, the, cr. ( ), schooner sally, the, cr. ( ), schulte _v._ gangi, u.s. ( ), schuylkill trust co. _v._ pennsylvania, u.s. ( ), , schwab _v._ berggren, u.s. ( ), schwab _v._ richardson, u.s. ( ), schwabacher _v._ united states, u.s. ( ), scott _v._ donald, u.s. ( ), scott _v._ donald, u.s. ( ), scott _v._ mcneal, u.s. ( ), , scott _v._ neely, u.s. ( ), scott _v._ sandford (dred scott case), how. ( ), , , , , , , , , , , scottish union & nat. ins. co. _v._ bowland, u.s. ( ), scranton _v._ wheeler, u.s. ( ), screws _v._ united states, u.s. ( ), , scully _v._ bird, u.s. ( ), seaboard air line r. co. _v._ blackwell, u.s. ( ), seaboard air line r. co. _v._ daniel, u.s. ( ), seaboard air line r. co. _v._ railroad commission, u.s. ( ), seaboard air line r. co. _v._ united states, u.s. ( ), seaboard air line r. co. _v._ watson, u.s. ( ), searight _v._ stokes, how. ( ), seattle _v._ oregon & w.r. co., u.s. ( ), secombe, ex parte, how. ( ), second employers' liability cases (mondou _v._ new york, n.h. & h.r. co.), u.s. ( ), , second williams case, u.s. ( ), , securities exchange commission _v._ chenery corp., u.s. ( ), security mut. l. ins. co. _v._ prewitt, u.s. ( ), , security sav. bank _v._ california, u.s. ( ), sei fujii _v._ state of california, p. d ( ), selective draft law cases, u.s. ( ), selig _v._ hamilton, u.s. ( ), , selliger _v._ kentucky, u.s. ( ), selover, bates & co. _v._ walsh, u.s. ( ), semler _v._ oregon state dental examiners, u.s. ( ), , senior _v._ braden, u.s. ( ), senn _v._ tile layers protective union, u.s. ( ), , sentell _v._ new orleans & c.r. co., u.s. ( ), serè _v._ pitot, cr. ( ), , seton hall college _v._ south orange, u.s. ( ), seufert bros. co. _v._ united states, u.s. ( ), sewing machine companies, wall. ( ), seymour _v._ osborne, wall. ( ), shaffer _v._ carter, u.s. ( ), , , , shallenberger _v._ first state bank, u.s. ( ), shanks _v._ delaware l. & w.r. co., u.s. ( ), shanks _v._ dupont, pet. ( ), shapiro _v._ united states, u.s. ( ), , , sharp _v._ united states, u.s. ( ), shaw _v._ gibson-zahniser oil corp., u.s. ( ), sheehan co. _v._ shuler, u.s. ( ), sheldon _v._ sill, how. ( ), , , shelley _v._ kraemer, u.s. ( ), , shelton _v._ platt, u.s. ( ), shelton _v._ tiffin, how. ( ), shenfield _v._ nashawannuck mfg. co., u.s. ( ), shepherd _v._ florida, u.s. ( ), , sheppard _v._ taylor, pet. ( ), sherlock _v._ alling, u.s. ( ), sherrer _v._ sherrer, u.s. ( ), , shields _v._ coleman, u.s. ( ), shields _v._ ohio, u.s. ( ), shields _v._ thomas, how. ( ), shields _v._ utah, idaho r. co., u.s. ( ), shively _v._ bowlby, u.s. ( ), , shoemaker _v._ united states, u.s. ( ), , , , , shoener _v._ pennsylvania, u.s. ( ), shreveport case, the (houston e. & w.t.r. co. _v._ united states), u.s. ( ), , shriver _v._ woodbine sav. bank, u.s. ( ), shurtleff _v._ united states, u.s. ( ), siebold, ex parte, u.s. ( ), , , , , , silas mason co. _v._ tax commission of washington, u.s. ( ), siler _v._ l. & n.r. co., u.s. ( ), silesian-american corp. _v._ clark, u.s. ( ), , silver _v._ silver, u.s. ( ),, silver thorne lumber co. _v._ united states, u.s. ( ), silz _v._ hesterberg, u.s. ( ), , , simmons _v._ saul, u.s. ( ), , simmons _v._ united states, u.s. ( ), simms _v._ simms, u.s. ( ), simon _v._ southern r. co., u.s. ( ), , , , simons, in re, u.s. ( ), simpson _v._ shepard (minnesota rate cases), u.s. ( ), , , , , sinclair _v._ united states, u.s. ( ), , , , sinclair & carroll co. _v._ interchemical corp., u.s. ( ), singer sewing machine co. _v._ brickell, u.s. ( ), sinking fund cases (central p.r. co. _v._ gallatin & union p.r. co. _v._ united states), u.s. , ( ), , , sinnot _v._ davenport, how. ( ), sioux city bridge co. _v._ dakota county, u.s. ( ), sioux remedy co. _v._ cope, u.s. ( ), sioux tribe _v._ united states, u.s. ( ), sipuel _v._ oklahoma, u.s. ( ), siren, the, wall. ( ), , siren, the, wall. ( ), , sistare _v._ sistare, u.s. ( ), , six companies of california _v._ highway dist, u.s. ( ), six hundred twenty church street bldg. corp., in re, u.s. ( ),, skaneateles waterworks co. _v._ skaneateles, u.s. ( ), , skinner _v._ oklahoma, u.s. ( ), , skinner & eddy corp., ex parte, u.s. ( ), skiriotes _v._ florida, u.s. ( ), slaughter-house cases, wall. ( ), , , , , , , , , , sligh _v._ kirkwood, u.s. ( ), , , , , sloan shipyards _v._ united states fleet corp., u.s. ( ), , , slocum _v._ new york life insurance company, u.s. ( ), smiley _v._ holm, u.s. ( ), , smiley _v._ kansas, u.s. ( ), smith _v._ adams, u.s. ( ), smith _v._ alabama, u.s. ( ), smith _v._ allwright, u.s. ( ), , , , , , smith _v._ cahoon, u.s. ( ), , , , smith _v._ davis, u.s. ( ), smith _v._ illinois bell teleph. co., u.s. ( ), smith _v._ indiana, u.s. ( ), , smith _v._ interstate commerce comm., u.s. ( ), smith _v._ kansas city title & trust co., u.s. ( ), , , , smith _v._ maryland, how. ( ), , smith _v._ nichols, wall. ( ), smith _v._ o'grady, u.s. ( ), , , smith _v._ reeves, u.s. ( ), , , , smith _v._ st. louis, & s.w.r. co., u.s. ( ), smith _v._ texas, u.s. ( ), smith _v._ texas, u.s. ( ), , smith _v._ turner (passenger cases), how. ( ), , , , smith _v._ whitman saddle co., u.s. ( ), smith _v._ whitney, u.s. ( ), , smith _v._ wilson, u.s. ( ), smithsonian institution _v._ st. john, u.s. ( ), smoot sand & gravel corp. _v._ washington airport, u.s. ( ), smyth _v._ ames, u.s. ( ), , , , , , , , snowden _v._ hughes, u.s. ( ), , , , snyder _v._ bettman, u.s. ( ), snyder _v._ marks, u.s. ( ), , snyder _v._ massachusetts, u.s. ( ), , , , , , , society for savings _v._ coite, wall. ( ), sola electric co. _v._ jefferson electric co., u.s. ( ), solesbee _v._ balkcom, u.s. ( ), , soliah _v._ heskin, u.s. ( ), , sonneborn eros. _v._ cureton, u.s. ( ), , sonzinsky _v._ united states, u.s. ( ), soon hing _v._ crowley, u.s. ( ), soper _v._ lawrence bros. co., u.s. ( ), south _v._ peters, u.s. ( ), , south carolina _v._ bailey, u.s. ( ), south carolina _v._ gaillard, u.s. ( ), south carolina _v._ georgia, u.s. ( ), , south carolina _v._ united states, u.s. ( ), south carolina _v._ wesley, u.s. ( ), south carolina highway dept. _v._ barnwell bros., u.s. ( ), , , , south covington & c. street r. co. _v._ covington, u.s. ( ), , south covington & c. st. by. co. _v._ newport, u.s. ( ), south dakota _v._ north carolina, u.s. ( ), , southern iowa electric co. _v._ chariton, u.s. ( ), southern natural gas corp. _v._ alabama, u.s. ( ), southern pacific co. _v._ arizona, u.s. ( ), , , , , southern pacific co. _v._ campbell, u.s. ( ), southern pacific co. _v._ denton, u.s. ( ), southern pacific co. _v._ gallagher, u.s. ( ), southern pacific co. _v._ jensen, u.s. ( ), , , southern pacific co. _v._ kentucky, u.s. ( ), southern pacific co. _v._ lowe, u.s. ( ), southern r. co. _v._ burlington lumber co., u.s. ( ), southern r. co. _v._ greene, u.s. ( ), , southern r. co. _v._ kentucky, u.s. ( ), southern r. co. _v._ king, u.s. ( ), , southern r. co. _v._ painter, u.s. ( ), southern r. co. _v._ puckett, u.s. ( ), southern r. co. _v._ railroad comm., u.s. ( ), southern r. co. _v._ reid, u.s. ( ), , southern r. co. _v._ united states, u.s. ( ), southern realty co. _v._ walker, u.s. ( ), southern s.s. co. _v._ national labor relations board, u.s. ( ), southern s.s. co. _v._ portwardens, wall. ( ), southwestern bell telephone co. _v._ oklahoma, u.s. ( ), southwestern bell telephone co. _v._ pub. serv. comm., u.s. ( ), southwestern oil co. _v._ texas, u.s. ( ), , southwestern teleg. & teleph. co. _v._ danaher, u.s. ( ), sovereign camp _v._ bolin, u.s. ( ), spalding & bros. _v._ edwards, u.s. ( ), sparf _v._ united states, u.s. ( ), spaulding _v._ vilas, u.s. ( ), spector motor service _v._ mclaughlin, u.s. ( ), spector motor service _v._ o'connor, u.s. ( ), spies _v._ illinois, u.s. ( ), spokane & i.e.r. co. _v._ whitley, u.s. ( ), spokane county _v._ united states, u.s. ( ), spragins _v._ houghton, ill. ( ), spreckels sugar refining co. _v._ mcclain, u.s. ( ), springer _v._ philippine islands, u.s. ( ), springer _v._ united states, u.s. ( ), , , springville _v._ thomas, u.s. ( ), sproles _v._ binford, u.s. ( ), , , sprott _v._ united states, wall. ( ), , sprout _v._ south bend, u.s. ( ), , , s.r.a., inc. _v._ minnesota, u.s. ( ), stack _v._ boyle, u.s. ( ), stacy _v._ thrasher, use of sellers, how. ( ), , , stafford _v._ wallace, u.s. ( ), , stamey _v._ united states, f. ( d) ( ), standard oil co. _v._ graves, u.s. ( ), , standard oil co. _v._ marysville, u.s. ( ), standard oil co. _v._ missouri ex rel. hadley, u.s. ( ), , standard oil co. _v._ new jersey, u.s. ( ), standard oil co. _v._ tennessee ex rel. cates, u.s. ( ), stanley _v._ public utilities commission, u.s. ( ), stanley _v._ schwalby, u.s. ( ), stanton _v._ baltic mining co., u.s. ( ), , , state _v._ mcclure, boyce (del.) ; a. ( ), state _v._ mittle, s.c. ( ), state _v._ mittle, u.s. ( ), state bank of ohio _v._ knoop, how. ( ), state board of equalization _v._ young's market co., u.s. ( ), , , state corp. commission _v._ wichita gas co., u.s. ( ), state farm ins. co. _v._ duel, u.s. ( ), , state freight tax case. _see_ philadelphia & r.r. co. _v._ pennsylvania. state industrial board of n.y. _v._ terry & trench co., u.s. ( ), state of minnesota _v._ chicago, m. & st. paul r. co., minn. ( ), state tax commission _v._ aldrich, u.s. ( ), , state tax commission _v._ interstate natural gas co., u.s. ( ), , state tax comm'n. _v._ van cott, u.s. ( ), state tax comrs. _v._ jackson, u.s. ( ), , staten island r.t.r. co. _v._ phoenix indemnity co., u.s. ( ), steamship appam, the, u.s. ( ), stearns _v._ minnesota, u.s. ( ), , , , , stebbins _v._ riley, u.s. ( ), , steele _v._ louisville & n.r. co., u.s. ( ), steele _v._ united states, no. , u.s. ( ), steele, ex parte, fed. ( ), stefanelli _v._ minard, u.s. ( ), stelle _v._ carroll, pet. ( ), stellwagen _v._ clum, u.s. ( ), , stephan _v._ united states, u.s. ( ), stephan _v._ united states, f. ( d) ( ), stephenson _v._ binford, u.s. ( ), sterling _v._ constantin, u.s. ( ), , , stettler _v._ o'hara, u.s. ( ), steuart & bros. inc. _v._ bowles, u.s. ( ), , stevens _v._ gladding, how. ( ), stevenson _v._ fain, u.s. ( ), steward machine co. _v._ davis, u.s. ( ), , , , , , stewart _v._ b. & o.r. co., u.s. ( ), stewart _v._ foster, binney's (pa.) ( ), stewart _v._ kahn, wall. ( ), stewart _v._ kansas city, u.s. ( ), , stewart _v._ keyes, u.s. ( ), stewart _v._ michigan, u.s. ( ), stewart dry goods co. _v._ lewis, u.s. ( ), , stilson _v._ united states, u.s. ( ), stipcich _v._ metropolitan l. ins. co., u.s. ( ), stockard _v._ morgan, u.s. ( ), stockdale _v._ atlantic ins. co., wall. ( ), stockholders _v._ sterling, u.s. ( ), stoehr _v._ wallace, u.s. ( ), , stoll _v._ gottlieb, u.s. ( ), stone _v._ farmers' loan & trust co. (railroad commission cases), u.s. ( ), stone _v._ mississippi ex rel. harris, u.s. ( ), , , stoner _v._ new york life ins. co., u.s. ( ), storaasli _v._ minnesota, u.s. ( ), stoughton _v._ baker et al., mass. ( ), stoutenburgh _v._ hennick, u.s. ( ), , , strassheim _v._ daily, u.s. ( ), stratton's independence _v._ howbert, u.s. ( ), strauder _v._ west virginia, u.s. ( ), straus _v._ foxworth, u.s. ( ), , strauss, in re, u.s. ( ), strawbridge _v._ curtiss, cr. ( ), strickley _v._ highland boy gold mining co., u.s. ( ), stroble _v._ california, u.s. ( ), stromberg _v._ california, u.s. ( ), , strother _v._ lucas, pet. ( ), stroud _v._ united states, u.s. ( ), stuart _v._ laird, cr. ( ), sturges _v._ crowninshield, wheat. ( ), , , , sturges & b. mfg. co. _v._ beauchamp, u.s. ( ), sugarman _v._ united states, u.s. ( ), sugar trust case, the (united states _v._ e.c. knight co.), u.s. ( ), sugg _v._ hendrix, f. ( d) ( ), sugg _v._ thornton, u.s. ( ), sullivan _v._ kidd, u.s. ( ), sullivan _v._ united states, u.s. ( ), sully _v._ american nat. bank, u.s. ( ), sultan ry. & timber co. _v._ dept. of labor, u.s. ( ), summers, in re, u.s. ( ), sunday lake iron co. _v._ wakefield twp., u.s. ( ), sunshine anthracite coal co. _v._ adkins, u.s. ( ), , , , , , superintendent _v._ commissioner, u.s. ( ), superior bath house co. _v._ mccarroll, u.s. ( ), superior oil _v._ mississippi ex rel. knox, u.s. ( ), surplus trading co. _v._ cook, u.s. ( ), , susquehanna & wyoming v.r. & c. co. _v._ blatchford, wall. ( ), susquehanna coal co. _v._ south amboy, u.s. ( ), susquehanna power co. _v._ state tax comm'n., u.s. ( ), sutton _v._ leib, u.s. ( ), swafford _v._ templeton, u.s. ( ), swaim _v._ united states, u.s. ( ), , swanson _v._ marra bros., u.s. ( ), sweatt _v._ painter, u.s. ( ), sweet _v._ rechel, u.s. ( ), swift _v._ mcpherson, u.s. ( ), , swift _v._ tyson, pet. ( ), , , , , swift & co. _v._ united states, u.s. ( ), , , t taft _v._ bowers, u.s. ( ), takahashi _v._ fish & game comm'n., u.s. ( ), , tameling _v._ united states freehold & emigration co., u.s. ( ), tanner _v._ little, u.s. ( ), , tayloe _v._ thomson, pet. ( ), taylor _v._ alabama, u.s. ( ), taylor _v._ beckham, u.s. ( ), , taylor _v._ carryl, how. ( ), , , taylor _v._ georgia, u.s. ( ), taylor _v._ mississippi, u.s. ( ), taylor _v._ morton, fed. cas. no. , ( ), , taylor _v._ secor (state railroad tax cases), u.s. ( ), taylor _v._ taintor, wall. ( ), , taylor _v._ thomas, wall. ( ), taylor _v._ united states, u.s. ( ), taylor _v._ united states, u.s. ( ), taylor _v._ ypsilanti, u.s. ( ), teal _v._ felton, how. ( ), teamsters' union _v._ hanke, u.s. ( ), ten east fortieth st. co. _v._ callus, u.s. ( ), tennessee _v._ davis, u.s. ( ), , , , , , tennessee _v._ sneed, u.s. ( ), tennessee _v._ union & planters' bank, u.s. ( ), tennessee _v._ whitworth, u.s. ( ), tennessee coal co. _v._ george, u.s. ( ), tennessee electric power co. _v._ tennessee valley authority, u.s. ( ) , tenney _v._ brandhove, u.s. ( ), terlinden _v._ ames, u.s. ( ), terminal r. asso. _v._ brotherhood of r.r. trainmen, u.s. ( ), , , terminiello _v._ chicago, u.s. ( ), , terrace _v._ thompson, u.s. ( ), , , , terral _v._ burke construction co., u.s. ( ), terrett _v._ taylor, cr. ( ), terry _v._ anderson, u.s. ( ), testa _v._ katt, u.s. ( ), , , texas _v._ florida, u.s. ( ), , , texas _v._ interstate commerce commission, u.s. ( ), , texas _v._ white, wall. ( ), , , texas & n.o.r. co. _v._ brotherhood of railway & s.s. clerks, u.s. ( ), , texas & n.o.r. co. _v._ miller, u.s. ( ), texas & p.r. co. _v._ rigsby, u.s. ( ), texas & p.r. co. _v._ southern p. co., u.s. ( ), texas & p. ry. co. _v._ united states, u.s. ( ), texas co. _v._ brown, u.s. ( ), , thames & mersey ins. co. _v._ united states, u.s. ( ), thiel _v._ southern pacific co., u.s. ( ), , thirty hogsheads of sugar _v._ boyle, cr. ( ), thomas _v._ collins, u.s. ( ), , , , , thomas _v._ gay, u.s. ( ), thomas _v._ kansas city southern r. co., u.s. ( ), thomas _v._ richmond, wall. ( ), thomas _v._ united states, u.s. ( ), thomas jefferson, the, wheat. ( ), , thompson _v._ central ohio r. co., wall. ( ), thompson _v._ consolidated gas utilities corp., u.s. ( ), thompson _v._ darden, u.s. ( ), thompson _v._ lee county, wall. ( ), thompson _v._ missouri, u.s. ( ), thompson _v._ roe ex dem. carroll, how. ( ), thompson _v._ thompson, u.s. ( ), , thompson _v._ union p.r. co., wall. ( ), thompson _v._ united states, u.s. ( ), thompson _v._ united states, u.s. ( ), thompson _v._ utah, u.s. ( ), , thompson _v._ whitman, wall. ( ), thomson _v._ pacific railroad, wall. ( ), thorington _v._ montgomery, u.s. ( ), thorington _v._ smith, wall. ( ), , thormann _v._ frame, u.s. ( ), thornhill _v._ alabama, u.s. ( ), , , , thornton _v._ duffy, u.s. ( ), thornton _v._ united states, u.s. ( ), thorpe _v._ rutland & burlington railroad, vt. ( ), thurlow _v._ massachusetts, how. ( ), tidal oil co. _v._ flanagan, u.s. ( ), , tiernan _v._ rinker, u.s. ( ), tiger _v._ western investment co., u.s. ( ), tigner _v._ texas, u.s. ( ), tilt _v._ kelsey, u.s. ( ), tilton, the, fed. cas. no. , ( ), tindal _v._ wesley, u.s. ( ), , , tinsley _v._ anderson, u.s. ( ), , tinsley _v._ treat, u.s. ( ), titus _v._ wallick, u.s. ( ), todok _v._ union state bank, u.s. ( ), toledo newspaper co. _v._ united states, u.s. ( ), , , tomkins _v._ missouri, u.s. ( ), , , tomlinson _v._ branch, wall. ( ), tonawanda _v._ lyon, u.s. ( ), , toombs _v._ citizens bank, u.s. ( ), toomer _v._ witsell, u.s. ( ), , , tot _v._ united states, u.s. ( ), totten _v._ united states, u.s. ( ), toucey _v._ new york life insurance co., u.s. ( ), , , townsend _v._ burke, u.s. ( ), , townsend _v._ yeomans, u.s. ( ), , tracy _v._ ginzberg, u.s. ( ), trade mark cases, u.s. ( ), transportation co. _v._ parkersburg, u.s. ( ), , transportation line _v._ hope, u.s. ( ), travelers health assn. _v._ virginia, u.s. ( ), travelers' ins. co. _v._ connecticut, u.s. ( ), travis _v._ yale & towne mfg. co., u.s. ( ), , , , , treasury of indiana _v._ wood preserving corp., u.s. ( ), , treat _v._ white, u.s. ( ), treat mfg. co. _v._ standard steel & iron co., u.s. ( ), tregea _v._ modesto irrigation district, u.s. ( ), treichler _v._ wisconsin, u.s. ( ), treigle _v._ acme homestead asso., u.s. ( ), treinies _v._ sunshine mining co., u.s. ( ), , trenton _v._ new jersey, u.s. ( ), , , , trinityfarm const. co. _v._ grosjean, u.s. ( ), truax _v._ corrigan, u.s. ( ), , , , , truax _v._ raich, u.s. ( ), , , trupiano _v._ united states, u.s. ( ), trusler _v._ crooks, u.s. ( ), tua _v._ carriere, u.s. ( ), tucker _v._ alexandroff, u.s. ( ), , tucker _v._ texas, u.s. ( ), tulee _v._ washington, u.s. ( ), tumey _v._ ohio, u.s. ( ), turner _v._ bank of north america, dall. ( ), turner _v._ maryland, u.s. ( ), turner _v._ new york, u.s. ( ), turner _v._ pennsylvania, u.s. ( ), , turner _v._ williams, u.s. ( ), turpin _v._ lemon, u.s. ( ), turpin & bro. _v._ burgess, u.s. ( ), , tutun _v._ united states, u.s. ( ), twin city nat. bank _v._ nebeker, u.s. ( ), twining _v._ new jersey, u.s. ( ), , , , , , , , , , , twitchell _v._ pennsylvania, wall. ( ), tyee realty co. _v._ anderson, u.s. ( ), tyler, in re, u.s. ( ), tyler _v._ defrees, wall. ( ), tyler _v._ judges of the court of registration, u.s. ( ), tyler _v._ united states, u.s. ( ), , , tyson & bros.--united theatre ticket offices _v._ banton, u.s. ( ), u ughbanks _v._ armstrong, u.s. ( ), , underwood typewriter co. _v._ chamberlain, u.s. ( ), , unemployment comm'n. _v._ aragon, u.s. ( ), union bridge co. _v._ united states, u.s. ( ), , union brokerage co. _v._ jensen, u.s. ( ), , union national bank _v._ lamb, u.s. ( ), union pacific r. co. _v._ pub. service comm., u.s. ( ), union p.r. co. _v._ united states (sinking fund cases), u.s. ( ), union paper collar co. _v._ van dusen, wall. ( ), , union refrigerator transit co. _v._ kentucky, u.s. ( ) , , , , union tank line _v._ wright, u.s. ( ), , united fuel gas co. _v._ hallanan, u.s. ( ), , , united fuel gas co. _v._ railroad commission, u.s. ( ), united gas public service co. _v._ texas, u.s. ( ), united public workers of america _v._ mitchell, u.s. ( ), , , , , , , united r. & electric co. _v._ west, u.s. ( ), united states, ex parte, u.s. ( ), united states _v._ abilene & s.r. co., u.s. ( ), united states _v._ aczel, f. ( ), united states _v._ alford, u.s. ( ), united states _v._ allegheny county, u.s. ( ), united states _v._ american bell tel. co., u.s. ( ), united states _v._ amsden, f. ( ), united states _v._ anderson, wall. ( ), united states _v._ appalachian electric power co., u.s. ( ), , , , , , , united states _v._ arizona, u.s. ( ), united states _v._ arjona, u.s. ( ), united states _v._ arredondo, pet. ( ), united states _v._ atchison, t. & s.f.r. co., u.s. ( ), united states _v._ athens armory, fed. cas. no. , ( ), united states _v._ bailey, pet. ( ), united states _v._ ball, u.s. ( ), united states _v._ ballard, u.s. ( ), united states _v._ ballin, u.s. ( ), , , united states _v._ baltimore & o.r. co., wall. ( ), , united states _v._ barnow, u.s. ( ), united states _v._ bathgate, u.s. ( ), united states _v._ bausch & l. optical co., u.s. ( ), united states _v._ bayer, u.s. ( ), united states _v._ beebe, u.s. ( ), united states _v._ bekins, u.s. ( ), , united states _v._ belmont, u.s. ( ), , united states _v._ bennett, u.s. ( ), united states _v._ benz, u.s. ( ), united states _v._ berwind-white coal mine co., u.s. ( ), united states _v._ bethlehem steel corp., u.s. ( ), united states _v._ bevans, wheat. ( ), united states _v._ bitty, u.s. ( ), united states _v._ brig malek adhel, how. ( ), united states _v._ brime, u.s. ( ), united states _v._ britton, u.s. ( ), united states _v._ brooks, f. supp. ( ), united states _v._ bryan, u.s. ( ), , united states _v._ burnison, u.s. ( ), united states _v._ burns, wall. ( ), , united states _v._ burr, cr. ( ), , , united states _v._ butler, u.s. ( ), , , , , , united states _v._ california, u.s. ( ), , united states _v._ california, u.s. ( ), , , , united states _v._ capital transit co., u.s. ( ), united states _v._ carll, u.s. ( ), united states _v._ carmack, u.s. ( ), united states _v._ carolene products co., u.s. ( ), , , , , , united states _v._ cathcart, fed. cas. no. , ( ), united states _v._ causby, u.s. ( ), , , united states _v._ chamber, u.s. ( ), , united states _v._ chandler-dunbar waterpower co., u.s. ( ), , , , united states _v._ chemical foundation, u.s. ( ), , , , united states _v._ chicago, m., st. p. & pac. r. co., u.s. ( ), united states _v._ c.i.o., u.s. ( ), , united states _v._ clarke, pet. ( ), united states _v._ clarke, wall. ( ), united states _v._ classic, u.s. ( ) , , , , united states _v._ coe, u.s. ( ), united states _v._ cohen grocery company, u.s. ( ), united states _v._ commodities trading corp., u.s. ( ), , united states _v._ commodore park, inc., u.s. ( ), , united states _v._ constantine, u.s. ( ), , , , united states _v._ cook, wall. ( ), united states _v._ coolidge, wheat. ( ), united states _v._ coombs, pet. ( ), united states _v._ cooper, dall. ( ), united states _v._ cornell, fed. cas. no. , ( ), united states _v._ cors, u.s. ( ), , united states _v._ corson, u.s. ( ), united states _v._ cramer, f. ( d) ( ), united states _v._ cress, u.s. ( ), , , , united states _v._ cruikshank, u.s. ( ), , , , , , united states _v._ curtiss-wright export corp., u.s. ( ), , , , , , , , united states _v._ darby, u.s. ( ) , , , , , , , , united states _v._ dawson, how. ( ), united states _v._ de los reyes, phil. ( ), united states _v._ delaware & h. co., u.s. ( ), , united states _v._ detroit timber & lumber co., u.s. ( ), united states _v._ de walt, u.s. ( ), united states _v._ dewitt, wall. ( ), , , united states _v._ dickinson, u.s. ( ), , united states _v._ di re, u.s. ( ), united states _v._ doremus, u.s. ( ), united states _v._ duell, u.s. ( ), united states _v._ dunnington, u.s. ( ), united states _v._ eaton, u.s. ( ), , united states _v._ eckford, wall. ( ), , united states _v._ e.c. knight co. (the "sugar trust" case), u.s. ( ), , united states _v._ eliason, pet. ( ), , , united states _v._ evans, u.s. ( ), , united states _v._ farden, u.s. ( ), united states _v._ felin (j.j.) & co., u.s. ( ), united states _v._ ferger, u.s. ( ), , united states _v._ ferreira, how. ( ), , , , , united states _v._ fisher, cr. ( ), , , united states _v._ fisher, u.s. ( ), united states _v._ fitzgerald, pet. ( ), united states _v._ fleischman, u.s. ( ), united states _v._ fletcher, u.s. ( ), , united states _v._ flores, f. supp. ( ), united states _v._ flores, u.s. ( ), united states _v._ forty-three gallons of whiskey, u.s. ( ), united states _v._ forty-three gallons of whiskey, u.s. ( ), united states _v._ fox, u.s. ( ), united states _v._ fox, u.s. ( ), united states _v._ frankfort distilleries, inc., u.s. ( ), united states _v._ fricke, f. ( ), united states _v._ furlong, wheat. ( ), , united states _v._ gale, u.s. ( ), , united states _v._ garbish, u.s. ( ), united states _v._ gaskin, u.s. ( ), united states _v._ general motors corp., u.s. ( ), , united states _v._ germaine, u.s. ( ), united states _v._ gettysburg electric r. co., u.s. ( ), , united states _v._ gordon, fed. cas. no. , ( ), united states _v._ gradwell, u.s. ( ), united states _v._ gratiot, pet. ( ), united states _v._ great falls mfg. co., u.s. ( ), united states _v._ greathouse, fed. cas. no. , ( ), united states _v._ greiner, fed. cas. no. , ( ), united states _v._ grimaud, u.s. ( ), , united states _v._ hall, u.s. ( ), united states _v._ hammond, cr. ( ), united states _v._ hanway, fed. cas. no. , ( ), , united states _v._ harris, u.s. ( ), , , united states _v._ hartwell, wall. ( ), , united states _v._ haupt, f. ( d) ( ), united states _v._ hayman, u.s. ( ), united states _v._ heinszen & co., u.s. ( ), united states _v._ hill, u.s. ( ), , united states _v._ hodges, fed. cas. no. , ( ), united states _v._ holliday, wall. ( ), united states _v._ home ins. co., wall. ( ), united states _v._ hoxie, fed. cas. no. , ( ), united states _v._ hudson & goodwin, u.s. ( ), , united states _v._ hudson & goodwin, cr. ( ), , united states _v._ hvoslef, u.s. ( ), united states _v._ jacobs, u.s. ( ), united states _v._ jeffers, u.s. ( ), united states _v._ jefferson electric co., u.s. ( ), united states _v._ john j. felin & co., u.s. ( ), united states _v._ johnson, u.s. ( ), united states _v._ joint-traffic assoc., u.s. ( ), united states _v._ jones, how. ( ), united states _v._ jones, u.s. ( ), , , united states _v._ ju toy, u.s. ( ), , united states _v._ kagama, u.s. ( ), , united states _v._ kansas city life ins. co., u.s. ( ), united states _v._ keehler, wall. ( ), united states _v._ kirby, wall. ( ), united states _v._ klamath indians, u.s. ( ), united states _v._ klein, wall. ( ), , , , united states _v._ knight (e.c.) co., u.s. ( ), united states _v._ la franca, u.s. ( ), united states _v._ lagnason, phil. ( ), united states _v._ landram, u.s. ( ), united states _v._ lanza, u.s. ( ), united states _v._ lee, u.s. ( ), , , , , , united states _v._ lee, fed. cas. no. , ( ), , , united states _v._ lefkowitz, u.s. ( ), united states _v._ louisiana, u.s. ( ), , , united states _v._ lovett, u.s. ( ), , united states _v._ lowden, u.s. ( ), united states _v._ lynah, u.s. ( ), , , , united states _v._ macintosh, u.s. ( ), , , united states _v._ mack, u.s. ( ), united states _v._ magtibay, phil. ( ), united states _v._ marigold, how. ( ), , , united states _v._ masonite corp., u.s. ( ), united states _v._ maxwell land-grant & r. co., u.s. ( ), united states _v._ mcgratney, u.s. ( ), united states _v._ mcgowan, u.s. ( ), united states _v._ mclemore, how. ( ), united states _v._ mcmillan, u.s. ( ), , united states _v._ michigan, u.s. ( ), united states _v._ midwest oil co., u.s. ( ), , united states _v._ miller, u.s. ( ), united states _v._ miller, u.s. ( ), united states _v._ minnesota, u.s. ( ), united states _v._ mitchell, fed. cas. no. , ( ), , united states _v._ mitchell, u.s. ( ), united states _v._ mitchell, u.s. ( ), united states _v._ monia, u.s. ( ), united states _v._ montgomery ward & co., f. ( d) ( ), united states _v._ moreland, u.s. ( ), , united states _v._ morton salt co., u.s. ( ), united states _v._ mosley, u.s. ( ), , , , united states _v._ murdock, u.s. ( ), united states _v._ national association of real estate boards, u.s. ( ), united states _v._ new river collieries co., u.s. ( ), united states _v._ new wrinkle, inc., u.s. ( ), united states _v._ new york & c. mail s.s. co., u.s. ( ), united states _v._ n.y. rayon importing co., u.s. ( ), united states _v._ new york telephone co., u.s. ( ), united states _v._ nice, u.s. ( ), united states _v._ north american co., u.s. ( ), united states _v._ north carolina, u.s. ( ), united states _v._ ohio oil co., u.s. ( ), , united states _v._ oppenheimer, u.s. ( ), united states _v._ oregon, u.s. ( ), united states _v._ oregon state medical society, u.s. ( ), united states _v._ ortega, wheat. ( ), united states _v._ pacific railroad, u.s. ( ), united states _v._ padelford, wall. ( ), united states _v._ palmer, wheat. ( ), united states _v._ palmer, u.s. ( ), united states _v._ paramount pictures, u.s. ( ), united states _v._ pennsylvania r. co., u.s. ( ), united states _v._ percheman, pet. ( ), united states _v._ perez, wheat. ( ), , united states _v._ perkins, u.s. ( ), united states _v._ petrillo, u.s. ( ), , , , united states _v._ petty motor co., u.s. ( ), , united states _v._ pewee coal co., u.s. ( ), , , , united states _v._ phellis, u.s. ( ), united states _v._ pink, u.s. ( ), , , united states _v._ potter, fed. ( ), united states _v._ powell, fed. cas. no. , ( ), united states _v._ powers, u.s. ( ), united states _v._ price, u.s. ( ), united states _v._ pryor, fed cas. no. , ( ), united states _v._ rabinowitz, u.s. ( ), , united states _v._ railroad bridge co., fed. cas. no. , ( ), united states _v._ randenbush, pet. ( ), united states _v._ rauscher, u.s. ( ), , united states _v._ ravara, dall. ( ), united states _v._ reading railroad, u.s. ( ), united states _v._ realty co., u.s. ( ), , , united states _v._ reese, u.s. ( ), , , united states _v._ regan, u.s. ( ), united states _v._ reynolds, u.s. ( ), united states _v._ rio grande dam & irrig. co., u.s. ( ), united states _v._ river rouge improv. co., u.s. ( ), united states _v._ rizzo, u.s. ( ), united states _v._ robinson, f. ( ), united states _v._ rock royal co-operative, u.s. ( ), , , , , , , united states _v._ russell, wall. ( ), , , , united states _v._ safety car heating & l. co., u.s. ( ), united states _v._ sanchez, u.s. ( ), united states _v._ sandoval, u.s. ( ), , united states _v._ san francisco, u.s. ( ), united states _v._ sanges, u.s. ( ), united states _v._ san jacinto tin co., u.s. ( ), united states _v._ saylor, u.s. ( ), , , united states _v._ schooner betsey & charlotte, cr. ( ), united states _v._ schooner peggy, cr. ( ), , united states _v._ schooner sally, cr. ( ), united states _v._ schurz, u.s. ( ), united states _v._ schwimmer, u.s. ( ), , united states _v._ shaw, u.s. ( ), united states _v._ shipp, u.s. ( ), united states _v._ shreveport grain & elevator co., u.s. ( ), , united states _v._ simmons, u.s. ( ), united states _v._ simms, cr. ( ), united states _v._ sing tuck, u.s. ( ), united states _v._ smith, wheat. ( ), united states _v._ smith, u.s. ( ), , united states _v._ smith, u.s. ( ), united states _v._ socony-vacuum oil co., u.s. ( ), united states _v._ south-eastern underwriters association, u.s. ( ), , , , , united states _v._ spector, u.s. ( ), , united states _v._ sponenbarger, u.s. ( ), united states _v._ sprague, u.s. ( ), , united states _v._ stafoff, u.s. ( ), united states _v._ stinson, u.s. ( ), united states _v._ sullivan, u.s. ( ), united states _v._ sullivan, u.s. ( ), united states _v._ tarble, wall. ( ), , united states _v._ teller, u.s. ( ), united states _v._ texas, u.s. ( ), , united states _v._ texas, u.s. ( ), , , united states _v._ the thekla, u.s. ( ), united states _v._ toronto nav. co., u.s. ( ), , united states _v._ trans-missouri freight asso., u.s. ( ), united states _v._ united mine workers, u.s. ( ), , , united states _v._ united states fidelity co., u.s. ( ), united states _v._ unzeuta, u.s. ( ), , united states _v._ utah, u.s. ( ), united states _v._ van duzee, u.s. ( ), united states _v._ vigol, fed. cas. no. , ( ), , united states _v._ waddell, u.s. ( ), , , united states _v._ wallace & tiernan co., u.s. ( ), united states _v._ walsh, u.s. ( ), , united states _v._ welch, u.s. ( ), united states _v._ werner, f. ( ), united states _v._ west virginia, u.s. ( ), , united states _v._ wheeler, u.s. ( ), , , united states _v._ white, u.s. ( ), , united states _v._ william, the, fed. cas. no. , ( ), united states _v._ williams, u.s. ( ), united states _v._ willow river power co., u.s. ( ), , united states _v._ wilson, pet. ( ), , , united states _v._ wiltberger, wheat. ( ), united states _v._ winans, u.s. ( ), united states _v._ wong kim ark, u.s. ( ), united states _v._ wood, u.s. ( ), united states _v._ worrall, dall. ( ), united states _v._ wrightwood dairy co., u.s. ( ), , , united states _v._ wurzbach, u.s. ( ), , united states _v._ yuginovich, u.s. ( ), , united states _v._ zucker, u.s. ( ), united states ex rel. attorney general _v._ delaware & hudson co., u.s. ( ), united states ex rel. bilokumsky _v._ tod, u.s. ( ), united states ex rel. brown _v._ lane, u.s. ( ), united states ex rel. burnett _v._ teller, u.s. ( ), united states ex rel. creary _v._ weeks, u.s. ( ), united states ex rel. dunlap _v._ black, u.s. ( ), united states ex rel. goldberg _v._ daniels, u.s. ( ), united states ex rel. greathouse _v._ dern, u.s. ( ), united states ex rel. knauff _v._ shaughnessy, u.s. ( ), united states ex rel. mccann _v._ adams, u.s. ( ), united states ex rel. milwaukee publishing co. _v._ burleson, u.s. ( ), , united states ex rel. randall _v._ united states marshal for eastern dist. of new york, f. ( d) ( ), united states ex rel. riggs _v._ johnson county, wall. ( ), united states ex rel. tisi _v._ tod, u.s. ( ), united states ex rel. turner _v._ fisher, u.s. ( ), united states ex rel. turner _v._ williams, u.s. ( ), united states ex rel. t.v.a. _v._ powelson, u.s. ( ), united states ex rel. t.v.a. _v._ welch, u.s. ( ), , united states ex rel. vajtauer _v._ comr. of immigration, u.s. ( ), united states exp. co. _v._ kountze bros., wall. ( ), united states express co. _v._ minnesota, u.s. ( ), united states glue co. _v._ oak creek, u.s. ( ), united states mortgage co. _v._ matthews, u.s. ( ), united surety co. _v._ american fruit product co., u.s. ( ), university of illinois _v._ united states, u.s. ( ), , untermeyer _v._ anderson, u.s. ( ), upshaw _v._ united states, u.s. ( ), utah power & light co. _v._ pfost, u.s. ( ), , , , utah power & light co. _v._ united states, u.s. ( ), utley _v._ st petersburg, u.s. ( ), uveges _v._ pennsylvania, u.s. ( ), , , , v valentine _v._ chrestensen, u.s. ( ), valentine _v._ great a. & p. tea co., u.s. ( ), vallandigham, ex parte, fed. cas. no. , ( ), vallandigham, ex parte, wall. ( ), valvoline oil co. _v._ united states, u.s. ( ), van brocklin _v._ tennessee, u.s. ( ), , , vance _v._ vance, u.s. ( ), vancouver s.s. co. _v._ rice, u.s. ( ), vandenbark _v._ owens-illinois co., u.s. ( ), van dyke _v._ geary, u.s. ( ), van home's lessee _v._ dorrance, dall. ( ), van ness _v._ bank of united states, pet. ( ), van oster _v._ kansas, u.s. ( ), veazie bank _v._ fenno, wall. ( ), , , , veix _v._ sixth ward building & loan ass'n. of newark, u.s. ( ), venner _v._ great northern r. co., u.s. ( ), vial _v._ penniman, u.s. ( ), vicksburg _v._ tobin, u.s. ( ), vicksburg _v._ vicksburg waterworks co., u.s. ( ), vicksburg & m.r. co. _v._ putnam, u.s. ( ), vicksburg s. & p.r. co. _v._ dennis, u.s. ( ), viereck _v._ united states, u.s. ( ), virginia, ex parte, u.s. ( ), virginia _v._ imperial sales co., u.s. ( ), virginia _v._ rives, u.s. ( ), , , virginia _v._ tennessee, u.s. ( ), , virginia _v._ west virginia, wall. ( ), virginia _v._ west virginia, u.s. ( ), virginia _v._ west virginia, u.s. ( ), virginia _v._ west virginia, u.s. ( ), , virginia _v._ west virginia, u.s. ( ), virginia _v._ west virginia, u.s. ( ), virginia _v._ west virginia, u.s. ( ), virginia _v._ west virginia, u.s. ( ), virginia _v._ west virginia, u.s. ( ), virginia _v._ west virginia, u.s. ( ), , , , virginian r. co. _v._ system federation no. , u.s. ( ), , , , , voeller _v._ neilston co., u.s. ( ), voight _v._ wright, u.s. ( ), von hoffman _v._ quincy, wall. ( ), , , von moltke _v._ gillies, u.s. ( ), w wabash r. co. _v._ adelbert college, u.s. ( ), wabash r. co. _v._ defiance, u.s. ( ), wabash r. co. _v._ flannigan, u.s. ( ), wabash, st. louis & pacific r. co. _v._ illinois, u.s. ( ), , wachovia bank & trust co. _v._ doughton, u.s. ( ), wade _v._ hunter, u.s. ( ), , wade _v._ mayo, u.s. ( ), , , , wadley southern r. co. _v._ georgia, u.s. ( ), waggoner _v._ flack, u.s. ( ), wagner _v._ covington, u.s. ( ), , , , wagner _v._ leser, u.s. ( ), wagoner _v._ evans, u.s. ( ), waite _v._ macy, u.s. ( ), wales _v._ stetson, mass. ( ), waley _v._ johnston, u.s. ( ), walker _v._ johnston, u.s. ( ), , walker _v._ mcloud, u.s. ( ), walker _v._ new mexico & s.p.r. co., u.s. ( ), , , walker _v._ sauvinet, u.s. ( ), , , walker _v._ whitehead, wall. ( ), wall, ex parte, u.s. ( ), , wallace _v._ adams, u.s. ( ), wallace _v._ hines, u.s. ( ), , , wallace _v._ united states, u.s. ( ), , wallach _v._ van riswick, u.s. ( ), walla walla _v._ walla walla water co., u.s. ( ), , walling _v._ jacksonville paper co. u.s. ( ), walling _v._ michigan, u.s. ( ), walls _v._ midland carbon co., u.s. ( ), walsh _v._ brewster, u.s. ( ), walton _v._ southern package corp., u.s. ( ), ward _v._ love county, u.s. ( ), ward _v._ maryland, wall. ( ), , ward _v._ race horse, u.s. ( ), , ward _v._ texas, u.s. ( ), ward & gow _v._ krinsky, u.s. ( ), , ware _v._ hylton, dall. ( ), , , , ware _v._ mobile county, u.s. ( ), waring _v._ clarke, how. ( ), , , , waring _v._ mobile, wall. ( ), warren-bradshaw co. _v._ hall, u.s. ( ), washington _v._ dawson & co., u.s. ( ), , washington _v._ superior court, u.s. ( ), washington ex rel. oregon r. & n. co. _v._ fairchild, u.s. ( ), washington ex rel. seattle title trust co. _v._ roberage, u.s. ( ), washington market co. _v._ district of columbia, u.s. ( ), washington-southern navigation co. _v._ baltimore & p.s.b. co., u.s. ( ), washington university _v._ rouse, wall. ( ), waterloo distilling corp. _v._ united states, u.s. ( ), waters-pierce oil co. _v._ texas, u.s. ( ), , watkins, ex parte, pet. ( ), , , watkins, ex parte, pet. ( ), watson _v._ buck, u.s. ( ), watson _v._ jones, wall. ( ), watson _v._ maryland, u.s. ( ), , , , watson _v._ mercer, pet. ( ), watson _v._ tarpley, how. ( ), watts, in re, u.s. ( ), watts _v._ indiana, u.s. ( ), , watts _v._ united states, wash. terr. ( ), waugh _v._ mississippi university, u.s. ( ), wayman _v._ southard, wheat. ( ), , , , , weaver _v._ palmer bros. co., u.s. ( ), webb, ex parte, u.s. ( ), webber _v._ virginia, u.s. ( ), weber _v._ freed, u.s. ( ), weber _v._ state harbor comrs., wall. ( ), webster _v._ reid, how. ( ), weeks _v._ united states, u.s. ( ), , , weems _v._ united states, u.s. ( ), weiss _v._ stearn, u.s. ( ), weiss _v._ united states, u.s. ( ), welch _v._ cook, u.s. ( ), , welch _v._ henry, u.s. ( ), , welch _v._ swasey, u.s. ( ), , , , , welch co. _v._ new hampshire, u.s. ( ), , , weller _v._ new york, u.s. ( ), wells, ex parte, how. ( ), wells _v._ roper, u.s. ( ), , wells fargo & co. _v._ ford, u.s. ( ), welton _v._ missouri, u.s. ( ), , west coast hotel _v._ parrish, u.s. ( ), , , , , , western & a.r. co. _v._ georgia public service commission, u.s. ( ), western & a.r. co. _v._ henderson, u.s. ( ), , western distributing co. _v._ public serv. com. of kansas, u.s. ( ), western life indemnity co. _v._ rupp, u.s. ( ), western live stock _v._ bureau of revenue, u.s. ( ), , , , western maid, the, u.s. ( ), western oil refining co. _v._ lipscomb, u.s. ( ), western paper makers' chemical co. _v._ united states, u.s. ( ), western turf asso. _v._ greenberg, u.s. ( ), , , western union teleg. co. _v._ alabama board of assessment, u.s. ( ), western union teleg. co. _v._ ann arbor r. co., u.s. ( ), western union teleg. co. _v._ brown, u.s. ( ), western union teleg. co. _v._ chiles, u.s. ( ), western union teleg. co. _v._ commercial milling co., u.s. ( ), , , western union teleg. co. _v._ crovo, u.s. ( ), western union teleg. co. _v._ foster, u.s. ( ), , western union teleg. co. _v._ industrial com'n., f. supp. ( ), western union teleg. co. _v._ international b. of e. workers, f ( d) ( ), western union teleg. co. _v._ kansas ex rel. coleman, u.s. ( ), , western union teleg. co. _v._ lenroot, u.s. ( ), western union teleg. co. _v._ massachusetts, u.s. ( ), , western union teleg. co. _v._ new hope, u.s. ( ), western union teleg. co. _v._ pendleton, u.s. ( ), western union teleg. co. _v._ richmond, u.s. ( ), , western union teleg. co. _v._ speight, u.s. ( ), , western union teleg. co. _v._ taggart, u.s. ( ), western union teleg. co. _v._ texas, u.s. ( ), , , weston _v._ charleston, pet. ( ), west river bridge co. _v._ dix, how. ( ), west side belt r. co. _v._ pittsburgh constr. co., u.s. ( ), west _v._ american telephone & telegraph co., u.s. ( ), west _v._ louisiana, u.s. ( ), , wetmore _v._ karrick, u.s. ( ), wharton _v._ wise, u.s. ( ), , wheaton _v._ peters, pet. ( ), , , wheeler _v._ jackson, u.s. ( ), wheeler _v._ sohmer, u.s. ( ), , wheeler _v._ united states, u.s. ( ), wheeler lumber bridge & supply co. _v._ united states, u.s. ( ), wheeling, p. & c. transportation co. _v._ wheeling, u.s. ( ), wheeling steel corp. _v._ fox, u.s. ( ), , wheeling steel corp. _v._ glander, u.s. ( ), , , , whelan _v._ united states, cr. ( ), white _v._ cannon, wall. ( ), white _v._ hart, wall. ( ), white _v._ ragen, u.s. ( ), , , , white _v._ texas, u.s. ( ), whitehead _v._ shattuck, u.s. ( ), white river turnpike co. _v._ vermont cent. r. co., vt. ( ), whitfield _v._ ohio, u.s. ( ), , , , whitfield ex rel. hadley _v._ aetna l. ins. co., u.s. ( ), whitney _v._ california, u.s. ( ), , , , whitney _v._ graves, u.s. ( ), whitney _v._ robertson, u.s. ( ), , whitney _v._ state tax com., u.s. ( ), whitten _v._ tomlinson, u.s. ( ), wichita railroad & l. co. _v._ public utilities commission, u.s. ( ), , wickard _v._ filburn, u.s. ( ), , , , , wiggins ferry co. _v._ east st. louis, u.s. ( ), , wight _v._ davidson, u.s. ( ), , wilcox _v._ jackson ex dem. mcconnel, pet. ( ), , wiley _v._ sinkler, u.s. ( ), , wilkerson _v._ utah, u.s. ( ), wilkes county _v._ coler, u.s. ( ), willamette iron bridge co. _v._ hatch, u.s. ( ), , willard _v._ presbury, . wall. ( ), willcox _v._ consolidated gas co., u.s. ( ), , , willcutts _v._ bunn, u.s. ( ), williams, ex parte, u.s. ( ), williams _v._ arkansas, u.s. ( ), williams _v._ baltimore, u.s. ( ), , williams _v._ bruffy, u.s. ( ), , williams _v._ bruffy, u.s. ( ), williams _v._ fears, u.s. ( ), , , , williams _v._ johnson, u.s. ( ), williams _v._ kaiser, u.s. ( ), , , , williams _v._ mississippi, u.s. ( ), , williams _v._ new york, u.s. ( ), williams _v._ north carolina, u.s. ( ), , , williams _v._ north carolina, u.s. ( ), , williams _v._ riley, u.s. ( ), williams _v._ standard oil co., u.s. ( ), williams _v._ suffolk insurance company, pet. ( ), , williams _v._ united states, how. ( ), williams _v._ united states, u.s. ( ), williams _v._ united states, u.s. ( ), , , , williams _v._ united states, u.s. ( ), , williamson _v._ berry, how. ( ), , williamson _v._ osenton, u.s. ( ), williamson _v._ united states u.s. ( ), willing _v._ chicago auditorium association, u.s. ( ), willson _v._ blackbird creek marsh co., pet. ( ), , , wilmette park district _v._ campbell, u.s. ( ), , wilmington & w.r. co. _v._ king, u.s. ( ), wilmington star min. co. _v._ fulton, u.s. ( ), , wilmington transp. co. _v._ r.r. com., u.s. ( ), wiloil corp. _v._ pennsylvania, u.s. ( ), wilson, ex parte, u.s. ( ), wilson _v._ cook, u.s. ( ), , , wilson _v._ eureka city, u.s. ( ), wilson _v._ gaines, u.s. ( ), wilson _v._ new, u.s. ( ), , wilson _v._ north carolina ex rel. caldwell, u.s. ( ), wilson _v._ seligman, u.s. ( ), wilson _v._ standefer, u.s. ( ), wilson _v._ united states, u.s. ( ), wilson _v._ united states, u.s. ( ), , , winnebago, the, (iroquois transp. co. _v._ delaney forge & iron co.) u.s. ( ), winona & st. p. land co. _v._ minnesota, u.s. ( ), winona & st. p.r. co. _v._ blake, u.s. ( ), winters _v._ new york, u.s. ( ), , winton _v._ amos, u.s. ( ), wiscart _v._ dauchy, dall. ( ), , , , wisconsin _v._ illinois, u.s. ( ), wisconsin _v._ minnesota mining co., u.s. ( ), wisconsin _v._ pelican insurance co., u.s. ( ), , , , , , , , wisconsin _v._ penney (j.c.) co., u.s. ( ), wisconsin & michigan ry. _v._ powers, u.s. ( ), , , wisconsin gas co. _v._ united states, u.s. ( ), wisconsin, m. & p.r. co. _v._ jacobson, u.s. ( ), , wisconsin railroad com. _v._ chicago, b. & q.r.r. co., u.s. ( ), , wissner _v._ wissner, u.s. ( ), withers _v._ buckley, how. ( ), , withnell _v._ ruecking constr. co., u.s. ( ), wolf _v._ colorado, u.s. ( ), , , , wolff packing co. _v._ industrial court, u.s. ( ), , wolff packing co. _v._ industrial court, u.s. ( ), wolsey _v._ chapman, u.s. ( ), wong doo _v._ united states, u.s. ( ), wong yang sung _v._ mcgrath, u.s. ( ), , wong wing _v._ united states, u.s. ( ), , wood & henderson, in re, u.s. ( ), wood _v._ broom, u.s. ( ), , wood _v._ lovett, u.s. ( ), , woodruff _v._ parham, wall. ( ), , , , woodruff _v._ trapnall, how. ( ), woods _v._ miller, u.s. ( ), , , woods _v._ stone, u.s. ( ), woods & sons _v._ carl, u.s. ( ), woodson _v._ deutsche g. & s.s.v. roessler, u.s. ( ), worcester _v._ georgia, pet. ( ), , worcester county trust co. _v._ riley, u.s. ( ), worthen co. _v._ kavanaugh, u.s. ( ), worthen co. _v._ thomas, u.s. ( ), wright _v._ davidson, u.s. ( ), wright _v._ georgia r. & bkg. co., u.s. ( ), wright _v._ mountain trust co., u.s. ( ), , wright _v._ nagle, u.s. ( ), wright _v._ union central insurance co., u.s. ( ), wright _v._ united states, u.s. ( ), wuchter _v._ pizzutti, u.s. ( ), , , , wyandotte gas co. _v._ kansas, u.s. ( ), y yakus _v._ united states, u.s. ( ), , , , , , , , yamashita, in re, u.s. ( ), , , yamataya _v._ fisher, u.s. ( ), yarbrough, ex parte, u.s. ( ), , , , , , , , yarbrough _v._ yarbrough, u.s. ( ), yates _v._ milwaukee, wall. ( ), yazoo & m.v.r. co. _v._ greenwood grocery co., u.s. ( ), yazoo & m.v.r. co. _v._ jackson vinegar co., u.s. ( ), , yeaton _v._ united states, cr. ( ), yee hem _v._ united states, u.s. ( ), yeiser _v._ dysart, u.s. ( ), yerger, ex parte, wall. ( ), , , yick wo _v._ hopkins, u.s. ( ), , , , , , york _v._ texas, u.s. ( ), york mfg. co. _v._ colley, u.s. ( ), yost _v._ dallas county, u.s. ( ), young, ex parte, u.s. ( ), , , , , , , young _v._ masci, u.s. ( ), young _v._ united states, u.s. ( ), young co. _v._ mcneal-edwards co., u.s. ( ), youngstown co. _v._ sawyer, u.s. ( ), , yu cong eng _v._ trinidad, u.s. ( ), z zabriskie _v._ hackensack & n.y.r. co., n.j. eq. ( ), zahn _v._ board of public works, u.s. ( ), zakonaite _v._ wolf, u.s. ( ), , zane _v._ hamilton county, u.s. ( ), zap _v._ united states, u.s. ( ), ziffrin, inc. _v._ reeves, u.s. ( ), , zorach _v._ clauson, n.y. , n.e. d ( ), zorach _v._ clauson, u.s. ( ), zucht _v._ king, u.s. ( ), index readers should also consult the table of contents preceding each article and amendment of the constitution a abandoned property, unclaimed funds of resident insurers, escheat from foreign company, administration of estates, state powers as to, administrative agencies: created by president, - , discretion to discriminate, when a denial of equal protection, judicial review of, when a due process requisite, - jurisdictional facts, finality of determination by, - state, procedural due process, notice and hearing, etc., - , administrative regulations (_see also_ delegation of power; executive power; president: powers): violations of, how punished as crimes, admiralty (_see also_ courts (federal); navigable waters; states; states: courts): congress, powers as to, , - , - public merchant vessels, immune from suit, state wrongful death statutes, application to maritime torts, - advertisements. _see_ motor vehicles; trade-marks. advisory opinions. _see_ courts (federal). agriculture. _see_ commerce; commodity and security exchanges; fruit; milk; raisins; warehouses; wheat. aircraft. _see_ airplanes. air force. _see_ land, air, and naval forces. airplanes: federal regulation, - state taxation of, - alcoholic beverages. _see_ intoxicating liquors. aliens (_see also_ courts (federal); enemies; japanese): deportation, exclusion, proceedings, due process in, - discrimination against by states, cities, when a denial of equal protection, - due process of law, protected by, entry, exclusion, powers of congress as to, - fifth amendment, protected by, limits, fishing licenses, state refusal to issue to, validity, land ownership by, state power to restrict, - , , - property of, condemnation, release from state custody by habeas corpus from federal court, state curbs on entry, validity, - , alliances, states not to enter into, ambassadors, public ministers, consuls (_see also_ courts (federal); states: courts): defined, appointment, salary, etc., - amendments to constitution. _see_ constitution of the united states. amnesty. _see_ pardons; president: powers. antitrust laws. _see_ restraint of trade. apportionment of representatives. _see_ house of representatives. appropriations (_see also_ public funds of united states): power of congress to make, - required for withdrawals from treasury, payment of claims, for support of armies, two year limit, , - army. _see_ land, air, and naval forces. arsenals, purchased with state consent, federal jurisdiction over, , - atomic energy, attachment and garnishment, railway cars in interstate commerce, under state law, attorneys (_see also_ courts (federal)): defendant's right to, in federal criminal cases, - defendant's right to, in state criminal trials; fair trial doctrine, - practice in federal courts, powers of congress as to, etc., - b bail: denial of, by states, validity, excessive, not to be required, - bankruptcy (_see also_ due process of law): legislation, limitations imposed by due process clause, - persons covered by, - powers of congress as to; limitations, - scope of relief to debtors, - state insolvency laws, when operative, validity, - states as creditors, filing of claims, - banks (_see also_ national banks; taxation: states): federal tax on state bank notes, municipal notes, , - in interstate business, state regulation, - state owned, suable, state regulation of, , unclaimed funds in, escheat to state, due process limitations, bearing arms: as condition of naturalization, - constitutional right as to, bill of rights: application to states, - , , - , - , - , - , - , , , , - , - , - , - , formulation, adoption, - intended scope, bills of attainder, passage prohibited, - , - bills of credit, states not to issue, "blue ribbon" juries. _see_ juries. blue sky laws, borrowing power, federal, relation to coinage power, - , - boundaries of states, suits as to, - bread. _see_ food; weights and measures. bridges across navigable streams, state power as to, - building and loan association, conversion into federal, without state consent, void, - building sites purchased with state consent, federal jurisdiction over, , - business, trades, and professions, regulation by states, municipalities, - , businesses affected with public interest, state regulation of, - c carriers (_see also_ airplanes; attachment and garnishment; public utilities; restraint of trade; taxation: state; vessels): bills of lading, federal regulation as to, - motor, federal regulation of, , motor, state regulation of, - , - , , - , , pipelines, oil and gas, federal regulation of, - pipelines, power of states to compel service by, railroads, conflict of state, federal regulations as to, - , railroads, federal regulation of labor, rates, safety, etc., due process limitations, - , - , - railroads, grade crossing elimination, compellable services, etc., rates, safety; regulatory powers of states as to, - , - , - , - , transportation agencies, state control of, scope, censorship. _see_ freedom of religion, speech, press, assembly; motion pictures; postal service; war. census (_see also_ taxation (federal)): basis of apportionment of seats in house of representatives, - decennially taken; extended scope, - chain stores, taxation of, validity, , - child labor: federal laws regulating, validity, - state laws regulating, chinese (_see also_ aliens): assigned to negro schools, validity, cigarettes, state regulation of sale, citizens (state), entitled to privileges of citizens in other states. _see_ comity clause. citizenship (_see also_ comity clause; corporations; courts (federal); president: powers; privileges and immunities of u.s. and state citizens): defined; how acquired, exceptions, - , , , - how lost; expatriation, etc., - of inhabitants of territories, - , - jus sanguinis, as basis of, - rights of naturalized persons, - who are citizens, - , , - civil rights, infraction by individuals, congress cannot punish, - claims against united states (_see also_ public debt of the united states): congress, powers as to, for emancipation of slaves, void, claims of united states, powers of congress as to, clear and present danger. _see_ freedom of religion, speech, press, assembly. coal: federal regulation as to, - prohibition of mining, under city streets, etc., coins and coinage. _see_ counterfeiting; money. comity clause (_see also_ taxation: state): corporations not eligible to benefits of, - privileges and immunities of state citizens, scope, - sources, purposes of, how implemented, - state citizenship, scope of, state discrimination as to nonresidents, limits, - commerce (_see also_ carriers; child labor; coal; foreign commerce; hydroelectric power; interstate commerce commission; navigation; original package doctrine; police power; radio; taxation; wheat): commerce clause of constitution as source of national power, - , - , - , - commerce clause of constitution, purpose, meaning of terms, - concurrent federal-state legislation as to, - foreign, powers of congress as to interstate and, compared, - , - , - grain futures, federal regulation of, - with indian tribes, congressional power as to, - instruments of, powers of congress as to, - , prohibition, restraint of, powers of congress as to, - regulations, federal, favoring certain ports, - reserved powers of states as limitation on federal powers as to, - , - state power to regulate interstate, federal supremacy, - , - , - , , stockyards, federal supervision of, commission merchants, state regulation of, commodity and security exchanges, state regulation of, , common law (_see also_ juries): no federal crimes under, communication, instrumentalities of, federal regulation, - communists, prosecution of, in relation to freedom of speech and press, - compacts between states. _see_ states: agreement with other states. confederations, states not to enter into, confessions (_see also_ self-incrimination): forced, in state criminal trials, effect, - confrontation: right of, in federal criminal trials, right of, presence of accused, in state criminal trials, - congress (_see also_ contempt; elections; house of representatives; impeachment; investigations; senate): internal organization; legislative process: bills, how enacted into law, - concurrent resolutions, uses, journal of proceedings, contents, evidence, etc., , representatives, choice of speaker, officers, resolutions, etc., how made effective, status, - revenue bills, origination, amendment, - rules of procedure, determination, - yea and nay votes, entry into journal, , , judicial direction, immunity from, members of senate or house: attendance, compulsion of, beginning of term, compensation for services before departments, restriction, - compensation, how fixed; when begins, disorderly behavior, punishment, election of, qualifications, each house to judge, - expulsion, , - freedom from arrest, libel suits, limits, - not impeachable, incompatible offices, - , presidential electors, ineligible as, qualifications, when fulfilled, enlargement of, - , as treaty negotiators, eligibility, powers in relation to executive: conduct of foreign relations, cooperation with president in, - executive officers, control of conduct of, - sessions: adjournment by one house, restrictions, frequency; beginning of, quorum required for, exceptions, - conservation of natural resources, powers of states, - , - constitution of the united states: amendment of, process, limits of power, scope for judicial review, - amendments, dates of ratification of, - amendments, resolutions proposing, not submitted to president, doctrines of interpretation of, - preamble to, , - , ratification of, effective date, etc., ratification, historical note on, - consuls. _see_ ambassadors. containers (_see also_ fraud; original package doctrine): regulation by states, contempt (_see also_ courts (federal); courts (state)): of congress, punishment, - criminal, civil, distinguished, of state court, summary punishment, - contracts, impairment by state prohibited, - convict-made goods, state regulation of sale of, coolie labor system. _see_ involuntary servitude. copyright: nature, scope of right secured, - powers of congress as to, , - royalties from, state taxation of, state powers as to, corporations (_see also_ comity clause; courts (federal); taxation): charters, termination by states, charters, when contracts not to be impaired, - , - dissolved by state, ineligible for bankruptcy, due process of law, protected by, , equal protection of the laws, entitled to, exceptions, - , - , - , federal, liability for wrongful acts, - federal, powers of congress as to, , - federal, suability of, - federal, taxation by states, etc., - foreign, appointment of agent for service of process, , - foreign, equal protection clause as limit on taxation of, - foreign, right to sue in federal courts, foreign, state control over admission, licensing, operation, - , , , , , - foreign, suability, due process limitations, - freedom of speech and assembly, not claimable by, privileges and immunities of united states, state, citizens, not eligible to, production of books and papers in state investigations, publications supporting candidates, restraints on, self-incrimination, not protected against, , stockholders' derivative actions, security for costs, - counsel. _see_ attorneys. counterfeiting: of foreign money, power to punish, punishment, powers of congress, states, - , court of claims (_see also_ claims against united states; courts (federal)): judicial review of decisions, status, - jurisdiction, expansion as to adjudicated claims, courts (federal) (_see also_ boundaries of states; corporations; habeas corpus; indians; juries; labor; political questions; prizes of war; public officers of the united states; states: courts; states: officers; states: powers; states: suits by and against; supreme court of the united states): admiralty and maritime jurisdiction; scope, types of cases, procedure in, etc., - , - advisory opinions not rendered by, - ancillary, inherent powers, - , - attorneys, admission, disbarment by, - cases and controversies before, defined, attributes of, - , , cases arising under constitution, laws, treaties, - citizenship for jurisdictional purposes, , - congress, powers as to organization, jurisdiction of, , , - , , - , - , , , , - , - , - , - consular courts, consuls, etc., suable in, - contempts, power to punish, regulation by congress, , - corporations, citizenship for jurisdictional purposes, status to sue in, , , - , declaratory judgments, power to issue, validity, etc., - , - district of columbia residents, citizenship for jurisdictional purposes, - in district of columbia, status, powers, regulations by congress, - , , - full faith and credit clause in, immunity from suit of united states, states, foreign states, waiver, etc., - , indian tribes, immunity from suit, removal of cases, indian tribes, not foreign state for jurisdictional purposes, , inferior, administrative matters, jurisdiction over, - inferior, creation, abolition, etc., by congress, , - judges and juries in, functions distinguished, directed verdicts, - judicial review by, origin, scope, limits, etc., - , jurisdiction concurrent with supreme court, scope, - jurisdiction, scope, , - , legislative, creation, etc., by congress, , - nonjudicial functions, powers of congress to vest in, - , power to render and enforce judgments, presidential use of, to enforce laws, - referees, masters, special aids, appointment by, rule-making power, derivation, limits, process, , - of specialized jurisdiction, organization, powers, etc., - , state courts, controversies, concurrent jurisdiction, with, comity, - state courts, removal of cases to, from, , - states, interest requisite for suits in, , , status to sue in, , - , suits against states by citizens of other states, etc., - suits between citizens of different states, law applicable to, interpretation (diversity of citizenship), , , - suits between state, or its citizens, and foreign states, citizens, etc., - suits between states, - suits by states against citizens of another state, suits by, as parens patriae, - suits by states to enforce their penal laws, suits of citizens under land grants of different states, - suits of united states as party plaintiff or defendant, suits of, against states, - territorial, how created, jurisdiction, etc., territorial, transferral of cases from, when, writs, congressional power as to issue by, - , - , - courts martial. _see_ land, air and naval forces. courts (state): errors of, not effecting denial of due process, - impartiality essential to due process; effect of mob violence, , - crimes and offenses (_see also_ criminal prosecutions; elections; felonies; high seas; taxation: federal): definition; powers of congress as to, - , - federal, petty, serious, defined, - , - under national prohibition act, effect of repeal, penalties, gradation for different crimes, different criminals, validity, - vagueness of statutes defining, effect, - , , criminal prosecutions (_see also_ attorneys; confrontation; crimes and offenses; double jeopardy; due process of law; ex post facto laws; grand juries; habeas corpus; juries; public officers of united states; territories; treaties): federal, place of trial, - federal, rights of accused, scope, - cruel and unusual punishment, not to be inflicted, what constitutes, - , - d dams, across navigable streams, state powers as to, - debts due the united states, collection, debts of the united states: abrogation of gold clause in united states bonds, validity, contraction, payment, declaratory judgments. _see_ courts (federal). delegation of power: judicial, to administrative agencies, legislative, by congress, , - , , to president, in conduct of foreign relations, , rule-making, to courts, , - by state legislatures, to rate-making commissions, in war, - , descent. _see_ succession to property. direct tax. _see_ taxation: federal. discrimination. _see_ aliens; chinese; comity clause; equal protection of the laws; involuntary servitude; negroes; restraint of trade. district of columbia (_see also_ courts (federal)): cession by states, effect, - courts of, powers, status, - diversity of citizenship clause, applicable to, interstate commerce, taxation of, by, jury trial, residents entitled to, , as a municipal corporation, suability, powers, - , police power of, retrocession of alexandria county to virginia, as seat of government, powers of congress as to, - as a "state" for certain purposes, state laws applicable to, taxation in, - diversity of citizenship. _see_ courts (federal). divorce. _see_ due process of law; full faith and credit. docks and dock yards. _see_ wharves and docks. dogs, protection conditioned on owner's payment of tax, domestic violence, federal protection of states against, - double jeopardy (_see also_ due process of law): guaranty against, not applicable to military forces, what constitutes; protection against, limits, - , - drugs (_see also_ pharmacies): state, etc., laws regulating sale of, dual federalism (_see also_ states: powers), , - due process of law (fifth amendment) (_see also_ administrative agencies; aliens; bankruptcy; carriers; corporations; land, air, and naval forces; police power; public utilities): in administrative proceedings, essentials of, - in criminal proceedings, essentials of, , - discriminatory legislation, relation to, - indictment by grand jury, precision required by, , - as to infamous crimes requiring grand jury indictment, - meaning, source, evolution of, , - , - procedural protection of, essentials, - retroactive legislation, deprivation of property, as affected by, - self-incrimination, protection against, - , , , - substantive, essentials of, - due process of law (fourteenth amendment) (_see also_ full faith and credit; motor vehicles): in administrative, legislative proceedings; notice and hearing, etc., - , appeal, new trial, etc., not required by, in civil proceedings, jurisdiction required, perfected by service of process, appearance, etc., - , comparison with clause in fifth amendment, - in criminal proceedings, - in divorce actions; jurisdiction required, - enforcement of, by congress, limits, - historical development, - judgments without jurisdiction, process, etc., as denial of, - , - judicial procedure, as limitation on state regulation of, - in judicial proceedings, notice and hearing, etc., - , "liberty", protected by, - , , - , "persons", protected by, - retroactive repeal of certain rights, when a denial of, , scope of protection, - e earmarked funds. _see_ general welfare; spending for the general welfare. education. _see_ negroes; schools and colleges. elections (_see also_ house of representatives; negroes; president; election; public officers of the united states; senate): congressional, use of state officers, etc., powers of congress as to, , - , - crimes in relation to, declaration of intention as prerequisite to voting, validity, grandfather clauses, void, inequalities in voting power from unfair apportionment and nominating procedures, - , , - literacy requirements for voting, - of members of congress, each house to be judge of, - municipal, federal regulations pertaining to, - primary, for nomination of congressmen, federal regulations as to, primary, status of political parties in, qualifications of voters; voting rights, federal protection of, etc., , - , , - , - , - , - time-off-for-voting laws, validity, electricity (_see also_ public utilities): interstate distribution of, federal, state regulation, , embargoes. _see_ conservation; foreign commerce. eminent domain (_see also_ aliens; navigable waters): federal, just compensation defined, enforced; right to interest, etc., - , - federal, of state lands, federal power of, scope, , - , federal, public use defined, determined, - federal, what constitutes a "taking", - president, powers of, in war time, state, power of, inalienable, limited by due process clause, - , - state, "taking", "for public use", just compensation, uncompensated takings, consequential damages, defined, - war damage, liability of united states, emoluments, acceptance from foreign states by public officers, restricted, enemies: alien, confiscation of property, alien, deportation after end of hostilities, - alien, not protected by due process of law, alien, property, rights, status; effect of war on, , - , , , equal protection of the laws (_see also_ corporation; elections; negroes; state: taxation): federal enforcement of guaranty; limits, - , , - scope of protection, - state action denying, what constitutes, - escheat. _see_ banks; insurance. estate, gift, and inheritance taxes. _see_ taxation. evidence and presumptions, burden of proof, prima facie evidence, etc., due process limitations on state regulations as to, - excises. _see_ taxation. executive agreements (_see also_ president: powers): distinguished from treaties, , , - examples of, authorized, approved by congress, , , - , supreme, over conflicting state laws, types of, , - validity, binding effect of, - exports. _see_ commerce; foreign commerce; taxation. ex post facto laws: application to war criminals, - defined, - passage by states, scope of prohibition, - test oaths for office holding, extradition (_see also_ habeas corpus): congress, powers as to, - duty of state to surrender fugitives, - , felons fleeing district of columbia, unnecessary, to foreign nations, by president, to foreign nations, by states, limitation, fugitive from justice defined, - removal procedure, rights of fugitive, - f fair trial (_see also_ attorneys), - , - , - , - federal-state relations, - federal supremacy. _see_ national supremacy. felonies (_see also_ crimes and offenses): committed on high seas, power of congress as to, - ferries (_see also_ carriers): on navigable streams, state powers over, firearms. _see_ bearing arms. fish, conservation of, powers of states, , , , flag, reproduction on salable articles prohibited, flag salute laws. _see_ freedom of religion, speech, press, assembly. flood control, federal power as to, food, state regulations as to manufacture, sale, purity, labelling, weights, etc., , , , foreign commerce (_see also_ commerce; game): prohibition of, by congress, - state police and taxing powers, relation to, - , - foreign corporations. _see_ corporations. foreign relations. _see_ executive agreements; president: powers; recognition; treaties. forts, federal jurisdiction over, , - franchise taxes. _see_ taxation. fraud, in sales, prevention by states, etc., - freedom of assembly. _see_ freedom of religion, speech, press, assembly. freedom of press. _see_ freedom of religion, speech, press, assembly. freedom of religion, speech, press, assembly (_see also_ communists; corporations; labor; land, air and naval forces; lobbying; postal service; public officers of the united states; radio; states: officers; supreme court of the united states; war): of assembly and petition; history, restraints on, - clear and present danger rule, - , - , - guaranty of, absorption into fourteenth amendment, of press, contempt of court decrees as restraint on, , - of press, group libel laws as restraint on, - of press, motion picture censorship, validity, - of religion, compulsory public school attendance, effect on, of religion, liability to military service as condition prerequisite to certain privileges, effect on, of religion, "no preference" doctrine, - of religion, public bus transportation for parochial schools, effect on, , of religion, "released time" for religious instruction, effect on, - of religion, rights of mormons, of religion, scope, restraints on, - , - of religion, "wall of separation" doctrine, - religious property, tax exemption, validity, religious schools, free textbooks for, effect on, of speech and press, censorship, - of speech and press, in parks and streets, - , of speech and press, restraint by taxation, labor regulations, etc., - of speech and press, scope, - of speech, curbs on sound trucks, street car radios, effect on, , freedom of speech. _see_ freedom of religion, speech, press, assembly. fruit: export of, restriction by states, - , immature citrus fruit, exclusion by states from interstate commerce, protection of orchards by state by destruction of private property, - fugitive slave clause, fugitives from justice. _see_ extradition. full faith and credit clause (_see also_ courts (federal); supreme court of the united states): adoption decrees, effect on inheritance in forum state, common law, statutory, constitutional rights, scope of recognition by states, - congress, power to effectuate, - , , - decrees awarding alimony, custody of children, - divorce decrees, domicile as jurisdictional prerequisite to; effect on alimony, custody of children, property, - garnishment decrees, - judgments, effect in forum state, limits, - , judgments, fraud as defense to enforcement of, judgments, jurisdiction prerequisite to enforcement, - , - penal judgments, limits on enforcement, - probate decrees, - purpose of clause, suits against corporations, by stockholders, creditors, policy holders, law applied by forum, - tort and contract actions, law applied by forum, , - workmen's compensation acts, application in forum, - g gambling: building used for, lien on, for money lost, lotteries, etc., state prohibition of, game, conservation, restriction on export of, by states, , - , , garbage, municipal regulations as to disposal of, gas (_see also_ carriers; public utilities; taxation: states): conservation, restriction of export of, by states, , - damages from drilling for, requiring bond to cover, gasoline. _see_ police power; prices, charges, rates; taxation; zoning. general welfare, powers of congress as to; state reserved powers as limitation on, - , - gift taxes. _see_ taxation. gold. _see_ money; public debt of the united states. governors. _see_ states: governors. grain. _see_ agriculture; commerce; commodity and security exchange; conservation; warehouses. grand jury (_see also_ due process of law): abolition by states, , grants-in-aid, , group libel, - h habeas corpus (_see also_ prisoners): errors at trial, issuance to correct, - in extradition proceedings, issuance by federal courts, - issuance by federal or state court to release prisoner in custody of other jurisdiction, , , - military tribunal, to review proceedings of, review of conviction, use by prisoners to obtain, , - not a substitute for appeal, suspension, when valid, , - habitual offenders, successively heavier penalties on, validity, , , , health (_see also_ drugs; food; garbage; milk; sewers; water): power of states, etc., to safeguard, - high seas: offenses committed on, defined, - power of states over citizens on, holding companies. _see_ public utilities. hot pursuit, agreements with mexico for crossing of boundary by troops, house of representatives (_see also_ congress; elections): apportionment, representation in, reduced for illegal voting restrictions, etc., - composition, - election to fill vacancies in, election to, state regulations as to, - impeachment, powers as to, revenue bills originate in, - hydroelectric power, scope of federal, state powers as to, - i immigration. _see_ aliens. impairment of obligation of contracts, - impeachment (_see also_ house of representatives; president; senate): chief justice; when presiding officer at trial, judgment on conviction, limitations on penalties, officers subject to; grounds for, implied powers of congress, - imports. _see_ commerce; foreign commerce; inspection laws; taxation. income tax. _see_ taxation. indians (_see also_ courts (federal)): citizenship of, commerce with, congressional power as to, - crimes on reservations, state jurisdiction as to, fishing rights of, under treaty, application of state game laws to, - liquor, prohibition on lands used by, , , "not taxed"; included in apportioning seats in house of representatives, - regulations governing, due process limitations, state taxes on lessees of lands of, treaties with, status, abrogation, etc., - vested property rights of, protected by fifth amendment, indictment. _see_ due process of law; grand juries. industrial relations. _see_ labor; steel seizure case. infamous crimes. _see_ due process of law. inherent powers of national government, - , inheritance taxes. _see_ taxation. insolvency. _see_ bankruptcy. inspection laws, state, power to impose, application to imports, exports, - , , , - insurance (_see also_ abandoned property; corporations; taxation: state): agents acting as undertakers, sharing commissions, state regulations as to, foreign companies, conditions of entry, regulation of relations with, - as interstate commerce, federal, state regulation of, - liquidation of companies, rights of dissenting policyholders, policy provisions, state regulations as to, - rates, agent's commissions, state regulation of, , , state regulation of, , - , , insurrection. _see_ national supremacy. interest. _see_ money lending. international law: application to prizes of war, - as national public law, offenses against, punishment by congress; trial of, by military commissions, - president, as enforcer of, , - interstate commerce. _see_ commerce. interstate commerce commission, creation, powers, - interstate compacts. _see_ states: agreements with other states. intoxicating liquors (_see also_ prohibition amendment; prohibition repeal amendment): destined for federal area, exempt from state taxation, federal regulation, as affected by twenty-first amendment, - imported, discrimination in favor of domestic, by states, - state power as to, scope under twenty-first amendment, - state prohibition, regulation of sale, of, - , - , transportation into states in violation of state law, - investigations by congress, scope of power as to, - involuntary servitude: conscription does not create, - discriminations, compulsions, not amounting to, - , - peonage defined as, statutes creating, - prohibited, except as punishment for crime; powers of congress as to, - , - j japanese (_see also_ aliens): exclusion from pacific coast in world war ii, , - jeopardy. _see_ double jeopardy. judgments (_see also_ full faith and credit): award of execution as essential to finality of, - judges (federal) (_see also_ courts (federal)): impeachment, - of legislative courts, tenure, salary, - nonjudicial functions, salaries, diminution by taxation, etc., - , , - tenure, , - judges (state), pecuniary interest in verdict, violative of due process, judicial power: administrative power, as aid to, defined, scope, attributes of, - , inherent limitations of, maxims of interpretation, - vested in supreme court and inferior courts created by congress, - judicial procedure. _see_ courts (federal); courts (state). judicial review. _see_ courts (federal). juries (_see also_ courts (federal); public officers of the united states): challenges in selecting, "blue ribbon" juries, state regulations as to, - in common law suits in federal courts, functions of judges and, right to, waiver, - in criminal trials in federal courts, waiver, etc., , - dispensing with, in state civil proceedings, right to, in state criminal trials, - selection, number, size of vote by, power of states to alter, , - jurisdiction, defined, distinguished from judicial power, - k kingbolt clause. _see_ national supremacy. l labor (_see also_ child labor; full faith and credit clause; president: powers; women): collective bargaining; closed-shop; picketing; strikes, slow-downs, and boycotts; unions; yellow-dog contracts, state regulations as to, , - , employer's freedom of speech, wagner act as curb on, employment agencies, state regulation of fees, etc., , federal regulation, under commerce clause, - , - hours of, state regulations of, , - injunctions in disputes, issuance by federal courts, etc., not productive of slavery, - , - , liberty of contract, state interference with, - longshoremen's and harbor workers' act, - loyalty affidavits required of union officers, - picketing, control of, as restraint on freedom of speech, press, - railway, federal regulations as to, - state laws regulating, conflict with federal, effect, , - steel seizure case, - union publications supporting candidates, restraints on, wages, state regulations as to payment, rates, assignments of, - , - , wartime controls of, wage stabilization, , - workmen's compensation laws (state), application to maritime workers, abolition of common law defenses, etc., , - , - , work stoppages via union meetings during working hours, prohibition, land, air and naval forces (_see also_ militia; president: powers): air force, establishment, congress, power to raise, support, regulate, , - , - conscription, validity, - , - courts martial, judicial review of, when a due process requisite, - , courts martial, presidential sanction of, decrees of, jury, not open to indictment or trial by, - , offenses arising in, trial, punishment, - personnel, care of, federal regulations as to, , - recruiting, etc., of, utterances obstructing, prohibition, legal tender. _see_ money. legislative power: delegation of, - enumeration of; doctrine of, - preamble no source of, - legislative process. _see_ congress; internal organization; legislative power. libel, group, - liens, on vessels, under state laws, limitation of actions, state enactment of, due process restrictions on, - liquor. _see_ indians; intoxicating liquors. lobbying, as right of petition, regulation, lotteries. _see_ gambling. m mandamus. _see_ courts (federal); states: officers. maritime law. _see_ admiralty. marque and reprisal, letters of, grant by congress, martial law: effect on personal liberty, nature of, when lawfully invoked, - meat, importation, etc., of, state regulation, - migration, interstate, state curbs on, - , military commissions, trial by, validity, , - military forces. _see_ land, air, and naval forces. military law. _see_ land, air and naval forces; militia. militia: jury, not open to indictment or trial by, - powers of congress, states, as to, - refusal to serve with, penalty, milk (_see also_ conservation): export, import, sale of, state regulations as to, - , - , - price-fixing under agricultural marketing agreement act, - price, purity of, state regulations as to, - , - , - , - , mob violence. _see_ confrontation; domestic violence; due process of law. money (_see also_ bills of credit; counterfeiting): coinage and borrowing powers of congress, relation, etc., - , - gold clauses in contracts, abrogation, powers, of congress as to, - , legal tender, powers of states as to, legal tender, treasury notes as, - , money lending, state regulation of, - monopolies. _see_ restraint of trade. morals, state protection of, - mortgages (_see also_ taxation): moratorium, when valid, , - motion pictures (_see also_ freedom of religion, speech, press, assembly): censorship, importation of, state regulations as to, , - motor vehicles (_see also_ carriers; public utilities; taxation: state): advertising signs on, limited prohibition, validity, - , - insurer of operators of, liability, nonresident owners, etc., appointment of agent for service of process, - , state, etc., regulatory powers as to, - , - , , - , , municipal corporations. _see_ states: political subdivisions. n national banks: incorporation, etc., by congress, , , state laws, application to, national supremacy, state taxation of, , national industrial recovery act (nira), void, - national supremacy (_see also_ national banks; public officers of the united states; states: courts; taxation: state): conflict with tenth amendment, - examples, , - , - , , , , , , - , - , - , - , - , - , - , , , - , - , , , , federal contractors, state taxation of, application of state laws to, , - federal instrumentalities, securities, state tax exemption, - meaning, interpretation, of, - , - state laws enacted during insurrection, effect, naturalization: cancellation for fraud, residence abroad, - powers of congress as to, - retroactive effect of, navigable waters (_see also_ flood control; hydroelectric power; navigation; vessels): defined, - , - regulatory powers of congress, states as to, - , - riparian owners injured by improvement of, right to compensation, - navigation (_see also_ hydroelectric power; navigable waters): instruments of, docks, ferries, etc., federal regulation of, - obstructions to, federal restraint of, - navy. _see_ land, air and naval forces. nazi saboteurs, trial by military commission, - , - "necessary and proper" clause, , , - , - , - negroes: citizenship of, - home ownership, occupancy, public restrictions on, private covenants prohibiting, validity, , , right to vote, discriminatory devices denying, validity, - , - , segregation in schools, conveyances, laws as to, validity, - segregation, state powers as to interstate carriers, - , nobility, titles of, not granted by united states, nor accepted by public officers without consent of congress, o oaths, powers of congress as to, obligation of contracts. _see_ contracts. officers of the united states. _see_ public officers of the united states. oil (_see also_ taxation: state): conservation, powers of states, - damages from drilling, requiring bond to cover, leases from united states, cancellation for fraud, under marginal belt along coast, powers of united states as to, , "okies", state curbs on entry, , oleomargarine (_see also_ taxation): state laws prohibiting, regulating sale of, - , , original package doctrine (_see also_ taxation: state): effect on state regulation of cigarettes, convict-made goods, liquors, oleomargarine, etc., - interstate and foreign commerce, relation to, - , , - , , - , - p packers and stockyards act. _see_ commerce. pardons: congressional powers as to; amnesty, etc., , , - for contempts, limitations on president, - , legal nature, essentials, of; limited effect, , - , - , - of participant in civil war, effect, patents: nature and scope of right secured, - patentable discoveries, - state powers as to, peddlers, state laws regulating, , - penalties. _see_ crimes and offenses. peonage. _see_ involuntary servitude. people of the united states: "citizens", synonymous with sovereignty, possessors of, - perjured testimony, conviction on, validity, - petition, right of. _see_ freedom of religion, speech, press, assembly. pharmacies, corporate operation of, state regulation as to, picketing. _see_ labor. piers. _see_ wharves and docks. pipe lines. _see_ carriers; public utilities. piracy, power of congress to define, punish, - plants. _see_ quarantine laws. police power: corporations, contracts of, impairment by, - , - federal, as limited by due process clause, - foreign commerce, in relation to, - implementation of, by federal prohibition of commerce, - interstate commerce, in relation to, , - , , - state, as limited by equal protection clause, - , - state, conflict with national supremacy, - state, defined, due process clause as restraint on, - , - , state, impairment of contracts by, - political questions, concept of, examples, disposition by federal courts, etc., , , , , - , - , - , - , - , , - , - , , poll taxes (_see also_ elections): as direct tax, , , , exemptions, validity of, as qualification for voting, , polygamy: religious precepts, practice pursuant to, , - seat in house of representatives refused practitioner of, posse comitatus, use by president, etc., in law enforcement, post roads. _see_ roads. postal power. _see_ postal service; roads. postal service: congress, power to create, protect, - exclusion from mails, censorship, - , - federal police power, regulations as to, state regulations affecting, preamble. _see_ constitution of the united states. presentment. _see_ due process of law. president: cabinet as adviser of, origin, meetings, - compensation of, restrictions on alteration, dual salaries, etc., , election: candidate-elect, death of, powers of congress as to, - by electors, number, duties of, etc., dispute over selection, political loyalty, disposition, - , - by house of representatives, when, how, , - , immunity from judicial direction, injunction, etc., - , impeachment of, - message to congress, oath of office, effect, time for, , - powers (_see also_ administrative agencies; constitution of the united states; delegation of power; eminent domain; executive agreements; extradition; pardons; posse comitatus; public officers of the united states; war): to appoint officers, , , - , - as commander in chief; a civilian officer, , - , - , , , - to conduct foreign relations, - , - , - , - , - , - , - courts, use by, to enforce laws, - duty to execute the laws; powers derived from, , - , - exercise of, when in person or by agents, - to inform congress, convene it in special sessions, - as to lawmaking, legislative process, approval, veto of bills, etc., - military forces, use by, to enforce laws, - to negotiate executive agreements, scope, - to negotiate, terminate treaties, - , - , - of pardon, amnesty, commutation, scope, - to protect citizens and property abroad, - to receive ambassadors, etc., - of recognition, - , - to remove officers, - , , - , - to seize plants, factories, etc., - , - source of, nature, scope, - as to subordinates, control, protection of, - , - to suspend writ of habeas corpus, when valid, to take measures short of war, - as to war, - , , - , , - , - , , - , - , - to withhold confidential communications from congress, courts, - qualifications, , - refusal to accept office; resignation, how effected, succession to; vacancy existing at beginning of term, etc., , - , term, maximum duration, expiration, , , , price control in wartime, etc., - , price-fixing, validity, - , prices, charges, rates, etc. (_see also_ insurance; milk; public utilities; stockyards; warehouses): state laws regulating, - primary elections. _see_ elections. priorities. _see_ rationing. prisoners, right to appeals, corrective process, - privileges and immunities clause (art. iv). _see_ comity clause. privileges and immunities of state citizens. _see_ comity clause. privileges and immunities of u.s. citizens: abridgment by states prohibited; scope of protection, , - enforcement of guaranty by congress, limits, - enumerated, , , - , - prizes of war, jurisdiction of federal courts as to, , production, federal regulation of, under commerce clause, - professions. _see_ business, trades, professions. prohibition amendment (_see also_ crimes and offenses; taxation: federal), - prohibition repeal amendment, , - property. _see_ due process of law; states; taxation; united states. protective tariffs, psychopathic personality, commitment of, validity, public debt of the united states: contracted before adoption of constitution, gold clause in u.s. bonds, validity of abrogation, validity not to be questioned, public funds of the united states (_see also_ appropriations): accounting of receipts and expenditures required, public lands. _see_ united states. public ministers. _see_ ambassadors. public officers of the states. _see_ states: officers. public officers of the united states (_see also_ ambassadors; president: powers; secret agents): _ad interim_ designations by president, appointment by president, with senate approval, - categories of, "inferior", "employees", etc., congress, assertion of appointing power, - , congress, power to condition removal of, by president, - control of conduct of, by congress, - disqualification for rebellion, treason; removal of disability by congress, doctrines as to, "estate in office", "nature of office", - impeachment of, , , indemnification of, by congress, jury service by, in federal criminal trials, liability of, for excess of authority, - membership in congress restricted, - "office", defined, - , , - political activities of, restricted, , - presidential electors, status as, - recess appointments of, removal of, by president, - , - speaker of the house, president pro tem of senate, as, state taxation of salaries of, subordinates of president, judicial review, restraint of, - suits against, removal from state to federal courts, - suits against, sovereign immunity issue, - trial of, for offense against, etc., state laws, removal to federal court, , - , - public utilities (_see also_ carriers; taxation): federal regulation of, due process limitations, - holding companies, federal regulation of, - rate regulation by states, judicial review of, , - state, etc., regulatory powers as to, - , - , - , state taxation of, operated interstate, - q quarantine laws: state, power to adopt, validity, , - , - state, relation to foreign commerce, quartering soldiers in private homes, r radio: censorship of, via broadcast licenses, federal regulation, seizure, - , - , , railroads. _see_ carriers. raisins, marketing of, state regulation, rates. _see_ prices, charges, rates, etc. rationing in wartime, - real property. _see_ taxation: state. reciprocal trade agreements, - recognition of foreign governments, states, , - , - red-light districts, creation by municipalities, rent control, validity, , - , , republican form of government, federal guarantee of to states, resale price maintenance. _see_ restraint of trade. reserved powers. _see_ commerce; general welfare; states. restraint of trade: interstate, federal prohibition of, - monopoly privileges, state grant of, validity, resale price maintenance, unfair discrimination, etc., state laws on, state antitrust laws, retroactive. _see_ contracts; due process of law. revenue. _see_ taxation: federal; taxation: state. right to bear arms. _see_ bearing arms. rights, other than enumerated in constitution, retention by people, roads (_see also_ public utilities): post roads, power of congress to establish, , - state toll tax on, mail trucks exempt, rule-making power (_see also_ administrative regulations), - s safety. _see_ zoning. schools and colleges (_see also_ negroes): curricula, military training, attendance at, state laws regulating, - searches and seizures (_see also_ corporations; due process of law; self-incrimination; wiretapping): evidence obtained by, use of, - incidental to arrest, - records, requirement of keeping, disclosing as a, self-incrimination, seizures entailing, etc., effect, - by state, unreasonable, validity, - unreasonable, protection against, - vehicles, search of, without warrant, warrants for, necessity, sufficiency of, - seat of government. _see_ district of columbia. secret agents, - , - , secret societies, state regulation of, , securities (_see also_ blue sky laws; commodity and security exchanges): brokers in, state regulation, issuance, trading in, federal regulation, - sale of, state regulations as to, segregation. _see_ chinese; japanese; negroes. self-incrimination: privilege against, scope, - , - , - in state criminal trials, - senate (_see also_ congress; executive agreements): assent to appointment of officers, - impeachments, trial by, vote to convict, members not to serve as presidential electors, - , , - members of, number of, popular election, - , , - officers of, how chosen, presidential diplomatic agents, powers as to choice of, etc., - , - revenue bills, may amend, - treaties, powers, duties as to, - , , , - vacancies in, how filled, vice-president to preside over, casting vote, when, separation of powers (_see also_ delegation of power): immunity of legislative, executive branches from judicial direction, - severance taxes. _see_ taxation. sewers, compelling property owners to connect with, sherman act. _see_ restraint of trade. shrimp, state restriction on export of, slavery (_see also_ involuntary servitude): importation of, not to be prohibited before , social security act, validity, sound trucks. _see_ freedom of religion, speech, press, assembly. sovereignty, where located, - , special assessments. _see_ taxation: state. spending for the general welfare, powers of congress, - stare decisis, - states: admiralty matters, rights, legislation as to, - admission on terms of equality, - agreements with other states: compact clause, history, - compacts, consent of congress to, when required, , - compacts distinguished from treaties, compacts, substance, legal effect of, - commerce clause, as restraint on powers of, - courts (_see also_ courts (federal); full faith and credit): concurrent jurisdiction with federal courts, comity, - , consuls, suable in, - contempt power of, controversies with federal courts, comity, - crimes on indian reservations, jurisdiction, enforcement of federal laws by, - , - , - federal courts, interference with, illegal, - judicial review by, procedure in; state regulation, due process limitations on, - , records of territorial court, transfer to, on state admission, removal of cases from, to federal courts, - review of, by federal courts, - suits in, at common law, in lieu of federal admiralty actions, - , - debts incurred in aid of rebellion, void, federal territorial statutes, application after state admission, governors, veto of congressional districting laws, immunity from federal taxation, - immunity from suit without consent, obligations owed to, by united states, - offenses on navigable waters, punishment by, officers: acting under void statute, status of, denying constitutional rights, federal punishment of, - disqualification for rebellion, treason; removal of disability by congress, national duties of, limits, - office of, when a contract not to be impaired, - political activity of, application of federal hatch act, etc., , - presidential electors, status as, - restraint of, by federal courts, - salaries of, subject to federal income tax, - , suits against, when immune from, - test oaths for, illegal, political subdivisions: bonds and charters of municipal corporations, impairment by states, - , - federal taxation, scope of immunity from, - municipalities, equal protection of the laws, not entitled to invoke, state control of, effect of due process clause on, - powers denied to, property owned during territorial status, effect of admission as, on title (off shore oil), property transfers during territorial status, effect on, of admission as state, reserved powers of, invasion by treaty-making power, etc., - , - suits against, scope of immunity from, consent, waiver, - united states, conditions, reservations, in cessions of property to, - steel seizure case, - sterilization, sexual, state laws providing for, , stockyards, state regulation of charges by, succession to property, right of election to surviving spouse, effect of creation, suffrage. _see_ elections. sunday blue laws, , supreme court of the united states: appellate jurisdiction, limitation of, by congress, - chief justice, presides at president's impeachment trial, concurrent jurisdiction with lower federal courts, full faith and credit clause, application by, - legislative courts, appellate jurisdiction over, original jurisdiction, , - , - protection of, against noises, banners, etc., rule-making authority, derivation, etc., size, internal organization, sessions, etc., - state court decisions, review by, - state procedure, scope of review by, - state's corrective process in criminal trials, review of adequacy, by, - t tariffs, as regulation of foreign commerce, taxation: federal: capital gains, computing income tax on, - cooperatives, unincorporated joint stock associations, earnings, corporate dividends, when taxable as income, - corporate earnings, undistributed, etc., when taxable as income, - customs, import duties, direct, apportionment, defined, , , - , discriminatory, retroactive, etc., due process limitations, - in district of columbia, - , excises, defined, - , exports, exempt from, , - extermination by, forbidden subjects, - income, allowable deductions, exemptions, losses, etc., , - income, as direct, or excise, tax, - , - income, due process limitations, - income tax, power of congress to levy, - inheritance tax, levy as penalty to enforce federal, state laws, - , license taxes, power of congress to levy, , - preferences to ports of one state, duties on outbound vessels, prohibitions, - regulation by taxation, - on rental value, when a direct, or income, tax, reserved powers of states, invasion by, , - , revenue bills, originate in house of representatives, - suits to recover taxes, alteration of right, tariffs, protective, uniformity of duties, imports, excises, , - of unlawful articles, , state: airplanes operated in interstate commerce, - , banks, - businesses selling goods of interstate origin, - carriers operated in interstate commerce, - , - , - , - collection by bailees, employers, retailers, safe deposit companies, validity, collection, levy of, procedural due process in, jurisdiction, etc., - commerce clause as restraint on, - companies engaged in interstate commerce, gross receipts, income, franchise taxes, etc., - , - , - considerations as to validity; public purpose, severity, benefit, - , - copyright royalties, corporations engaged in interstate commerce, - , - , , - , , , due process clause as restraint on, - equal protection clause as limitation on, - equitable interest of purchaser of u.s. property, exemption, as a contract protected against impairment, - , - , exports, imports, when valid, - of federal contractors, - of federal instrumentalities, functions, securities, etc., - federally chartered corporations, property of, goods in interstate transit, restrictions, - income, due process, equal protection clause limitations on; jurisdiction; collection by withholding, etc., , - , , inheritance, estate, gift; due process, equal protection clause, limitations on, - , - , , - insurance companies; due process, equal protection clause, limitations on, etc., - , , - insurance companies engaged in interstate commerce, - lessees of indian lands, validity, motor vehicles, - , multiple, - multiple taxation test applied to interstate commerce, - , nonresident, scope for discrimination, - oleomargarine, preference of ports, prohibition on, inapplicable, property employed in interstate commerce, apportionment, - public utilities, , - , - , , - railroads, - real property, due process, equal protection clause, limitations on assessment and collection, jurisdiction, etc., - , - , - sales and use taxes, application to interstate commerce, - severance, due process limitations, special assessments, due process limitations on, - suits to recover, when within state immunity from suit, - tangible, intangible personalty, due process limitations on, jurisdiction, - tonnage duties, restrictions on, - trusts, and beneficiaries of, due process limitations on, - , vessels operated in interstate commerce, - teachers. _see_ states: officers. telegraph (_see also_ public utilities): state regulation of, - territories (_see also_ citizenship): acquisition by conquest, disposal of, congress, powers as to, constitutional guaranties, application to, courts of, powers of congress as to, etc., , - federal taxes, uniformity requirement as to, - unincorporated; rights of persons accused of crimes in, "third degree". _see_ confessions. tobacco (_see also_ cigarettes), , tonnage duties. _see_ taxation: state. trade-marks; advertisements, nature of, in relation to patents, copyrights, trades. _see_ business, trades, professions. trading stamps, state licensee fees on use, transportation. _see_ carriers; commerce; vessels. treason, definition, requirements for conviction, punishment, - treaties (_see also_ executive agreements; indians; political questions; president: powers; senate; states): effect of war on, exterritorial rights granted by, effect, implementation, repeal, termination by congress, - , - , - interpretation of, by whom, , - as law of the land; as contract; effect on state laws, state courts, - , - when self-executing, - as source of federal power, limits, - states not to enter into, termination as international compact, how, by whom, - troops (_see also_ land, air and naval forces): keeping in peacetime, by states, - u uniformity of federal taxes. _see_ taxation: federal. unit rule in state taxation of carriers, - united states: obligations owed to states, - property ceded by states, conditions, reservations as to, - property of, jurisdiction as to, - property of, powers as to, disposal, etc., - property of, state powers as to, taxation of, - , public lands of, powers of states as to, , - public lands, powers as to, - v vaccination, compulsory, state laws providing for, vessels (_see also_ carriers; war): on inland waters, federal regulation of, - liens on, under state laws, on navigable waters, state regulation of, - rates for service on, state regulation, , safety devices on, federal requirement, state taxation of, due process, etc., limitations, - , vice president: candidate elect, death of, powers of congress to fill vacancy, etc., - election of, duties of electors, senate, , - , as presiding officer in senate, casting vote only, resignation, refusal to accept, how evidenced, succeeds to presidency, when, , - , - term, beginning of, etc., , vacancy in, power of congress to fill, , - voting. _see_ elections. w wages. _see_ labor. war (_see also_ eminent domain; japanese; president: powers): congress, power to declare, etc., - , - , - , - , , - dates of beginning, termination, how fixed, declaration, when required, - economic mobilization during, - , eminent domain in time of, liability of united states, enemy aliens, restraint of, - enemy property during, - laws of, application, - legislation enacted in prior wars; postwar effect, - , - personal liberty, restraint of, during, - powers, nature and source of, - , - preparation for, in time of peace, - president, powers of, absent a declaration of, - private rights during, - prizes of, laws applicable to, - seditious utterances in, powers of congress as to, , terminated, by whom, - theatre of war, defined, by whom, treaty-making power, involvement in, pursuant to, - war crimes, prosecution for, - warehouses, grain, tobacco, state regulation of charges, etc., , , warrants. _see_ searches and seizures. water (_see also_ public utilities): diversion by riparian owner, state prohibition, restrictions by states on export of, weights and measures, , wharves and docks: in navigable streams, state powers as to, - purchased with state consent, federal jurisdiction over, - wheat, federal regulation of production of, wills. _see_ administration of estates; succession to property. wireless. _see_ radio. wiretapping, women (_see also_ elections): citizenship of, , , employment of, state regulations as to, , voting rights of, - workmen's compensation. _see_ full faith and credit clause; labor. work-or-fight, work-or-starve laws, validity, - wrongful death statutes, state enforcement in federal courts, , y yellow-dog contracts. _see_ labor. z zoning, building code, regulations, validity, - , - * * * * * transcriber's notes: introduction: page xii--added period after "thereby" to complete four period ellipsis page xiv--corrected spelling of "kidnaping" to "kidnapping" page xxi--corrected spelling of "injuction" to "injunction" and added period after "law" to complete four period ellipsis page xxii--corrected spelling of "achivement" to "achievement" page xxviii--added opening quotation mark to justice holmes' remarks page xxix--corrected spelling of "genessee" to "genesee" in "the genessee chief" page xxxiii--added period after "etc" page xxxiv--added period after "etc" footnote --corrected case citation from "dall. , " to " dall. , " footnote --removed comma after "dall." constitution of the united states: page --corrected spelling of "questiond" to "questioned" page --corrected spelling of "submisssion" to "submission" article i: page --added period after "etc" page --corrected spelling of "alloting" to "allotting" page --corrected spelling of "apropriate" to "appropriate" page --corrected spelling of "caluse" to "clause" page --added comma after "order" in "order, resolution, or vote" page --corrected spelling of "revived" to "revised" in "the sherman act revived" page --corrected spelling of "addystone" to "addyston" in "addystone pipe and steel co. v. united states" page --corrected "be" to "by" in "it is an attempt for social ends to impose by sheer fiat noncontractual incidents...." page --removed comma after "st." in " east th st. v. callus" page --removed second "within" in "activities conducted within within the state lines...." page --added period after "s" in " u.s " page --corrected spelling of "concesssion" to "concession" page --corrected spelling of "doctine" to "doctrine" page --removed third "s" from "businesss" in "... taxing state and of the business...." page --removed comma after "york" in "new york v. miln" page --corrected spelling of "supoprt" to "support" page --removed extraneous quotation mark before ( ) page --corrected spelling of "manufacure" to "manufacture" page --corrected spelling of "comformably" to "conformably" page --changed "in" to "in" in two places page --corrected spelling of "possesions" to "possessions" and added opening quotes in front of numbered paragraphs page --added opening quotation mark in paragraph ( ) page --added opening quotes in front of numbered paragraphs and removed unmatched quotation mark after "descent" in "... persons of chinese descent";" page --corrected spelling of "esssential" to essential" page --corrected spelling of "disolved" to "dissolved" pages - --added opening quotation marks to each paragraph of list of patent court cases page --corrected spelling of "reinfore" to "reinforce" page --corrected spelling of "farenheit" to "fahrenheit" page --corrected spelling of "revolutionory" to "revolutionary" page --added ending quotation mark after "... was liberated with its crew." page --corrected spelling of "concered" to "concerned" page --corrected spelling of "ocurred" to "occurred" page --corrected spelling of "eath" to "each" page --corrected spelling of "justice frankfurther" to "justice frankfurter" page --corrected spelling of "probabilty" to "probability" footnote --changed comma to period in "united states ex rel, tisi v. tod" footnote --removed comma after "stat." in " stat., , - " and removed question mark in "grand depository of the democratic principle"? footnote --changed comma after "dall" to period--"hollingsworth v. virginia, dall, ( )." footnote --removed comma after "ball" footnote --removed period after "at" in " u.s. at ." footnote --inserted hyphen in "cooperative" in "united states v. rock royal cooperative" footnote --removed comma after "inc." in "eastern air transport, inc. v. south carolina tax comm'n." footnote --added space between "air" and "transport" footnote --corrected spelling of "colleced" to "collected" footnote --added space between "di" and "santo" footnote --corrected "j.r." to "l.r." in "hannibal & st. j.r. co. v. husen" footnote --removed period after "elg" in "perkins v. elg." footnote --removed comma in " , u.s. " footnote --added period after "wall" in "eunson v. dodge, wall. , " footnote --in justice bradley quote, moved ending quotation mark after "... made in good faith." footnote --corrected spelling of "bleisten" to "bleistein" in "bleisten v. donaldson lithographing co." footnote --removed period after "bas" in "bas. v. tingy" footnote --changed comma to period after "wall" in "miller v. united states, wall. ( )." footnote --corrected "sere" to "serè" in "sere v. pitot" footnote --corrected spelling of "diety" to "deity" in "... principle which will impose laws even on the diety...." footnote --corrected "cf," to "cf." article ii page --corrected spelling of "soverign" to "sovereign" page --changed "they" to "the" in "... by the settlement the effect of these cease <i>ipso facto</i> to be operative...." page --added comma after "sell" in "... sell, transfer title to, exchange, lease, lend, or otherwise dispose of...." page --added comma after "governments" in "... claims against foreign governments, fourteen were claims...." page --removed extraneous "to" in "... assume a fact in regard to to the sovereignty...." page --removed " after "action" in "... successful defense of the president's action,"...." page --removed comma after "u.s." in " u.s., , " and removed comma after "wheat." in " wheat., , " page --corrected alexander hamilton quote from federalist no. by changing "a" to "in" in "... as in common cases serve to limit...." footnote --corrected spelling of "kahanomoku" to "kahanamoku" in "duncan v. kahanomoku" footnote --added period after "h" in "w.h. humbert" footnote --corrected spelling of "forefeiture" to "forfeiture" and corrected "he" to "be" in "... he the subject matter what it may...." footnote --changed comma to period in " wall. " footnote --corrected "procedents" to "precedents" footnote --removed apostrophe after "states" in "... power can consent to the united states being used...." footnote --added period after "senate" footnote --added missing words [clerical superiors shall receive any gift or] in brackets footnote --added comma after "vi" footnote --removed comma after "s.a." in "compania espanola de navegacion maritima, s.a.," footnote --corrected spelling of "dairy" to "diary" article iii page --corrected spelling of "sutained" to "sustained" page --added space between "any" and "one" page --removed comma after "revenue" in "o'malley, collector of internal revenue <i>v.</i> woodrough" page --added closing quotation mark before footnote anchor page --removed extraneous quotation mark before footnote anchor page --corrected spelling of "constitionality" to "constitutionality" page --changed first "as" to "an" in "although as officer acting as a public...." page --changed "is" to "it" in "... where is was held...." page --corrected spelling of "longr" to "longer" page --changed "where" to "were" in "... and other states where so disturbed that...." page --corrected spelling of "consquently" to "consequently" page --added closing quotation mark after "clause ." footnote --added period after "how" footnote --added period at end of sentence footnote --removed comma after " " in "united states v. butler, , u.s. , - ( )" footnote --changed comma to semi-colon after "( )" footnote --moved comma from after " " to after "texas" in "united states v. texas , u.s. ( )" footnote --added word "to" in "... was held not [to] be a suit...." footnote --corrected reference from "wheat. ( )" to " wheat. ( )" footnote --changed comma to period in " stat, ( )" footnote --added semi-colon after "( )" footnote --changed semi-colon to comma in " fed. cas. nos. , ; , ( , )", added opening parenthesis before " " in " fed. cas. no. , )" article iv page --added period after "etc" page --corrected "static relations" to "state's relations" page --corrected spelling of "fulfilment" to "fulfillment" page --changed "where" to "were" in "where the company's contention accepted...." page --corrected spelling of "souse" to "house" in "slaughter-souse cases footnote --changed comma to period after "brock" footnote --changed period to comma after " " in "... u.s. . he would prefer...." footnote --corrected spelling of "fedual" to "federal" footnote --corrected "n.o.r.r." to "n.o.r." in "texas & n.o.r.r. co. v. miller" footnote --corrected spelling of "pawloske" to pawloski" in "hess v. pawloske" footnote --corrected "cf" to "cf." article v page --changed "... quorum--, and not ..." to "... quorum--and not ..." page --corrected spelling of "inamsuch" to "inasmuch" aricle vi page --added period after "etc" page --corrected spelling of "nul" to "null" page --corrected spelling of "funtions" to "functions" page --corrected spelling of "pinckeney" to "pinckney" footnote --corrected case citation from "wheat. " to " wheat. " footnote --changed comma to period in " wheat, ( )" article vii page --added opening quotation marks to paragraphs beginning "art. ", "art. ", "art. ", and "art. " bill of rights footnote --added period after "cit" in "op. cit" amendment page --added period at end of "hague v. c.i.o" page --corrected spelling of "calvanist" to "calvinist" page --corrected "i" to " " in "i tuck. bl. com." page --changed ending double quotation mark to single in 'released time," page --removed comma after "dallas" in " dallas, , " page --corrected spelling of "anouncements" to "announcements" page --corrected spelling of "forbiding" to "forbidding" page --removed period after "et" in "et. al." page --corrected spelling of "verthrowing" to "overthrowing" page --corrected spelling of "docrine" to "doctrine" page --corrected spelling of "trivalities" to "trivialities" page --inserted "of" into the phrase "in any accurate meaning of these words" footnote --corrected spelling of "morace mann" to "horace mann" footnote --changed comma to period after "comm'n" in "communications comm'n, v. n.b.c." and added comma after n.b.c. footnote --corrected spelling of "terminello" to "terminiello" in "terminello v. chicago" amendment page --corrected spelling of "procedings" to "proceedings" page --inserted "than" after "other" in "... if it is unreasonable on grounds other self incrimination...." amendment page --corrected spelling of "defendent" to "defendant" page --removed hyphen in "accusare-seipsum" page --removed period after "wjr" page --corrected spelling of "ailen" to "alien" page --corrected spelling of "benefitted" to "benefited" footnote --added hyphen in "cooperative" in "united states v. rock royal cooperative" footnote --corrected spelling of "idid." to "ibid." footnote --corrected spelling of "addystone" to "addyston" in "addystone pipe and steel co. v. united states" footnote --added hyphen in "cooperative" in "united states v. rock royal cooperative" footnote --removed comma after " " in " , u.s. ( )" footnote --corrected spelling of "untermyer" to "untermeyer" footnote --added comma after "u.s." in "brown v. u.s. cr. ( )" amendment page --corrected spelling of "willfullness" to "willfulness" page --corrected spelling of "poltical" to "political" amendment page --removed extraneous "had" in "... it was held that a trial court had had the right...." amendment page --removed semi-colon in "who are to be the judges?;" footnote --corrected "usca" to "u.s.c.a." amendment page --corrected "article " to "amendment " page --corrected spelling of "legislaion" to "legislation" footnote --corrected case citation from "wheat. ( )" to " wheat. ( )" footnote --corrected case citation for "pennoyer v. mcconnaughy" from " u.s. ( )" to " u.s. ( )" footnote --added period after "rel" in "ex rel" amendment page --corrected "undistinguishable" to "indistinguishable" amendment page --in ( ), added final period to "u.s.c.a." amendment page --corrected page number reference from " " to " " page --added period after "etc"--three occurrences on page page --added period after "etc"--two occurrences on page page --added period after "etc"--one occurrence on page page --corrected spelling of "willingess" to "willingness" page --added opening single quote before "the" in "... the furnishing of such necessary...." page --removed comma after "railroad" in "... provides that a railroad, shall be responsible...." page --corrected "it" to "its" in "... unable to recoup it original investment...." page --added comma after footnote anchor [ ], in "... statutes ordering the destruction of unsafe and unwholesome food[ ] prohibiting the sale...." page --changed "forbade" to "forbid" in "... to forbade the sale of drugs by itinerant vendors...." page --in ( ), changed "later" to "latter" in "... protected by the later and subject to its jurisdiction." page --corrected spelling of "coporations" to "corporations" page --changed "than" to "that" in "... opportunity to submit evidence and arguments being all than can be adjudged vital...." page --corrected spelling of "determintion" to "determination" page --changed comma to period after "state" in "... the constitutional rights of the states," page --corrected spelling of "consitutionally" to "constitutionally" page --added period after "rel" in "... in louisiana ex rel francis" page --corrected spelling of "arbitary" to "arbitrary" footnote --added hyphen in "coop." in "warehouse co. v. burley tobacco growers' coop. marketing asso." footnote --removed comma after "cr." in " cr., , ( )" footnote --removed period after "board" in "national labor relations board. v. jones & laughlin" footnote --corrected spelling of "schimdinger" to "schmidinger" in "schimdinger v. chicago" footnote --removed "in" in "... and intimidations of in injury to future patrons...." footnote --corrected spelling of "revelant" to "relevant" footnote --changed period to comma after "( )" footnote --added period after "rel" in "ex rel" footnote --changed comma to period in " wheat, , ( )" footnote --removed unmatched quotation mark footnote --removed comma in " , wall. ( )" footnote --corrected spelling of "millikin" to "milliken" in "millikin v. meyer" footnote --corrected spelling of "pawlocki" to pawloski" in "hess v. pawlocki" footnote --corrected spelling of "untrammelled" to "untrammeled" footnote --changed comma to period in "wllson v. north carolina ex rel, caldwell" and corrected spelling to "wilson" footnote --removed comma in " , u.s. ( )" footnote --inserted comma after "york" in "moore v. new york u.s. , - ( )" footnote --corrected "section i" to "section " footnote --corrected spelling of "holahan" to "holohan" in "mooney v. holahan" footnote --corrected spelling of "habeus" to "habeas" footnote --added closing quotation mark after "invasion." footnote --corrected spelling of "gurantees" to "guarantees" footnote --corrected "q.r.r." to "q.r." in "chicago, b. & q.r.r. co. v. iowa" footnote --corrected "exexempted" to "exempted" footnote --changed comma to semi-colon before "oleomargarine" footnote --corrected spelling of "atchinson" to "atchison" in "atchinson, t. & s.f.r. co. v. matthews" amendment page --added period after "etc" amendment page --changed comma to period after " " in "august , ," acts held unconstitutional page --corrected spelling of "reichart" to "reichert" in "reichart v. felps" page --corrected spelling of "waranted" to "warranted" page --changed " " to "i" in "article , section , clause " page --in ., removed comma after "collector" in "nichols, collector, v. coolidge et al." page --in ., corrected "article i, section , clause " to "article i, section , clause " table of cases page --removed comma after in "addyston pipe & steel co. v. united states, , u.s. ( )" page --added period after "al" in "et al" page --removed period after "ex" in "ashe v. united states ex. rel. valotta" page --added period after "s" in " u.s " page --corrected spelling of "perovick" to "perovich" in "biddle v. perovick" page --removed comma after " " in " u.s. , ( )" page --removed comma after "co." in "brown v. western ry. co., of alabama" page --corrected spelling of "whitten" to "whitton" in "chicago & northwestern r. co. v. whitten" page --removed comma after "r." in "columbia r., gas & e. co. v. south carolina" page --added period after "pick" in " pick (mass.) ( )" page --corrected spelling of "spratly" to "spratley" in "connecticut mut. ins. co. v. spratly" page --corrected spelling of "kahanomoku" to "kahanamoku" page --removed comma after " " in " , u.s. ( )" page --removed hyphen in "holyoke water-power co. v. lyman" page --removed comma after "bay" in "kaukauna water power co. v. green bay, & m. canal co." page --corrected spelling of "morses" to "morss" in "knapp v. morses" page --removed period after "ex" in "lake erie & w.r. co. v. state public utilities comm. ex. rel. cameron" page --changed comma to period after "wall" in "mccardle, ex parte, wall, ( )" page --corrected spelling of "mccullock" to "mcculloch" in "mccullock v. maryland" page --added comma after "missouri" in "missouri k. & t.r. co. v. cade" page --added "bank," after "merchants'" in "new jersey steam nav. co. v. merchants' how. ( )" page --corrected spelling of "hildebrandt" to "hildebrant" in "ohio ex rel. davis <i>v.</i> hildebrandt" page --removed period after "elg" in "perkins v. elg." page --corrected "o.r.r." to "o.r." in "randall v. baltimore & o.r.r. co." page --added closing parenthesis after "( )" in "(humphrey v. united states, u.s. ( )" page --corrected "nlrb" to "n.l.r.b." page --removed comma after "sharp" in "sharp, v. united states" page --removed period after "bank" in "shriver v. woodbine sav. bank." page --corrected spelling of "galatin" to "gallatin" in "sinking fund cases (central p.r. co. v. galatin ... )" page --corrected spelling of "stevans" to "stevens" in "stevans v. gladding" page --added period after "rel" in "stone v. mississippi ex rel harris" page --corrected spelling of "crowinshield" to "crowninshield" in "sturges v. crowinshield" page --ordered page numbers in numerical order in "united states v. classic" page --added hyphen in "cooperative" in "united states v. rock royal cooperative" page --removed comma after " " in " , u.s. ( )" page --corrected punctuation in "chicago, b. & q. rr. co." to chicago, b. & q.r.r. co." index pages - --in index, added periods after "etc" where missing page --added period after "etc" in "state, procedural due process, notice and hearing, etc" page --changed comma to semi-colon in "coins and coinage. see counterfeiting, money." page --changed " - " to " , " in "indian tribes, not foreign state for jurisdictional purposes, - " page --added closing parenthesis after "amendment" in "due process of law (fourteenth amendment" page --changed commas to semi-colons in "health (see also drugs, food, garbage, milk, sewers, water)" page --changed nd "process" to "power" in "legislative process. see congress; internal organization; legislative process" page --changed comma to semi-colon in "mob violence. see confrontation; domestic violence, due process of law." page --changed hyphen to colon in "municipal corporations. see states-political subdivisions" this is the project gutenberg . release of the federalist papers federalist. no. general introduction for the independent journal. hamilton to the people of the state of new york: after an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new constitution for the united states of america. the subject speaks its own importance; comprehending in its consequences nothing less than the existence of the union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. it has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. if there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. this idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. but this is a thing more ardently to be wished than seriously to be expected. the plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth. among the most formidable of the obstacles which the new constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every state to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the state establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. it is not, however, my design to dwell upon observations of this nature. i am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable--the honest errors of minds led astray by preconceived jealousies and fears. so numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. this circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. and a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. for in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. heresies in either can rarely be cured by persecution. and yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. a torrent of angry and malignant passions will be let loose. to judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. an enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. an over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. it will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. on the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. history will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. in the course of the preceding observations, i have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. you will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new constitution. yes, my countrymen, i own to you that, after having given it an attentive consideration, i am clearly of opinion it is your interest to adopt it. i am convinced that this is the safest course for your liberty, your dignity, and your happiness. i affect not reserves which i do not feel. i will not amuse you with an appearance of deliberation when i have decided. i frankly acknowledge to you my convictions, and i will freely lay before you the reasons on which they are founded. the consciousness of good intentions disdains ambiguity. i shall not, however, multiply professions on this head. my motives must remain in the depository of my own breast. my arguments will be open to all, and may be judged of by all. they shall at least be offered in a spirit which will not disgrace the cause of truth. i propose, in a series of papers, to discuss the following interesting particulars: the utility of the union to your political prosperity the insufficiency of the present confederation to preserve that union the necessity of a government at least equally energetic with the one proposed, to the attainment of this object the conformity of the proposed constitution to the true principles of republican government its analogy to your own state constitution and lastly, the additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property. in the progress of this discussion i shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. it may perhaps be thought superfluous to offer arguments to prove the utility of the union, a point, no doubt, deeply engraved on the hearts of the great body of the people in every state, and one, which it may be imagined, has no adversaries. but the fact is, that we already hear it whispered in the private circles of those who oppose the new constitution, that the thirteen states are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole. this doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. for nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new constitution or a dismemberment of the union. it will therefore be of use to begin by examining the advantages of that union, the certain evils, and the probable dangers, to which every state will be exposed from its dissolution. this shall accordingly constitute the subject of my next address. publius. the same idea, tracing the arguments to their consequences, is held out in several of the late publications against the new constitution. federalist no. concerning dangers from foreign force and influence for the independent journal. jay to the people of the state of new york: when the people of america reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident. nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. it is well worthy of consideration therefore, whether it would conduce more to the interest of the people of america that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government. it has until lately been a received and uncontradicted opinion that the prosperity of the people of america depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. but politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the states into distinct confederacies or sovereignties. however extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy. it has often given me pleasure to observe that independent america was not composed of detached and distant territories, but that one connected, fertile, widespreading country was the portion of our western sons of liberty. providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. a succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities. with equal pleasure i have as often taken notice that providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. this country and this people seem to have been made for each other, and it appears as if it was the design of providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties. similar sentiments have hitherto prevailed among all orders and denominations of men among us. to all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. as a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. a strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. they formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and wellbalanced government for a free people. it is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer. this intelligent people perceived and regretted these defects. still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being pursuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at philadelphia, to take that important subject under consideration. this convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. in the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils. admit, for so is the fact, that this plan is only recommended, not imposed, yet let it be remembered that it is neither recommended to blind approbation, nor to blind reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. but this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. experience on a former occasion teaches us not to be too sanguine in such hopes. it is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of america to form the memorable congress of . that body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to pursuade the people to reject the advice of that patriotic congress. many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so. they considered that the congress was composed of many wise and experienced men. that, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. that, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. that they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable. these and similar considerations then induced the people to rely greatly on the judgment and integrity of the congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. but if the people at large had reason to confide in the men of that congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience. it is worthy of remark that not only the first, but every succeeding congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of america depended on its union. to preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. with what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the union? or why is it suggested that three or four confederacies would be better than one? i am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the union rests on great and weighty reasons, which i shall endeavor to develop and explain in some ensuing papers. they who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the union in the utmost jeopardy. that certainly would be the case, and i sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the union arrives, america will have reason to exclaim, in the words of the poet: "farewell! a long farewell to all my greatness." publius. federalist no. the same subject continued (concerning dangers from foreign force and influence) for the independent journal. jay to the people of the state of new york: it is not a new observation that the people of any country (if, like the americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. that consideration naturally tends to create great respect for the high opinion which the people of america have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes. the more attentively i consider and investigate the reasons which appear to have given birth to this opinion, the more i become convinced that they are cogent and conclusive. among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first. the safety of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively. at present i mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from foreign arms and influence, as from dangers of the like kind arising from domestic causes. as the former of these comes first in order, it is proper it should be the first discussed. let us therefore proceed to examine whether the people are not right in their opinion that a cordial union, under an efficient national government, affords them the best security that can be devised against hostilities from abroad. the number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether real or pretended, which provoke or invite them. if this remark be just, it becomes useful to inquire whether so many just causes of war are likely to be given by united america as by disunited america; for if it should turn out that united america will probably give the fewest, then it will follow that in this respect the union tends most to preserve the people in a state of peace with other nations. the just causes of war, for the most part, arise either from violation of treaties or from direct violence. america has already formed treaties with no less than six foreign nations, and all of them, except prussia, are maritime, and therefore able to annoy and injure us. she has also extensive commerce with portugal, spain, and britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to. it is of high importance to the peace of america that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate states or by three or four distinct confederacies. because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in state assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,--especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the states. hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual states, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us. because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,--whereas, adjudications on the same points and questions, in thirteen states, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. the wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended. because the prospect of present loss or advantage may often tempt the governing party in one or two states to swerve from good faith and justice; but those temptations, not reaching the other states, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. the case of the treaty of peace with britain adds great weight to this reasoning. because, even if the governing party in a state should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the state, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. but the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. so far, therefore, as either designed or accidental violations of treaties and the laws of nations afford just causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the safety of the people. as to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two states than of the union. not a single indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of indian hostilities having been provoked by the improper conduct of individual states, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants. the neighborhood of spanish and british territories, bordering on some states and not on others, naturally confines the causes of quarrel more immediately to the borderers. the bordering states, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested. but not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. they will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending state. the pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. the national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a state or confederacy of little consideration or power. in the year , the state of genoa having offended louis xiv., endeavored to appease him. he demanded that they should send their doge, or chief magistrate, accompanied by four of their senators, to france, to ask his pardon and receive his terms. they were obliged to submit to it for the sake of peace. would he on any occasion either have demanded or have received the like humiliation from spain, or britain, or any other powerful nation? publius. federalist no. the same subject continued (concerning dangers from foreign force and influence) for the independent journal. jay to the people of the state of new york: my last paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by just causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the state governments or the proposed little confederacies. but the safety of the people of america against dangers from foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed that there are pretended as well as just causes of war. it is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. these and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. but, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances. with france and with britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. with them and with most other european nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it. in the trade to china and india, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. the extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns. spain thinks it convenient to shut the mississippi against us on the one side, and britain excludes us from the saint lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. from these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure. the people of america are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. wisely, therefore, do they consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it. that situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country. as the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever. one government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the union they may be found. it can move on uniform principles of policy. it can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. in the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. it can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than state governments or separate confederacies can possibly do, for want of concert and unity of system. it can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the chief magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies. what would the militia of britain be if the english militia obeyed the government of england, if the scotch militia obeyed the government of scotland, and if the welsh militia obeyed the government of wales? suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of great britain would? we have heard much of the fleets of britain, and the time may come, if we are wise, when the fleets of america may engage attention. but if one national government, had not so regulated the navigation of britain as to make it a nursery for seamen--if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. let england have its navigation and fleet--let scotland have its navigation and fleet--let wales have its navigation and fleet--let ireland have its navigation and fleet--let those four of the constituent parts of the british empire be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance. apply these facts to our own case. leave america divided into thirteen or, if you please, into three or four independent governments--what armies could they raise and pay--what fleets could they ever hope to have? if one was attacked, would the others fly to its succor, and spend their blood and money in its defense? would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? although such conduct would not be wise, it would, nevertheless, be natural. the history of the states of greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. but admit that they might be willing to help the invaded state or confederacy. how, and when, and in what proportion shall aids of men and money be afforded? who shall command the allied armies, and from which of them shall he receive his orders? who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people. but whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. if they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. if, on the other hand, they find us either destitute of an effectual government (each state doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to britain, another to france, and a third to spain, and perhaps played off against each other by the three, what a poor, pitiful figure will america make in their eyes! how liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves. publius. federalist no. the same subject continued (concerning dangers from foreign force and influence) for the independent journal. jay to the people of the state of new york: queen anne, in her letter of the st july, , to the scotch parliament, makes some observations on the importance of the union then forming between england and scotland, which merit our attention. i shall present the public with one or two extracts from it: "an entire and perfect union will be the solid foundation of lasting peace: it will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. it must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be enabled to resist all its enemies." "we most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only effectual way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, use their utmost endeavors to prevent or delay this union." it was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. this subject is copious and cannot easily be exhausted. the history of great britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. we may profit by their experience without paying the price which it cost them. although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. should the people of america divide themselves into three or four nations, would not the same thing happen? would not similar jealousies arise, and be in like manner cherished? instead of their being "joined in affection" and free from all apprehension of different "interests," envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all america, would be the only objects of their policy and pursuits. hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them. the most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. for it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years. whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. much time would not be necessary to enable her to discern these unfriendly dispositions. she would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. the north is generally the region of strength, and many local circumstances render it probable that the most northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. no sooner would this become evident than the northern hive would excite the same ideas and sensations in the more southern parts of america which it formerly did in the southern parts of europe. nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. they who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., formidable only to each other. from these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies. when did the independent states, into which britain and spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? the proposed confederacies will be distinct nations. each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. hence it might and probably would happen that the foreign nation with whom the southern confederacy might be at war would be the one with whom the northern confederacy would be the most desirous of preserving peace and friendship. an alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith. nay, it is far more probable that in america, as in europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. considering our distance from europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. and here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. how many conquests did the romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect. let candid men judge, then, whether the division of america into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations. publius. federalist no. concerning dangers from dissensions between the states for the independent journal. hamilton to the people of the state of new york: the three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. i shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind--those which will in all probability flow from dissensions between the states themselves, and from domestic factions and convulsions. these have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation. a man must be far gone in utopian speculations who can seriously doubt that, if these states should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. to presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. to look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. the causes of hostility among nations are innumerable. there are some which have a general and almost constant operation upon the collective bodies of society. of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety. there are others which have a more circumscribed though an equally operative influence within their spheres. such are the rivalships and competitions of commerce between commercial nations. and there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification. the celebrated pericles, in compliance with the resentment of a prostitute, at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the samnians. the same man, stimulated by private pique against the megarensians, another nation of greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary phidias, or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity, or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the grecian annals by the name of the peloponnesian war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the athenian commonwealth. the ambitious cardinal, who was prime minister to henry viii., permitting his vanity to aspire to the triple crown, entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the emperor charles v. to secure the favor and interest of this enterprising and powerful monarch, he precipitated england into a war with france, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of europe in general. for if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the emperor charles v., of whose intrigues wolsey was at once the instrument and the dupe. the influence which the bigotry of one female, the petulance of another, and the cabals of a third, had in the contemporary policy, ferments, and pacifications, of a considerable part of europe, are topics that have been too often descanted upon not to be generally known. to multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. if shays had not been a desperate debtor, it is much to be doubted whether massachusetts would have been plunged into a civil war. but notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the states, though dismembered and alienated from each other. the genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. they will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord. is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? if this be their true interest, have they in fact pursued it? has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? have republics in practice been less addicted to war than monarchies? are not the former administered by men as well as the latter? are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? has commerce hitherto done anything more than change the objects of war? is not the love of wealth as domineering and enterprising a passion as that of power or glory? have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. sparta, athens, rome, and carthage were all republics; two of them, athens and carthage, of the commercial kind. yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. sparta was little better than a wellregulated camp; and rome was never sated of carnage and conquest. carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. hannibal had carried her arms into the heart of italy and to the gates of rome, before scipio, in turn, gave him an overthrow in the territories of carthage, and made a conquest of the commonwealth. venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other italian states, pope julius ii. found means to accomplish that formidable league, which gave a deadly blow to the power and pride of this haughty republic. the provinces of holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of europe. they had furious contests with england for the dominion of the sea, and were among the most persevering and most implacable of the opponents of louis xiv. in the government of britain the representatives of the people compose one branch of the national legislature. commerce has been for ages the predominant pursuit of that country. few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people. there have been, if i may so express it, almost as many popular as royal wars. the cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the state. in that memorable struggle for superiority between the rival houses of austria and bourbon, which so long kept europe in a flame, it is well known that the antipathies of the english against the french, seconding the ambition, or rather the avarice, of a favorite leader, protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. the wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,--the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation. from this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue? let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the state of north carolina, the late menacing disturbances in pennsylvania, and the actual insurrections and rebellions in massachusetts, declare--! so far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the states, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. an intelligent writer expresses himself on this subject to this effect: "neighboring nations (says he) are naturally enemies of each other unless their common weakness forces them to league in a confederate republic, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors." this passage, at the same time, points out the evil and suggests the remedy. publius. aspasia, vide "plutarch's life of pericles." ibid. ibid. ] ibid. phidias was supposed to have stolen some public gold, with the connivance of pericles, for the embellishment of the statue of minerva. p worn by the popes. madame de maintenon. duchess of marlborough. madame de pompadour. the league of cambray, comprehending the emperor, the king of france, the king of aragon, and most of the italian princes and states. the duke of marlborough. vide "principes des negociations" par l'abbe de mably. federalist. no. the same subject continued (concerning dangers from dissensions between the states) for the independent journal. hamilton to the people of the state of new york: it is sometimes asked, with an air of seeming triumph, what inducements could the states have, if disunited, to make war upon each other? it would be a full answer to this question to say--precisely the same inducements which have, at different times, deluged in blood all the nations in the world. but, unfortunately for us, the question admits of a more particular answer. there are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed. territorial disputes have at all times been found one of the most fertile sources of hostility among nations. perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. this cause would exist among us in full force. we have a vast tract of unsettled territory within the boundaries of the united states. there still are discordant and undecided claims between several of them, and the dissolution of the union would lay a foundation for similar claims between them all. it is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the revolution, and which usually went under the name of crown lands. the states within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the union; especially as to all that part of the western territory which, either by actual possession, or through the submission of the indian proprietors, was subjected to the jurisdiction of the king of great britain, till it was relinquished in the treaty of peace. this, it has been said, was at all events an acquisition to the confederacy by compact with a foreign power. it has been the prudent policy of congress to appease this controversy, by prevailing upon the states to make cessions to the united states for the benefit of the whole. this has been so far accomplished as, under a continuation of the union, to afford a decided prospect of an amicable termination of the dispute. a dismemberment of the confederacy, however, would revive this dispute, and would create others on the same subject. at present, a large part of the vacant western territory is, by cession at least, if not by any anterior right, the common property of the union. if that were at an end, the states which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. the other states would no doubt insist on a proportion, by right of representation. their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the confederacy, remained undiminished. if, contrary to probability, it should be admitted by all the states, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. different principles would be set up by different states for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment. in the wide field of western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. to reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. the circumstances of the dispute between connecticut and pennsylvania, respecting the land at wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. the articles of confederation obliged the parties to submit the matter to the decision of a federal court. the submission was made, and the court decided in favor of pennsylvania. but connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. nothing here said is intended to convey the slightest censure on the conduct of that state. she no doubt sincerely believed herself to have been injured by the decision; and states, like individuals, acquiesce with great reluctance in determinations to their disadvantage. those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this state and the district of vermont, can vouch the opposition we experienced, as well from states not interested as from those which were interested in the claim; and can attest the danger to which the peace of the confederacy might have been exposed, had this state attempted to assert its rights by force. two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring states, who had obtained grants of lands under the actual government of that district. even the states which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this state, than to establish their own pretensions. these were new hampshire, massachusetts, and connecticut. new jersey and rhode island, upon all occasions, discovered a warm zeal for the independence of vermont; and maryland, till alarmed by the appearance of a connection between canada and that state, entered deeply into the same views. these being small states, saw with an unfriendly eye the perspective of our growing greatness. in a review of these transactions we may trace some of the causes which would be likely to embroil the states with each other, if it should be their unpropitious destiny to become disunited. the competitions of commerce would be another fruitful source of contention. the states less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. each state, or separate confederacy, would pursue a system of commercial policy peculiar to itself. this would occasion distinctions, preferences, and exclusions, which would beget discontent. the habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. we should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest. the spirit of enterprise, which characterizes the commercial part of america, has left no occasion of displaying itself unimproved. it is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular states might endeavor to secure exclusive benefits to their own citizens. the infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. the opportunities which some states would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary states. the relative situation of new york, connecticut, and new jersey would afford an example of this kind. new york, from the necessities of revenue, must lay duties on her importations. a great part of these duties must be paid by the inhabitants of the two other states in the capacity of consumers of what we import. new york would neither be willing nor able to forego this advantage. her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. would connecticut and new jersey long submit to be taxed by new york for her exclusive benefit? should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? should we be able to preserve it against the incumbent weight of connecticut on the one side, and the co-operating pressure of new jersey on the other? these are questions that temerity alone will answer in the affirmative. the public debt of the union would be a further cause of collision between the separate states or confederacies. the apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. how would it be possible to agree upon a rule of apportionment satisfactory to all? there is scarcely any that can be proposed which is entirely free from real objections. these, as usual, would be exaggerated by the adverse interest of the parties. there are even dissimilar views among the states as to the general principle of discharging the public debt. some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. these would be inclined to magnify the difficulties of a distribution. others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the state in the total amount of the national debt, would be strenuous for some equitable and effective provision. the procrastinations of the former would excite the resentments of the latter. the settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. the citizens of the states interested would clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the states would be hazarded to the double contingency of external invasion and internal contention. suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some states than upon others. those which were sufferers by it would naturally seek for a mitigation of the burden. the others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. their refusal would be too plausible a pretext to the complaining states to withhold their contributions, not to be embraced with avidity; and the non-compliance of these states with their engagements would be a ground of bitter discussion and altercation. if even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the states would result from a diversity of other causes--the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. there is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. for it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money. laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them, may be considered as another probable source of hostility. we are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual states hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. we have observed the disposition to retaliation excited in connecticut in consequence of the enormities perpetrated by the legislature of rhode island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of parchment, but of the sword, would chastise such atrocious breaches of moral obligation and social justice. the probability of incompatible alliances between the different states or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. from the view they have exhibited of this part of the subject, this conclusion is to be drawn, that america, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of european politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. divide et impera must be the motto of every nation that either hates or fears us. publius. divide and command. in order that the whole subject of these papers may as soon as possible be laid before the public, it is proposed to publish them four times a week--on tuesday in the new york packet and on thursday in the daily advertiser. federalist no. the consequences of hostilities between the states from the new york packet. tuesday, november , . hamilton to the people of the state of new york: assuming it therefore as an established truth that the several states, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation. war between the states, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. the disciplined armies always kept on foot on the continent of europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. the art of fortification has contributed to the same ends. the nations of europe are encircled with chains of fortified places, which mutually obstruct invasion. campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's country. similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. the history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition. in this country the scene would be altogether reversed. the jealousy of military establishments would postpone them as long as possible. the want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. the populous states would, with little difficulty, overrun their less populous neighbors. conquests would be as easy to be made as difficult to be retained. war, therefore, would be desultory and predatory. plunder and devastation ever march in the train of irregulars. the calamities of individuals would make the principal figure in the events which would characterize our military exploits. this picture is not too highly wrought; though, i confess, it would not long remain a just one. safety from external danger is the most powerful director of national conduct. even the ardent love of liberty will, after a time, give way to its dictates. the violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. to be more safe, they at length become willing to run the risk of being less free. the institutions chiefly alluded to are standing armies and the correspondent appendages of military establishments. standing armies, it is said, are not provided against in the new constitution; and it is therefore inferred that they may exist under it. their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. but standing armies, it may be replied, must inevitably result from a dissolution of the confederacy. frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. the weaker states or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. they would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. they would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. it is of the nature of war to increase the executive at the expense of the legislative authority. the expedients which have been mentioned would soon give the states or confederacies that made use of them a superiority over their neighbors. small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. neither the pride nor the safety of the more important states or confederacies would permit them long to submit to this mortifying and adventitious superiority. they would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the old world. this, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard. these are not vague inferences drawn from supposed or speculative defects in a constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. it may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of greece? different answers, equally satisfactory, may be given to this question. the industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. the means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility. there is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. the rulers of the former can have a good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. these armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. the laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. the smallness of the army renders the natural strength of the community an over-match for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. the army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people. in a country in the predicament last described, the contrary of all this happens. the perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. the continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. the military state becomes elevated above the civil. the inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. the transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. the kingdom of great britain falls within the first description. an insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. a sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. no motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. there has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. this peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. if, on the contrary, britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. 't is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom. if we are wise enough to preserve the union we may for ages enjoy an advantage similar to that of an insulated situation. europe is at a great distance from us. her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. extensive military establishments cannot, in this position, be necessary to our security. but if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of europe --our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other. this is an idea not superficial or futile, but solid and weighty. it deserves the most serious and mature consideration of every prudent and honest man of whatever party. if such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a constitution, the rejection of which would in all probability put a final period to the union. the airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable. publius. this objection will be fully examined in its proper place, and it will be shown that the only natural precaution which could have been taken on this subject has been taken; and a much better one than is to be found in any constitution that has been heretofore framed in america, most of which contain no guard at all on this subject. federalist no. the union as a safeguard against domestic faction and insurrection for the independent journal. hamilton to the people of the state of new york: a firm union will be of the utmost moment to the peace and liberty of the states, as a barrier against domestic faction and insurrection. it is impossible to read the history of the petty republics of greece and italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. if they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. if now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. if momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated. from the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. they have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. and, i trust, america will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors. but it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. if it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. the science of politics, however, like most other sciences, has received great improvement. the efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. the regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. they are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. to this catalogue of circumstances that tend to the amelioration of popular systems of civil government, i shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new constitution; i mean the enlargement of the orbit within which such systems are to revolve, either in respect to the dimensions of a single state or to the consolidation of several smaller states into one great confederacy. the latter is that which immediately concerns the object under consideration. it will, however, be of use to examine the principle in its application to a single state, which shall be attended to in another place. the utility of a confederacy, as well to suppress faction and to guard the internal tranquillity of states, as to increase their external force and security, is in reality not a new idea. it has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. the opponents of the plan proposed have, with great assiduity, cited and circulated the observations of montesquieu on the necessity of a contracted territory for a republican government. but they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. when montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these states. neither virginia, massachusetts, pennsylvania, new york, north carolina, nor georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. if we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger states as a desirable thing. such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of america. referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the size of the more considerable members of the union, but would not militate against their being all comprehended in one confederate government. and this is the true question, in the discussion of which we are at present interested. so far are the suggestions of montesquieu from standing in opposition to a general union of the states, that he explicitly treats of a confederate republic as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism. "it is very probable," (says he ) "that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. i mean a confederate republic. "this form of government is a convention by which several smaller states agree to become members of a larger one, which they intend to form. it is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body. "a republic of this kind, able to withstand an external force, may support itself without any internal corruptions. the form of this society prevents all manner of inconveniences. "if a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. were he to have too great influence over one, this would alarm the rest. were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation. "should a popular insurrection happen in one of the confederate states the others are able to quell it. should abuses creep into one part, they are reformed by those that remain sound. the state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty. "as this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies." i have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. they have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the union to repress domestic faction and insurrection. a distinction, more subtle than accurate, has been raised between a confederacy and a consolidation of the states. the essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. it is contended that the national council ought to have no concern with any object of internal administration. an exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. these positions are, in the main, arbitrary; they are supported neither by principle nor precedent. it has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. and it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government. the definition of a confederate republic seems simply to be "an assemblage of societies," or an association of two or more states into one state. the extent, modifications, and objects of the federal authority are mere matters of discretion. so long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. the proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the senate, and leaves in their possession certain exclusive and very important portions of sovereign power. this fully corresponds, in every rational import of the terms, with the idea of a federal government. in the lycian confederacy, which consisted of twenty-three cities or republics, the largest were entitled to three votes in the common council, those of the middle class to two, and the smallest to one. the common council had the appointment of all the judges and magistrates of the respective cities. this was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. yet montesquieu, speaking of this association, says: "were i to give a model of an excellent confederate republic, it would be that of lycia." thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory. publius. "spirit of lawa," vol. i., book ix., chap. i. federalist no. the same subject continued (the union as a safeguard against domestic faction and insurrection) from the new york packet. friday, november , . madison to the people of the state of new york: among the numerous advantages promised by a wellconstructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. the friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. he will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. the instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. the valuable improvements made by the american constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. however anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. it will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. these must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. by a faction, i understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. there are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. there are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. it could never be more truly said than of the first remedy, that it was worse than the disease. liberty is to faction what air is to fire, an aliment without which it instantly expires. but it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. the second expedient is as impracticable as the first would be unwise. as long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. as long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. the diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. the protection of these faculties is the first object of government. from the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties. the latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. a zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. so strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. but the most common and durable source of factions has been the various and unequal distribution of property. those who hold and those who are without property have ever formed distinct interests in society. those who are creditors, and those who are debtors, fall under a like discrimination. a landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. the regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. with equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? and what are the different classes of legislators but advocates and parties to the causes which they determine? is a law proposed concerning private debts? it is a question to which the creditors are parties on one side and the debtors on the other. justice ought to hold the balance between them. yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. the apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. every shilling with which they overburden the inferior number, is a shilling saved to their own pockets. it is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. enlightened statesmen will not always be at the helm. nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. the inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects. if a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. it may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the constitution. when a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. by what means is this object attainable? evidently by one of two only. either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. if the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. they are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. from this view of the subject it may be concluded that a pure democracy, by which i mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. a common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. a republic, by which i mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the union. the two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. the effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. on the other hand, the effect may be inverted. men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. the question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations: in the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. in the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters. it must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. by enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. the federal constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the state legislatures. the other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. the smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the union over the states composing it. does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? it will not be denied that the representation of the union will be most likely to possess these requisite endowments. does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? in an equal degree does the increased variety of parties comprised within the union, increase this security. does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? here, again, the extent of the union gives it the most palpable advantage. the influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states. a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state. in the extent and proper structure of the union, therefore, we behold a republican remedy for the diseases most incident to republican government. and according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of federalists. publius. federalist no. the utility of the union in respect to commercial relations and a navy for the independent journal. hamilton to the people of the state of new york: the importance of the union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. this applies as well to our intercourse with foreign countries as with each other. there are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of america, has already excited uneasy sensations in several of the maritime powers of europe. they seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. those of them which have colonies in america look forward to what this country is capable of becoming, with painful solicitude. they foresee the dangers that may threaten their american dominions from the neighborhood of states, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an active commerce in our own bottoms. this would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers. if we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. by prohibitory regulations, extending, at the same time, throughout the states, we may oblige foreign countries to bid against each other, for the privileges of our markets. this assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people--increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so--to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from america, in the ships of another country. suppose, for instance, we had a government in america, capable of excluding great britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? when these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. it has been said that prohibitions on our part would produce no change in the system of britain, because she could prosecute her trade with us through the medium of the dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. but would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? would not the principal part of its profits be intercepted by the dutch, as a compensation for their agency and risk? would not the mere circumstance of freight occasion a considerable deduction? would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of british commodities in our markets, and by transferring to other hands the management of this interesting branch of the british commerce? a mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the american trade, and with the importunities of the west india islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. such a point gained from the british government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade. a further resource for influencing the conduct of european nations toward us, in this respect, would arise from the establishment of a federal navy. there can be no doubt that the continuance of the union under an efficient government would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. this would be more peculiarly the case in relation to operations in the west indies. a few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. our position is, in this respect, a most commanding one. and if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the west indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. a price would be set not only upon our friendship, but upon our neutrality. by a steady adherence to the union we may hope, erelong, to become the arbiter of europe in america, and to be able to incline the balance of european competitions in this part of the world as our interest may dictate. but in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. in a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. the rights of neutrality will only be respected when they are defended by an adequate power. a nation, despicable by its weakness, forfeits even the privilege of being neutral. under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of european jealousy to restrain our growth. this situation would even take away the motive to such combinations, by inducing an impracticability of success. an active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. we might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature. but in a state of disunion, these combinations might exist and might operate with success. it would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a passive commerce. we should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. that unequaled spirit of enterprise, which signalizes the genius of the american merchants and navigators, and which is in itself an inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world. there are rights of great moment to the trade of america which are rights of the union--i allude to the fisheries, to the navigation of the western lakes, and to that of the mississippi. the dissolution of the confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. the disposition of spain with regard to the mississippi needs no comment. france and britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. they, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. what more natural than that they should be disposed to exclude from the lists such dangerous competitors? this branch of trade ought not to be considered as a partial benefit. all the navigating states may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. as a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several states, will become, a universal resource. to the establishment of a navy, it must be indispensable. to this great national object, a navy, union will contribute in various ways. every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. a navy of the united states, as it would embrace the resources of all, is an object far less remote than a navy of any single state or partial confederacy, which would only embrace the resources of a single part. it happens, indeed, that different portions of confederated america possess each some peculiar advantage for this essential establishment. the more southern states furnish in greater abundance certain kinds of naval stores--tar, pitch, and turpentine. their wood for the construction of ships is also of a more solid and lasting texture. the difference in the duration of the ships of which the navy might be composed, if chiefly constructed of southern wood, would be of signal importance, either in the view of naval strength or of national economy. some of the southern and of the middle states yield a greater plenty of iron, and of better quality. seamen must chiefly be drawn from the northern hive. the necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy. an unrestrained intercourse between the states themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. the veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. commercial enterprise will have much greater scope, from the diversity in the productions of different states. when the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. the variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. it can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctations of markets. particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. the speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the united states would bid fair to be much more favorable than that of the thirteen states without union or with partial unions. it may perhaps be replied to this, that whether the states are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. a unity of commercial, as well as political, interests, can only result from a unity of government. there are other points of view in which this subject might be placed, of a striking and animating kind. but they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. i shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of american affairs. the world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. unhappily for the other three, europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. africa, asia, and america, have successively felt her domination. the superiority she has long maintained has tempted her to plume herself as the mistress of the world, and to consider the rest of mankind as created for her benefit. men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in america--that even dogs cease to bark after having breathed awhile in our atmosphere. facts have too long supported these arrogant pretensions of the europeans. it belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. union will enable us to do it. disunion will will add another victim to his triumphs. let americans disdain to be the instruments of european greatness! let the thirteen states, bound together in a strict and indissoluble union, concur in erecting one great american system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world! publius. "recherches philosophiques sur les americains." federalist no. the utility of the union in respect to revenue from the new york packet. tuesday, november , . hamilton to the people of the state of new york: the effects of union upon the commercial prosperity of the states have been sufficiently delineated. its tendency to promote the interests of revenue will be the subject of our present inquiry. the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. by multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. the assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,--all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. the often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. it has been found in various countries that, in proportion as commerce has flourished, land has risen in value. and how could it have happened otherwise? could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state--could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? it is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction. the ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. the hereditary dominions of the emperor of germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. in some parts of this territory are to be found the best gold and silver mines in europe. and yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. he has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war. but it is not in this aspect of the subject alone that union will be seen to conduce to the purpose of revenue. there are other points of view, in which its influence will appear more immediate and decisive. it is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the states have remained empty. the popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them. no person acquainted with what happens in other countries will be surprised at this circumstance. in so opulent a nation as that of britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in america, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. duties on imported articles form a large branch of this latter description. in america, it is evident that we must a long time depend for the means of revenue chiefly on such duties. in most parts of it, excises must be confined within a narrow compass. the genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. the pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the inperceptible agency of taxes on consumption. if these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. and it cannot admit of a serious doubt, that this state of things must rest on the basis of a general union. as far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. as far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade. the relative situation of these states; the number of rivers with which they are intersected, and of bays that wash there shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse; --all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. the separate states or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. the temper of our governments, for a long time to come, would not permit those rigorous precautions by which the european nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice. in france, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. mr. neckar computes the number of these patrols at upwards of twenty thousand. this shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the states should be placed in a situation, with respect to each other, resembling that of france with respect to her neighbors. the arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country. if, on the contrary, there be but one government pervading all the states, there will be, as to the principal part of our commerce, but one side to guard--the atlantic coast. vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. they would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. an ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. a few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. and the government having the same interest to provide against violations everywhere, the co-operation of its measures in each state would have a powerful tendency to render them effectual. here also we should preserve by union, an advantage which nature holds out to us, and which would be relinquished by separation. the united states lie at a great distance from europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. the passage from them to us, in a few hours, or in a single night, as between the coasts of france and britain, and of other neighboring nations, would be impracticable. this is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one state, through the medium of another, would be both easy and safe. the difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring state, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment. it is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the states separately, or to any partial confederacies. hitherto, i believe, it may safely be asserted, that these duties have not upon an average exceeded in any state three per cent. in france they are estimated to be about fifteen per cent., and in britain they exceed this proportion. there seems to be nothing to hinder their being increased in this country to at least treble their present amount. the single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. upon a ratio to the importation into this state, the whole quantity imported into the united states may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. that article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. there is, perhaps, nothing so much a subject of national extravagance as these spirits. what will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? a nation cannot long exist without revenues. destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. this is an extremity to which no government will of choice accede. revenue, therefore, must be had at all events. in this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. it has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the states where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. in populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the state; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. as the necessities of the state, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. and as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. but public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion. publius. if my memory be right they amount to twenty per cent. federalist no. advantage of the union in respect to economy in government for the independent journal. hamilton to the people of the state of new york: as connected with the subject of revenue, we may with propriety consider that of economy. the money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. if the states are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for--and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. the entire separation of the states into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. the ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies--one consisting of the four northern, another of the four middle, and a third of the five southern states. there is little probability that there would be a greater number. according to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of great britain. no well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. when the dimensions of a state attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. this idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions. the supposition that each confederacy into which the states would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general union. if we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different states, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. the four eastern states, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. new york, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. there are other obvious reasons that would facilitate her accession to it. new jersey is too small a state to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. even pennsylvania would have strong inducements to join the northern league. an active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. the more southern states, from various circumstances, may not think themselves much interested in the encouragement of navigation. they may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. pennsylvania may not choose to confound her interests in a connection so adverse to her policy. as she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the southern, rather than towards the stronger power of the northern, confederacy. this would give her the fairest chance to avoid being the flanders of america. whatever may be the determination of pennsylvania, if the northern confederacy includes new jersey, there is no likelihood of more than one confederacy to the south of that state. nothing can be more evident than that the thirteen states will be able to support a national government better than one half, or one third, or any number less than the whole. this reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground. if, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the states would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part. publius. federalist no. objections to the proposed constitution from extent of territory answered from the new york packet. friday, november , . madison to the people of the state of new york: we have seen the necessity of the union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. all that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the union embraces. a few observations on this subject will be the more proper, as it is perceived that the adversaries of the new constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. the error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. i remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. the true distinction between these forms was also adverted to on a former occasion. it is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. a democracy, consequently, will be confined to a small spot. a republic may be extended over a large region. to this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient greece and modern italy. under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory. such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. if europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, america can claim the merit of making the discovery the basis of unmixed and extensive republics. it is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. as the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. can it be said that the limits of the united states exceed this distance? it will not be said by those who recollect that the atlantic coast is the longest side of the union, that during the term of thirteen years, the representatives of the states have been almost continually assembled, and that the members from the most distant states are not chargeable with greater intermissions of attendance than those from the states in the neighborhood of congress. that we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the union. the limits, as fixed by the treaty of peace, are: on the east the atlantic, on the south the latitude of thirty-one degrees, on the west the mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. the southern shore of lake erie lies below that latitude. computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. the mean distance from the atlantic to the mississippi does not probably exceed seven hundred and fifty miles. on a comparison of this extent with that of several countries in europe, the practicability of rendering our system commensurate to it appears to be demonstrable. it is not a great deal larger than germany, where a diet representing the whole empire is continually assembled; or than poland before the late dismemberment, where another national diet was the depositary of the supreme power. passing by france and spain, we find that in great britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the union. favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory. in the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. the subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. were it proposed by the plan of the convention to abolish the governments of the particular states, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction. a second observation to be made is that the immediate object of the federal constitution is to secure the union of the thirteen primitive states, which we know to be practicable; and to add to them such other states as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. the arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task. let it be remarked, in the third place, that the intercourse throughout the union will be facilitated by new improvements. roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen states. the communication between the western and atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete. a fourth and still more important consideration is, that as almost every state will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the states which lie at the greatest distance from the heart of the union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. it may be inconvenient for georgia, or the states forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. if they should derive less benefit, therefore, from the union in some respects than the less distant states, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout. i submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. hearken not to the unnatural voice which tells you that the people of america, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellowcitizens of one great, respectable, and flourishing empire. hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. no, my countrymen, shut your ears against this unhallowed language. shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of american citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their union, and excite horror at the idea of their becoming aliens, rivals, enemies. and if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. but why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? is it not the glory of the people of america, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? to this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the american theatre, in favor of private rights and public happiness. had no important step been taken by the leaders of the revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the united states might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. happily for america, happily, we trust, for the whole human race, they pursued a new and more noble course. they accomplished a revolution which has no parallel in the annals of human society. they reared the fabrics of governments which have no model on the face of the globe. they formed the design of a great confederacy, which it is incumbent on their successors to improve and perpetuate. if their works betray imperfections, we wonder at the fewness of them. if they erred most in the structure of the union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide. publius. federalist no. the insufficiency of the present confederation to preserve the union for the independent journal. hamilton to the people of the state of new york. in the course of the preceding papers, i have endeavored, my fellow-citizens, to place before you, in a clear and convincing light, the importance of union to your political safety and happiness. i have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of america together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. in the sequel of the inquiry through which i propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. if the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. it will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch. in pursuance of the plan which i have laid down for the discussion of the subject, the point next in order to be examined is the "insufficiency of the present confederation to the preservation of the union." it may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new constitution. it must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. the facts that support this opinion are no longer objects of speculation. they have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the union. we may indeed with propriety be said to have reached almost the last stage of national humiliation. there is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. are there engagements to the performance of which we are held by every tie respectable among men? these are the subjects of constant and unblushing violation. do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? these remain without any proper or satisfactory provision for their discharge. have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? these are still retained, to the prejudice of our interests, not less than of our rights. are we in a condition to resent or to repel the aggression? we have neither troops, nor treasury, nor government. are we even in a condition to remonstrate with dignity? the just imputations on our own faith, in respect to the same treaty, ought first to be removed. are we entitled by nature and compact to a free participation in the navigation of the mississippi? spain excludes us from it. is public credit an indispensable resource in time of public danger? we seem to have abandoned its cause as desperate and irretrievable. is commerce of importance to national wealth? ours is at the lowest point of declension. is respectability in the eyes of foreign powers a safeguard against foreign encroachments? the imbecility of our government even forbids them to treat with us. our ambassadors abroad are the mere pageants of mimic sovereignty. is a violent and unnatural decrease in the value of land a symptom of national distress? the price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. is private credit the friend and patron of industry? that most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. to shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes? this is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity. it is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. while they admit that the government of the united states is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. they seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of state authority; at sovereignty in the union, and complete independence in the members. they still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. this renders a full display of the principal defects of the confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric. the great and radical vice in the construction of the existing confederation is in the principle of legislation for states or governments, in their corporate or collective capacities, and as contradistinguished from the individuals of which they consist. though this principle does not run through all the powers delegated to the union, yet it pervades and governs those on which the efficacy of the rest depends. except as to the rule of appointment, the united states has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of america. the consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the union, yet in practice they are mere recommendations which the states observe or disregard at their option. it is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of government; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy. there is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. in the early part of the present century there was an epidemical rage in europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. with a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. if the particular states in this country are disposed to stand in a similar relation to each other, and to drop the project of a general discretionary superintendence, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us. but if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the union to the persons of the citizens, --the only proper objects of government. government implies the power of making laws. it is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. if there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. this penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the coercion of the magistracy, or by the coercion of arms. the first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or states. it is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. in an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it. there was a time when we were told that breaches, by the states, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the union. this language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. it at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. why has government been instituted at all? because the passions of men will not conform to the dictates of reason and justice, without constraint. has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? the contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. a spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity. in addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. from this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. this tendency is not difficult to be accounted for. it has its origin in the love of power. power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. this simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. the reverse of this results from the constitution of human nature. if, therefore, the measures of the confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. the rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. they will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. all this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. the same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits. in our case, the concurrence of thirteen distinct sovereign wills is requisite, under the confederation, to the complete execution of every important measure that proceeds from the union. it has happened as was to have been foreseen. the measures of the union have not been executed; the delinquencies of the states have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. congress at this time scarcely possess the means of keeping up the forms of administration, till the states can have time to agree upon a more substantial substitute for the present shadow of a federal government. things did not come to this desperate extremity at once. the causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the union. the greater deficiencies of some states furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent states. why should we do more in proportion than those who are embarked with us in the same political voyage? why should we consent to bear more than our proper share of the common burden? these were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. each state, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. publius. "i mean for the union." federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) from the new york packet. tuesday, december , . hamilton to the people of the state of new york: the tendency of the principle of legislation for states, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. the confirmations of this fact will be worthy of a distinct and particular examination. i shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the lycian and achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. this exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: it has been seen that delinquencies in the members of the union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war. it remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. if there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. it would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. independent of this motive of sympathy, if a large and influential state should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those states which were not chargeable with any violation or omission of duty. this would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent states. if associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a confederacy, from the firm union of which they had so much to fear. when the sword is once drawn, the passions of men observe no bounds of moderation. the suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the states against which the arms of the union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. the first war of this kind would probably terminate in a dissolution of the union. this may be considered as the violent death of the confederacy. its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. it is not probable, considering the genius of this country, that the complying states would often be inclined to support the authority of the union by engaging in a war against the non-complying states. they would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. and the guilt of all would thus become the security of all. our past experience has exhibited the operation of this spirit in its full light. there would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. in the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. the pretense of the latter would always be at hand. and the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. it is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council. it seems to require no pains to prove that the states ought not to prefer a national constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. and yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. the resources of the union would not be equal to the maintenance of an army considerable enough to confine the larger states within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. whoever considers the populousness and strength of several of these states singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. a project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity. even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign states, supported by military coercion, has never been found effectual. it has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half. the result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed constitution. it must carry its agency to the persons of the citizens. it must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. the majesty of the national authority must be manifested through the medium of the courts of justice. the government of the union, like that of each state, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. it must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular states. to this reasoning it may perhaps be objected, that if any state should be disaffected to the authority of the union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached. the plausibility of this objection will vanish the moment we advert to the essential difference between a mere non-compliance and a direct and active resistance. if the interposition of the state legislatures be necessary to give effect to a measure of the union, they have only not to act, or to act evasively, and the measure is defeated. this neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the constitution. the state leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage. but if the execution of the laws of the national government should not require the intervention of the state legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. no omissions nor evasions would answer the end. they would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. an experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. the success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. if the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. if the people were not tainted with the spirit of their state representatives, they, as the natural guardians of the constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority. if opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the state governments. the magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. as to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. and as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. when they happen, they commonly amount to revolutions and dismemberments of empire. no form of government can always either avoid or control them. it is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities. publius. federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. hamilton to the people of the state of new york: an objection, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of america. it may be said that it would tend to render the government of the union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the states for local purposes. allowing the utmost latitude to the love of power which any reasonable man can require, i confess i am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the states of the authorities of that description. the regulation of the mere domestic police of a state appears to me to hold out slender allurements to ambition. commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. the administration of private justice between the citizens of the same state, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. it is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government. but let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several states, would control the indulgence of so extravagant an appetite. it will always be far more easy for the state governments to encroach upon the national authorities than for the national government to encroach upon the state authorities. the proof of this proposition turns upon the greater degree of influence which the state governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty. the superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the state administrations would be directed. it is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments than towards the government of the union; unless the force of that principle should be destroyed by a much better administration of the latter. this strong propensity of the human heart would find powerful auxiliaries in the objects of state regulation. the variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. there is one transcendant advantage belonging to the province of the state governments, which alone suffices to place the matter in a clear and satisfactory light,--i mean the ordinary administration of criminal and civil justice. this, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. it is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. this great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the union. the operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. the reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them. though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. there was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. each principal vassal was a kind of sovereign, within his particular demesnes. the consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. the power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. this period of european affairs is emphatically styled by historians, the times of feudal anarchy. when the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. but in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states. in those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. the barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority. this is not an assertion founded merely in speculation or conjecture. among other illustrations of its truth which might be cited, scotland will furnish a cogent example. the spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with england subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. the separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. it will be well if they are not able to counteract its legitimate and necessary authority. the points of similitude consist in the rivalship of power, applicable to both, and in the concentration of large portions of the strength of the community into particular deposits, in one case at the disposal of individuals, in the other case at the disposal of political bodies. a concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. this review shall form the subject of some ensuing papers. publius. federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. hamilton and madison to the people of the state of new york: among the confederacies of antiquity, the most considerable was that of the grecian republics, associated under the amphictyonic council. from the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present confederation of the american states. the members retained the character of independent and sovereign states, and had equal votes in the federal council. this council had a general authority to propose and resolve whatever it judged necessary for the common welfare of greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. the amphictyons were the guardians of religion, and of the immense riches belonging to the temple of delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. as a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple. in theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. in several material instances, they exceed the powers enumerated in the articles of confederation. the amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions. very different, nevertheless, was the experiment from the theory. the powers, like those of the present congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. hence the weakness, the disorders, and finally the destruction of the confederacy. the more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. athens, as we learn from demosthenes, was the arbiter of greece seventy-three years. the lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of leuctra, the thebans had their turn of domination. it happened but too often, according to plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party. even in the midst of defensive and dangerous wars with persia and macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. the intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage. after the conclusion of the war with xerxes, it appears that the lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. the athenians, finding that the lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. this piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. the smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude. had the greeks, says the abbe milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the persian arms, to establish such a reformation. instead of this obvious policy, athens and sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from xerxes. their mutual jealousies, fears, hatreds, and injuries ended in the celebrated peloponnesian war; which itself ended in the ruin and slavery of the athenians who had begun it. as a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. the phocians having ploughed up some consecrated ground belonging to the temple of apollo, the amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. the phocians, being abetted by athens and sparta, refused to submit to the decree. the thebans, with others of the cities, undertook to maintain the authority of the amphictyons, and to avenge the violated god. the latter, being the weaker party, invited the assistance of philip of macedon, who had secretly fostered the contest. philip gladly seized the opportunity of executing the designs he had long planned against the liberties of greece. by his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the amphictyonic council; and by his arts and his arms, made himself master of the confederacy. such were the consequences of the fallacious principle on which this interesting establishment was founded. had greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of macedon; and might have proved a barrier to the vast projects of rome. the achaean league, as it is called, was another society of grecian republics, which supplies us with valuable instruction. the union here was far more intimate, and its organization much wiser, than in the preceding instance. it will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it. the cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. the senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. according to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred. it appears that the cities had all the same laws and customs, the same weights and measures, and the same money. but how far this effect proceeded from the authority of the federal council is left in uncertainty. it is said only that the cities were in a manner compelled to receive the same laws and usages. when lacedaemon was brought into the league by philopoemen, it was attended with an abolition of the institutions and laws of lycurgus, and an adoption of those of the achaeans. the amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. this circumstance alone proves a very material difference in the genius of the two systems. it is much to be regretted that such imperfect monuments remain of this curious political fabric. could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. one important fact seems to be witnessed by all the historians who take notice of achaean affairs. it is, that as well after the renovation of the league by aratus, as before its dissolution by the arts of macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising singly all the prerogatives of sovereignty. the abbe mably, in his observations on greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the achaean republic, because it was there tempered by the general authority and laws of the confederacy. we are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. the contrary is sufficiently displayed in the vicissitudes and fate of the republic. whilst the amphictyonic confederacy remained, that of the achaeans, which comprehended the less important cities only, made little figure on the theatre of greece. when the former became a victim to macedon, the latter was spared by the policy of philip and alexander. under the successors of these princes, however, a different policy prevailed. the arts of division were practiced among the achaeans. each city was seduced into a separate interest; the union was dissolved. some of the cities fell under the tyranny of macedonian garrisons; others under that of usurpers springing out of their own confusions. shame and oppression erelong awaken their love of liberty. a few cities reunited. their example was followed by others, as opportunities were found of cutting off their tyrants. the league soon embraced almost the whole peloponnesus. macedon saw its progress; but was hindered by internal dissensions from stopping it. all greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in sparta and athens, of the rising glory of the achaeans, threw a fatal damp on the enterprise. the dread of the macedonian power induced the league to court the alliance of the kings of egypt and syria, who, as successors of alexander, were rivals of the king of macedon. this policy was defeated by cleomenes, king of sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the achaeans, and who, as an enemy to macedon, had interest enough with the egyptian and syrian princes to effect a breach of their engagements with the league. the achaeans were now reduced to the dilemma of submitting to cleomenes, or of supplicating the aid of macedon, its former oppressor. the latter expedient was adopted. the contests of the greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. a macedonian army quickly appeared. cleomenes was vanquished. the achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. all that their most abject compliances could obtain from him was a toleration of the exercise of their laws. philip, who was now on the throne of macedon, soon provoked by his tyrannies, fresh combinations among the greeks. the achaeans, though weakened by internal dissensions and by the revolt of messene, one of its members, being joined by the aetolians and athenians, erected the standard of opposition. finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. the romans, to whom the invitation was made, eagerly embraced it. philip was conquered; macedon subdued. a new crisis ensued to the league. dissensions broke out among it members. these the romans fostered. callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. the more effectually to nourish discord and disorder the romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty throughout greece. with the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. by these arts this union, the last hope of greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of rome found little difficulty in completing the ruin which their arts had commenced. the achaeans were cut to pieces, and achaia loaded with chains, under which it is groaning at this hour. i have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head. publius. this was but another name more specious for the independence of the members on the federal head. federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. hamilton and madison to the people of the state of new york: the examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. there are existing institutions, founded on a similar principle, which merit particular consideration. the first which presents itself is the germanic body. in the early ages of christianity, germany was occupied by seven distinct nations, who had no common chief. the franks, one of the number, having conquered the gauls, established the kingdom which has taken its name from them. in the ninth century charlemagne, its warlike monarch, carried his victorious arms in every direction; and germany became a part of his vast dominions. on the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. but the principal vassals, whose fiefs had become hereditary, and who composed the national diets which charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. the force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. the most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. the imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the suabian, and the accession of the first emperor of the austrian lines. in the eleventh century the emperors enjoyed full sovereignty: in the fifteenth they had little more than the symbols and decorations of power. out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the germanic empire. its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members. the diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. the members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. and the ban is denounced against such as shall violate any of these restrictions. the members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber. the prerogatives of the emperor are numerous. the most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. in certain cases, the electors form a council to him. in quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. but his revenue and dominions, in other qualities, constitute him one of the most powerful princes in europe. from such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. nothing would be further from the reality. the fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels. the history of germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general inbecility, confusion, and misery. in the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. in one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of saxony. the late king of prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. controversies and wars among the members themselves have been so common, that the german annals are crowded with the bloody pages which describe them. previous to the peace of westphalia, germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and sweden, with the other half, on the opposite side. peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the germanic constitution. if the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters. the small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury. the impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. this experiment has only served to demonstrate more fully the radical vice of the constitution. each circle is the miniature picture of the deformities of this political monster. they either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy. we may form some judgment of this scheme of military coercion from a sample given by thuanus. in donawerth, a free and imperial city of the circle of suabia, the abb de st. croix enjoyed certain immunities which had been reserved to him. in the exercise of these, on some public occasions, outrages were committed on him by the people of the city. the consequence was that the city was put under the ban of the empire, and the duke of bavaria, though director of another circle, obtained an appointment to enforce it. he soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory, he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains. it may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? the answer is obvious: the weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and heriditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in europe; --these causes support a feeble and precarious union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness. if more direct examples were wanting, poland, as a government over local sovereigns, might not improperly be taken notice of. nor could any proof more striking be given of the calamities flowing from such institutions. equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories. the connection among the swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions. they have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty. they are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accomodating disputes among the cantons. the provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. this tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. the competency of this regulation may be estimated by a clause in their treaty of , with victor amadeus of savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party. so far as the peculiarity of their case will admit of comparison with that of the united states, it serves to confirm the principle intended to be established. whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. the controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. the protestant and catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages. that separation had another consequence, which merits attention. it produced opposite alliances with foreign powers: of berne, at the head of the protestant association, with the united provinces; and of luzerne, at the head of the catholic association, with france. publius. pfeffel, "nouvel abreg. chronol. de l'hist., etc., d'allemagne," says the pretext was to indemnify himself for the expense of the expedition. federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) from the new york packet. tuesday, december , . hamilton and madison to the people of the state of new york: the united netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed. the union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. in all important cases, not only the provinces but the cities must be unanimous. the sovereignty of the union is represented by the states-general, consisting usually of about fifty deputies appointed by the provinces. they hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure. the states-general have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. in all these cases, however, unanimity and the sanction of their constituents are requisite. they have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. the provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. a council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration. the executive magistrate of the union is the stadtholder, who is now an hereditary prince. his principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon. as stadtholder of the union, he has, however, considerable prerogatives. in his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the states-general, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts. in his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns. in his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them. his revenue, exclusive of his private income, amounts to three hundred thousand florins. the standing army which he commands consists of about forty thousand men. such is the nature of the celebrated belgic confederacy, as delineated on parchment. what are the characters which practice has stamped upon it? imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war. it was long ago remarked by grotius, that nothing but the hatred of his countrymen to the house of austria kept them from being ruined by the vices of their constitution. the union of utrecht, says another respectable writer, reposes an authority in the states-general, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory. the same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota. in matters of contribution, it is the practice to waive the articles of the constitution. the danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. the great wealth and influence of the province of holland enable her to effect both these purposes. it has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confedracy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense. foreign ministers, says sir william temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. in , the treaty of hanover was delayed by these means a whole year. instances of a like nature are numerous and notorious. in critical emergencies, the states-general are often compelled to overleap their constitutional bounds. in , they concluded a treaty of themselves at the risk of their heads. the treaty of westphalia, in , by which their independence was formerly and finally recognized, was concluded without the consent of zealand. even as recently as the last treaty of peace with great britain, the constitutional principle of unanimity was departed from. a weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. "under such a government," says the abbe mably, "the union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. this spring is the stadtholder." it is remarked by sir william temple, "that in the intermissions of the stadtholdership, holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place." these are not the only circumstances which have controlled the tendency to anarchy and dissolution. the surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy. the true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by extraordinary assemblies, convened for the special purpose, to apply a remedy. as many times has their laudable zeal found it impossible to unite the public councils in reforming the known, the acknowledged, the fatal evils of the existing constitution. let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to heaven, for the propitious concord which has distinguished the consultations for our political happiness. a design was also conceived of establishing a general tax to be administered by the federal authority. this also had its adversaries and failed. this unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. all nations have their eyes fixed on the awful spectacle. the first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: the next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own. i make no apology for having dwelt so long on the contemplation of these federal precedents. experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. the important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy. publius. federalist no. other defects of the present confederation for the independent journal. hamilton to the people of the state of new york: having in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, i shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. to form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease. the next most palpable defect of the subsisting confederation, is the total want of a sanction to its laws. the united states, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. there is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the states, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each state shall retain every power, jurisdiction, and right, not expressly delegated to the united states in congress assembled." there is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. if we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the united states afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. it will appear, from the specimens which have been cited, that the american confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world. the want of a mutual guaranty of the state governments is another capital imperfection in the federal plan. there is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. the want of a guaranty, though it might in its consequences endanger the union, does not so immediately attack its existence as the want of a constitutional sanction to its laws. without a guaranty the assistance to be derived from the union in repelling those domestic dangers which may sometimes threaten the existence of the state constitutions, must be renounced. usurpation may rear its crest in each state, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. a successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the union to the friends and supporters of the government. the tempestuous situation from which massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a caesar or by a cromwell? who can predict what effect a despotism, established in massachusetts, would have upon the liberties of new hampshire or rhode island, of connecticut or new york? the inordinate pride of state importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. a scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. it could be no impediment to reforms of the state constitution by a majority of the people in a legal and peaceable mode. this right would remain undiminished. the guaranty could only operate against changes to be effected by violence. towards the preventions of calamities of this kind, too many checks cannot be provided. the peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the state. the natural cure for an ill-administration, in a popular or representative constitution, is a change of men. a guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community. the principle of regulating the contributions of the states to the common treasury by quotas is another fundamental error in the confederation. its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. i speak of it now solely with a view to equality among the states. those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of state contributions, has any pretension to being a just representative. if we compare the wealth of the united netherlands with that of russia or germany, or even of france, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. if the like parallel were to be run between several of the american states, it would furnish a like result. let virginia be contrasted with north carolina, pennsylvania with connecticut, or maryland with new jersey, and we shall be convinced that the respective abilities of those states, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. the position may be equally illustrated by a similar process between the counties of the same state. no man who is acquainted with the state of new york will doubt that the active wealth of king's county bears a much greater proportion to that of montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion! the wealth of nations depends upon an infinite variety of causes. situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. the consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. the attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression. this inequality would of itself be sufficient in america to work the eventual destruction of the union, if any mode of enforcing a compliance with its requisitions could be devised. the suffering states would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some states, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. this, however, is an evil inseparable from the principle of quotas and requisitions. there is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. the amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. the rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. if inequalities should arise in some states from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other states, from the duties on other objects. in the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised. it is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. they prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. when applied to this object, the saying is as just as it is witty, that, "in political arithmetic, two and two do not always make four." if duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. this forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them. impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. either the value of land, or the number of the people, may serve as a standard. the state of agriculture and the populousness of a country have been considered as nearly connected with each other. and, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. in every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. the expense of an accurate valuation is, in all situations, a formidable objection. in a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large. publius. federalist no. the same subject continued (other defects of the present confederation) from the new york packet. friday, december , . hamilton to the people of the state of new york: in addition to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the union. the want of a power to regulate commerce is by all parties allowed to be of the number. the utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. it is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. the want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the states. no nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the united states, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. it is not, therefore, to be wondered at that mr. jenkinson, in ushering into the house of commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of great britain, and that it would be prudent to persist in the plan until it should appear whether the american government was likely or not to acquire greater consistency. [ ] several states have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the state, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist. the interfering and unneighborly regulations of some states, contrary to the true spirit of the union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the confederacy. "the commerce of the german empire [ ] is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which germany is so happily watered are rendered almost useless." though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of state regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. the power of raising armies, by the most obvious construction of the articles of the confederation, is merely a power of making requisitions upon the states for quotas of men. this practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. it gave birth to a competition between the states which created a kind of auction for men. in order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. the hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure. this method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. the states near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. the immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. the states which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. we shall not, however, see much reason to reget the want of this hope, when we consider how little prospect there is, that the most delinquent states will ever be able to make compensation for their pecuniary failures. the system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the union, and of inequality and injustice among the members. the right of equal suffrage among the states is another exceptionable part of the confederation. every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to rhode island an equal weight in the scale of power with massachusetts, or connecticut, or new york; and to deleware an equal voice in the national deliberations with pennsylvania, or virginia, or north carolina. its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. sophistry may reply, that sovereigns are equal, and that a majority of the votes of the states will be a majority of confederated america. but this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. it may happen that this majority of states is a small minority of the people of america [ ]; and two thirds of the people of america could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. the larger states would after a while revolt from the idea of receiving the law from the smaller. to acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. it is neither rational to expect the first, nor just to require the last. the smaller states, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration. it may be objected to this, that not seven but nine states, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine states would always comprehend a majority of the union. but this does not obviate the impropriety of an equal vote between states of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine states which contain less than a majority of the people [ ]; and it is constitutionally possible that these nine may give the vote. besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven states, would extend its operation to interests of the first magnitude. in addition to this, it is to be observed that there is a probability of an increase in the number of states, and no provision for a proportional augmentation of the ratio of votes. but this is not all: what at first sight may seem a remedy, is, in reality, a poison. to give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. congress, from the nonattendance of a few states, have been frequently in the situation of a polish diet, where a single vote has been sufficient to put a stop to all their movements. a sixtieth part of the union, which is about the proportion of delaware and rhode island, has several times been able to oppose an entire bar to its operations. this is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. the necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. but its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. in those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. the public business must, in some way or other, go forward. if a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. and yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. it is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. its situation must always savor of weakness, sometimes border upon anarchy. it is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. the mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. when the concurrence of a large number is required by the constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. in such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. in the first case, he would have to corrupt a smaller number; in the last, a greater number. upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. and, in a commercial view, we may be subjected to similar inconveniences. a nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves. evils of this description ought not to be regarded as imaginary. one of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. an hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. the world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind. in republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. how much this contributed to the ruin of the ancient commonwealths has been already delineated. it is well known that the deputies of the united provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. the earl of chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. and in sweden the parties were alternately bought by france and england in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled. a circumstance which crowns the defects of the confederation remains yet to be mentioned, the want of a judiciary power. laws are a dead letter without courts to expound and define their true meaning and operation. the treaties of the united states, to have any force at all, must be considered as part of the law of the land. their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. to produce uniformity in these determinations, they ought to be submitted, in the last resort, to one supreme tribunal. and this tribunal ought to be instituted under the same authority which forms the treaties themselves. these ingredients are both indispensable. if there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. there are endless diversities in the opinions of men. we often see not only different courts but the judges of the came court differing from each other. to avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. this is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. in this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. as often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. the treaties of the united states, under the present constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. the faith, the reputation, the peace of the whole union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. is it possible that foreign nations can either respect or confide in such a government? is it possible that the people of america will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation? in this review of the confederation, i have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. it must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters. the organization of congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the union. a single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed constitution admit, ought to reside in the united states. if that plan should not be adopted, and if the necessity of the union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. thus, we should create in reality that very tyranny which the adversaries of the new constitution either are, or affect to be, solicitous to avert. it has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the people. resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. owing its ratification to the law of a state, it has been contended that the same authority might repeal the law by which it was ratified. however gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. the possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. the fabric of american empire ought to rest on the solid basis of the consent of the people. the streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. publius. fna -@ this, as nearly as i can recollect, was the sense of his speech on introducing the last bill. fna -@ encyclopedia, article "empire." fna -@ new hampshire, rhode island, new jersey, delaware, georgia, south carolina, and maryland are a majority of the whole number of the states, but they do not contain one third of the people. fna -@ add new york and connecticut to the foregoing seven, and they will be less than a majority. federalist no. the necessity of a government as energetic as the one proposed to the preservation of the union from the new york packet. tuesday, december , . hamilton to the people of the state of new york: the necessity of a constitution, at least equally energetic with the one proposed, to the preservation of the union, is the point at the examination of which we are now arrived. this inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. its distribution and organization will more properly claim our attention under the succeeding head. the principal purposes to be answered by union are these the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the states; the superintendence of our intercourse, political and commercial, with foreign countries. the authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. these powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. the circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. this power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. this is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. it rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained. whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. and unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the national forces. defective as the present confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. as their requisitions are made constitutionally binding upon the states, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the united states should command whatever resources were by them judged requisite to the "common defense and general welfare." it was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head. the experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, i imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the union energy and duration, we must abandon the vain project of legislating upon the states in their collective capacities; we must extend the laws of the federal government to the individual citizens of america; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. the result from all this is that the union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments. if the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the objects, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. shall the union be constituted the guardian of the common safety? are fleets and armies and revenues necessary to this purpose? the government of the union must be empowered to pass all laws, and to make all regulations which have relation to them. the same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. is the administration of justice between the citizens of the same state the proper department of the local governments? these must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success. who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the whole, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the states, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the state governments the effective powers by which it is to be provided for? is not a want of co-operation the infallible consequence of such a system? and will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished? every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. it will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. if any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. a government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the national interests. wherever these can with propriety be confided, the coincident powers may safely accompany them. this is the true result of all just reasoning upon the subject. and the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. they ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. the powers are not too extensive for the objects of federal administration, or, in other words, for the management of our national interests; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. if it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. for the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensible to their proper and efficient management. let us not attempt to reconcile contradictions, but firmly embrace a rational alternative. i trust, however, that the impracticability of one general system cannot be shown. i am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and i flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. this, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the union of so large an empire. if we embrace the tenets of those who oppose the adoption of the proposed constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present confederacy. publius. federalist no. the powers necessary to the common defense further considered for the independent journal. hamilton to the people of the state of new york: to the powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, i have met with but one specific objection, which, if i understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, i shall now endeavor to show, rests on weak and unsubstantial foundations. it has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of america, as expressed in most of the existing constitutions. the proprietory of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the legislative authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our state constitutions, and rejected in all the rest. a stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the executive the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. if he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. disappointed in his first surmise, the person i have supposed would be apt to pursue his conjectures a little further. he would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. it must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor. if, under this impression, he proceeded to pass in review the several state constitutions, how great would be his disappointment to find that two only of them [ ] contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the legislature to authorize their existence. still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. he would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. it would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the states. here, at length, he would expect to meet with a solution of the enigma. no doubt, he would observe to himself, the existing confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions. if he should now apply himself to a careful and critical survey of the articles of confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the state legislatures in this particular, had not imposed a single restraint on that of the united states. if he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! how else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of america as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? if, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings. but however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. from a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed. though a wide ocean separates the united states from europe, yet there are various considerations that warn us against an excess of confidence or security. on one side of us, and stretching far into our rear, are growing settlements subject to the dominion of britain. on the other side, and extending to meet the british settlements, are colonies and establishments subject to the dominion of spain. this situation and the vicinity of the west india islands, belonging to these two powers create between them, in respect to their american possessions and in relation to us, a common interest. the savage tribes on our western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. the improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. britain and spain are among the principal maritime powers of europe. a future concert of views between these nations ought not to be regarded as improbable. the increasing remoteness of consanguinity is every day diminishing the force of the family compact between france and spain. and politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. these circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger. previous to the revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our western frontier. no person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the indians. these garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. the first is impracticable; and if practicable, would be pernicious. the militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. and if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. it would be as burdensome and injurious to the public as ruinous to private citizens. the latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature. in proportion to our increase in strength, it is probable, nay, it may be said certain, that britain and spain would augment their military establishments in our neighborhood. if we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our western settlements might be annoyed. there are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. it may be added that some of those posts will be keys to the trade with the indian nations. can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? to act this part would be to desert all the usual maxims of prudence and policy. if we mean to be a commercial people, or even to be secure on our atlantic side, we must endeavor, as soon as possible, to have a navy. to this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. when a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself. publius. fna -@ this statement of the matter is taken from the printed collection of state constitutions. pennsylvania and north carolina are the two which contain the interdiction in these words: "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." this is, in truth, rather a caution than a prohibition. new hampshire, massachusetts, delaware, and maryland have, in each of their bils of rights, a clause to this effect: "standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature"; which is a formal admission of the authority of the legislature. new york has no bills of rights, and her constitution says not a word about the matter. no bills of rights appear annexed to the constitutions of the other states, except the foregoing, and their constitutions are equally silent. i am told, however that one or two states have bills of rights which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect. federalist no. the same subject continued (the powers necessary to the common defense further considered) from the new york packet. friday, december , . hamilton to the people of the state of new york: it may perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the state governments, under the direction of the union. but this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some states, dangerous to all, and baneful to the confederacy. the territories of britain, spain, and of the indian nations in our neighborhood do not border on particular states, but encircle the union from maine to georgia. the danger, though in different degrees, is therefore common. and the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. it happens that some states, from local situation, are more directly exposed. new york is of this class. upon the plan of separate provisions, new york would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. this would neither be equitable as it respected new york nor safe as it respected the other states. various inconveniences would attend such a system. the states, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. the security of all would thus be subjected to the parsimony, improvidence, or inability of a part. if the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other states would quickly take the alarm at seeing the whole military force of the union in the hands of two or three of its members, and those probably amongst the most powerful. they would each choose to have some counterpoise, and pretenses could easily be contrived. in this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority. reasons have been already given to induce a supposition that the state governments will too naturally be prone to a rivalship with that of the union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. if, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the union. on the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. as far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. for it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion. the framers of the existing confederation, fully aware of the danger to the union from the separate possession of military forces by the states, have, in express terms, prohibited them from having either ships or troops, unless with the consent of congress. the truth is, that the existence of a federal government and military establishments under state authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. there are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. the design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to keeping them up in a season of tranquillity or not. if it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. when armies are once raised what shall be denominated "keeping them up," contrary to the sense of the constitution? what time shall be requisite to ascertain the violation? shall it be a week, a month, a year? or shall we say they may be continued as long as the danger which occasioned their being raised continues? this would be to admit that they might be kept up in time of peace, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. who shall judge of the continuance of the danger? this must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. it is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision. the supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! indian hostilities, instigated by spain or britain, would always be at hand. provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. if we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project. if, to obviate this consequence, it should be resolved to extend the prohibition to the raising of armies in time of peace, the united states would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its constitution to prepare for defense, before it was actually invaded. as the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the state. we must receive the blow, before we could even prepare to return it. all that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. we must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation. here i expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. this doctrine, in substance, had like to have lost us our independence. it cost millions to the united states that might have been saved. the facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. the steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. considerations of economy, not less than of stability and vigor, confirm this position. the american militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. war, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice. all violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. pennsylvania, at this instant, affords an example of the truth of this remark. the bill of rights of that state declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. the conduct of massachusetts affords a lesson on the same subject, though on different ground. that state (without waiting for the sanction of congress, as the articles of the confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. the particular constitution of massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. it also teaches us, in its application to the united states, how little the rights of a feeble government are likely to be respected, even by its own constituents. and it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity. it was a fundamental maxim of the lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. the peloponnesian confederates, having suffered a severe defeat at sea from the athenians, demanded lysander, who had before served with success in that capacity, to command the combined fleets. the lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing lysander with the real power of admiral, under the nominal title of vice-admiral. this instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable. publius. federalist no. the idea of restraining the legislative authority in regard to the common defense considered for the independent journal. hamilton to the people of the state of new york: it was a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between power and privilege, and combines the energy of government with the security of private rights. a failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better. the idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. we have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, pennsylvania and north carolina are the only two states by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. the opponents of the proposed constitution combat, in this respect, the general decision of america; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. as if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. it may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. but a danger of this kind is not to be apprehended. the citizens of america have too much discernment to be argued into anarchy. and i am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community. it may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these states have in general sprung. in england, for a long time after the norman conquest, the authority of the monarch was almost unlimited. inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. but it was not till the revolution in , which elevated the prince of orange to the throne of great britain, that english liberty was completely triumphant. as incident to the undefined power of making war, an acknowledged prerogative of the crown, charles ii. had, by his own authority, kept on foot in time of peace a body of , regular troops. and this number james ii. increased to , ; who were paid out of his civil list. at the revolution, to abolish the exercise of so dangerous an authority, it became an article of the bill of rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of parliament, was against law." in that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. the patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. they were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. from the same source, the people of america may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. the circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. the attempts of two of the states to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. the principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. even in some of the states, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, without the consent of the legislature. i call them unnecessary, because the reason which had introduced a similar provision into the english bill of rights is not applicable to any of the state constitutions. the power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. accordingly, in some of these constitutions, and among others, in that of this state of new york, which has been justly celebrated, both in europe and america, as one of the best of the forms of government established in this country, there is a total silence upon the subject. it is remarkable, that even in the two states which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. it is not said, that standing armies shall not be kept up, but that they ought not to be kept up, in time of peace. this ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe. can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the state? let the fact already mentioned, with respect to pennsylvania, decide. what then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it? let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new constitution, for restraining the appropriations of money for military purposes to the period of two years. the former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation. the legislature of the united states will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. they are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. as the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. the provision for the support of a military force will always be a favorable topic for declamation. as often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. independent of parties in the national legislature itself, as often as the period of discussion arrived, the state legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the voice, but, if necessary, the arm of their discontent. schemes to subvert the liberties of a great community require time to mature them for execution. an army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. is it probable that such a combination would exist at all? is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? is it presumable, that every man, the instant he took his seat in the national senate or house of representatives, would commence a traitor to his constituents and to his country? can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? if such presumptions can fairly be made, there ought at once to be an end of all delegated authority. the people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many states as there are counties, in order that they may be able to manage their own concerns in person. if such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. it would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. what colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? it is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery. it has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. but the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? if we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamaties for which there is neither preventative nor cure. it cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense. but it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. it is not easy to conceive a possibility that dangers so formidable can assail the whole union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. but in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable. publius. federalist no. the same subject continued (the idea of restraining the legislative authority in regard to the common defense considered) from the new york packet. tuesday, december , . hamilton to the people of the state of new york: it has been urged, in different shapes, that a constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. this, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. as far as i have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. unless we presume at the same time that the powers of the general government will be worse administered than those of the state government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. i believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. it must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. these can only be judged of by general principles and maxims. various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the state legislatures which are select bodies of men, and which are to appoint the members of the national senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust. several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. it will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members. the hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. will not the government of the union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole confederacy, be more likely to repress the former sentiment and to inspire the latter, than that of a single state, which can only command the resources within itself? a turbulent faction in a state may easily suppose itself able to contend with the friends to the government in that state; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the union. if this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the confederacy than to that of a single member. i will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. man is very much a creature of habit. a thing that rarely strikes his senses will generally have but little influence upon his mind. a government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. the inference is, that the authority of the union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. the more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion. one thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the states in their political or collective capacities. it has been shown that in such a confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence. the plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several states, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. it is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each state, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole union. it merits particular attention in this place, that the laws of the confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the supreme law of the land; to the observance of which all officers, legislative, executive, and judicial, in each state, will be bound by the sanctity of an oath. thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws. [ %] any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the union, if its powers are administered with a common share of prudence. if we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. but though the adversaries of the proposed constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, i would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct? publius. fna -@ the sophistry which has been employed to show that this will tend to the destruction of the state governments, will, in its will, in its proper place, be fully detected. federalist no. the same subject continued (the idea of restraining the legislative authority in regard to the common defense considered) for the independent journal. hamilton to the people of the state of new york: that there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. should such emergencies at any time happen under the national government, there could be no remedy but force. the means to be employed must be proportioned to the extent of the mischief. if it should be a slight commotion in a small part of a state, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. an insurrection, whatever may be its immediate cause, eventually endangers all government. regard to the public peace, if not to the rights of the union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support. if, on the contrary, the insurrection should pervade a whole state, or a principal part of it, the employment of a different kind of force might become unavoidable. it appears that massachusetts found it necessary to raise troops for repressing the disorders within that state; that pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. suppose the state of new york had been inclined to re-establish her lost jurisdiction over the inhabitants of vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? would she not have been compelled to raise and to maintain a more regular force for the execution of her design? if it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the state governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? is it not surprising that men who declare an attachment to the union in the abstract, should urge as an objection to the proposed constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics? let us pursue this examination in another light. suppose, in lieu of one general system, two, or three, or even four confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these confederacies? would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the states? would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? all candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the states, or different governments for different parcels of them, or even if there should be an entire separation of the states, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions. independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. this is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society. [ ] if the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. in a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. the citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. the usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. the smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. in this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance. the obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. the natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. but in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. the people, by throwing themselves into either scale, will infallibly make it preponderate. if their rights are invaded by either, they can make use of the other as the instrument of redress. how wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! it may safely be received as an axiom in our political system, that the state governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. the legislatures will have better means of information. they can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. they can readily communicate with each other in the different states, and unite their common forces for the protection of their common liberty. the great extent of the country is a further security. we have already experienced its utility against the attacks of a foreign power. and it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. if the federal army should be able to quell the resistance of one state, the distant states would have it in their power to make head with fresh forces. the advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive. we should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. for a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. when will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their state governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? the apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning. publius. fna -@ its full efficacy will be examined hereafter. federalist no. concerning the militia from the daily advertiser. thursday, january , hamilton to the people of the state of new york: the power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the confederacy. it requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. it would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. this desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. it is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. if a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. if standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the state is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. if the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. if it cannot avail itself of the former, it will be obliged to recur to the latter. to render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. in order to cast an odium upon the power of calling forth the militia to execute the laws of the union, it has been remarked that there is nowhere any provision in the proposed constitution for calling out the posse comitatus, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. there is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. the same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the posse comitatus. the latter, fortunately, is as much short of the truth as the former exceeds it. it would be as absurd to doubt, that a right to pass all laws necessary and proper to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. it being therefore evident that the supposition of a want of power to require the aid of the posse comitatus is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. what reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? what shall we think of the motives which could induce men of sense to reason in this manner? how shall we prevent a conflict between charity and judgment? by a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. it is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. what plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. but so far from viewing the matter in the same light with those who object to select corps as dangerous, were the constitution ratified, and were i to deliver my sentiments to a member of the federal legislature from this state on the subject of a militia establishment, i should hold to him, in substance, the following discourse: "the project of disciplining all the militia of the united states is as futile as it would be injurious, if it were capable of being carried into execution. a tolerable expertness in military movements is a business that requires time and practice. it is not a day, or even a week, that will suffice for the attainment of it. to oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. it would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the states. to attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "but though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. the attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. by thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the state shall require it. this will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. this appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." thus differently from the adversaries of the proposed constitution should i reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. but how the national legislature may reason on the point, is a thing which neither they nor i can foresee. there is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? what shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? what reasonable cause of apprehension can be inferred from a power in the union to prescribe regulations for the militia, and to command its services when necessary, while the particular states are to have the sole and exclusive appointment of the officers? if it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the states ought at once to extinguish it. there can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. in reading many of the publications against the constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes "gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. a sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. that of new hampshire is to be marched to georgia, of georgia to new hampshire, of new york to kentucky, and of kentucky to lake champlain. nay, the debts due to the french and dutch are to be paid in militiamen instead of louis d'ors and ducats. at one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of massachusetts; and that of massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic virginians. do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of america for infallible truths? if there should be an army to be made use of as the engine of despotism, what need of the militia? if there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? is this the way in which usurpers stride to dominion over a numerous and enlightened nation? do they begin by exciting the detestation of the very instruments of their intended usurpations? do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? or are they the inflammatory ravings of incendiaries or distempered enthusiasts? if we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs. in times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring state should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. this was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. if the power of affording it be placed under the direction of the union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of selfpreservation to the too feeble impulses of duty and sympathy. publius. federalist no. concerning the general power of taxation from the new york packet. friday, december , . hamilton to the people of the state of new york: it has been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. but these are not the only objects to which the jurisdiction of the union, in respect to revenue, must necessarily be empowered to extend. it must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. the conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another. money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. a complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. from a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish. in the ottoman or turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. the consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. in america, from a like cause, the government of the union has gradually dwindled into a state of decay, approaching nearly to annihilation. who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require? the present confederation, feeble as it is intended to repose in the united states, an unlimited power of providing for the pecuniary wants of the union. but proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the united states; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the states. these have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. but though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the confederacy should remain dependent on the intermediate agency of its members. what the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. it is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies. what remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? what substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury. the more intelligent adversaries of the new constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call internal and external taxation. the former they would reserve to the state governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. this distinction, however, would violate the maxim of good sense and sound policy, which dictates that every power ought to be in proportion to its object; and would still leave the general government in a kind of tutelage to the state governments, inconsistent with every idea of vigor or efficiency. who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the union? taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. i believe it may be regarded as a position warranted by the history of mankind, that, in the usual progress of things, the necessities of a nation, in every stage of its existence, will be found at least equal to its resources. to say that deficiencies may be provided for by requisitions upon the states, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. its inevitable tendency, whenever it is brought into activity, must be to enfeeble the union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. can it be expected that the deficiencies would be better supplied in this mode than the total wants of the union have heretofore been supplied in the same mode? it ought to be recollected that if less will be required from the states, they will have proportionably less means to answer the demand. if the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. how is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? how can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? how can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? how will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? how can it undertake or execute any liberal or enlarged plans of public good? let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. we will presume, for argument's sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the union. thus circumstanced, a war breaks out. what would be the probable conduct of the government in such an emergency? taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the state? it is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. to imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. in the modern system of war, nations the most wealthy are obliged to have recourse to large loans. a country so little opulent as ours must feel this necessity in a much stronger degree. but who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? the loans it might be able to procure would be as limited in their extent as burdensome in their conditions. they would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums. it may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. but two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans. the power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. foreigners, as well as the citizens of america, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice. reflections of this kind may have trifling weight with men who hope to see realized in america the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it. publius. federalist no. the same subject continued (concerning the general power of taxation) from the new york packet. tuesday, january , . hamilton to the people of the state of new york: in disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. these contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. of this nature are the maxims in geometry, that "the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other." of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. and there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible. the objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. the infinite divisibility of matter, or, in other words, the infinite divisibility of a finite thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled. but in the sciences of morals and politics, men are found far less tractable. to a certain degree, it is right and useful that this should be the case. caution and investigation are a necessary armor against error and imposition. but this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. the obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. how else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the union, should have to encounter any adversaries among men of discernment? though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. they are in substance as follows: a government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people. as the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. as revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies. as theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the states in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes. did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. but we find, in fact, that the antagonists of the proposed constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. it may therefore be satisfactory to analyze the arguments with which they combat it. those of them which have been most labored with that view, seem in substance to amount to this: "it is not true, because the exigencies of the union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. revenue is as requisite to the purposes of the local administrations as to those of the union; and the former are at least of equal importance with the latter to the happiness of the people. it is, therefore, as necessary that the state governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the union. but an indefinite power of taxation in the latter might, and probably would in time, deprive the former of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. as the laws of the union are to become the supreme law of the land, as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for state objects upon the pretense of an interference with its own. it might allege a necessity of doing this in order to give efficacy to the national revenues. and thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the state governments." this mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. it is only in the latter light that it can be admitted to have any pretensions to fairness. the moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. whatever may be the limits or modifications of the powers of the union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. i repeat here what i have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. the state governments, by their original constitutions, are invested with complete sovereignty. in what does our security consist against usurpation from that quarter? doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. if the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded. it should not be forgotten that a disposition in the state governments to encroach upon the rights of the union is quite as probable as a disposition in the union to encroach upon the rights of the state governments. what side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. as in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the state governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. but it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the constitution. every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the state governments. upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the united states. publius. federalist no. the same subject continued (concerning the general power of taxation) from the daily advertiser. thursday, january , . hamilton to the people of the state of new york: although i am of opinion that there would be no real danger of the consequences which seem to be apprehended to the state governments from a power in the union to control them in the levies of money, because i am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the state governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet i am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual states should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. and making this concession, i affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution. an entire consolidation of the states into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. but as the plan of the convention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the united states. this exclusive delegation, or rather this alienation, of state sovereignty, would only exist in three cases: where the constitution in express terms granted an exclusive authority to the union; where it granted in one instance an authority to the union, and in another prohibited the states from exercising the like authority; and where it granted an authority to the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. i use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; i mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. these three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: the last clause but one in the eighth section of the first article provides expressly that congress shall exercise "exclusive legislation" over the district to be appropriated as the seat of government. this answers to the first case. the first clause of the same section empowers congress "to lay and collect taxes, duties, imposts and excises"; and the second clause of the tenth section of the same article declares that, "no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws." hence would result an exclusive power in the union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any state; in consequence of which qualification, it now only extends to the duties on imports. this answers to the second case. the third will be found in that clause which declares that congress shall have power "to establish an uniform rule of naturalization throughout the united states." this must necessarily be exclusive; because if each state had power to prescribe a distinct rule, there could not be a uniform rule. a case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. i mean the power of imposing taxes on all articles other than exports and imports. this, i contend, is manifestly a concurrent and coequal authority in the united states and in the individual states. there is plainly no expression in the granting clause which makes that power exclusive in the union. there is no independent clause or sentence which prohibits the states from exercising it. so far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the states in relation to duties on imports and exports. this restriction implies an admission that, if it were not inserted, the states would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the states remains undiminished. in any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the union of the power of laying such duties implied the exclusion of the states, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; i mean that the states, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the union. the restriction in question amounts to what lawyers call a negative pregnant that is, a negation of one thing, and an affirmance of another; a negation of the authority of the states to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. it would be mere sophistry to argue that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature. the restraining or prohibitory clause only says, that they shall not, without the consent of congress, lay such duties; and if we are to understand this in the sense last mentioned, the constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the states, with the consent of the national legislature, might tax imports and exports; and that they might tax every other article, unless controlled by the same body. if this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the union? it is evident that this could not have been the intention, and that it will not bear a construction of the kind. as to a supposition of repugnancy between the power of taxation in the states and in the union, it cannot be supported in that sense which would be requisite to work an exclusion of the states. it is, indeed, possible that a tax might be laid on a particular article by a state which might render it inexpedient that thus a further tax should be laid on the same article by the union; but it would not imply a constitutional inability to impose a further tax. the quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. the particular policy of the national and of the state systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. it is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty. the necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the states are not explicitly divested in favor of the union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed constitution. we there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the states, to insert negative clauses prohibiting the exercise of them by the states. the tenth section of the first article consists altogether of such provisions. this circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position i have advanced and refutes every hypothesis to the contrary. publius. federalist no. the same subject continued (concerning the general power of taxation) from the daily advertiser. january , . hamilton to the people of the state of new york: the residue of the argument against the provisions of the constitution in respect to taxation is ingrafted upon the following clause. the last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature "to make all laws which shall be necessary and proper for carrying into execution the powers by that constitution vested in the government of the united states, or in any department or officer thereof"; and the second clause of the sixth article declares, "that the constitution and the laws of the united states made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any state to the contrary notwithstanding." these two clauses have been the source of much virulent invective and petulant declamation against the proposed constitution. they have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. they are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. this is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity. what is a power, but the ability or faculty of doing a thing? what is the ability to do a thing, but the power of employing the means necessary to its execution? what is a legislative power, but a power of making laws? what are the means to execute a legislative power but laws? what is the power of laying and collecting taxes, but a legislative power, or a power of making laws, to lay and collect taxes? what are the proper means of executing such a power, but necessary and proper laws? this simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. it conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and culumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect? i have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the union. but the same process will lead to the same result, in relation to all other powers declared in the constitution. and it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. if there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. the declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless. but suspicion may ask, why then was it introduced? the answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union. the convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the state governments will finally sap the foundations of the union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. but it may be again asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the union? i answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and i answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. if the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution as the exigency may suggest and prudence justify. the propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the federal legislature should attempt to vary the law of descent in any state, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the state? suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a state; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its constitution plainly supposes to exist in the state governments? if there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths. but it is said that the laws of the union are to be the supreme law of the land. but what inference can be drawn from this, or what would they amount to, if they were not to be supreme? it is evident they would amount to nothing. a law, by the very meaning of the term, includes supremacy. it is a rule which those to whom it is prescribed are bound to observe. this results from every political association. if individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. if a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. it would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for political power and supremacy. but it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. these will be merely acts of usurpation, and will deserve to be treated as such. hence we perceive that the clause which declares the supremacy of the laws of the union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. it will not, i presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the constitution; which i mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed. though a law, therefore, laying a tax for the use of the united states would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the state, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the constitution. as far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. it is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. the inference from the whole is, that the individual states would, under the proposed constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. it will be shown in the next paper that this concurrent jurisdiction in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the state authority to that of the union. publius. federalist no. the same subject continued (concerning the general power of taxation) from the new york packet. friday, january , . hamilton to the people of the state of new york: i flatter myself it has been clearly shown in my last number that the particular states, under the proposed constitution, would have coequal authority with the union in the article of revenue, except as to duties on imports. as this leaves open to the states far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. that the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the state governments to provide. to argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. however proper such reasonings might be to show that a thing ought not to exist, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. it is well known that in the roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. but a man would have been regarded as frantic who should have attempted at rome to disprove their existence. it will be readily understood that i allude to the comitia centuriata and the comitia tributa. the former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. and yet these two legislatures coexisted for ages, and the roman republic attained to the utmost height of human greatness. in the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. and in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the states will naturally reduce themselves within a very narrow compass; and in the interim, the united states will, in all probability, find it convenient to abstain wholly from those objects to which the particular states would be inclined to resort. to form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a state provision. we shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. in pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. there ought to be a capacity to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. it is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the union, and to maintain those establishments which, for some time to come, would suffice in time of peace. but would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? if, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. the support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic. admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. a cloud has been for some time hanging over the european world. if it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? no reasonable man would hastily pronounce that we are entirely out of its reach. or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. who could have imagined at the conclusion of the last war that france and britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? to judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character. what are the chief sources of expense in every government? what has occasioned that enormous accumulation of debts with which several of the european nations are oppressed? the answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. the expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense. in the kingdom of great britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. if, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. if we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good. but let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. it is true that several of the states, separately, are encumbered with considerable debts, which are an excrescence of the late war. but this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the state governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every state ought to fall considerably short of two hundred thousand pounds. in framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. if this principle be a just one our attention would be directed to a provision in favor of the state governments for an annual sum of about two hundred thousand pounds; while the exigencies of the union could be susceptible of no limits, even in imagination. in this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an exclusive source of revenue for any sum beyond the extent of two hundred thousand pounds? to extend its power further, in exclusion of the authority of the union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them. suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the union and its members, in proportion to their comparative necessities; what particular fund could have been selected for the use of the states, that would not either have been too much or too little too little for their present, too much for their future wants? as to the line of separation between external and internal taxes, this would leave to the states, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. if we desert this boundary and content ourselves with leaving to the states an exclusive power of taxing houses and lands, there would still be a great disproportion between the means and the end; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. if any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular states, and would have left them dependent on the union for a provision for this purpose. the preceding train of observation will justify the position which has been elsewhere laid down, that "a concurrent jurisdiction in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of state authority to that of the union." any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great interests of the union to the power of the individual states. the convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the federal government with an adequate and independent power in the states to provide for their own necessities. there remain a few other lights, in which this important subject of taxation will claim a further consideration. publius. federalist no. the same subject continued (concerning the general power of taxation) for the independent journal. hamilton to the people of the state of new york: before we proceed to examine any other objections to an indefinite power of taxation in the union, i shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several states as among the citizens of the same state. suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. there are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. but all extremes are pernicious in various ways. exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. when the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. i am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. it is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. the merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale. the maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing states. but it is not so generally true as to render it equitable, that those duties should form the only national fund. when they are paid by the merchant they operate as an additional tax upon the importing state, whose citizens pay their proportion of them in the character of consumers. in this view they are productive of inequality among the states; which inequality would be increased with the increased extent of the duties. the confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing states. the states which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those states which are not in the same favorable situation. they would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. to make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. new york is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the union to external taxation may be aware of. new york is an importing state, and is not likely speedily to be, to any great extent, a manufacturing state. she would, of course, suffer in a double light from restraining the jurisdiction of the union to commercial imposts. so far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. i readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, hope, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. the first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. but even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. let us now return to the examination of objections. one which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the house of representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. this argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. but when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. the object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. i reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries. the idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. unless it were expressly provided in the constitution, that each different occupation should send one or more members, the thing would never take place in practice. mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. many of them, indeed, are immediately connected with the operations of commerce. they know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. they are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. these considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. we must therefore consider merchants as the natural representatives of all these classes of the community. with regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community. nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, i take to be perfectly united, from the wealthiest landlord down to the poorest tenant. no tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. but if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? if we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all. it is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. but we have seen that this will never happen under any arrangement that leaves the votes of the people free. where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. but where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? will not the landholder know and feel whatever will promote or insure the interest of landed property? and will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society? if we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? this dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent. there is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. the man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. it might be demonstrated that the most productive system of finance will always be the least burdensome. there can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. and this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. in any other sense the proposition has either no meaning, or an absurd one. and in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found. publius. federalist no. the same subject continued (concerning the general power of taxation) from the new york packet. tuesday january , . hamilton to the people of the state of new york: we have seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. if it should be objected that we have seen other descriptions of men in the local legislatures, i answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. there are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. the door ought to be equally open to all; and i trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of state legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive. the subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, what greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? it is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. but i forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency. there is another objection of a somewhat more precise nature that claims our attention. it has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the union and of the particular states. the supposition of a want of proper knowledge seems to be entirely destitute of foundation. if any question is depending in a state legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? no doubt from the information of the members of the county. cannot the like knowledge be obtained in the national legislature from the representatives of each state? and is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each state; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry? nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature. inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation. the taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the direct and those of the indirect kind. though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. and indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. the knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. the circumstances that may distinguish its situation in one state from its situation in another must be few, simple, and easy to be comprehended. the principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular state; and there could be no difficulty in ascertaining the revenue system of each. this could always be known from the respective codes of laws, as well as from the information of the members from the several states. the objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. land taxes are co monly laid in one of two modes, either by actual valuations, permanent or periodical, or by occasional assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. in either case, the execution of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. all that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. and what is there in all this that cannot as well be performed by the national legislature as by a state legislature? the attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan. but there is a simple point of view in which this matter may be placed that must be altogether satisfactory. the national legislature can make use of the system of each state within that state. the method of laying and collecting this species of taxes in each state can, in all its parts, be adopted and employed by the federal government. let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each state, as described in the second section of the first article. an actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. the abuse of this power of taxation seems to have been provided against with guarded circumspection. in addition to the precaution just mentioned, there is a provision that "all duties, imposts, and excises shall be uniform throughout the united states." it has been very properly observed by different speakers and writers on the side of the constitution, that if the exercise of the power of internal taxation by the union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. by way of answer to this, it has been triumphantly asked, why not in the first instance omit that ambiguous power, and rely upon the latter resource? two solid answers may be given. the first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. the contrary, indeed, appears most probable. the second answer is, that the existence of such a power in the constitution will have a strong influence in giving efficacy to requisitions. when the states know that the union can apply itself without their agency, it will be a powerful motive for exertion on their part. as to the interference of the revenue laws of the union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. the laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. an effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. as neither can control the other, each will have an obvious and sensible interest in this reciprocal forbearance. and where there is an immediate common interest, we may safely count upon its operation. when the particular debts of the states are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. a small land tax will answer the purpose of the states, and will be their most simple and most fit resource. many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. as to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the union, which applies to the duties on imports; the other, where the object has not fallen under any state regulation or provision, which may be applicable to a variety of objects. in other cases, the probability is that the united states will either wholly abstain from the objects preoccupied for local purposes, or will make use of the state officers and state regulations for collecting the additional imposition. this will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the state governments and to the people. at all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan. as to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. if such a spirit should infest the councils of the union, the most certain road to the accomplishment of its aim would be to employ the state officers as much as possible, and to attach them to the union by an accumulation of their emoluments. this would serve to turn the tide of state influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. but all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. they can answer no other end than to cast a mist over the truth. as to the suggestion of double taxation, the answer is plain. the wants of the union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the state government. the quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under state regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression! as to poll taxes, i, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those states [ ] which have uniformly been the most tenacious of their rights, i should lament to see them introduced into practice under the national government. but does it follow because there is a power to lay them that they will actually be laid? every state in the union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. are the state governments to be stigmatized as tyrannies, because they possess this power? if they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? as little friendly as i am to the species of imposition, i still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. there are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. and the government, from the possibility of such emergencies, ought ever to have the option of making use of them. the real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. there may exist certain critical and tempestuous conjunctures of the state, in which a poll tax may become an inestimable resource. and as i know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, i acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security. i have now gone through the examination of such of the powers proposed to be vested in the united states, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. i have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the constitution, or of too manifest propriety to admit of controversy. the mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. this has determined me to refer it to the branch of our inquiries upon which we shall next enter. publius. fna -@ the new england states. federalist no. concerning the difficulties of the convention in devising a proper form of government from the daily advertiser. friday, january , . madison to the people of the state of new york: in reviewing the defects of the existing confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. but as the ultimate object of these papers is to determine clearly and fully the merits of this constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects. that this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. it is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. to those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. in some, it has been too evident from their own publications, that they have scanned the proposed constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. in placing, however, these different characters on a level, with respect to the weight of their opinions, i wish not to insinuate that there may not be a material difference in the purity of their intentions. it is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. the predetermined adversary, on the other hand, can have been governed by no venial motive whatever. the intentions of the first may be upright, as they may on the contrary be culpable. the views of the last cannot be upright, and must be culpable. but the truth is, that these papers are not addressed to persons falling under either of these characters. they solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others. with equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. the novelty of the undertaking immediately strikes us. it has been shown in the course of these papers, that the existing confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. it has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. the most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them. among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. an irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the state administrations. on comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. the genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. a frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand. how far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. from the cursory view here taken, it must clearly appear to have been an arduous part. not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the state governments. every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. the faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. the boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. the most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. a still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted. when we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. the experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. the precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in great britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. the jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. all new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. the use of words is to express ideas. perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. but no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. and this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. when the almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated. here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. any one of these must produce a certain degree of obscurity. the convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all. to the difficulties already mentioned may be added the interfering pretensions of the larger and smaller states. we cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. we may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. it is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. there are features in the constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations. nor could it have been the large and small states only, which would marshal themselves in opposition to each other on various points. other combinations, resulting from a difference of local position and policy, must have created additional difficulties. as every state may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the united states are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. and although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it. would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a constitution planned in his closet or in his imagination? the real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. it is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. it is impossible for the man of pious reflection not to perceive in it a finger of that almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution. we had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the united netherlands for reforming the baneful and notorious vices of their constitution. the history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. if, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. in revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. the first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. the second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments. federalist no. the same subject continued, and the incoherence of the objections to the new plan exposed from the new york packet. tuesday, january , . madison to the people of the state of new york: it is not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity. minos, we learn, was the primitive founder of the government of crete, as zaleucus was of that of the locrians. theseus first, and after him draco and solon, instituted the government of athens. lycurgus was the lawgiver of sparta. the foundation of the original government of rome was laid by romulus, and the work completed by two of his elective successors, numa and tullius hostilius. on the abolition of royalty the consular administration was substituted by brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by tullius hostilius, and to which his address obtained the assent and ratification of the senate and people. this remark is applicable to confederate governments also. amphictyon, we are told, was the author of that which bore his name. the achaean league received its first birth from achaeus, and its second from aratus. what degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. in some, however, the proceeding was strictly regular. draco appears to have been intrusted by the people of athens with indefinite powers to reform its government and laws. and solon, according to plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. the proceedings under lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens. whence could it have proceeded, that a people, jealous as the greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? whence could it have proceeded, that the athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? these questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. history informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. and lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. if these lessons teach us, on one hand, to admire the improvement made by america on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them. is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? this conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the articles of confederation. it is observable that among the numerous objections and amendments suggested by the several states, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. and if we except the observations which new jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. there is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some states, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of selfpreservation. one state, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. every candid reader will make the proper reflections on these important facts. a patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. the physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. they are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. the prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? and if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? such a patient and in such a situation is america at this moment. she has been sensible of her malady. she has obtained a regular and unanimous advice from men of her own deliberate choice. and she is warned by others against following this advice under pain of the most fatal consequences. do the monitors deny the reality of her danger? no. do they deny the necessity of some speedy and powerful remedy? no. are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? let them speak for themselves. this one tells us that the proposed constitution ought to be rejected, because it is not a confederation of the states, but a government over individuals. another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. a third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. a fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the states in their political capacity. a fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. an objector in a large state exclaims loudly against the unreasonable equality of representation in the senate. an objector in a small state is equally loud against the dangerous inequality in the house of representatives. from this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. from another quarter, and sometimes from the same quarter, on another occasion, the cry is that the congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. a patriot in a state that does not import or export, discerns insuperable objections against the power of direct taxation. the patriotic adversary in a state of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. this politician discovers in the constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. with another class of adversaries to the constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. in the eyes of one the junction of the senate with the president in the responsible function of appointing to offices, instead of vesting this executive power in the executive alone, is the vicious part of the organization. to another, the exclusion of the house of representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. with another, the admission of the president into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. no part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. "we concur fully," reply others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. our principal dislike to the organization arises from the extensive powers already lodged in that department." even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. the demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the president himself. as it can give no umbrage to the writers against the plan of the federal constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, i leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the constitution, now before the public, would not stand as fair a chance for immortality, as lycurgus gave to that of sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a better, but until another should be agreed upon by this new assembly of lawgivers. it is a matter both of wonder and regret, that those who raise so many objections against the new constitution should never call to mind the defects of that which is to be exchanged for it. it is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. no man would refuse to give brass for silver or gold, because the latter had some alloy in it. no man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. but waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing confederation? is an indefinite power to raise money dangerous in the hands of the federal government? the present congress can make requisitions to any amount they please, and the states are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. is an indefinite power to raise troops dangerous? the confederation gives to congress that power also; and they have already begun to make use of it. is it improper and unsafe to intermix the different powers of government in the same body of men? congress, a single body of men, are the sole depositary of all the federal powers. is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? the confederation places them both in the hands of congress. is a bill of rights essential to liberty? the confederation has no bill of rights. is it an objection against the new constitution, that it empowers the senate, with the concurrence of the executive, to make treaties which are to be the laws of the land? the existing congress, without any such control, can make treaties which they themselves have declared, and most of the states have recognized, to be the supreme law of the land. is the importation of slaves permitted by the new constitution for twenty years? by the old it is permitted forever. i shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of congress on the state for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. then, say i, in the first place, that the confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing congress; in either of which events, the contrast just stated will hold good. but this is not all. out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the union. it is now no longer a point of speculation and hope, that the western territory is a mine of vast wealth to the united states; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. a very large proportion of this fund has been already surrendered by individual states; and it may with reason be expected that the remaining states will not persist in withholding similar proofs of their equity and generosity. we may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the united states, will soon become a national stock. congress have assumed the administration of this stock. they have begun to render it productive. congress have undertaken to do more: they have proceeded to form new states, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such states shall be admitted into the confederacy. all this has been done; and done without the least color of constitutional authority. yet no blame has been whispered; no alarm has been sounded. a great and independent fund of revenue is passing into the hands of a single body of men, who can raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time. and yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the union against the future powers and resources of a body constructed like the existing congress, than to save it from the dangers threatened by the present impotency of that assembly? i mean not, by any thing here said, to throw censure on the measures which have been pursued by congress. i am sensible they could not have done otherwise. the public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. but is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? a dissolution or usurpation is the dreadful dilemma to which it is continually exposed. publius. federalist no. the conformity of the plan to republican principles for the independent journal. madison to the people of the state of new york: the last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. the first question that offers itself is, whether the general form and aspect of the government be strictly republican. it is evident that no other form would be reconcilable with the genius of the people of america; with the fundamental principles of the revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. if the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. what, then, are the distinctive characters of the republican form? were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different states, no satisfactory one would ever be found. holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. the same title has been bestowed on venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. the government of england, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. these examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions. if we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. it is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the united states, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. according to the constitution of every state in the union, some or other of the officers of government are appointed indirectly only by the people. according to most of them, the chief magistrate himself is so appointed. and according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. according to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. according to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. on comparing the constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. the house of representatives, like that of one branch at least of all the state legislatures, is elected immediately by the great body of the people. the senate, like the present congress, and the senate of maryland, derives its appointment indirectly from the people. the president is indirectly derived from the choice of the people, according to the example in most of the states. even the judges, with all other officers of the union, will, as in the several states, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of state constitutions the house of representatives is periodically elective, as in all the states; and for the period of two years, as in the state of south carolina. the senate is elective, for the period of six years; which is but one year more than the period of the senate of maryland, and but two more than that of the senates of new york and virginia. the president is to continue in office for the period of four years; as in new york and delaware, the chief magistrate is elected for three years, and in south carolina for two years. in the other states the election is annual. in several of the states, however, no constitutional provision is made for the impeachment of the chief magistrate. and in delaware and virginia he is not impeachable till out of office. the president of the united states is impeachable at any time during his continuance in office. the tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. the tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the state constitutions. could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments; and in its express guaranty of the republican form to each of the latter. "but it was not sufficient," say the adversaries of the proposed constitution, "for the convention to adhere to the republican form. they ought, with equal care, to have preserved the federal form, which regards the union as a confederacy of sovereign states; instead of which, they have framed a national government, which regards the union as a consolidation of the states." and it is asked by what authority this bold and radical innovation was undertaken? the handle which has been made of this objection requires that it should be examined with some precision. without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority. first. in order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced. on examining the first relation, it appears, on one hand, that the constitution is to be founded on the assent and ratification of the people of america, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong. it is to be the assent and ratification of the several states, derived from the supreme authority in each state, the authority of the people themselves. the act, therefore, establishing the constitution, will not be a national, but a federal act. that it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the union, nor from that of a majority of the states. it must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the united states would bind the minority, in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the states as evidence of the will of a majority of the people of the united states. neither of these rules have been adopted. each state, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. in this relation, then, the new constitution will, if established, be a federal, and not a national constitution. the next relation is, to the sources from which the ordinary powers of government are to be derived. the house of representatives will derive its powers from the people of america; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. so far the government is national, not federal. the senate, on the other hand, will derive its powers from the states, as political and coequal societies; and these will be represented on the principle of equality in the senate, as they now are in the existing congress. so far the government is federal, not national. the executive power will be derived from a very compound source. the immediate election of the president is to be made by the states in their political characters. the votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. the eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. from this aspect of the government it appears to be of a mixed character, presenting at least as many federal as national features. the difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. on trying the constitution by this criterion, it falls under the national, not the federal character; though perhaps not so completely as has been understood. in several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. so far the national countenance of the government on this side seems to be disfigured by a few federal features. but this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government. but if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. the idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. among a people consolidated into one nation, this supremacy is completely vested in the national legislature. among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. in the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. in the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. in this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects. it is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. but this does not change the principle of the case. the decision is to be impartially made, according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure this impartiality. some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. if we try the constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. were it wholly federal, on the other hand, the concurrence of each state in the union would be essential to every alteration that would be binding on all. the mode provided by the plan of the convention is not founded on either of these principles. in requiring more than a majority, and principles. in requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of states sufficient, it loses again the federal and partakes of the national character. the proposed constitution, therefore, is, in strictness, neither a national nor a federal constitution, but a composition of both. in its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. publius. federalist no. the powers of the convention to form a mixed government examined and sustained from the new york packet. friday, january , . madison to the people of the state of new york: the second point to be examined is, whether the convention were authorized to frame and propose this mixed constitution. the powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. as all of these, however, had reference, either to the recommendation from the meeting at annapolis, in september, , or to that from congress, in february, , it will be sufficient to recur to these particular acts. the act from annapolis recommends the "appointment of commissioners to take into consideration the situation of the united states; to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the union; and to report such an act for that purpose, to the united states in congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same. "the recommendatory act of congress is in the words following:"whereas, there is provision in the articles of confederation and perpetual union, for making alterations therein, by the assent of a congress of the united states, and of the legislatures of the several states; and whereas experience hath evinced, that there are defects in the present confederation; as a mean to remedy which, several of the states, and particularly the state of new york, by express instructions to their delegates in congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government:"resolved, that in the opinion of congress it is expedient, that on the second monday of may next a convention of delegates, who shall have been appointed by the several states, be held at philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in congress, and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the union. "from these two acts, it appears, st, that the object of the convention was to establish, in these states, a firm national government; d, that this government was to be such as would be adequate to the exigencies of government and the preservation of the union; d, that these purposes were to be effected by alterations and provisions in the articles of confederation, as it is expressed in the act of congress, or by such further provisions as should appear necessary, as it stands in the recommendatory act from annapolis; th, that the alterations and provisions were to be reported to congress, and to the states, in order to be agreed to by the former and confirmed by the latter. from a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. they were to frame a national government, adequate to the exigencies of government, and of the union; and to reduce the articles of confederation into such form as to accomplish these purposes. there are two rules of construction, dictated by plain reason, as well as founded on legal axioms. the one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. the other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a national and adequate government could not possibly, in the judgment of the convention, be affected by alterations and provisions in the articles of confederation; which part of the definition ought to have been embraced, and which rejected? which was the more important, which the less important part? which the end; which the means? let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. let them declare, whether it was of most importance to the happiness of the people of america, that the articles of confederation should be disregarded, and an adequate government be provided, and the union preserved; or that an adequate government should be omitted, and the articles of confederation preserved. let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. but is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no alterations or provisions in the articles of the confederation could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? no stress, it is presumed, will, in this case, be laid on the title; a change of that could never be deemed an exercise of ungranted power. alterations in the body of the instrument are expressly authorized. new provisions therein are also expressly authorized. here then is a power to change the title; to insert new articles; to alter old ones. must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government. will it be said that the alterations ought not to have touched the substance of the confederation? the states would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been in contemplation. will it be said that the fundamental principles of the confederation were not within the purview of the convention, and ought not to have been varied? i ask, what are these principles? do they require that, in the establishment of the constitution, the states should be regarded as distinct and independent sovereigns? they are so regarded by the constitution proposed. do they require that the members of the government should derive their appointment from the legislatures, not from the people of the states? one branch of the new government is to be appointed by these legislatures; and under the confederation, the delegates to congress may all be appointed immediately by the people, and in two states are actually so appointed. do they require that the powers of the government should act on the states, and not immediately on individuals? in some instances, as has been shown, the powers of the new government will act on the states in their collective characters. in some instances, also, those of the existing government act immediately on individuals. in cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the indians; of claims under grants of land by different states; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the confederation operate immediately on the persons and interests of individual citizens. do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the states? the confederation itself authorizes a direct tax, to a certain extent, on the post office. the power of coinage has been so construed by congress as to levy a tribute immediately from that source also. but pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? had not congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the confederation? had not every state but one; had not new york herself, so far complied with the plan of congress as to recognize the principle of the innovation? do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the states should be left in possession of their sovereignty and independence? we have seen that in the new government, as in the old, the general powers are limited; and that the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. the truth is, that the great principles of the constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of confederation. the misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. in one particular it is admitted that the convention have departed from the tenor of their commission. instead of reporting a plan requiring the confirmation of the legislatures of all the states, they have reported a plan which is to be confirmed by the people, and may be carried into effect by nine states only. it is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. the forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve states to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a majority of one sixtieth of the people of america to a measure approved and called for by the voice of twelve states, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. as this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, i dismiss it without further observation. the third point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. in the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a constitution for the united states. we have seen in what manner they have borne the trial even on that supposition. it is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the states, and so understood by the convention; and that the latter have accordingly planned and proposed a constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. this reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. let us view the ground on which the convention stood. it may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. it could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. they had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the united states. they had seen in the origin and progress of the experiment, the alacrity with which the proposition, made by a single state (virginia), towards a partial amendment of the confederation, had been attended to and promoted. they had seen the liberty assumed by a very few deputies from a very few states, convened at annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen states. they had seen, in a variety of instances, assumptions by congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. they must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness," since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens. they must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the states were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that conventions were elected in the several states for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. they must have borne in mind, that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. it might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve states who usurped the power of sending deputies to the convention, a body utterly unknown to their constitutions; for congress, who recommended the appointment of this body, equally unknown to the confederation; and for the state of new york, in particular, which first urged and then complied with this unauthorized interposition? but that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a constitution for their country: does it follow that the constitution ought, for that reason alone, to be rejected? if, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? the prudent inquiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice be good. the sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of america. how far this character is due to the constitution, is the subject under investigation. publius. connecticut and rhode island. declaration of independence. federalist no. general view of the powers conferred by the constitution for the independent journal. madison to the people of the state of new york: the constitution proposed by the convention may be considered under two general points of view. the first relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the states. the second, to the particular structure of the government, and the distribution of this power among its several branches. under the first view of the subject, two important questions arise: . whether any part of the powers transferred to the general government be unnecessary or improper? . whether the entire mass of them be dangerous to the portion of jurisdiction left in the several states? is the aggregate power of the general government greater than ought to have been vested in it? this is the first question. it cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. they have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. this method of handling the subject cannot impose on the good sense of the people of america. it may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the greater, not the perfect, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. they will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. that we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: . security against foreign danger; . regulation of the intercourse with foreign nations; . maintenance of harmony and proper intercourse among the states; . certain miscellaneous objects of general utility; . restraint of the states from certain injurious acts; . provisions for giving due efficacy to all these powers. the powers falling within the first class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. security against foreign danger is one of the primitive objects of civil society. it is an avowed and essential object of the american union. the powers requisite for attaining it must be effectually confided to the federal councils. is the power of declaring war necessary? no man will answer this question in the negative. it would be superfluous, therefore, to enter into a proof of the affirmative. the existing confederation establishes this power in the most ample form. is the power of raising armies and equipping fleets necessary? this is involved in the foregoing power. it is involved in the power of self-defense. but was it necessary to give an indefinite power of raising troops, as well as providing fleets; and of maintaining both in peace, as well as in war? the answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. the answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. with what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? if a federal constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. how could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? the means of security can only be regulated by the means and the danger of attack. they will, in fact, be ever determined by these rules, and by no others. it is in vain to oppose constitutional barriers to the impulse of self-preservation. it is worse than in vain; because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. if one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions. the fifteenth century was the unhappy epoch of military establishments in the time of peace. they were introduced by charles vii. of france. all europe has followed, or been forced into, the example. had the example not been followed by other nations, all europe must long ago have worn the chains of a universal monarch. were every nation except france now to disband its peace establishments, the same event might follow. the veteran legions of rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. not the less true is it, that the liberties of rome proved the final victim to her military triumphs; and that the liberties of europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. a standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. on the smallest scale it has its inconveniences. on an extensive scale its consequences may be fatal. on any scale it is an object of laudable circumspection and precaution. a wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. the clearest marks of this prudence are stamped on the proposed constitution. the union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. america united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than america disunited, with a hundred thousand veterans ready for combat. it was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in europe. being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of great britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. the distance of the united states from the powerful nations of the world gives them the same happy security. a dangerous establishment can never be necessary or plausible, so long as they continue a united people. but let it never, for a moment, be forgotten that they are indebted for this advantage to the union alone. the moment of its dissolution will be the date of a new order of things. the fears of the weaker, or the ambition of the stronger states, or confederacies, will set the same example in the new, as charles vii. did in the old world. the example will be followed here from the same motives which produced universal imitation there. instead of deriving from our situation the precious advantage which great britain has derived from hers, the face of america will be but a copy of that of the continent of europe. it will present liberty everywhere crushed between standing armies and perpetual taxes. the fortunes of disunited america will be even more disastrous than those of europe. the sources of evil in the latter are confined to her own limits. no superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. in america the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. a plentiful addition of evils would have their source in that relation in which europe stands to this quarter of the earth, and which no other quarter of the earth bears to europe. this picture of the consequences of disunion cannot be too highly colored, or too often exhibited. every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the union of america, and be able to set a due value on the means of preserving it. next to the effectual establishment of the union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. this precaution the constitution has prudently added. i will not repeat here the observations which i flatter myself have placed this subject in a just and satisfactory light. but it may not be improper to take notice of an argument against this part of the constitution, which has been drawn from the policy and practice of great britain. it is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the american constitution has lengthened this critical period to two years. this is the form in which the comparison is usually stated to the public: but is it a just form? is it a fair comparison? does the british constitution restrain the parliamentary discretion to one year? does the american impose on the congress appropriations for two years? on the contrary, it cannot be unknown to the authors of the fallacy themselves, that the british constitution fixes no limit whatever to the discretion of the legislature, and that the american ties down the legislature to two years, as the longest admissible term. had the argument from the british example been truly stated, it would have stood thus: the term for which supplies may be appropriated to the army establishment, though unlimited by the british constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. now, if in great britain, where the house of commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the united states, elected freely by the whole body of the people, every second year, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of two years? a bad cause seldom fails to betray itself. of this truth, the management of the opposition to the federal government is an unvaried exemplification. but among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. the attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a constitution fully adequate to the national defense and the preservation of the union, can save america from as many standing armies as it may be split into states or confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. the palpable necessity of the power to provide and maintain a navy has protected that part of the constitution against a spirit of censure, which has spared few other parts. it must, indeed, be numbered among the greatest blessings of america, that as her union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. in this respect our situation bears another likeness to the insular advantage of great britain. the batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. the inhabitants of the atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. if we except perhaps virginia and maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the union ought to feel more anxiety on this subject than new york. her seacoast is extensive. a very important district of the state is an island. the state itself is penetrated by a large navigable river for more than fifty leagues. the great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. should a war be the result of the precarious situation of european affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. in the present condition of america, the states more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. the power of regulating and calling forth the militia has been already sufficiently vindicated and explained. the power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. this power, also, has been examined already with much attention, and has, i trust, been clearly shown to be necessary, both in the extent and form given to it by the constitution. i will address one additional reflection only to those who contend that the power ought to have been restrained to external taxation by which they mean, taxes on articles imported from other countries. it cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. but we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. as long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. as soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. in a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. a system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the constitution, on the language in which it is defined. it has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the united states," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. no stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. had no other enumeration or definition of the powers of the congress been found in the constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. a power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare. "but what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? if the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? for what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. but the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the constitution, we must take the liberty of supposing, had not its origin with the latter. the objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of confederation. the objects of the union among the states, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare. " the terms of article eighth are still more identical: "all charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the united states in congress, shall be defrayed out of a common treasury," etc. a similar language again occurs in article ninth. construe either of these articles by the rules which would justify the construction put on the new constitution, and they vest in the existing congress a power to legislate in all cases whatsoever. but what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? i appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of congress as they now make use of against the convention. how difficult it is for error to escape its own condemnation! publius. federalist no. the powers conferred by the constitution further considered from the new york packet. tuesday, january , . madison to the people of the state of new york: the second class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year , the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. this class of powers forms an obvious and essential branch of the federal administration. if we are to be one nation in any respect, it clearly ought to be in respect to other nations. the powers to make treaties and to send and receive ambassadors, speak their own propriety. both of them are comprised in the articles of confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the states; and that a power of appointing and receiving "other public ministers and consuls," is expressly and very properly added to the former provision concerning ambassadors. the term ambassador, if taken strictly, as seems to be required by the second of the articles of confederation, comprehends the highest grade only of public ministers, and excludes the grades which the united states will be most likely to prefer, where foreign embassies may be necessary. and under no latitude of construction will the term comprehend consuls. yet it has been found expedient, and has been the practice of congress, to employ the inferior grades of public ministers, and to send and receive consuls. it is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of american consuls into foreign countries may perhaps be covered under the authority, given by the ninth article of the confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the united states. but the admission of consuls into the united states, where no previous treaty has stipulated it, seems to have been nowhere provided for. a supply of the omission is one of the lesser instances in which the convention have improved on the model before them. but the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. a list of the cases in which congress have been betrayed, or forced by the defects of the confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of confederation. these articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the confederacy with foreign nations. the provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. the definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. a definition of felonies on the high seas is evidently requisite. felony is a term of loose signification, even in the common law of england; and of various import in the statute law of that kingdom. but neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. the meaning of the term, as defined in the codes of the several states, would be as impracticable as the former would be a dishonorable and illegitimate guide. it is not precisely the same in any two of the states; and varies in each with every revision of its criminal laws. for the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper. the regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. it were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year , or rather that it had been suffered to have immediate operation. but it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. it ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these states, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few states which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the union. happy would it be for the unfortunate africans, if an equal prospect lay before them of being redeemed from the oppressions of their european brethren! attempts have been made to pervert this clause into an objection against the constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from europe to america. i mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. the powers included in the third class are those which provide for the harmony and proper intercourse among the states. under this head might be included the particular restraints imposed on the authority of the states, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. i shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several states and the indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the united states; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each state shall be proved, and the effect they shall have in other states; and to establish post offices and post roads. the defect of power in the existing confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. to the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. a very material object of this power was the relief of the states which import and export through other states, from the improper contributions levied on them by the latter. were these at liberty to regulate the trade between state and state, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. we may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. to those who do not view the question through the medium of passion or of interest, the desire of the commercial states to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. but the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. the necessity of a superintending authority over the reciprocal trade of confederated states, has been illustrated by other examples as well as our own. in switzerland, where the union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. in germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. among the restraints imposed by the union of the netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. the regulation of commerce with the indian tribes is very properly unfettered from two limitations in the articles of confederation, which render the provision obscure and contradictory. the power is there restrained to indians, not members of any of the states, and is not to violate or infringe the legislative right of any state within its own limits. what description of indians are to be deemed members of a state, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. and how the trade with indians, though not members of a state, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. this is not the only case in which the articles of confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. all that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the constitution has supplied a material omission in the articles of confederation. the authority of the existing congress is restrained to the regulation of coin struck by their own authority, or that of the respective states. it must be seen at once that the proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different states. the punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. the regulation of weights and measures is transferred from the articles of confederation, and is founded on like considerations with the preceding power of regulating coin. the dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. in the fourth article of the confederation, it is declared "that the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall, in every other, enjoy all the privileges of trade and commerce," etc. there is a confusion of language here, which is remarkable. why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another; or what was meant by superadding to "all privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be determined. it seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a state, although not citizens of such state, are entitled, in every other state, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own state: so that it may be in the power of a particular state, or rather every state is laid under a necessity, not only to confer the rights of citizenship in other states upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. but were an exposition of the term "inhabitants" to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. the very improper power would still be retained by each state, of naturalizing aliens in every other state. in one state, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. an alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one state be preposterously rendered paramount to the law of another, within the jurisdiction of the other. we owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. by the laws of several states, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. what would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another state, and then asserted their rights as such, both to residence and citizenship, within the state proscribing them? whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. the new constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the united states. the power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different states, that the expediency of it seems not likely to be drawn into question. the power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each state shall be proved, and the effect they shall have in other states, is an evident and valuable improvement on the clause relating to this subject in the articles of confederation. the meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. the power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous states, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. the power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. nothing which tends to facilitate the intercourse between the states can be deemed unworthy of the public care. publius. federalist no. the same subject continued (the powers conferred by the constitution further considered) for the independent journal. madison to the people of the state of new york: the fourth class comprises the following miscellaneous powers: . a power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. "the utility of this power will scarcely be questioned. the copyright of authors has been solemnly adjudged, in great britain, to be a right of common law. the right to useful inventions seems with equal reason to belong to the inventors. the public good fully coincides in both cases with the claims of individuals. the states cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of congress. . "to exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of congress, become the seat of the government of the united states; and to exercise like authority over all places purchased by the consent of the legislatures of the states in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. "the indispensable necessity of complete authority at the seat of government, carries its own evidence with it. it is a power exercised by every legislature of the union, i might say of the world, by virtue of its general supremacy. without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the state comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy. this consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single state, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. the extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. and as it is to be appropriated to this use with the consent of the state ceding it; as the state will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the state, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the state in their adoption of the constitution, every imaginable objection seems to be obviated. the necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. the public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular state. nor would it be proper for the places on which the security of the entire union may depend, to be in any degree dependent on a particular member of it. all objections and scruples are here also obviated, by requiring the concurrence of the states concerned, in every such establishment. . "to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained. "as treason may be committed against the united states, the authority of the united states ought to be enabled to punish it. but as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. . "to admit new states into the union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress. "in the articles of confederation, no provision is found on this important subject. canada was to be admitted of right, on her joining in the measures of the united states; and the other colonies, by which were evidently meant the other british colonies, at the discretion of nine states. the eventual establishment of new states seems to have been overlooked by the compilers of that instrument. we have seen the inconvenience of this omission, and the assumption of power into which congress have been led by it. with great propriety, therefore, has the new system supplied the defect. the general precaution, that no new states shall be formed, without the concurrence of the federal authority, and that of the states concerned, is consonant to the principles which ought to govern such transactions. the particular precaution against the erection of new states, by the partition of a state without its consent, quiets the jealousy of the larger states; as that of the smaller is quieted by a like precaution, against a junction of states without their consent. . "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states, with a proviso, that nothing in the constitution shall be so construed as to prejudice any claims of the united states, or of any particular state. "this is a power of very great importance, and required by considerations similar to those which show the propriety of the former. the proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the western territory sufficiently known to the public. . "to guarantee to every state in the union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. "in a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. the more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained. but a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the constitution? governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. "as the confederate republic of germany," says montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of holland and switzerland. " "greece was undone," he adds, "as soon as the king of macedon obtained a seat among the amphictyons. " in the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. it may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the state governments, without the concurrence of the states themselves. these questions admit of ready answers. if the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the constitution. but who can say what experiments may be produced by the caprice of particular states, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? to the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. but the authority extends no further than to a guaranty of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. as long, therefore, as the existing republican forms are continued by the states, they are guaranteed by the federal constitution. whenever the states may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. the only restriction imposed on them is, that they shall not exchange republican for antirepublican constitutions; a restriction which, it is presumed, will hardly be considered as a grievance. a protection against invasion is due from every society to the parts composing it. the latitude of the expression here used seems to secure each state, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. the history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. protection against domestic violence is added with equal propriety. it has been remarked, that even among the swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. a recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. at first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. but theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. why may not illicit combinations, for purposes of violence, be formed as well by a majority of a state, especially a small state as by a majority of a county, or a district of the same state; and if the authority of the state ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the state authority? besides, there are certain parts of the state constitutions which are so interwoven with the federal constitution, that a violent blow cannot be given to the one without communicating the wound to the other. insurrections in a state will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. it will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. the existence of a right to interpose, will generally prevent the necessity of exerting it. is it true that force and right are necessarily on the same side in republican governments? may not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? may not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! may it not happen, in fine, that the minority of citizens may become a majority of persons, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the state has not admitted to the rights of suffrage? i take no notice of an unhappy species of population abounding in some of the states, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. in cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a state to pieces, than the representatives of confederate states, not heated by the local flame? to the impartiality of judges, they would unite the affection of friends. happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! should it be asked, what is to be the redress for an insurrection pervading all the states, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. among the advantages of a confederate republic enumerated by montesquieu, an important one is, "that should a popular insurrection happen in one of the states, the others are able to quell it. should abuses creep into one part, they are reformed by those that remain sound. " . "to consider all debts contracted, and engagements entered into, before the adoption of this constitution, as being no less valid against the united states, under this constitution, than under the confederation. "this can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the united states, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. among the lesser criticisms which have been exercised on the constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the united states, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. the authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. they may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would dare, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. . "to provide for amendments to be ratified by three fourths of the states under two exceptions only. "that useful alterations will be suggested by experience, could not but be foreseen. it was requisite, therefore, that a mode for introducing them should be provided. the mode preferred by the convention seems to be stamped with every mark of propriety. it guards equally against that extreme facility, which would render the constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. it, moreover, equally enables the general and the state governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. the exception in favor of the equality of suffrage in the senate, was probably meant as a palladium to the residuary sovereignty of the states, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the states particularly attached to that equality. the other exception must have been admitted on the same considerations which produced the privilege defended by it. . "the ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states, ratifying the same. "this article speaks for itself. the express authority of the people alone could give due validity to the constitution. to have required the unanimous ratification of the thirteen states, would have subjected the essential interests of the whole to the caprice or corruption of a single member. it would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. two questions of a very delicate nature present themselves on this occasion: . on what principle the confederation, which stands in the solemn form of a compact among the states, can be superseded without the unanimous consent of the parties to it? . what relation is to subsist between the nine or more states ratifying the constitution, and the remaining few who do not become parties to it? the first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's god, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. perhaps, also, an answer may be found without searching beyond the principles of the compact itself. it has been heretofore noted among the defects of the confederation, that in many of the states it had received no higher sanction than a mere legislative ratification. the principle of reciprocality seems to require that its obligation on the other states should be reduced to the same standard. a compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. it is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular states to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? the time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. the scene is now changed, and with it the part which the same motives dictate. the second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. it is one of those cases which must be left to provide for itself. in general, it may be observed, that although no political relation can subsist between the assenting and dissenting states, yet the moral relations will remain uncancelled. the claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other. publius. federalist no. restrictions on the authority of the several states from the new york packet. friday, january , . madison to the people of the state of new york: a fifth class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several states: . "no state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex-post-facto law, or law impairing the obligation of contracts; or grant any title of nobility. "the prohibition against treaties, alliances, and confederations makes a part of the existing articles of union; and for reasons which need no explanation, is copied into the new constitution. the prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. according to the former, letters of marque could be granted by the states after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the united states. this alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible. the right of coining money, which is here taken from the states, was left in their hands by the confederation, as a concurrent right with that of congress, under an exception in favor of the exclusive right of congress to regulate the alloy and value. in this instance, also, the new provision is an improvement on the old. whilst the alloy and value depended on the general authority, a right of coinage in the particular states could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. the latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority. the extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. the loss which america has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. in addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the states the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. had every state a right to regulate the value of its coin, there might be as many different currencies as states, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other states be injured, and animosities be kindled among the states themselves. the subjects of foreign powers might suffer from the same cause, and hence the union be discredited and embroiled by the indiscretion of a single member. no one of these mischiefs is less incident to a power in the states to emit paper money, than to coin gold or silver. the power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the states, on the same principle with that of issuing a paper currency. bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. the two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and i am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. the sober people of america are weary of the fluctuating policy which has directed the public councils. they have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. they have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. they very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. the prohibition with respect to titles of nobility is copied from the articles of confederation and needs no comment. . "no state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any state on imports or exports, shall be for the use of the treasury of the united states; and all such laws shall be subject to the revision and control of the congress. no state shall, without the consent of congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. "the restraint on the power of the states over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. it is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the states a reasonable discretion in providing for the conveniency of their imports and exports, and to the united states a reasonable check against the abuse of this discretion. the remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. the sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest. . of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof. "few parts of the constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. without the substance of this power, the whole constitution would be a dead letter. those who object to the article, therefore, as a part of the constitution, can only mean that the form of the provision is improper. but have they considered whether a better form could have been substituted? there are four other possible methods which the constitution might have taken on this subject. they might have copied the second article of the existing confederation, which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. had the convention taken the first method of adopting the second article of confederation, it is evident that the new congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "expressly" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. it would be easy to show, if it were necessary, that no important power, delegated by the articles of confederation, has been or can be executed by congress, without recurring more or less to the doctrine of construction or implication. as the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the constitution by exercising powers indispensably necessary and proper, but, at the same time, not expressly granted. had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same. had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. if, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, not necessary or proper, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. had the constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. no axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the union. if it be asked what is to be the consequence, in case the congress shall misconstrue this part of the constitution, and exercise powers not warranted by its true meaning, i answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the state legislatures should violate the irrespective constitutional authorities. in the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. the truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the state legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. there being no such intermediate body between the state legislatures and the people interested in watching the conduct of the former, violations of the state constitutions are more likely to remain unnoticed and unredressed. . "this constitution and the laws of the united states which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. "the indiscreet zeal of the adversaries to the constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. to be fully sensible of this, we need only suppose for a moment that the supremacy of the state constitutions had been left complete by a saving clause in their favor. in the first place, as these constitutions invest the state legislatures with absolute sovereignty, in all cases not excepted by the existing articles of confederation, all the authorities contained in the proposed constitution, so far as they exceed those enumerated in the confederation, would have been annulled, and the new congress would have been reduced to the same impotent condition with their predecessors. in the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former would, in such states, have brought into question every power contained in the proposed constitution. in the third place, as the constitutions of the states differ much from each other, it might happen that a treaty or national law, of great and equal importance to the states, would interfere with some and not with other constitutions, and would consequently be valid in some of the states, at the same time that it would have no effect in others. in fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. . "the senators and representatives, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and the several states, shall be bound by oath or affirmation to support this constitution. "it has been asked why it was thought necessary, that the state magistracy should be bound to support the federal constitution, and unnecessary that a like oath should be imposed on the officers of the united states, in favor of the state constitutions. several reasons might be assigned for the distinction. i content myself with one, which is obvious and conclusive. the members of the federal government will have no agency in carrying the state constitutions into effect. the members and officers of the state governments, on the contrary, will have an essential agency in giving effect to the federal constitution. the election of the president and senate will depend, in all cases, on the legislatures of the several states. and the election of the house of representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the states. . among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, i pass them over in this. we have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the union. the question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the union shall be established; or, in other words, whether the union itself shall be preserved. publius. federalist no. the alleged danger from the powers of the union to the state governments considered for the independent fournal. madison to the people of the state of new york: having shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several states. the adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular states. but if the union, as has been shown, be essential to the security of the people of america against foreign danger; if it be essential to their security against contentions and wars among the different states; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the union be essential to the happiness of the people of america, is it not preposterous, to urge as an objection to a government, without which the objects of the union cannot be attained, that such a government may derogate from the importance of the governments of the individual states? was, then, the american revolution effected, was the american confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of america should enjoy peace, liberty, and safety, but that the government of the individual states, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? we have heard of the impious doctrine in the old world, that the people were made for kings, not kings for the people. is the same doctrine to be revived in the new, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? it is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. were the plan of the convention adverse to the public happiness, my voice would be, reject the plan. were the union itself inconsistent with the public happiness, it would be, abolish the union. in like manner, as far as the sovereignty of the states cannot be reconciled to the happiness of the people, the voice of every good citizen must be, let the former be sacrificed to the latter. how far the sacrifice is necessary, has been shown. how far the unsacrificed residue will be endangered, is the question before us. several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the state governments. the more i revolve the subject, the more fully i am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. we have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the states will retain, under the proposed constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. in the achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. the lycian confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. on the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. these cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other. in the feudal system, we have seen a similar propensity exemplified. notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments. had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in europe would at this time consist of as many independent princes as there were formerly feudatory barons. the state government will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. the state governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. without the intervention of the state legislatures, the president of the united states cannot be elected at all. they must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. the senate will be elected absolutely and exclusively by the state legislatures. even the house of representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the state legislatures. thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the state governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. on the other side, the component parts of the state governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members. the number of individuals employed under the constitution of the united states will be much smaller than the number employed under the particular states. there will consequently be less of personal influence on the side of the former than of the latter. the members of the legislative, executive, and judiciary departments of thirteen and more states, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. compare the members of the three great departments of the thirteen states, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, i may add, of possibility, and in this view alone, we may pronounce the advantage of the states to be decisive. if the federal government is to have collectors of revenue, the state governments will have theirs also. and as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. it is true, that the confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the states; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the states to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the union, will generally be made by the officers, and according to the rules, appointed by the several states. indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the states will be clothed with the correspondent authority of the union. should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of state officers in the opposite scale. within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the state. the powers delegated by the proposed constitution to the federal government are few and defined. those which are to remain in the state governments are numerous and indefinite. the former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. the powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state. the operations of the federal government will be most extensive and important in times of war and danger; those of the state governments, in times of peace and security. as the former periods will probably bear a small proportion to the latter, the state governments will here enjoy another advantage over the federal government. the more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular states. if the new constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of new powers to the union, than in the invigoration of its original powers. the regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. the powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing congress by the articles of confederation. the proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. the change relating to taxation may be regarded as the most important; and yet the present congress have as complete authority to require of the states indefinite supplies of money for the common defense and general welfare, as the future congress will have to require them of individual citizens; and the latter will be no more bound than the states themselves have been, to pay the quotas respectively taxed on them. had the states complied punctually with the articles of confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the state governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. to maintain that such an event would have ensued, would be to say at once, that the existence of the state governments is incompatible with any system whatever that accomplishes the essential purposes of the union. publius. federalist no. the influence of the state and federal governments compared from the new york packet. tuesday, january , . madison to the people of the state of new york: resuming the subject of the last paper, i proceed to inquire whether the federal government or the state governments will have the advantage with regard to the predilection and support of the people. notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the united states. i assume this position here as it respects the first, reserving the proofs for another place. the federal and state governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. the adversaries of the constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. these gentlemen must here be reminded of their error. they must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective states. into the administration of these a greater number of individuals will expect to rise. from the gift of these a greater number of offices and emoluments will flow. by the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. with the affairs of these, the people will be more familiarly and minutely conversant. and with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline. experience speaks the same language in this case. the federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever. it was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large. it was, nevertheless, invariably found, after the transient enthusiasm for the early congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. if, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the state governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. and in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the state governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. the remaining points on which i propose to compare the federal and state governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. it has been already proved that the members of the federal will be more dependent on the members of the state governments, than the latter will be on the former. it has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the state governments, than of the federal government. so far as the disposition of each towards the other may be influenced by these causes, the state governments must clearly have the advantage. but in a distinct and very important point of view, the advantage will lie on the same side. the prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the states; whilst it will rarely happen, that the members of the state governments will carry into the public councils a bias in favor of the general government. a local spirit will infallibly prevail much more in the members of congress, than a national spirit will prevail in the legislatures of the particular states. every one knows that a great proportion of the errors committed by the state legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the state, to the particular and separate views of the counties or districts in which they reside. and if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular state, how can it be imagined that they will make the aggregate prosperity of the union, and the dignity and respectability of its government, the objects of their affections and consultations? for the same reason that the members of the state legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. the states will be to the latter what counties and towns are to the former. measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual states. what is the spirit that has in general characterized the proceedings of congress? a perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective states, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular states. i mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the state legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual states, or the preorgatives of their governments. the motives on the part of the state governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. were it admitted, however, that the federal government may feel an equal disposition with the state governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. if an act of a particular state, though unfriendly to the national government, be generally popular in that state and should not too grossly violate the oaths of the state officers, it is executed immediately and, of course, by means on the spot and depending on the state alone. the opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the state, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. on the other hand, should an unwarrantable measure of the federal government be unpopular in particular states, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. the disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the union; the frowns of the executive magistracy of the state; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any state, difficulties not to be despised; would form, in a large state, very serious impediments; and where the sentiments of several adjoining states happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. but ambitious encroachments of the federal government, on the authority of the state governments, would not excite the opposition of a single state, or of a few states only. they would be signals of general alarm. every government would espouse the common cause. a correspondence would be opened. plans of resistance would be concerted. one spirit would animate and conduct the whole. the same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. but what degree of madness could ever drive the federal government to such an extremity. in the contest with great britain, one part of the empire was employed against the other. the more numerous part invaded the rights of the less numerous part. the attempt was unjust and unwise; but it was not in speculation absolutely chimerical. but what would be the contest in the case we are supposing? who would be the parties? a few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. the only refuge left for those who prophesy the downfall of the state governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. the reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. that the people and the states should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the states should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. extravagant as the supposition is, let it however be made. let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. the highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. this proportion would not yield, in the united states, an army of more than twenty-five or thirty thousand men. to these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. it may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. those who are best acquainted with the last successful resistance of this country against the british arms, will be most inclined to deny the possibility of it. besides the advantage of being armed, which the americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. notwithstanding the military establishments in the several kingdoms of europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. and it is not certain, that with this aid alone they would not be able to shake off their yokes. but were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in europe would be speedily overturned in spite of the legions which surround it. let us not insult the free and gallant citizens of america with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. the argument under the present head may be put into a very concise form, which appears altogether conclusive. either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. on the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. on the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the state governments, who will be supported by the people. on summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual states, as they are indispensably necessary to accomplish the purposes of the union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the state governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. publius. federalist no. the particular structure of the new government and the distribution of power among its different parts from the new york packet. friday, february , . madison to the people of the state of new york: having reviewed the general form of the proposed government and the general mass of power allotted to it, i proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. one of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. in the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. the several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. were the federal constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. i persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. in order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. the oracle who is always consulted and cited on this subject is the celebrated montesquieu. if he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. let us endeavor, in the first place, to ascertain his meaning on this point. the british constitution was to montesquieu what homer has been to the didactic writers on epic poetry. as the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the constitution of england as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. that we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. on the slightest view of the british constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. the executive magistrate forms an integral part of the legislative authority. he alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. all the members of the judiciary department are appointed by him, can be removed by him on the address of the two houses of parliament, and form, when he pleases to consult them, one of his constitutional councils. one branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. the judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. from these facts, by which montesquieu was guided, it may clearly be inferred that, in saying "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. his meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. this would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. this, however, is not among the vices of that constitution. the magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. the judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. the entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. the entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. the reasons on which montesquieu grounds his maxim are a further demonstration of his meaning. "when the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner. " again: "were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. were it joined to the executive power, the judge might behave with all the violence of an oppressor. " some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author. if we look into the constitutions of the several states, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. new hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring "that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit; or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity. " her constitution accordingly mixes these departments in several respects. the senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. the president, who is the head of the executive department, is the presiding member also of the senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. the executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. several of the officers of state are also appointed by the legislature. and the members of the judiciary department are appointed by the executive department. the constitution of massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. it declares "that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. " this declaration corresponds precisely with the doctrine of montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. it goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. in the very constitution to which it is prefixed, a partial mixture of powers has been admitted. the executive magistrate has a qualified negative on the legislative body, and the senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. the members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. lastly, a number of the officers of government are annually appointed by the legislative department. as the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the constitution have, in this last point at least, violated the rule established by themselves. i pass over the constitutions of rhode island and connecticut, because they were formed prior to the revolution, and even before the principle under examination had become an object of political attention. the constitution of new york contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. it gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary departments in the exercise of this control. in its council of appointment members of the legislative are associated with the executive authority, in the appointment of officers, both executive and judiciary. and its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. the constitution of new jersey has blended the different powers of government more than any of the preceding. the governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the state; is a member of the supreme court of appeals, and president, with a casting vote, of one of the legislative branches. the same legislative branch acts again as executive council of the governor, and with him constitutes the court of appeals. the members of the judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. according to the constitution of pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates. in conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. the judges of the supreme court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department. the members of the executive council are made ex-officio justices of peace throughout the state. in delaware, the chief executive magistrate is annually elected by the legislative department. the speakers of the two legislative branches are vice-presidents in the executive department. the executive chief, with six others, appointed, three by each of the legislative branches constitutes the supreme court of appeals; he is joined with the legislative department in the appointment of the other judges. throughout the states, it appears that the members of the legislature may at the same time be justices of the peace; in this state, the members of one branch of it are ex-officio justices of the peace; as are also the members of the executive council. the principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. all officers may be removed on address of the legislature. maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. the language of virginia is still more pointed on this subject. her constitution declares, "that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either house of assembly. " yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. the executive prerogative of pardon, also, is in one case vested in the legislative department. the constitution of north carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. in south carolina, the constitution makes the executive magistracy eligible by the legislative department. it gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the state. in the constitution of georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. even justices of the peace are to be appointed by the legislature. in citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, i wish not to be regarded as an advocate for the particular organizations of the several state governments. i am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. it is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. what i have wished to evince is, that the charge brought against the proposed constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in america. this interesting subject will be resumed in the ensuing paper. publius. federalist no. these departments should not be so far separated as to have no constitutional control over each other from the new york packet. friday, february , . madison to the people of the state of new york: it was shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. i shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. it is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. it is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. it will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. after discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. what this security ought to be, is the great problem to be solved. will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? this is the security which appears to have been principally relied on by the compilers of most of the american constitutions. but experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. the legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. the founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. a respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. they seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. in a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. in a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. but in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. the legislative department derives a superiority in our governments from other circumstances. its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. it is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. on the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. i have appealed to our own experience for the truth of what i advance on this subject. were it necessary to verify this experience by particular proofs, they might be multiplied without end. i might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. i might collect vouchers in abundance from the records and archives of every state in the union. but as a more concise, and at the same time equally satisfactory, evidence, i will refer to the example of two states, attested by two unexceptionable authorities. the first example is that of virginia, a state which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. the authority in support of it is mr. jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. in order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting "notes on the state of virginia," p. . "all the powers of government, legislative, executive, and judiciary, result to the legislative body. the concentrating these in the same hands, is precisely the definition of despotic government. it will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. one hundred and seventy-three despots would surely be as oppressive as one. let those who doubt it, turn their eyes on the republic of venice. as little will it avail us, that they are chosen by ourselves. an elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. for this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. but no barrier was provided between these several powers. the judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. if, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of assembly, which will render them obligatory on the other branches. they have accordingly, in many instances, decided rights which should have been left to judiciary controversy, and the direction of the executive, during the whole time of their session, is becoming habitual and familiar. "the other state which i shall take for an example is pennsylvania; and the other authority, the council of censors, which assembled in the years and . a part of the duty of this body, as marked out by the constitution, was "to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution. " in the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. a great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. the constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution. executive powers had been usurped. the salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. it appears, also, that the executive department had not been innocent of frequent breaches of the constitution. there are three observations, however, which ought to be made on this head: first, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by congress or the commander-in-chief; secondly, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; thirdly, the executive department of pennsylvania is distinguished from that of the other states by the number of members composing it. in this respect, it has as much affinity to a legislative assembly as to an executive council. and being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands. the conclusion which i am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. publius. federalist no. method of guarding against the encroachments of any one department of government by appealing to the people through a convention from the new york packet. tuesday, february , . hamilton or madison to the people of the state of new york: the author of the "notes on the state of virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in , by the legislature, for the establishment of a constitution for that commonwealth. the plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. one of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. his proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose. "as the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. the several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? there is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. but there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. in the first place, the provision does not reach the case of a combination of two of the departments against the third. if the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. i do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. in the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. if it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. the reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. when the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect. in a nation of philosophers, this consideration ought to be disregarded. a reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. but a nation of philosophers is as little to be expected as the philosophical race of kings wished for by plato. and in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. the danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of america, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. we are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. the future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. but the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. we have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. the appeals to the people, therefore, would usually be made by the executive and judiciary departments. but whether made by one side or the other, would each side enjoy equal advantages on the trial? let us view their different situations. the members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. the latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. the former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. the members of the legislative department, on the other hand, are numberous. they are distributed and dwell among the people at large. their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. the nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. with these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. but the legislative party would not only be able to plead their cause most successfully with the people. they would probably be constituted themselves the judges. the same influence which had gained them an election into the legislature, would gain them a seat in the convention. if this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. the convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. they would consequently be parties to the very question to be decided by them. it might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. the usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. a strong party among themselves might take side with the other branches. the executive power might be in the hands of a peculiar favorite of the people. in such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. but still it could never be expected to turn on the true merits of the question. it would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. it would be connected with persons of distinguished character and extensive influence in the community. it would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. the passions, therefore, not the reason, of the public would sit in judgment. but it is the reason, alone, of the public, that ought to control and regulate the government. the passions ought to be controlled and regulated by the government. we found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. it appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. how far the provisions of a different nature contained in the plan above quoted might be adequate, i do not examine. some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision. publius. federalist no. periodical appeals to the people considered from the new york packet. tuesday, february , . hamilton or madison to the people of the state of new york: it may be contended, perhaps, that instead of occasional appeals to the people, which are liable to the objections urged against them, periodical appeals are the proper and adequate means of preventing and correcting infractions of the constitution. it will be attended to, that in the examination of these expedients, i confine myself to their aptitude for enforcing the constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for altering the constitution itself. in the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge. if the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. if the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. in the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? in the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. and in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. the scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the states. one of the objects of the council of censors which met in pennsylvania in and , was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other. " this important and novel experiment in politics merits, in several points of view, very particular attention. in some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. but as applied to the case under consideration, it involves some facts, which i venture to remark, as a complete and satisfactory illustration of the reasoning which i have employed. first. it appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the state. secondly. it appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. two of the members had been vice-presidents of the state, and several other members of the executive council, within the seven preceding years. one of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period. thirdly. every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. throughout the continuance of the council, it was split into two fixed and violent parties. the fact is acknowledged and lamented by themselves. had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. in all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, passion, not reason, must have presided over their decisions. when men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. when they are governed by a common passion, their opinions, if they are so to be called, will be the same. fourthly. it is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places. fifthly. i have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. it even appears, if i mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. this censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. this conclusion cannot be invalidated by alleging that the state in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. is it to be presumed, that at any future septennial epoch the same state will be free from parties? is it to be presumed that any other state, at the same or any other given period, will be exempt from them? such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. the important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices. publius. federalist no. the structure of the government must furnish the proper checks and balances between the different departments from the new york packet. friday, february , . hamilton or madison to the people of the state of new york: to what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? the only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. without presuming to undertake a full development of this important idea, i will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. in order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. some difficulties, however, and some additional expense would attend the execution of it. some deviations, therefore, from the principle must be admitted. in the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. it is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. but the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. the provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. ambition must be made to counteract ambition. the interest of the man must be connected with the constitutional rights of the place. it may be a reflection on human nature, that such devices should be necessary to control the abuses of government. but what is government itself, but the greatest of all reflections on human nature? if men were angels, no government would be necessary. if angels were to govern men, neither external nor internal controls on government would be necessary. in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. a dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. this policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. we see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. these inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state. but it is not possible to give to each department an equal power of self-defense. in republican government, the legislative authority necessarily predominates. the remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. it may even be necessary to guard against dangerous encroachments by still further precautions. as the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. an absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. but perhaps it would be neither altogether safe nor alone sufficient. on ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. may not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? if the principles on which these observations are founded be just, as i persuade myself they are, and they be applied as a criterion to the several state constitutions, and to the federal constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. there are, moreover, two considerations particularly applicable to the federal system of america, which place that system in a very interesting point of view. first. in a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. in the compound republic of america, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. hence a double security arises to the rights of the people. the different governments will control each other, at the same time that each will be controlled by itself. second. it is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. different interests necessarily exist in different classes of citizens. if a majority be united by a common interest, the rights of the minority will be insecure. there are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. the first method prevails in all governments possessing an hereditary or self-appointed authority. this, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. the second method will be exemplified in the federal republic of the united states. whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. in a free government the security for civil rights must be the same as that for religious rights. it consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. the degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. this view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the union may be formed into more circumscribed confederacies, or states oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. justice is the end of government. it is the end of civil society. it ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. in a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. it can be little doubted that if the state of rhode island was separated from the confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. in the extended republic of the united states, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. it is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. and happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle. publius. federalist no. the house of representatives from the new york packet. friday, february , . hamilton or madison to the people of the state of new york: from the more general inquiries pursued in the four last papers, i pass on to a more particular examination of the several parts of the government. i shall begin with the house of representatives. the first view to be taken of this part of the government relates to the qualifications of the electors and the elected. those of the former are to be the same with those of the electors of the most numerous branch of the state legislatures. the definition of the right of suffrage is very justly regarded as a fundamental article of republican government. it was incumbent on the convention, therefore, to define and establish this right in the constitution. to have left it open for the occasional regulation of the congress, would have been improper for the reason just mentioned. to have submitted it to the legislative discretion of the states, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the state governments that branch of the federal government which ought to be dependent on the people alone. to have reduced the different qualifications in the different states to one uniform rule, would probably have been as dissatisfactory to some of the states as it would have been difficult to the convention. the provision made by the convention appears, therefore, to be the best that lay within their option. it must be satisfactory to every state, because it is conformable to the standard already established, or which may be established, by the state itself. it will be safe to the united states, because, being fixed by the state constitutions, it is not alterable by the state governments, and it cannot be feared that the people of the states will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal constitution. the qualifications of the elected, being less carefully and properly defined by the state constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. a representative of the united states must be of the age of twenty-five years; must have been seven years a citizen of the united states; must, at the time of his election, be an inhabitant of the state he is to represent; and, during the time of his service, must be in no office under the united states. under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. the term for which the representatives are to be elected falls under a second view which may be taken of this branch. in order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. first. as it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. but what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. let us consult experience, the guide that ought always to be followed whenever it can be found. the scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. and even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. the first to which this character ought to be applied, is the house of commons in great britain. the history of this branch of the english constitution, anterior to the date of magna charta, is too obscure to yield instruction. the very existence of it has been made a question among political antiquaries. the earliest records of subsequent date prove that parliaments were to sit only every year; not that they were to be elected every year. and even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. to remedy this grievance, it was provided by a statute in the reign of charles ii. , that the intermissions should not be protracted beyond a period of three years. on the accession of william iii., when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that parliaments ought to be held frequently. by another statute, which passed a few years later in the same reign, the term "frequently," which had alluded to the triennial period settled in the time of charles ii., is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. the last change, from three to seven years, is well known to have been introduced pretty early in the present century, under on alarm for the hanoverian succession. from these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. and if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the house of representatives on their constituents. elections in ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. the parliament which commenced with george ii. was continued throughout his whole reign, a period of about thirty-five years. the only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election. the ability also of the irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. of late these shackles, if i mistake not, have been broken; and octennial parliaments have besides been established. what effect may be produced by this partial reform, must be left to further experience. the example of ireland, from this view of it, can throw but little light on the subject. as far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. let us bring our inquiries nearer home. the example of these states, when british colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. the principle of representation, in one branch of the legislature at least, was established in all of them. but the periods of election were different. they varied from one to seven years. have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the revolution, that biennial elections would have been dangerous to the public liberties? the spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement this remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent virginia was the colony which stood first in resisting the parliamentary usurpations of great britain; it was the first also in espousing, by public act, the resolution of independence. in virginia, nevertheless, if i have not been misinformed, elections under the former government were septennial. this particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in septennial elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and i conceive it to be a very substantial proof, that the liberties of the people can be in no danger from biennial elections. the conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. the first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the british parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the irish legislature. it is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. in the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. and in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the house of representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. with less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other. publius. federalist no. the same subject continued (the house of representatives) from the new york packet. tuesday, february , . hamilton or madison to the people of the state of new york: i shall here, perhaps, be reminded of a current observation, "that where annual elections end, tyranny begins. " if it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. i need not look for a proof beyond the case before us. what is the reason on which this proverbial observation is founded? no man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. the election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? turning our attention to the periods established among ourselves, for the election of the most numerous branches of the state legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. in connecticut and rhode island, the periods are half-yearly. in the other states, south carolina excepted, they are annual. in south carolina they are biennial as is proposed in the federal government. here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that connecticut or rhode island is better governed, or enjoys a greater share of rational liberty, than south carolina; or that either the one or the other of these states is distinguished in these respects, and by these causes, from the states whose elections are different from both. in searching for the grounds of this doctrine, i can discover but one, and that is wholly inapplicable to our case. the important distinction so well understood in america, between a constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. even in great britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the constitution, it is maintained that the authority of the parliament is transcendent and uncontrollable, as well with regard to the constitution, as the ordinary objects of legislative provision. they have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. they have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. an attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. where no constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the united states, was to be attempted. some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? the most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. but what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount constitution? or who will pretend that the liberties of the people of america will not be more secure under biennial elections, unalterably fixed by such a constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? the second question stated is, whether biennial elections be necessary or useful. the propriety of answering this question in the affirmative will appear from several very obvious considerations. no man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. a part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. the period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. the period of legislative service established in most of the states for the more numerous branch is, as we have seen, one year. the question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for state legislation? the very statement of the question, in this form, suggests the answer that ought to be given to it. in a single state, the requisite knowledge relates to the existing laws which are uniform throughout the state, and with which all the citizens are more or less conversant; and to the general affairs of the state, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. the great theatre of the united states presents a very different scene. the laws are so far from being uniform, that they vary in every state; whilst the public affairs of the union are spread throughout a very extensive region, and are extremely diversified by t e local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. yet some knowledge of the affairs, and even of the laws, of all the states, ought to be possessed by the members from each of the states. how can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulatious of the different states? how can the trade between the different states be duly regulated, without some knowledge of their relative situations in these and other respects? how can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these objects in the different states? how can uniform regulations for the militia be duly provided, without a similar knowledge of many internal circumstances by which the states are distinguished from each other? these are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. the other interior objects will require a proportional degree of information with regard to them. it is true that all these difficulties will, by degrees, be very much diminished. the most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. improvements on the first draughts will every year become both easier and fewer. past transactions of the government will be a ready and accurate source of information to new members. the affairs of the union will become more and more objects of curiosity and conversation among the citizens at large. and the increased intercourse among those of different states will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. but with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state, as to justify the longer period of service assigned to those who are to transact it. a branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. in regulating our own commerce he ought to be not only acquainted with the treaties between the united states and other nations, but also with the commercial policy and laws of other nations. he ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. and although the house of representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. some portion of this knowledge may, no doubt, be acquired in a man's closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature. there are other considerations, of less importance, perhaps, but which are not unworthy of notice. the distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. no argument can be drawn on this subject, from the case of the delegates to the existing congress. they are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. the election of the representatives by the people would not be governed by the same principle. a few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. the greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. this remark is no less applicable to the relation which will subsist between the house of representatives and the senate. it is an inconvenience mingled with the advantages of our frequent elections even in single states, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. if a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant states. each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. all these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people. publius. federalist no. the apportionment of members among the states from the new york packet. tuesday, february , . hamilton or madison to the people of the state of new york: the next view which i shall take of the house of representatives relates to the appointment of its members to the several states which is to be determined by the same rule with that of direct taxes. it is not contended that the number of people in each state ought not to be the standard for regulating the proportion of those who are to represent the people of each state. the establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. in the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection. in the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. but notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the states, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of america, not to have found a ready preference with the convention. all this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? slaves are considered as property, not as persons. they ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. this is the objection, as i understand it, stated in its full force. i shall be equally candid in stating the reasoning which may be offered on the opposite side. "we subscribe to the doctrine," might one of our southern brethren observe, "that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. but we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. the true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. in being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. in being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. the federal constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. this is in fact their true character. it is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. "this question may be placed in another light. it is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? could it be reasonably expected, that the southern states would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred? might not some surprise also be expressed, that those who reproach the southern states with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the states are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? "it may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the states possessing them. they neither vote themselves nor increase the votes of their masters. upon what principle, then, ought they to be taken into the federal estimate of representation? in rejecting them altogether, the constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. "this objection is repelled by a single observation. it is a fundamental principle of the proposed constitution, that as the aggregate number of representatives allotted to the several states is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each state is to be exercised by such part of the inhabitants as the state itself may designate. the qualifications on which the right of suffrage depend are not, perhaps, the same in any two states. in some of the states the difference is very material. in every state, a certain proportion of inhabitants are deprived of this right by the constitution of the state, who will be included in the census by which the federal constitution apportions the representatives. in this point of view the southern states might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular states towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other states, are not admitted to all the rights of citizens. a rigorous adherence, however, to this principle, is waived by those who would be gainers by it. all that they ask is that equal moderation be shown on the other side. let the case of the slaves be considered, as it is in truth, a peculiar one. let the compromising expedient of the constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifths of the man. "after all, may not another ground be taken on which this article of the constitution will admit of a still more ready defense? we have hitherto proceeded on the idea that representation related to persons only, and not at all to property. but is it a just idea? government is instituted no less for protection of the property, than of the persons, of individuals. the one as well as the other, therefore, may be considered as represented by those who are charged with the government. upon this principle it is, that in several of the states, and particularly in the state of new york, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. in the federal constitution, this policy does not prevail. the rights of property are committed into the same hands with the personal rights. some attention ought, therefore, to be paid to property in the choice of those hands. "for another reason, the votes allowed in the federal legislature to the people of each state, ought to bear some proportion to the comparative wealth of the states. states have not, like individuals, an influence over each other, arising from superior advantages of fortune. if the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. a state possesses no such influence over other states. it is not probable that the richest state in the confederacy will ever influence the choice of a single representative in any other state. nor will the representatives of the larger and richer states possess any other advantage in the federal legislature, over the representatives of other states, than what may result from their superior number alone. as far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. the new constitution is, in this respect, materially different from the existing confederation, as well as from that of the united netherlands, and other similar confederacies. in each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. under the proposed constitution, the federal acts will take effect without the necessary intervention of the individual states. they will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller state, or a state more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a state legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes. "such is the reasoning which an advocate for the southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, i must confess that it fully reconciles me to the scale of representation which the convention have established. in one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. as the accuracy of the census to be obtained by the congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the states, it is of great importance that the states should feel as little bias as possible, to swell or to reduce the amount of their numbers. were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. were the rule to decide their share of taxation alone, a contrary temptation would prevail. by extending the rule to both objects, the states will have opposite interests, which will control and balance each other, and produce the requisite impartiality. publius. federalist no. the total number of the house of representatives from the new york packet. friday, february , . hamilton or madison to the people of the state of new york: the number of which the house of representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. scarce any article, indeed, in the whole constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. the charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. in general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several states is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. passing over the difference between the smallest and largest states, as delaware, whose most numerous branch consists of twenty-one representatives, and massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among states nearly equal in population. the number of representatives in pennsylvania is not more than one fifth of that in the state last mentioned. new york, whose population is to that of south carolina as six to five, has little more than one third of the number of representatives. as great a disparity prevails between the states of georgia and delaware or rhode island. in pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. in rhode island, they bear a proportion of at least one for every thousand. and according to the constitution of georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other states. another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. were the representatives in virginia to be regulated by the standard in rhode island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. on the other hand, the ratio of pennsylvania, if applied to the state of delaware, would reduce the representative assembly of the latter to seven or eight members. nothing can be more fallacious than to found our political calculations on arithmetical principles. sixty or seventy men may be more properly trusted with a given degree of power than six or seven. but it does not follow that six or seven hundred would be proportionably a better depositary. and if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. the truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. in all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. had every athenian citizen been a socrates, every athenian assembly would still have been a mob. it is necessary also to recollect here the observations which were applied to the case of biennial elections. for the same reason that the limited powers of the congress, and the control of the state legislatures, justify less frequent elections than the public safely might otherwise require, the members of the congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. with these general ideas in our mind, let us weigh the objections which have been stated against the number of members proposed for the house of representatives. it is said, in the first place, that so small a number cannot be safely trusted with so much power. the number of which this branch of the legislature is to consist, at the outset of the government, will be sixtyfive. within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. it will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the united states will by that time, if it does not already, amount to three millions. at the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred, and of fifty years, to four hundred. this is a number which, i presume, will put an end to all fears arising from the smallness of the body. i take for granted here what i shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the constitution. on a contrary supposition, i should admit the objection to have very great weight indeed. the true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the united states? i must own that i could not give a negative answer to this question, without first obliterating every impression which i have received with regard to the present genius of the people of america, the spirit which actuates the state legislatures, and the principles which are incorporated with the political character of every class of citizens i am unable to conceive that the people of america, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. i am unable to conceive that the state legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. i am equally unable to conceive that there are at this time, or can be in any short time, in the united states, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them. what change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. but judging from the circumstances now before us, and from the probable state of them within a moderate period of time, i must pronounce that the liberties of america cannot be unsafe in the number of hands proposed by the federal constitution. from what quarter can the danger proceed? are we afraid of foreign gold? if foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? the congress which conducted us through the revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellowcitizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term. they held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny. is the danger apprehended from the other branches of the federal government? but where are the means to be found by the president, or the senate, or both? their emoluments of office, it is to be presumed, will not, and without a previous corruption of the house of representatives cannot, more than suffice for very different purposes; their private fortunes, as they must allbe american citizens, cannot possibly be sources of danger. the only means, then, which they can possess, will be in the dispensation of appointments. is it here that suspicion rests her charge? sometimes we are told that this fund of corruption is to be exhausted by the president in subduing the virtue of the senate. now, the fidelity of the other house is to be the victim. the improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. but, fortunately, the constitution has provided a still further safeguard. the members of the congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. no offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. the sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. as there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. republican government presupposes the existence of these qualities in a higher degree than any other form. were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. publius. federalist no. the same subject continued (the total number of the house of representatives) from the new york packet. tuesday, february , . hamilton or madison to the people of the state of new york: the second charge against the house of representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. as this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the united states, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. it is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. but this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. an ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. in determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority. what are to be the objects of federal legislation? those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia. a proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual state, a very few representatives would be very sufficient vehicles of it to the federal councils. taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. so far the preceding remark is applicable to this object. as far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the state may be necessary. but will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the state? divide the largest state into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. besides this source of information, the laws of the state, framed by representatives from every part of it, will be almost of themselves a sufficient guide. in every state there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. a skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the states, the more simple objects will be preferred. to be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the state codes, we need only suppose for a moment that this or any other state were divided into a number of parts, each having and exercising within itself a power of local legislation. is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it? the federal councils will derive great advantage from another circumstance. the representatives of each state will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the state legislature, where all the local information and interests of the state are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the united states. the observations made on the subject of taxation apply with greater force to the case of the militia. for however different the rules of discipline may be in different states, they are the same throughout each particular state; and depend on circumstances which can differ but little in different parts of the same state. the attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. this information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single state, but of those among different states. taking each state by itself, its laws are the same, and its interests but little diversified. a few men, therefore, will possess all the knowledge requisite for a proper representation of them. were the interests and affairs of each individual state perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole state might be competently represented by a single member taken from any part of it. on a comparison of the different states together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. whilst a few representatives, therefore, from each state, may bring with them a due knowledge of their own state, every representative will have much information to acquire concerning all the other states. the changes of time, as was formerly remarked, on the comparative situation of the different states, will have an assimilating effect. the effect of time on the internal affairs of the states, taken singly, will be just the contrary. at present some of the states are little more than a society of husbandmen. few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. these, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each state, a fuller representation. the foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. the experience of great britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. the number of inhabitants in the two kingdoms of england and scotland cannot be stated at less than eight millions. the representatives of these eight millions in the house of commons amount to five hundred and fifty-eight. of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons. it cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. on the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. they might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. we will, however, consider them in this light alone, and will not extend the deduction to a considerable number of others, who do not reside among their constitutents, are very faintly connected with them, and have very little particular knowledge of their affairs. with all these concessions, two hundred and seventy-nine persons only will be the depository of the safety, interest, and happiness of eight millions that is to say, there will be one representative only to maintain the rights and explain the situation of twenty-eight thousand six hundred and seventy constitutents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the british code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. allowing to this case the weight which is due to it, and comparing it with that of the house of representatives as above explained it seems to give the fullest assurance, that a representative for every thirty thousand inhabitants will render the latter both a safe and competent guardian of the interests which will be confided to it. publius. burgh's "political disquisitions. " federalist no. the alleged tendency of the new plan to elevate the few at the expense of the many considered in connection with representation from the new york packet. tuesday, february , . hamilton or madison to the people of the state of new york: the third charge against the house of representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. of all the objections which have been framed against the federal constitution, this is perhaps the most extraordinary. whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government. the aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. the elective mode of obtaining rulers is the characteristic policy of republican government. the means relied on in this form of government for preventing their degeneracy are numerous and various. the most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people. let me now ask what circumstance there is in the constitution of the house of representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens? who are to be the electors of the federal representatives? not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. the electors are to be the great body of the people of the united states. they are to be the same who exercise the right in every state of electing the corresponding branch of the legislature of the state. who are to be the objects of popular choice? every citizen whose merit may recommend him to the esteem and confidence of his country. no qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people. if we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents. in the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements. in the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. there is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns. ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. but the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment. in the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. his pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people. all these securities, however, would be found very insufficient without the restraint of frequent elections. hence, in the fourth place, the house of representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. i will add, as a fifth circumstance in the situation of the house of representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. this has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. it creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. if it be asked, what is to restrain the house of representatives from making legal discriminations in favor of themselves and a particular class of the society? i answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of america, a spirit which nourishes freedom, and in return is nourished by it. if this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. such will be the relation between the house of representatives and their constituents. duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. it is possible that these may all be insufficient to control the caprice and wickedness of man. but are they not all that government will admit, and that human prudence can devise? are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? are they not the identical means on which every state government in the union relies for the attainment of these important ends? what then are we to understand by the objection which this paper has combated? what are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them? were the objection to be read by one who had not seen the mode prescribed by the constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the state constitutions was in some respect or other, very grossly departed from. we have seen how far such a supposition would err, as to the two first points. nor would it, in fact, be less erroneous as to the last. the only difference discoverable between the two cases is, that each representative of the united states will be elected by five or six thousand citizens; whilst in the individual states, the election of a representative is left to about as many hundreds. will it be pretended that this difference is sufficient to justify an attachment to the state governments, and an abhorrence to the federal government? if this be the point on which the objection turns, it deserves to be examined. is it supported by reason? this cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich. is the consequence from this doctrine admissible? if we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens? is the doctrine warranted by facts? it was shown in the last paper, that the real representation in the british house of commons very little exceeds the proportion of one for every thirty thousand inhabitants. besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. to this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the british code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many. but we need not resort to foreign experience on this subject. our own is explicit and decisive. the districts in new hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the congress. those of massachusetts are larger than will be necessary for that purpose; and those of new york still more so. in the last state the members of assembly for the cities and counties of new york and albany are elected by very nearly as many voters as will be entitled to a representative in the congress, calculating on the number of sixty-five representatives only. it makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. if the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. pennsylvania is an additional example. some of her counties, which elect her state representatives, are almost as large as her districts will be by which her federal representatives will be elected. the city of philadelphia is supposed to contain between fifty and sixty thousand souls. it will therefore form nearly two districts for the choice of federal representatives. it forms, however, but one county, in which every elector votes for each of its representatives in the state legislature. and what may appear to be still more directly to our purpose, the whole city actually elects a single member for the executive council. this is the case in all the other counties of the state. are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? has it appeared on trial that the senators of new hampshire, massachusetts, and new york, or the executive council of pennsylvania, or the members of the assembly in the two last states, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other states by very small divisions of the people? but there are cases of a stronger complexion than any which i have yet quoted. one branch of the legislature of connecticut is so constituted that each member of it is elected by the whole state. so is the governor of that state, of massachusetts, and of this state, and the president of new hampshire. i leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty. publius. federalist no. objection that the number of members will not be augmented as the progress of population demands considered madison to the people of the state of new york: the remaining charge against the house of representatives, which i am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. it has been admitted, that this objection, if well supported, would have great weight. the following observations will show that, like most other objections against the constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. . those who urge the objection seem not to have recollected that the federal constitution will not suffer by a comparison with the state constitutions, in the security provided for a gradual augmentation of the number of representatives. the number which is to prevail in the first instance is declared to be temporary. its duration is limited to the short term of three years. within every successive term of ten years a census of inhabitants is to be repeated. the unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each state shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. if we review the constitutions of the several states, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal constitution, and that the most effectual security in any of them is resolvable into a mere directory provision. . as far as experience has taken place on this subject, a gradual increase of representatives under the state constitutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. . there is a peculiarity in the federal constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. the peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the states: in the former, consequently, the larger states will have most weight; in the latter, the advantage will be in favor of the smaller states. from this circumstance it may with certainty be inferred that the larger states will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. and it so happens that four only of the largest will have a majority of the whole votes in the house of representatives. should the representatives or people, therefore, of the smaller states oppose at any time a reasonable addition of members, a coalition of a very few states will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the constitution. it may be alleged, perhaps, that the senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. this is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. the following reflections will, if i mistake not, be admitted to be conclusive and satisfactory on this point. notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the house, composed of the greater number of members, when supported by the more powerful states, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses. this advantage must be increased by the consciousness, felt by the same side of being supported in its demands by right, by reason, and by the constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations. it is farther to be considered, that in the gradation between the smallest and largest states, there are several, which, though most likely in general to arrange themselves among the former are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. hence it is by no means certain that a majority of votes, even in the senate, would be unfriendly to proper augmentations in the number of representatives. it will not be looking too far to add, that the senators from all the new states may be gained over to the just views of the house of representatives, by an expedient too obvious to be overlooked. as these states will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. the large states, therefore, who will prevail in the house of representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing states will be bound to contend for the latter, by the interest which their states will feel in the former. these considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller states, or their predominant influence in the councils of the senate, a constitutional and infallible resource still remains with the larger states, by which they will be able at all times to accomplish their just purposes. the house of representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. they, in a word, hold the purse that powerful instrument by which we behold, in the history of the british constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. this power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. but will not the house of representatives be as much interested as the senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the senate? or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? these questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. to those causes we are to ascribe the continual triumph of the british house of commons over the other branches of the government, whenever the engine of a money bill has been employed. an absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. the utmost degree of firmness that can be displayed by the federal senate or president, will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles. in this review of the constitution of the house of representatives, i have passed over the circumstances of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which would probably have been as rich a theme of declamation against the constitution as has been shown by the smallness of the number proposed. i omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service a large number of such characters as the people will probably elect. one observation, however, i must be permitted to add on this subject as claiming, in my judgment, a very serious attention. it is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. in the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. in the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. in the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. on the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. the people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. experience will forever admonish them that, on the contrary, after securing a sufficient number for the purposes of safety, of local information, and of diffusive sympathy with the whole society, they will counteract their own views by every addition to their representatives. the countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. the machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. as connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. it has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. that some advantages might have resulted from such a precaution, cannot be denied. it might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. but these considerations are outweighed by the inconveniences in the opposite scale. in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. it would be no longer the majority that would rule: the power would be transferred to the minority. were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in states where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us. publius. federalist no. concerning the power of congress to regulate the election of members from the new york packet. friday, february , . hamilton to the people of the state of new york: the natural order of the subject leads us to consider, in this place, that provision of the constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. it is in these words: "the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators. " this provision has not only been declaimed against by those who condemn the constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system. i am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. its propriety rests upon the evidence of this plain proposition, that every government ought to contain in itself the means of its own preservation. every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. it will not be alleged, that an election law could have been framed and inserted in the constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. it will, i presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the state legislatures, or primarily in the latter and ultimately in the former. the last mode has, with reason, been preferred by the convention. they have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the state legislatures, would leave the existence of the union entirely at their mercy. they could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. it is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. the constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. nor has any satisfactory reason been yet assigned for incurring that risk. the extravagant surmises of a distempered jealousy can never be dignified with that character. if we are in a humor to presume abuses of power, it is as fair to presume them on the part of the state governments as on the part of the general government. and as it is more consonant to the rules of a just theory, to trust the union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed. suppose an article had been introduced into the constitution, empowering the united states to regulate the elections for the particular states, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the state governments? the violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the state governments. an impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation. as an objection to this position, it may be remarked that the constitution of the national senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the state legislatures to regulate the federal elections. it may be alleged, that by declining the appointment of senators, they might at any time give a fatal blow to the union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. the interest of each state, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. this argument, though specious, will not, upon examination, be found solid. it is certainly true that the state legislatures, by forbearing the appointment of senators, may destroy the national government. but it will not follow that, because they have a power to do this in one instance, they ought to have it in every other. there are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the senate, to recommend their admission into the system. so far as that construction may expose the union to the possibility of injury from the state legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the states, in their political capacities, wholly from a place in the organization of the national government. if this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the state governments of that absolute safeguard which they will enjoy under this provision. but however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites. it may be easily discerned also that the national government would run a much greater risk from a power in the state legislatures over the elections of its house of representatives, than from their power of appointing the members of its senate. the senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no state is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. the joint result of these circumstances would be, that a temporary combination of a few states to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the states that we can have any thing to fear. the first might proceed from sinister designs in the leading members of a few of the state legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness in which event no good citizen could desire its continuance. but with regard to the federal house of representatives, there is intended to be a general election of members once in two years. if the state legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the union, if the leaders of a few of the most important states should have entered into a previous conspiracy to prevent an election. i shall not deny, that there is a degree of weight in the observation, that the interests of each state, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the state legislatures. but the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. the people of america may be warmly attached to the government of the union, at times when the particular rulers of particular states, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those states, may be in a very opposite temper. this diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the states at the present moment, on the present question. the scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the state administrations as are capable of preferring their own emolument and advancement to the public weal. with so effectual a weapon in their hands as the exclusive power of regulating elections for the national government, a combination of a few such men, in a few of the most considerable states, where the temptation will always be the strongest, might accomplish the destruction of the union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal house of representatives. it ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. its preservation, therefore ought in no case that can be avoided, to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust. publius. ist clause, th section, of the ist article. federalist no. the same subject continued (concerning the power of congress to regulate the election of members) from the new york packet. tuesday, february , . hamilton to the people of the state of new york: we have seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the state legislatures. let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the union itself. it is not pretended, that this right would ever be used for the exclusion of any state from its share in the representation. the interest of all would, in this respect at least, be the security of all. but it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others, by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. of all chimerical suppositions, this seems to be the most chimerical. on the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive. the improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the state governments. it is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible. in addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. the dissimilarity in the ingredients which will compose the national government, and still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections. there is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. and though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. but the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. the house of representatives being to be elected immediately by the people, the senate by the state legislatures, the president by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors. as to the senate, it is impossible that any regulation of "time and manner," which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. the collective sense of the state legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. for what inducement could the senate have to concur in a preference in which itself would not be included? or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? the composition of the one would in this case counteract that of the other. and we can never suppose that it would embrace the appointments to the senate, unless we can at the same time suppose the voluntary co-operation of the state legislatures. if we make the latter supposition, it then becomes immaterial where the power in question is placed whether in their hands or in those of the union. but what is to be the object of this capricious partiality in the national councils? is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? or, to speak in the fashionable language of the adversaries to the constitution, will it court the elevation of "the wealthy and the well-born," to the exclusion and debasement of all the rest of the society? if this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, i presume it will readily be admitted, that the competition for it will lie between landed men and merchants. and i scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils. the inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter. the several states are in various degrees addicted to agriculture and commerce. in most, if not all of them, agriculture is predominant. in a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. in proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single state, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single state. in a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. as long as this interest prevails in most of the state legislatures, so long it must maintain a correspondent superiority in the national senate, which will generally be a faithful copy of the majorities of those assemblies. it cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. in applying thus particularly to the senate a general observation suggested by the situation of the country, i am governed by the consideration, that the credulous votaries of state power cannot, upon their own principles, suspect, that the state legislatures would be warped from their duty by any external influence. but in reality the same situation must have the same effect, in the primative composition at least of the federal house of representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other. in order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? as there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. it will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the union than in those of any of its members. secondly, that there would be no temptation to violate the constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. and thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. the importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity. i the rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as i understand the meaning of the objectors, they contemplate a discrimination of another kind. they appear to have in view, as the objects of the preference with which they endeavor to alarm us, those whom they designate by the description of "the wealthy and the well-born." these, it seems, are to be exalted to an odious pre-eminence over the rest of their fellow-citizens. at one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body. but upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? are "the wealthy and the well-born," as they are called, confined to particular spots in the several states? have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? are they only to be met with in the towns or cities? or are they, on the contrary, scattered over the face of the country as avarice or chance may have happened to cast their own lot or that of their predecessors? if the latter is the case, (as every intelligent man knows it to be, ) is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account? the truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. but this forms no part of the power to be conferred upon the national government. its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. the qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the constitution, and are unalterable by the legislature. let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers, still i imagine it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the people. the improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. what will be the conclusion? with a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors? would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective states to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people? publius. particularly in the southern states and in this state. federalist no. the same subject continued (concerning the power of congress to regulate the election of members) from the new york packet. tuesday, february , . hamilton to the people of the state of new york: the more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. this, say they, was a necessary precaution against an abuse of the power. a declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. but it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. the different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice. if those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several state constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. a review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. but as that view would lead into long and tedious details, i shall content myself with the single example of the state in which i write. the constitution of new york makes no other provision for locality of elections, than that the members of the assembly shall be elected in the counties; those of the senate, in the great districts into which the state is or may be divided: these at present are four in number, and comprehend each from two to six counties. it may readily be perceived that it would not be more difficult to the legislature of new york to defeat the suffrages of the citizens of new york, by confining elections to particular places, than for the legislature of the united states to defeat the suffrages of the citizens of the union, by the like expedient. suppose, for instance, the city of albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the senate and assembly for that county and district? can we imagine that the electors who reside in the remote subdivisions of the counties of albany, saratoga, cambridge, etc., or in any part of the county of montgomery, would take the trouble to come to the city of albany, to give their votes for members of the assembly or senate, sooner than they would repair to the city of new york, to participate in the choice of the members of the federal house of representatives? the alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. and, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an inconvenient distance from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this state; and for this reason it will be impossible to acquit the one, and to condemn the other. a similar comparison would lead to the same conclusion in respect to the constitutions of most of the other states. if it should be said that defects in the state constitutions furnish no apology for those which are to be found in the plan proposed, i answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. to those who are disposed to consider, as innocent omissions in the state constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single state should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the united states? if they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. and in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single state should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen states, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests. hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. but there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: i allude to the circumstance of uniformity in the time of elections for the federal house of representatives. it is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. if each state may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. the times of election in the several states, as they are now established for local purposes, vary between extremes as wide as march and november. the consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. if an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. the mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. there is a contagion in example which few men have sufficient force of mind to resist. i am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations. uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the senate, and for conveniently assembling the legislature at a stated period in each year. it may be asked, why, then, could not a time have been fixed in the constitution? as the most zealous adversaries of the plan of the convention in this state are, in general, not less zealous admirers of the constitution of the state, the question may be retorted, and it may be asked, why was not a time for the like purpose fixed in the constitution of this state? no better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. the same answer may be given to the question put on the other side. and it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several states of the convenience of having the elections for their own governments and for the national government at the same epochs. publius. federalist no. the senate for the independent journal. hamilton or madison to the people of the state of new york: having examined the constitution of the house of representatives, and answered such of the objections against it as seemed to merit notice, i enter next on the examination of the senate. the heads into which this member of the government may be considered are: i. the qualification of senators; ii. the appointment of them by the state legislatures; iii. the equality of representation in the senate; iv. the number of senators, and the term for which they are to be elected; v. the powers vested in the senate. i. the qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. a senator must be thirty years of age at least; as a representative must be twenty-five. and the former must have been a citizen nine years; as seven years are required for the latter. the propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. the term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils. ii. it is equally unnecessary to dilate on the appointment of senators by the state legislatures. among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. it is recommended by the double advantage of favoring a select appointment, and of giving to the state governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. iii. the equality of representation in the senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small states, does not call for much discussion. if indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a proportional share in the government, and that among independent and sovereign states, bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. but it is superfluous to try, by the standard of theory, a part of the constitution which is allowed on all hands to be the result, not of theory, but "of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable." a common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of america. a government founded on principles more consonant to the wishes of the larger states, is not likely to be obtained from the smaller states. the only option, then, for the former, lies between the proposed government and a government still more objectionable. under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. in this spirit it may be remarked, that the equal vote allowed to each state is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty. so far the equality ought to be no less acceptable to the large than to the small states; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the states into one simple republic. another advantage accruing from this ingredient in the constitution of the senate is, the additional impediment it must prove against improper acts of legislation. no law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the states. it must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller states, would be more rational, if any interests common to them, and distinct from those of the other states, would otherwise be exposed to peculiar danger. but as the larger states will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser states, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the constitution may be more convenient in practice than it appears to many in contemplation. iv. the number of senators, and the duration of their appointment, come next to be considered. in order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution. first. it is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. in this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. it doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. this is a precaution founded on such clear principles, and now so well understood in the united states, that it would be more than superfluous to enlarge on it. i will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government. secondly. the necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. examples on this subject might be cited without number; and from proceedings within the united states, as well as from the history of other nations. but a position that will not be contradicted, need not be proved. all that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. it ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration. thirdly. another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. it is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. it may be affirmed, on the best grounds, that no small share of the present embarrassments of america is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. what indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate? a good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. some governments are deficient in both these qualities; most governments are deficient in the first. i scruple not to assert, that in american governments too little attention has been paid to the last. the federal constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first. fourthly. the mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. every new election in the states is found to change one half of the representatives. from this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. but a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. the remark is verified in private life, and becomes more just, as well as more important, in national transactions. to trace the mischievous effects of a mutable government would fill a volume. i will hint a few only, each of which will be perceived to be a source of innumerable others. in the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. an individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. his more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. one nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. but the best instruction on this subject is unhappily conveyed to america by the example of her own situation. she finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs. the internal effects of a mutable policy are still more calamitous. it poisons the blessing of liberty itself. it will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. this is a state of things in which it may be said with some truth that laws are made for the few, not for the many. in another point of view, great injury results from an unstable government. the want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. what prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? what farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? in a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy. but the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. no government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability. publius. federalist. no. the senate continued for the independent journal. hamilton or madison to the people of the state of new york: a fifth desideratum, illustrating the utility of a senate, is the want of a due sense of national character. without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence. an attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. what has not america lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind? yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. it can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. the half-yearly representatives of rhode island would probably have been little affected in their deliberations on the iniquitous measures of that state, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister states; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring. i add, as a sixth defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. this remark will, perhaps, appear not only new, but paradoxical. it must nevertheless be acknowledged, when explained, to be as undeniable as it is important. responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. the objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. the importance of the latter description to the collective and permanent welfare of every country, needs no explanation. and yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. it is sufficiently difficult to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents. the proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects. thus far i have considered the circumstances which point out the necessity of a well-constructed senate only as they relate to the representatives of the people. to a people as little blinded by prejudice or corrupted by flattery as those whom i address, i shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. as the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. in these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? what bitter anguish would not the people of athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next. it may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. i am far from denying that this is a distinction of peculiar importance. i have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. at the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. it may even be remarked, that the same extended situation, which will exempt the people of america from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. it adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. sparta, rome, and carthage are, in fact, the only states to whom that character can be applied. in each of the two first there was a senate for life. the constitution of the senate in the last is less known. circumstantial evidence makes it probable that it was not different in this particular from the two others. it is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. these examples, though as unfit for the imitation, as they are repugnant to the genius, of america, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. i am not unaware of the circumstances which distinguish the american from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from the one case to the other. but after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. there are others peculiar to the former, which require the control of such an institution. the people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act. the difference most relied on, between the american and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. the use which has been made of this difference, in reasonings contained in former papers, will have shown that i am disposed neither to deny its existence nor to undervalue its importance. i feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, is by no means precisely true in the latitude commonly given to it. without entering into a disquisition which here would be misplaced, i will refer to a few known facts, in support of what i advance. in the most pure democracies of greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and representing the people in their executive capacity. prior to the reform of solon, athens was governed by nine archons, annually elected by the people at large. the degree of power delegated to them seems to be left in great obscurity. subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually elected by the people; and partially representing them in their legislative capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people. the senate of carthage, also, whatever might be its power, or the duration of its appointment, appears to have been elective by the suffrages of the people. similar instances might be traced in most, if not all the popular governments of antiquity. lastly, in sparta we meet with the ephori, and in rome with the tribunes; two bodies, small indeed in numbers, but annually elected by the whole body of the people, and considered as the representatives of the people, almost in their plenipotentiary capacity. the cosmi of crete were also annually elected by the people, and have been considered by some authors as an institution analogous to those of sparta and rome, with this difference only, that in the election of that representative body the right of suffrage was communicated to a part only of the people. from these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. the true distinction between these and the american governments, lies in the total exclusion of the people, in their collective capacity, from any share in the latter, and not in the total exclusion of the representatives of the people from the administration of the former. the distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the united states. but to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. for it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of greece. in answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy. to this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the united states. but a more particular reply may be given. before such a revolution can be effected, the senate, it is to be observed, must in the first place corrupt itself; must next corrupt the state legislatures; must then corrupt the house of representatives; and must finally corrupt the people at large. it is evident that the senate must be first corrupted before it can attempt an establishment of tyranny. without corrupting the state legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. without exerting the means of corruption with equal success on the house of representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. is there any man who can seriously persuade himself that the proposed senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions? if reason condemns the suspicion, the same sentence is pronounced by experience. the constitution of maryland furnishes the most apposite example. the senate of that state is elected, as the federal senate will be, indirectly by the people, and for a term less by one year only than the federal senate. it is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal senate. there are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. if the federal senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the senate of maryland, but no such symptoms have appeared. on the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal constitution, have been gradually extinguished by the progress of the experiment; and the maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any state in the union. but if any thing could silence the jealousies on this subject, it ought to be the british example. the senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. the house of representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the united states. unfortunately, however, for the anti-federal argument, the british history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the house of representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch. as far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. in sparta, the ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. the tribunes of rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. the fact is the more remarkable, as unanimity was required in every act of the tribunes, even after their number was augmented to ten. it proves the irresistible force possessed by that branch of a free government, which has the people on its side. to these examples might be added that of carthage, whose senate, according to the testimony of polybius, instead of drawing all power into its vortex, had, at the commencement of the second punic war, lost almost the whole of its original portion. besides the conclusive evidence resulting from this assemblage of facts, that the federal senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the house of representatives, with the people on their side, will at all times be able to bring back the constitution to its primitive form and principles. against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves. publius. federalist no. the powers of the senate from the new york packet. friday, march , . jay to the people of the state of new york: it is a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it. the second section gives power to the president, "by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur." the power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. the convention appears to have been attentive to both these points: they have directed the president to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the state legislatures. this mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors. as the select assemblies for choosing the president, as well as the state legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. the constitution manifests very particular attention to this object. by excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. if the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. the inference which naturally results from these considerations is this, that the president and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several states or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. with such men the power of making treaties may be safely lodged. although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. they who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. it was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a a system for the management of them. the duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved. there are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. it is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the senate necessary both to treaties and to laws. it seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite. these are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. the convention have done well, therefore, in so disposing of the power of making treaties, that although the president must, in forming them, act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. they who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. to discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. the loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. as in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. so often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the constitution would have been inexcusably defective, if no attention had been paid to those objects. those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. for these, the president will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the senate, he may at any time convene them. thus we see that the constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other. but to this plan, as to most others that have ever appeared, objections are contrived and urged. some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. these gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. all constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. it surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected. others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. they insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. this idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. these gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. they who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. the proposed constitution, therefore, has not in the least extended the obligation of treaties. they are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government. however useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. from this cause, probably, proceed the fears and apprehensions of some, that the president and senate may make treaties without an equal eye to the interests of all the states. others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties? as all the states are equally represented in the senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. in proportion as the united states assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. it will not be in the power of the president and senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter. as to corruption, the case is not supposable. he must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the president and two thirds of the senate will ever be capable of such unworthy conduct. the idea is too gross and too invidious to be entertained. but in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations. with respect to their responsibility, it is difficult to conceive how it could be increased. every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. in short, as the constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments. publius. federalist no. the powers of the senate continued from the new york packet. friday, march , . hamilton to the people of the state of new york: the remaining powers which the plan of the convention allots to the senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. as in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. we will, therefore, conclude this head with a view of the judicial character of the senate. a well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. the subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. they are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself. the prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. in many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. the delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. the difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny. the convention, it appears, thought the senate the most fit depositary of this important trust. those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it. what, it may be asked, is the true spirit of the institution itself? is it not designed as a method of national inquest into the conduct of public men? if this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? it is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? the model from which the idea of this institution has been borrowed, pointed out that course to the convention. in great britain it is the province of the house of commons to prefer the impeachment, and of the house of lords to decide upon it. several of the state constitutions have followed the example. as well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. is not this the true light in which it ought to be regarded? where else than in the senate could have been found a tribunal sufficiently dignified, or sufficiently independent? what other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers? could the supreme court have been relied upon as answering this description? it is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. a deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. the hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. the necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. this can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. there will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. the awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons. these considerations seem alone sufficient to authorize a conclusion, that the supreme court would have been an improper substitute for the senate, as a court of impeachments. there remains a further consideration, which will not a little strengthen this conclusion. it is this: the punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. after having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? that the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. the loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. it may be said, that the intervention of a jury, in the second instance, would obviate the danger. but juries are frequently influenced by the opinions of judges. they are sometimes induced to find special verdicts, which refer the main question to the decision of the court. who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt? would it have been an improvement of the plan, to have united the supreme court with the senate, in the formation of the court of impeachments? this union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? to a certain extent, the benefits of that union will be obtained from making the chief justice of the supreme court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. this was perhaps the prudent mean. i forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded. would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? there are weighty arguments, as well against, as in favor of, such a plan. to some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. but an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. it must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the state governments to be called upon whenever an impeachment was actually depending. it will not be easy to imagine any third mode materially different, which could rationally be proposed. as the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. the second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the state, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the house of representatives. though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men. but though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the constitution ought for this reason to be rejected. if mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. where is the standard of perfection to be found? who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his infallible criterion for the fallible criterion of his more conceited neighbor? to answer the purpose of the adversaries of the constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious. publius. federalist no. objections to the power of the senate to set as a court for impeachments further considered from the new york packet. tuesday, march , . hamilton to the people of the state of new york: a review of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter. the first of these objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and wellestablished maxim which requires a separation between the different departments of power. the true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. this partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. an absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. and it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. the division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. as the concurrence of two thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire. it is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this state; while that constitution makes the senate, together with the chancellor and judges of the supreme court, not only a court of impeachments, but the highest judicatory in the state, in all causes, civil and criminal. the proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of new york, in the last resort, may, with truth, be said to reside in its senate. if the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of new york? a second objection to the senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. the senate, it is observed, is to have concurrent authority with the executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. to an objection so little precise in itself, it is not easy to find a very precise answer. where is the measure or criterion to which we can appeal, for determining what will give the senate too much, too little, or barely the proper degree of influence? will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience? if we take this course, it will lead to a more intelligible, if not to a more certain result. the disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if i mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. the expediency of the junction of the senate with the executive, in the power of appointing to offices, will, i trust, be placed in a light not less satisfactory, in the disquisitions under the same head. and i flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. if this be truly the case, the hypothetical dread of the too great weight of the senate ought to be discarded from our reasonings. but this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. it was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most popular branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the government. but independent of this most active and operative principle, to secure the equilibrium of the national house of representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the senate. the exclusive privilege of originating money bills will belong to the house of representatives. the same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? the same house will be the umpire in all elections of the president, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. the constant possibility of the thing must be a fruitful source of influence to that body. the more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the union, for the first office in it. it would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the senate. a third objection to the senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. it is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. the principle of this objection would condemn a practice, which is to be seen in all the state governments, if not in all the governments with which we are acquainted: i mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. with equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. but that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the senate, who will merely sanction the choice of the executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers. if any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the senate in the business of appointments. it will be the office of the president to nominate, and, with the advice and consent of the senate, to appoint. there will, of course, be no exertion of choice on the part of the senate. they may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose, they can only ratify or reject the choice of the president. they might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. thus it could hardly happen, that the majority of the senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy. a fourth objection to the senate in the capacity of a court of impeachments, is derived from its union with the executive in the power of making treaties. this, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. after having combined with the executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty? this objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet i am deceived if it does not rest upon an erroneous foundation. the security essentially intended by the constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. the joint agency of the chief magistrate of the union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several states, is designed to be the pledge for the fidelity of the national councils in this particular. the convention might with propriety have meditated the punishment of the executive, for a deviation from the instructions of the senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law, a principle which, i believe, has never been admitted into any government. how, in fact, could a majority in the house of representatives impeach themselves? not better, it is evident, than two thirds of the senate might try themselves. and yet what reason is there, that a majority of the house of representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the senate, sacrificing the same interests in an injurious treaty with a foreign power? the truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good. so far as might concern the misbehavior of the executive in perverting the instructions or contravening the views of the senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. we may thus far count upon their pride, if not upon their virtue. and so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace. publius. in that of new jersey, also, the final judiciary authority is in a branch of the legislature. in new hampshire, massachusetts, pennsylvanis, and south carolina, one branch of the legislature is the court for the trial of impeachments. federalist no. the executive department from the new york packet. tuesday, march , . hamilton to the people of the state of new york: the constitution of the executive department of the proposed government, claims next our attention. there is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment. here the writers against the constitution seem to have taken pains to signalize their talent of misrepresentation. calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended president of the united states; not merely as the embryo, but as the full-grown progeny, of that detested parent. to establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. the authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of new york, have been magnified into more than royal prerogatives. he has been decorated with attributes superior in dignity and splendor to those of a king of great britain. he has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. he has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. the images of asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. we have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio. attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. in the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. they so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. it is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of great britain and a magistrate of the character marked out for that of the president of the united states. it is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition. in one instance, which i cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the president of the united states a power which by the instrument reported is expressly allotted to the executives of the individual states. i mean the power of filling casual vacancies in the senate. this bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party ; and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing. the second clause of the second section of the second article empowers the president of the united states "to nominate, and by and with the advice and consent of the senate, to appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of united states whose appointments are not in the constitution otherwise provided for, and which shall be established by law." immediately after this clause follows another in these words: "the president shall have power to fill up ?? vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." it is from this last provision that the pretended power of the president to fill vacancies in the senate has been deduced. a slight attention to the connection of the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable. the first of these two clauses, it is clear, only provides a mode for appointing such officers, "whose appointments are not otherwise provided for in the constitution, and which shall be established by law"; of course it cannot extend to the appointments of senators, whose appointments are otherwise provided for in the constitution , and who are established by the constitution, and will not require a future establishment by law. this position will hardly be contested. the last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the senate, for the following reasons: first. the relation in which that clause stands to the other, which declares the general mode of appointing officers of the united states, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. the ordinary power of appointment is confined to the president and senate jointly, and can therefore only be exercised during the session of the senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the president, singly, to make temporary appointments "during the recess of the senate, by granting commissions which shall expire at the end of their next session." secondly. if this clause is to be considered as supplementary to the one which precedes, the vacancies of which it speaks must be construed to relate to the "officers" described in the preceding one; and this, we have seen, excludes from its description the members of the senate. thirdly. the time within which the power is to operate, "during the recess of the senate," and the duration of the appointments, "to the end of the next session" of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the state legislatures, who are to make the permanent appointments, and not to the recess of the national senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the state, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national senate. the circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the president. but lastly, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. the former provides, that "the senate of the united states shall be composed of two senators from each state, chosen by the legislature thereof for six years"; and the latter directs, that, "if vacancies in that body should happen by resignation or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." here is an express power given, in clear and unambiguous terms, to the state executives, to fill casual vacancies in the senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the president of the united states, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy. i have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the constitution submitted to the consideration of the people. nor have i scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. i hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of america. publius. see cato, no. v. article i, section , clause i. federalist no. the mode of electing the president from the new york packet. friday, march , . hamilton to the people of the state of new york: the mode of appointment of the chief magistrate of the united states is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. the most plausible of these, who has appeared in print, has even deigned to admit that the election of the president is pretty well guarded. i venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. it unites in an eminent degree all the advantages, the union of which was to be wished for. it was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. this end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. it was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. a small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. it was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. this evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the president of the united states. but the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. the choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. and as the electors, chosen in each state, are to assemble and vote in the state in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. these most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. how could they better gratify this, than by raising a creature of their own to the chief magistracy of the union? but the convention have guarded against all danger of this sort, with the most provident and judicious attention. they have not made the appointment of the president to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of america, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. and they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the president in office. no senator, representative, or other person holding a place of trust or profit under the united states, can be of the numbers of the electors. thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. the business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen states, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty. another and no less important desideratum was, that the executive should be independent for his continuance in office on all but the people themselves. he might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. this advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice. all these advantages will happily combine in the plan devised by the convention; which is, that the people of each state shall choose a number of persons as electors, equal to the number of senators and representatives of such state in the national government, who shall assemble within the state, and vote for some fit person as president. their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the president. but as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the house of representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office. the process of election affords a moral certainty, that the office of president will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single state; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the united states. it will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. and this will be thought no inconsiderable recommendation of the constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. though we cannot acquiesce in the political heresy of the poet who says: "for forms of government let fools contest that which is best administered is best," yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. the vice-president is to be chosen in the same manner with the president; with this difference, that the senate is to do, in respect to the former, what is to be done by the house of representatives, in respect to the latter. the appointment of an extraordinary person, as vice-president, has been objected to as superfluous, if not mischievous. it has been alleged, that it would have been preferable to have authorized the senate to elect out of their own body an officer answering that description. but two considerations seem to justify the ideas of the convention in this respect. one is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the president should have only a casting vote. and to take the senator of any state from his seat as senator, to place him in that of president of the senate, would be to exchange, in regard to the state from which he came, a constant for a contingent vote. the other consideration is, that as the vice-president may occasionally become a substitute for the president, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. it is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this state. we have a lieutenant-governor, chosen by the people at large, who presides in the senate, and is the constitutional substitute for the governor, in casualties similar to those which would authorize the vice-president to exercise the authorities and discharge the duties of the president. publius. vide federal farmer. federalist no. the real character of the executive from the new york packet. friday, march , . hamilton to the people of the state of new york: i proceed now to trace the real characters of the proposed executive, as they are marked out in the plan of the convention. this will serve to place in a strong light the unfairness of the representations which have been made in regard to it. the first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. this will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of great britain, there is not less a resemblance to the grand seignior, to the khan of tartary, to the man of the seven mountains, or to the governor of new york. that magistrate is to be elected for four years; and is to be re-eligible as often as the people of the united states shall think him worthy of their confidence. in these circumstances there is a total dissimilitude between him and a king of great britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between him and a governor of new york, who is elected for three years, and is re-eligible without limitation or intermission. if we consider how much less time would be requisite for establishing a dangerous influence in a single state, than for establishing a like influence throughout the united states, we must conclude that a duration of four years for the chief magistrate of the union is a degree of permanency far less to be dreaded in that office, than a duration of three years for a corresponding office in a single state. the president of the united states would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. the person of the king of great britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. in this delicate and important circumstance of personal responsibility, the president of confederated america would stand upon no better ground than a governor of new york, and upon worse ground than the governors of maryland and delaware. the president of the united states is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. the king of great britain, on his part, has an absolute negative upon the acts of the two houses of parliament. the disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. the qualified negative of the president differs widely from this absolute negative of the british sovereign; and tallies exactly with the revisionary authority of the council of revision of this state, of which the governor is a constituent part. in this respect the power of the president would exceed that of the governor of new york, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied. the president is to be the "commander-in-chief of the army and navy of the united states, and of the militia of the several states, when called into the actual service of the united states. he is to have power to grant reprieves and pardons for offenses against the united states, except in cases of impeachment; to recommend to the consideration of congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the united states." in most of these particulars, the power of the president will resemble equally that of the king of great britain and of the governor of new york. the most material points of difference are these: first. the president will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the union. the king of great britain and the governor of new york have at all times the entire command of all the militia within their several jurisdictions. in this article, therefore, the power of the president would be inferior to that of either the monarch or the governor. secondly. the president is to be commander-in-chief of the army and navy of the united states. in this respect his authority would be nominally the same with that of the king of great britain, but in substance much inferior to it. it would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the british king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the constitution under consideration, would appertain to the legislature. the governor of new york, on the other hand, is by the constitution of the state vested only with the command of its militia and navy. but the constitutions of several of the states expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of new hampshire and massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a president of the united states. thirdly. the power of the president, in respect to pardons, would extend to all cases, except those of impeachment. the governor of new york may pardon in all cases, even in those of impeachment, except for treason and murder. is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the president? all conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. if a governor of new york, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. a president of the union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? the better to judge of this matter, it will be necessary to recollect, that, by the proposed constitution, the offense of treason is limited "to levying war upon the united states, and adhering to their enemies, giving them aid and comfort"; and that by the laws of new york it is confined within similar bounds. fourthly. the president can only adjourn the national legislature in the single case of disagreement about the time of adjournment. the british monarch may prorogue or even dissolve the parliament. the governor of new york may also prorogue the legislature of this state for a limited time; a power which, in certain situations, may be employed to very important purposes. the president is to have power, with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur. the king of great britain is the sole and absolute representative of the nation in all foreign transactions. he can of his own accord make treaties of peace, commerce, alliance, and of every other description. it has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of parliament. but i believe this doctrine was never heard of, until it was broached upon the present occasion. every jurist of that kingdom, and every other man acquainted with its constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. the parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. but this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. in this respect, therefore, there is no comparison between the intended power of the president and the actual power of the british sovereign. the one can perform alone what the other can do only with the concurrence of a branch of the legislature. it must be admitted, that, in this instance, the power of the federal executive would exceed that of any state executive. but this arises naturally from the sovereign power which relates to treaties. if the confederacy were to be dissolved, it would become a question, whether the executives of the several states were not solely invested with that delicate and important prerogative. the president is also to be authorized to receive ambassadors and other public ministers. this, though it has been a rich theme of declamation, is more a matter of dignity than of authority. it is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor. the president is to nominate, and, with the advice and consent of the senate, to appoint ambassadors and other public ministers, judges of the supreme court, and in general all officers of the united states established by law, and whose appointments are not otherwise provided for by the constitution. the king of great britain is emphatically and truly styled the fountain of honor. he not only appoints to all offices, but can create offices. he can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. there is evidently a great inferiority in the power of the president, in this particular, to that of the british king; nor is it equal to that of the governor of new york, if we are to interpret the meaning of the constitution of the state by the practice which has obtained under it. the power of appointment is with us lodged in a council, composed of the governor and four members of the senate, chosen by the assembly. the governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment. if he really has the right of nominating, his authority is in this respect equal to that of the president, and exceeds it in the article of the casting vote. in the national government, if the senate should be divided, no appointment could be made; in the government of new york, if the council should be divided, the governor can turn the scale, and confirm his own nomination. if we compare the publicity which must necessarily attend the mode of appointment by the president and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of new york, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this state, in the disposition of offices, must, in practice, be greatly superior to that of the chief magistrate of the union. hence it appears that, except as to the concurrent authority of the president in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the governor of new york. and it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of great britain. but to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group. the president of the united states would be an officer elected by the people for four years; the king of great britain is a perpetual and hereditary prince. the one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. the one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. the one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. the one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. the one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. the one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. the one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. the one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! what answer shall we give to those who would persuade us that things so unlike resemble each other? the same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism. publius. a writer in a pennsylvania paper, under the signature of tamony, has asserted that the king of great britain owes his prerogative as commander-in-chief to an annual mutiny bill. the truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, "contrary to all reason and precedent," as blackstone vol. i., page , expresses it, by the long parliament of charles i. but by the statute the th of charles ii., chap. , it was declared to be in the king alone, for that the sole supreme government and command of the militia within his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty and his royal predecessors, kings and queens of england, and that both or either house of parliament cannot nor ought to pretend to the same. vide blackstone's "commentaries," vol i., p. . candor, however, demands an acknowledgment that i do not think the claim of the governor to a right of nomination well founded. yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. and independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion. *there are two slightly different versions of no. included here. federalist no. the executive department further considered from the new york packet. tuesday, march , . hamilton to the people of the state of new york: there is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. the enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. energy in the executive is a leading character in the definition of good government. it is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. every man the least conversant in roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of rome. there can be no need, however, to multiply arguments or examples on this head. a feeble executive implies a feeble execution of the government. a feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic executive, it will only remain to inquire, what are the ingredients which constitute this energy? how far can they be combined with those other ingredients which constitute safety in the republican sense? and how far does this combination characterize the plan which has been reported by the convention? the ingredients which constitute energy in the executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. the ingredients which constitute safety in the repub lican sense are, first, a due dependence on the people, secondly, a due responsibility. those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single executive and a numerous legislature. they have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. that unity is conducive to energy will not be disputed. decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. this unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. of the first, the two consuls of rome may serve as an example; of the last, we shall find examples in the constitutions of several of the states. new york and new jersey, if i recollect right, are the only states which have intrusted the executive authority wholly to single men. both these methods of destroying the unity of the executive have their partisans; but the votaries of an executive council are the most numerous. they are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. the experience of other nations will afford little instruction on this head. as far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the executive. we have seen that the achaeans, on an experiment of two praetors, were induced to abolish one. the roman history records many instances of mischiefs to the republic from the dissensions between the consuls, and between the military tribunes, who were at times substituted for the consuls. but it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. that the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the consuls, of making a division of the government between them. the patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. in addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the consuls to divide the administration between themselves by lot one of them remaining at rome to govern the city and its environs, the other taking the command in the more distant provinces. this expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. but quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the executive, under any modification whatever. wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. if it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. from either, and especially from all these causes, the most bitter dissensions are apt to spring. whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. if they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. and what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. but if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. they seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the executive. it is here too that they may be most pernicious. in the legislature, promptitude of decision is oftener an evil than a benefit. the differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. when a resolution too is once taken, the opposition must be at an end. that resolution is a law, and resistance to it punishable. but no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. here, they are pure and unmixed. there is no point at which they cease to operate. they serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. they constantly counteract those qualities in the executive which are the most necessary ingredients in its composition, vigor and expedition, and this without anycounterbalancing good. in the conduct of war, in which the energy of the executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. it must be confessed that these observations apply with principal weight to the first case supposed that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible executive. an artful cabal in that council would be able to distract and to enervate the whole system of administration. if no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. but one of the weightiest objections to a plurality in the executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. responsibility is of two kinds to censure and to punishment. the first is the more important of the two, especially in an elective office. man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. but the multiplication of the executive adds to the difficulty of detection in either case. it often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. it is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. the circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable. "i was overruled by my council. the council were so divided in their opinions that it was impossible to obtain any better resolution on the point." these and similar pretexts are constantly at hand, whether true or false. and who is there that will either take the trouble or incur the odium, of a strict scrunity into the secret springs of the transaction? should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? in the single instance in which the governor of this state is coupled with a council that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. scandalous appointments to important offices have been made. some cases, indeed, have been so flagrant that all parties have agreed in the impropriety of the thing. when inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. in tenderness to individuals, i forbear to descend to particulars. it is evident from these considerations, that the plurality of the executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. in england, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the pub lic peace, that he is unaccountable for his administration, and his person sacred. nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. but even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. he is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. but in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the british constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. in the monarchy of great britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. in the american republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the chief magistrate himself. the idea of a council to the executive, which has so generally obtained in the state constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. if the maxim should be admitted to be applicable to the case, i should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. but i do not think the rule at all applicable to the executive power. i clearly concur in opinion, in this particular, with a writer whom the celebrated junius pronounces to be "deep, solid, and ingenious," that "the executive power is more easily confined when it is one"; that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the executive is rather dangerous than friendly to liberty. a little consideration will satisfy us, that the species of security sought for in the multiplication of the executive, is nattainable. numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. the united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. when power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. the decemvirs of rome, whose name denotes their number, were more to be dreaded in their usurpation than any one of them would have been. no person would think of proposing an executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. the extreme of these numbers, is not too great for an easy combination; and from such a combination america would have more to fear, than from the ambition of any single individual. a council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. i forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. i will only add that, prior to the appearance of the constitution, i rarely met with an intelligent man from any of the states, who did not admit, as the result of experience, that the unity of the executive of this state was one of the best of the distinguishing features of our constitution. publius. new york has no council except for the single purpose of appointing to offices; new jersey has a council whom the governor may consult. but i think, from the terms of the constitution, their resolutions do not bind him. de lolme. ten. *there are two slightly different versions of no. included here. federalist no. the executive department further considered from the new york packet. tuesday, march , . hamilton to the people of the state of new york: there is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. the enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. energy in the executive is a leading character in the definition of good government. it is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. every man the least conversant in roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of rome. there can be no need, however, to multiply arguments or examples on this head. a feeble executive implies a feeble execution of the government. a feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic executive, it will only remain to inquire, what are the ingredients which constitute this energy? how far can they be combined with those other ingredients which constitute safety in the republican sense? and how far does this combination characterize the plan which has been reported by the convention? the ingredients which constitute energy in the executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. the ingredients which constitute safety in the repub lican sense are, first, a due dependence on the people, secondly, a due responsibility. those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single executive and a numerous legislature. they have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. that unity is conducive to energy will not be disputed. decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. this unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. of the first, the two consuls of rome may serve as an example; of the last, we shall find examples in the constitutions of several of the states. new york and new jersey, if i recollect right, are the only states which have intrusted the executive authority wholly to single men. both these methods of destroying the unity of the executive have their partisans; but the votaries of an executive council are the most numerous. they are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. the experience of other nations will afford little instruction on this head. as far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the executive. we have seen that the achaeans, on an experiment of two praetors, were induced to abolish one. the roman history records many instances of mischiefs to the republic from the dissensions between the consuls, and between the military tribunes, who were at times substituted for the consuls. but it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. that the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the consuls, of making a division of the government between them. the patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. in addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the consuls to divide the administration between themselves by lot one of them remaining at rome to govern the city and its environs, the other taking the command in the more distant provinces. this expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. but quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good se se, we shall discover much greater cause to reject than to approve the idea of plurality in the executive, under any modification whatever. wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. if it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. from either, and especially from all these causes, the most bitter dissensions are apt to spring. whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. if they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. and what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. but if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. they seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the executive. it is here too that they may be most pernicious. in the legislature, promptitude of decision is oftener an evil than a benefit. the differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. when a resolution too is once taken, the opposition must be at an end. that resolution is a law, and resistance to it punishable. but no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. here, they are pure and unmixed. there is no point at which they cease to operate. they serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. they constantly counteract those qualities in the executive which are the most necessary ingredients in its composition, vigor and expedition, and this without anycounterbalancing good. in the conduct of war, in which the energy of the executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. it must be confessed that these observations apply with principal weight to the first case supposed that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible executive. an artful cabal in that council would be able to distract and to enervate the whole system of administration. if no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. but one of the weightiest objections to a plurality in the executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. responsibility is of two kinds to censure and to punishment. the first is the more important of the two, especially in an elective office. man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. but the multiplication of the executive adds to the difficulty of detection in either case. it often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. it is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. the circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable. "i was overruled by my council. the council were so divided in their opinions that it was impossible to obtain any better resolution on the point." these and similar pretexts are constantly at hand, whether true or false. and who is there that will either take the trouble or incur the odium, of a strict scrunity into the secret springs of the transaction? should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? in the single instance in which the governor of this state is coupled with a council that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. scandalous appointments to important offices have been made. some cases, indeed, have been so flagrant that all parties have agreed in the impropriety of the thing. when inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. in tenderness to individuals, i forbear to descend to particulars. it is evident from these considerations, that the plurality of the executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. in england, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the pub lic peace, that he is unaccountable for his administration, and his person sacred. nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. but even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. he is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. but in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the british constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. in the monarchy of great britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. in the american republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the chief magistrate himself. the idea of a council to the executive, which has so generally obtained in the state constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. if the maxim should be admitted to be applicable to the case, i should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. but i do not think the rule at all applicable to the executive power. i clearly concur in opinion, in this particular, with a writer whom the celebrated junius pronounces to be "deep, solid, and ingenious," that "the executive power is more easily confined when it is one"; that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the executive is rather dangerous than friendly to liberty. a little consideration will satisfy us, that the species of security sought for in the multiplication of the executive, is nattainable. numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. the united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. when power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. the decemvirs of rome, whose name denotes their number, were more to be dreaded in their usurpation than any one of them would have been. no person would think of proposing an executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. the extreme of these numbers, is not too great for an easy combination; and from such a combination america would have more to fear, than from the ambition of any single individual. a council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. i forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. i will only add that, prior to the appearance of the constitution, i rarely met with an intelligent man from any of the states, who did not admit, as the result of experience, that the unity of the executive of this state was one of the best of the distinguishing features of our constitution. publius. new york has no council except for the single purpose of appointing to offices; new jersey has a council whom the governor may consult. but i think, from the terms of the constitution, their resolutions do not bind him. de lolme. ten. federalist no. the duration in office of the executive from the new york packet. tuesday, march , . hamilton to the people of the state of new york: duration in office has been mentioned as the second requisite to the energy of the executive authority. this has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. with regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. it is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. this remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. the inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he must lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. if the case should only be, that he might lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. in either case, feebleness and irresolution must be the characteristics of the station. there are some who would be inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation. but such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. the republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. it is a just observation, that the people commonly intend the public good. this often applies to their very errors. but their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. they know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. when occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. but however inclined we might be to insist upon an unbounded complaisance in the executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. the latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. in either supposition, it is certainly desirable that the executive should be in a situation to dare to act his own opinion with vigor and decision. the same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. to what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? such a separation must be merely nominal, and incapable of producing the ends for which it was established. it is one thing to be subordinate to the laws, and another to be dependent on the legislative body. the first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the constitution, unites all power in the same hands. the tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. in governments purely republican, this tendency is almost irresistible. the representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. they often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the constitution. it may perhaps be asked, how the shortness of the duration in office can affect the independence of the executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. one answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment. it may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. it cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. he might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. as, on the one hand, a duration of four years will contribute to the firmness of the executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. if a british house of commons, from the most feeble beginnings, from the mere power of assenting or disagreeing to the imposition of a new tax, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the church as state; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a president of the united states? what, but that he might be unequal to the task which the constitution assigns him? i shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments. publius. this was the case with respect to mr. fox's india bill, which was carried in the house of commons, and rejected in the house of lords, to the entire satisfaction, as it is said, of the people. federalist no. the same subject continued, and re-eligibility of the executive considered from the new york packet. friday, march , . hamilton to the people of the state of new york: the administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification. it is limited to executive details, and falls peculiarly within the province of the executive department. the actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. the persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. this view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. to reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. these considerations, and the influence of personal confidences and attachments, would be likely to induce every new president to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government. with a positive duration of considerable extent, i connect the circumstance of re-eligibility. the first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. the last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration. nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates, i mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. this exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary. one ill effect of the exclusion would be a diminution of the inducements to good behavior. there are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them. this position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. the most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good. another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. an avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. his avarice might be a guard upon his avarice. add to this that the same man might be vain or ambitious, as well as avaricious. and if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. but with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition. an ambitious man, too, when he found himself seated on the summit of his country's honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty. would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess? a third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. that experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. what more desirable or more essential than this quality in the governors of nations? where more desirable or more essential than in the first magistrate of a nation? can it be wise to put this desirable and essential quality under the ban of the constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? this, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellowcitizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility. a fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. there is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. how unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration. a fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. by necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures. it is not generally to be expected, that men will vary and measures remain uniform. the contrary is the usual course of things. and we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy. these are some of the disadvantages which would flow from the principle of exclusion. they apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other. what are the advantages promised to counterbalance these disadvantages? they are represented to be: st, greater independence in the magistrate; d, greater security to the people. unless the exclusion be perpetual, there will be no pretense to infer the first advantage. but even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? may he have no connections, no friends, for whom he may sacrifice it? may he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only may, but must, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? it is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement. as to the second supposed advantage, there is still greater reason to entertain doubts concerning it. if the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. and if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. there may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege. there is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive. publius. federalist no. the provision for the support of the executive, and the veto power from the new york packet. friday, march , . hamilton to the people of the state of new york: the third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. it is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. the legislature, with a discretionary power over the salary and emoluments of the chief magistrate, could render him as obsequious to their will as they might think proper to make him. they might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. these expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. there are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man's support is a power over his will. if it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the executive by the terrors or allurements of the pecuniary arrangements of the legislative body. it is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed constitution. it is there provided that "the president of the united states shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the united states, or any of them." it is impossible to imagine any provision which would have been more eligible than this. the legislature, on the appointment of a president, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. this done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. they can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. neither the union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. he can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the constitution. the last of the requisites to energy, which have been enumerated, are competent powers. let us proceed to consider those which are proposed to be vested in the president of the united states. the first thing that offers itself to our observation, is the qualified negative of the president upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body. the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. from these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. he might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. and in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. if even no propensity had ever discovered itself in the legislative body to invade the rights of the executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of selfdefense. but the power in question has a further use. it not only serves as a shield to the executive, but it furnishes an additional security against the enaction of improper laws. it establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. the propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body. but this observation, when examined, will appear rather specious than solid. the propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflexion, would condemn. the primary inducement to conferring the power in question upon the executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. the oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. it is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them. it may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. but this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. they will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. the injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones. nor is this all. the superior weight and influence of the legislative body in a free government, and the hazard to the executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. a king of great britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of parliament. he would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. all well-informed men in that kingdom will accede to the justness of this remark. a very considerable period has elapsed since the negative of the crown has been exercised. if a magistrate so powerful and so well fortified as a british monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a president of the united states, clothed for the short period of four years with the executive authority of a government wholly and purely republican? it is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. an argument, indeed, against its expediency, has been drawn from this very source. it has been represented, on this account, as a power odious in appearance, useless in practice. but it will not follow, that because it might be rarely exercised, it would never be exercised. in the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility. in the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. i speak now with an eye to a magistrate possessing only a common share of firmness. there are men who, under any circumstances, will have the courage to do their duty at every hazard. but the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. instead of an absolute negative, it is proposed to give the executive the qualified negative already described. this is a power which would be much more readily exercised than the other. a man who might be afraid to defeat a law by his single veto, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. he would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. a direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. in proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. it is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the executive. it is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. a power of this nature in the executive, will often have a silent and unperceived, though forcible, operation. when men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared. this qualified negative, as has been elsewhere remarked, is in this state vested in a council, consisting of the governor, with the chancellor and judges of the supreme court, or any two of them. it has been freely employed upon a variety of occasions, and frequently with success. and its utility has become so apparent, that persons who, in compiling the constitution, were violent opposers of it, have from experience become its declared admirers. i have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this state, in favor of that of massachusetts. two strong reasons may be imagined for this preference. one is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. it is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. it is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the executive. publius. mr. abraham yates, a warm opponent of the plan of the convention is of this number. federalist no. the command of the military and naval forces, and the pardoning power of the executive from the new york packet. tuesday, march , . hamilton to the people of the state of new york: the president of the united states is to be "commander-in-chief of the army and navy of the united states, and of the militia of the several states when called into the actual service of the united states." the propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the state constitutions in general, that little need be said to explain or enforce it. even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. the direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority. "the president may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." this i consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office. he is also to be authorized to grant "reprieves and pardons for offenses against the united states, except in cases of impeachment." humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. as the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. the reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. on the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. on these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men. the expediency of vesting the power of pardoning in the president has, if i mistake not, been only contested in relation to the crime of treason. this, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. i shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. as treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. and this ought the rather to be the case, as the supposition of the connivance of the chief magistrate ought not to be entirely excluded. but there are also strong objections to such a plan. it is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. it deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in massachusetts. in every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. and when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. on the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. but the principal argument for reposing the power of pardoning in this case to the chief magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. the dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. the loss of a week, a day, an hour, may sometimes be fatal. if it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the president, it may be answered in the first place, that it is questionable, whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. a proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt. publius. federalist no. the treaty-making power of the executive for the independent journal. hamilton to the people of the state of new york: the president is to have power, "by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur." though this provision has been assailed, on different grounds, with no small degree of vehemence, i scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. one ground of objection is the trite topic of the intermixture of powers; some contending that the president ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the senate. another source of objection is derived from the small number of persons by whom a treaty may be made. of those who espouse this objection, a part are of opinion that the house of representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of all the members of the senate, to two thirds of the members present. as i flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, i shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated. with regard to the intermixture of powers, i shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the executive with the senate, in the article of treaties, is no infringement of that rule. i venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. the essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. the power of making treaties is, plainly, neither the one nor the other. it relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. they are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. the power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. the qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. however proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. it has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. but a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. an avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. an ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. the history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the united states. to have intrusted the power of making treaties to the senate alone, would have been to relinquish the benefits of the constitutional agency of the president in the conduct of foreign negotiations. it is true that the senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. besides this, the ministerial servant of the senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. while the union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the executive. though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. it must indeed be clear to a demonstration that the joint possession of the power in question, by the president and senate, would afford a greater prospect of security, than the separate possession of it by either of them. and whoever has maturely weighed the circumstances which must concur in the appointment of a president, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity. the remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the house of representatives to a share in the formation of treaties. the fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. the very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. the greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project. the only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. it has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. this consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. if two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. and the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. proofs of this position might be adduced from the examples of the roman tribuneship, the polish diet, and the states-general of the netherlands, did not an example at home render foreign precedents unnecessary. to require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. the former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. the latter, by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect. and as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. it ought not to be forgotten that, under the existing confederation, two members may, and usually do, represent a state; whence it happens that congress, who now are solely invested with all the powers of the union, rarely consist of a greater number of persons than would compose the intended senate. if we add to this, that as the members vote by states, and that where there is only a single member present from a state, his vote is lost, it will justify a supposition that the active voices in the senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing congress. when, in addition to these considerations, we take into view the co-operation of the president, we shall not hesitate to infer that the people of america would have greater security against an improper use of the power of making treaties, under the new constitution, than they now enjoy under the confederation. and when we proceed still one step further, and look forward to the probable augmentation of the senate, by the erection of new states, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the senate would be likely to become, would be very little fit for the proper discharge of the trust. publius. federalist no. the appointing power of the executive from the new york packet. tuesday, april , . hamilton to the people of the state of new york: the president is "to nominate, and, by and with the advice and consent of the senate, to appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states whose appointments are not otherwise provided for in the constitution. but the congress may by law vest the appointment of such inferior officers as they think proper, in the president alone, or in the courts of law, or in the heads of departments. the president shall have power to fill up all vacancies which may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." it has been observed in a former paper, that "the true test of a good government is its aptitude and tendency to produce a good administration." if the justness of this observation be admitted, the mode of appointing the officers of the united states contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. it is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the union; and it will not need proof, that on this point must essentially depend the character of its administration. it will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. it ought either to be vested in a single man, or in a select assembly of a moderate number; or in a single man, with the concurrence of such an assembly. the exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. when, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. the people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men. those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the president, will, i presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. premising this, i proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. the sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. he will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. he will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. a single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. there is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. the choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. in either case, the intrinsic merit of the candidate will be too often out of sight. in the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. in the last, the coalition will commonly turn upon some interested equivalent: "give us the man we wish for this office, and you shall have the one you wish for that." this will be the usual condition of the bargain. and it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. the truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. they contend that the president ought solely to have been authorized to make the appointments under the federal government. but it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. in the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. there can, in this view, be no difference others, who are to be the objects of our choice or preference. hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. the choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. in either case, the intrinsic merit of the candidate will be too often out of sight. in the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. in the last, the coalition will commonly turn upon some interested equivalent: "give us the man we wish for this office, and you shall have the one you wish for that." this will be the usual condition of the bargain. and it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. the truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. they contend that the president ought solely to have been authorized to make the appointments under the federal government. but it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. in the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. there can, in this view, be no difference between nominating and appointing. the same motives which would influence a proper discharge of his duty in one case, would exist in the other. and as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice. but might not his nomination be overruled? i grant it might, yet this could only be to make place for another nomination by himself. the person ultimately appointed must be the object of his preference, though perhaps not in the first degree. it is also not very probable that his nomination would often be overruled. the senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. they could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. to what purpose then require the co-operation of the senate? i answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. it would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. in addition to this, it would be an efficacious source of stability in the administration. it will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. the possibility of rejection would be a strong motive to care in proposing. the danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. he would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same state to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. to this reasoning it has been objected that the president, by the influence of the power of nomination, may secure the complaisance of the senate to his views. this supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. the institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. it has been found to exist in the most corrupt periods of the most corrupt governments. the venalty of the british house of commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. but it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. though it might therefore be allowable to suppose that the executive might occasionally influence some individuals in the senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. a man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the senate, to rest satisfied, not only that it will be impracticable to the executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. nor is the integrity of the senate the only reliance. the constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that "no senator or representative shall during the time for which he was elected, be appointed to any civil office under the united states, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the united states, shall be a member of either house during his continuance in office." publius. federalist no. the appointing power continued and other powers of the executive considered from the new york packet. friday, april , . hamilton to the people of the state of new york: it has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. the consent of that body would be necessary to displace as well as to appoint. a change of the chief magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government. to this union of the senate with the president, in the article of appointments, it has in some cases been suggested that it would serve to give the president an undue influence over the senate, and in others that it would have an opposite tendency, a strong proof that neither suggestion is true. to state the first in its proper form, is to refute it. it amounts to this: the president would have an improper influence over the senate, because the senate would have the power of restraining him. this is an absurdity in terms. it cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control. let us take a view of the converse of the proposition: "the senate would influence the executive." as i have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. in what manner is this influence to be exerted? in relation to what objects? the power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. how could the senate confer a benefit upon the president by the manner of employing their right of negative upon his nominations? if it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, i answer, that the instances in which the president could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the senate. the power which can originate the disposition of honors and emoluments, is more likely to attract than to be attracted by the power which can merely obstruct their course. if by influencing the president be meant restraining him, this is precisely what must have been intended. and it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that magistrate. the right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this state, a decided preference must be given to the former. in that plan the power of nomination is unequivocally vested in the executive. and as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. the blame of a bad nomination would fall upon the president singly and absolutely. the censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of their having counteracted the good intentions of the executive. if an ill appointment should be made, the executive for nominating, and the senate for approving, would participate, though in different degrees, in the opprobrium and disgrace. the reverse of all this characterizes the manner of appointment in this state. the council of appointment consists of from three to five persons, of whom the governor is always one. this small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. it is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. the censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. and while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. the most that the public can know, is that the governor claims the right of nomination; that two out of the inconsiderable number of four men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. whether a governor of this state avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture. every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. and as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. the private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. if, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. such a council would also be more liable to executive influence than the senate, because they would be fewer in number, and would act less immediately under the public inspection. such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the executive. and yet such a council has been warmly contended for as an essential amendment in the proposed constitution. i could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; i mean that of uniting the house of representatives in the power of making them. i shall, however, do little more than mention it, as i cannot imagine that it is likely to gain the countenance of any considerable part of the community. a body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. all the advantages of the stability, both of the executive and of the senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. the example of most of the states in their local constitutions encourages us to reprobate the idea. the only remaining powers of the executive are comprehended in giving information to congress of the state of the union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the united states. except some cavils about the power of convening either house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. it required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. in regard to the power of convening either house of the legislature, i shall barely remark, that in respect to the senate at least, we can readily discover a good reason for it. as this body has a concurrent power with the executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the house of representatives. as to the reception of ambassadors, what i have said in a former paper will furnish a sufficient answer. we have now completed a survey of the structure and powers of the executive department, which, i have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. the remaining inquiry is: does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility? the answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the president once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. but these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. in the only instances in which the abuse of the executive authority was materially to be feared, the chief magistrate of the united states would, by that plan, be subjected to the control of a branch of the legislative body. what more could be desired by an enlightened and reasonable people? publius. federalist no. the judiciary department from mclean's edition, new york. hamilton to the people of the state of new york: we proceed now to an examination of the judiciary department of the proposed government. in unfolding the defects of the existing confederation, the utility and necessity of a federal judicature have been clearly pointed out. it is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. to these points, therefore, our observations shall be confined. the manner of constituting it seems to embrace these several objects: st. the mode of appointing the judges. d. the tenure by which they are to hold their places. d. the partition of the judiciary authority between different courts, and their relations to each other. first. as to the mode of appointing the judges; this is the same with that of appointing the officers of the union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition. second. as to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility. according to the plan of the convention, all judges who may be appointed by the united states are to hold their offices during good behavior; which is conformable to the most approved of the state constitutions and among the rest, to that of this state. its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. the standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. in a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. and it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. the executive not only dispenses the honors, but holds the sword of the community. the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. it may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. this simple view of the matter suggests several important consequences. it proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power ; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. it equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; i mean so long as the judiciary remains truly distinct from both the legislature and the executive. for i agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." and it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. the complete independence of the courts of justice is peculiarly essential in a limited constitution. by a limited constitution, i understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. without this, all the reservations of particular rights or privileges would amount to nothing. some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. it is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. as this doctrine is of great importance in all the american constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. there is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. no legislative act, therefore, contrary to the constitution, can be valid. to deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. if it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. it is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. it is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. the interpretation of the laws is the proper and peculiar province of the courts. a constitution is, in fact, and must be regarded by the judges, as a fundamental law. it therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. if there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. it only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges ought to be governed by the latter rather than the former. they ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. this exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. it not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. in such a case, it is the province of the courts to liquidate and fix their meaning and operation. so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. the rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. but this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. it is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. they thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will should have the preference. but in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. they teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. it can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. this might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. the courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. the observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. if, then, the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. this independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. though i trust the friends of the proposed constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. but it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community. but it is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. these sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. it not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. this is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. the benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. and every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. that inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. if the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws. there is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. it has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. and making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. these considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. in the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. the experience of great britain affords an illustrious comment on the excellence of the institution. publius. the celebrated montesquieu, speaking of them, says: "of the three powers above mentioned, the judiciary is next to nothing." "spirit of laws." vol. i., page . idem, page . vide "protest of the minority of the convention of pennsylvania," martin's speech, etc. federalist no. the judiciary continued from mclean's edition, new york. hamilton to the people of the state of new york: next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. the remark made in relation to the president is equally applicable here. in the general course of human nature, a power over a man's subsistence amounts to a power over his will. and we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. the enlightened friends to good government in every state, have seen cause to lament the want of precise and explicit precautions in the state constitutions on this head. some of these indeed have declared that permanent salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. something still more positive and unequivocal has been evinced to be requisite. the plan of the convention accordingly has provided that the judges of the united states "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." this, all circumstances considered, is the most eligible provision that could have been devised. it will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the constitution inadmissible. what might be extravagant to-day, might in half a century become penurious and inadequate. it was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. a man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. the clause which has been quoted combines both advantages. the salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. it will be observed that a difference has been made by the convention between the compensation of the president and of the judges, that of the former can neither be increased nor diminished; that of the latter can only not be diminished. this probably arose from the difference in the duration of the respective offices. as the president is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. but with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service. this provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the states in regard to their own judges. the precautions for their responsibility are comprised in the article respecting impeachments. they are liable to be impeached for malconduct by the house of representatives, and tried by the senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. this is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges. the want of a provision for removing the judges on account of inability has been a subject of complaint. but all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. the mensuration of the faculties of the mind has, i believe, no place in the catalogue of known arts. an attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. the result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. the constitution of new york, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. no man can be a judge beyond sixty. i believe there are few at present who do not disapprove of this provision. there is no station, in relation to which it is less proper than to that of a judge. the deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. in a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. publius. vide "constitution of massachusetts," chapter , section i, article . federalist no. the powers of the judiciary from mclean's edition, new york. hamilton to the people of the state of new york: to judge with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects. it seems scarcely to admit of controversy, that the judicary authority of the union ought to extend to these several descriptions of cases: st, to all those which arise out of the laws of the united states, passed in pursuance of their just and constitutional powers of legislation; d, to all those which concern the execution of the provisions expressly contained in the articles of union; d, to all those in which the united states are a party; th, to all those which involve the peace of the confederacy, whether they relate to the intercourse between the united states and foreign nations, or to that between the states themselves; th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the state tribunals cannot be supposed to be impartial and unbiased. the first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. what, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them? the states, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the union, and others with the principles of good government. the imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. no man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. this power must either be a direct negative on the state laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of union. there is no third course that i can imagine. the latter appears to have been thought by the convention preferable to the former, and, i presume, will be most agreeable to the states. as to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. if there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. the mere necessity of uniformity in the interpretation of the national laws, decides the question. thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. still less need be said in regard to the third point. controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. any other plan would be contrary to reason, to precedent, and to decorum. the fourth point rests on this plain proposition, that the peace of the whole ought not to be left at the disposal of a part. the union will undoubtedly be answerable to foreign powers for the conduct of its members. and the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. as the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. this is not less essential to the preservation of the public faith, than to the security of the public tranquillity. a distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. the former kind may be supposed proper for the federal jurisdiction, the latter for that of the states. but it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. and a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. so great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals. the power of determining causes between two states, between one state and the citizens of another, and between the citizens of different states, is perhaps not less essential to the peace of the union than that which has been just examined. history gives us a horrid picture of the dissensions and private wars which distracted and desolated germany prior to the institution of the imperial chamber by maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. this was a court invested with authority to decide finally all differences among the members of the germanic body. a method of terminating territorial disputes between the states, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. but there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the union. to some of these we have been witnesses in the course of our past experience. it will readily be conjectured that i allude to the fraudulent laws which have been passed in too many of the states. and though the proposed constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. whatever practices may have a tendency to disturb the harmony between the states, are proper objects of federal superintendence and control. it may be esteemed the basis of the union, that "the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states." and if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the union will be entitled, the national judiciary ought to preside in all cases in which one state or its citizens are opposed to another state or its citizens. to secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different states and their citizens, and which, owing its official existence to the union, will never be likely to feel any bias inauspicious to the principles on which it is founded. the fifth point will demand little animadversion. the most bigoted idolizers of state authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. these so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. the most important part of them are, by the present confederation, submitted to federal jurisdiction. the reasonableness of the agency of the national courts in cases in which the state tribunals cannot be supposed to be impartial, speaks for itself. no man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. this principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different states and their citizens. and it ought to have the same operation in regard to some cases between citizens of the same state. claims to land under grants of different states, founded upon adverse pretensions of boundary, are of this description. the courts of neither of the granting states could be expected to be unbiased. the laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the state to which they belonged. and even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government. having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. it is to comprehend "all cases in law and equity arising under the constitution, the laws of the united states, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the united states shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands and grants of different states; and between a state or the citizens thereof and foreign states, citizens, and subjects." this constitutes the entire mass of the judicial authority of the union. let us now review it in detail. it is, then, to extend: first. to all cases in law and equity, arising under the constitution and the laws of the united states. this corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the united states. it has been asked, what is meant by "cases arising under the constitution," in contradiction from those "arising under the laws of the united states"? the difference has been already explained. all the restrictions upon the authority of the state legislatures furnish examples of it. they are not, for instance, to emit paper money; but the interdiction results from the constitution, and will have no connection with any law of the united states. should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the constitution and not the laws of the united states, in the ordinary signification of the terms. this may serve as a sample of the whole. it has also been asked, what need of the word "equity what equitable causes can grow out of the constitution and laws of the united states? there is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the states. it is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. in such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. agreements to convey lands claimed under the grants of different states, may afford another example of the necessity of an equitable jurisdiction in the federal courts. this reasoning may not be so palpable in those states where the formal and technical distinction between law and equity is not maintained, as in this state, where it is exemplified by every day's practice. the judiciary authority of the union is to extend: second. to treaties made, or which shall be made, under the authority of the united states, and to all cases affecting ambassadors, other public ministers, and consuls. these belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace. third. to cases of admiralty and maritime jurisdiction. these form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts. fourth. to controversies to which the united states shall be a party. these constitute the third of those classes. fifth. to controversies between two or more states; between a state and citizens of another state; between citizens of different states. these belong to the fourth of those classes, and partake, in some measure, of the nature of the last. sixth. to cases between the citizens of the same state, claiming lands under grants of different states. these fall within the last class, and are the only instances in which the proposed constitution directly contemplates the cognizance of disputes between the citizens of the same state. seventh. to cases between a state and the citizens thereof, and foreign states, citizens, or subjects. these have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature. from this review of the particular powers of the federal judiciary, as marked out in the constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. if some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. the possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. publius. federalist. no. the judiciary continued, and the distribution of the judicial authority from mclean's edition, new york. hamilton to the people of the state of new york: let us now return to the partition of the judiciary authority between different courts, and their relations to each other, "the judicial power of the united states is" (by the plan of the convention) "to be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish." that there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. the reasons for it have been assigned in another place, and are too obvious to need repetition. the only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. the same contradiction is observable in regard to this matter which has been remarked in several other cases. the very men who object to the senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. the arguments, or rather suggestions, upon which this charge is founded, are to this effect: "the authority of the proposed supreme court of the united states, which is to be a separate and independent body, will be superior to that of the legislature. the power of construing the laws according to the spirit of the constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. this is as unprecedented as it is dangerous. in britain, the judical power, in the last resort, resides in the house of lords, which is a branch of the legislature; and this part of the british government has been imitated in the state constitutions in general. the parliament of great britain, and the legislatures of the several states, can at any time rectify, by law, the exceptionable decisions of their respective courts. but the errors and usurpations of the supreme court of the united states will be uncontrollable and remediless." this, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. in the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every state. i admit, however, that the constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the constitution. but this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited constitution; and as far as it is true, is equally applicable to most, if not to all the state governments. there can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. but perhaps the force of the objection may be thought to consist in the particular organization of the supreme court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of great britain and that of the state. to insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. it shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a part of the legislative body. but though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. from a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. the same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the constitution in the character of legislators, would be disposed to repair the breach in the character of judges. nor is this all. every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. there is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. and there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. the members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. the habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. these considerations teach us to applaud the wisdom of those states who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of new hampshire, massachusetts, pennsylvania, delaware, maryland, virginia, north carolina, south carolina, and georgia; and the preference which has been given to those models is highly to be commended. it is not true, in the second place, that the parliament of great britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the united states. the theory, neither of the british, nor the state constitutions, authorizes the revisal of a judicial sentence by a legislative act. nor is there any thing in the proposed constitution, more than in either of them, by which it is forbidden. in the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. a legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. this is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the state governments, as to the national government now under consideration. not the least difference can be pointed out in any view of the subject. it may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. this may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. and the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. this is alone a complete security. there never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. while this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the senate a court for the trial of impeachments. having now examined, and, i trust, removed the objections to the distinct and independent organization of the supreme court, i proceed to consider the propriety of the power of constituting inferior courts, and the relations which will subsist between these and the former. the power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the supreme court in every case of federal cognizance. it is intended to enable the national government to institute or authoruze, in each state or district of the united states, a tribunal competent to the determination of matters of national jurisdiction within its limits. but why, it is asked, might not the same purpose have been accomplished by the instrumentality of the state courts? this admits of different answers. though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national constitution. to confer the power of determining such causes upon the existing courts of the several states, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. but ought not a more direct and explicit provision to have been made in favor of the state courts? there are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the states would be improper channels of the judicial authority of the union. state judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. and if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. in proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. and well satisfied as i am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. i should consider every thing calculated to give, in practice, an unrestrained course to appeals, as a source of public and private inconvenience. i am not sure, but that it will be found highly expedient and useful, to divide the united states into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every state. the judges of these courts, with the aid of the state judges, may hold circuits for the trial of causes in the several parts of the respective districts. justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. this plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed constitution. these reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the union. the supreme court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party." public ministers of every class are the immediate representatives of their sovereigns. all questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. in cases in which a state might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. though it may rather be a digression from the immediate subject of this paper, i shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. it has been suggested that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. this is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal. the circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repeated here. a recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. the contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. they confer no right of action, independent of the sovereign will. to what purpose would it be to authorize suits against states for the debts they owe? how could recoveries be enforced? it is evident, it could not be done without waging war against the contracting state; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. let us resume the train of our observations. we have seen that the original jurisdiction of the supreme court would be confined to two classes of causes, and those of a nature rarely to occur. in all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the supreme court would have nothing more than an appellate jurisdiction, "with such exceptions and under such regulations as the congress shall make." the propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. some well-intentioned men in this state, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. a technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. but if i am not misinformed, the same meaning would not be given to it in any part of new england. there an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. the word "appellate," therefore, will not be understood in the same sense in new england as in new york, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular state. the expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. the mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. if, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the supreme court. but it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the supreme court. why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this state, that the latter has jurisdiction of the fact as well as the law? it is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it. this is jurisdiction of both fact and law; nor is it even possible to separate them. though the common-law courts of this state ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. i contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the supreme court of facts decided by juries in the inferior courts. the following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. the appellate jurisdiction of the supreme court (it may have been argued) will extend to causes determinable in different modes, some in the course of the common law, others in the course of the civil law. in the former, the revision of the law only will be, generally speaking, the proper province of the supreme court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. it is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. it will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the states all causes are tried in this mode ; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. to avoid all inconveniencies, it will be safest to declare generally, that the supreme court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. this will enable the government to modify it in such a manner as will best answer the ends of public justice and security. this view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. the legislature of the united states would certainly have full power to provide, that in appeals to the supreme court there should be no re-examination of facts where they had been tried in the original causes by juries. this would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. the amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the supreme court, and the rest consigned to the subordinate tribunals; that the supreme court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. publius. article , sec. i. this power has been absurdly represented as intended to abolish all the county courts in the several states, which are commonly called inferior courts. but the expressions of the constitution are, to constitute "tribunals inferior to the supreme court"; and the evident design of the provision is to enable the institution of local courts, subordinate to the supreme, either in states or larger districts. it is ridiculous to imagine that county courts were in contemplation. this word is composed of jus and dictio, juris dictio or a speaking and pronouncing of the law. i hold that the states will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. federalist no. the judiciary continued from mclean's edition, new york. hamilton to the people of the state of new york: the erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 't is time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole. such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. the principal of these respect the situation of the state courts in regard to those causes which are to be submitted to federal jurisdiction. is this to be exclusive, or are those courts to possess a concurrent jurisdiction? if the latter, in what relation will they stand to the national tribunals? these are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. the principles established in a former paper teach us that the states will retain all pre-existing authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the union; or where a particular authority is granted to the union, and the exercise of a like authority is prohibited to the states; or where an authority is granted to the union, with which a similar authority in the states would be utterly incompatible. though these principles may not apply with the same force to the judiciary as to the legislative power, yet i am inclined to think that they are, in the main, just with respect to the former, as well as the latter. and under this impression, i shall lay it down as a rule, that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. the only thing in the proposed constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain and establish." this might either be construed to signify, that the supreme and subordinate courts of the union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one supreme court, and as many subordinate courts as congress should think proper to appoint; or in other words, that the united states should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. the first excludes, the last admits, the concurrent jurisdiction of the state tribunals; and as the first would amount to an alienation of state power by implication, the last appears to me the most natural and the most defensible construction. but this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the state courts have previous cognizance. it is not equally evident in relation to cases which may grow out of, and be peculiar to, the constitution to be established; for not to allow the state courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. i mean not therefore to contend that the united states, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but i hold that the state courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and i am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. this i infer from the nature of judiciary power, and from the general genius of the system. the judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. those of japan, not less than of new york, may furnish the objects of legal discussion to our courts. when in addition to this we consider the state governments and the national governments, as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive, that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the union, where it was not expressly prohibited. here another question occurs: what relation would subsist between the national and state courts in these instances of concurrent jurisdiction? i answer, that an appeal would certainly lie from the latter, to the supreme court of the united states. the constitution in direct terms gives an appellate jurisdiction to the supreme court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. the objects of appeal, not the tribunals from which it is to be made, are alone contemplated. from this circumstance, and from the reason of the thing, it ought to be construed to extend to the state tribunals. either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the union may be eluded at the pleasure of every plaintiff or prosecutor. neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. nor do i perceive any foundation for such a supposition. agreeably to the remark already made, the national and state systems are to be regarded as one whole. the courts of the latter will of course be natural auxiliaries to the execution of the laws of the union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. the evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the union. to confine, therefore, the general expressions giving appellate jurisdiction to the supreme court, to appeals from the subordinate federal courts, instead of allowing their extension to the state courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. but could an appeal be made to lie from the state courts to the subordinate federal judicatories? this is another of the questions which have been raised, and of greater difficulty than the former. the following considerations countenance the affirmative. the plan of the convention, in the first place, authorizes the national legislature "to constitute tribunals inferior to the supreme court." it declares, in the next place, that "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as congress shall ordain and establish"; and it then proceeds to enumerate the cases to which this judicial power shall extend. it afterwards divides the jurisdiction of the supreme court into original and appellate, but gives no definition of that of the subordinate courts. the only outlines described for them, are that they shall be "inferior to the supreme court," and that they shall not exceed the specified limits of the federal judiciary. whether their authority shall be original or appellate, or both, is not declared. all this seems to be left to the discretion of the legislature. and this being the case, i perceive at present no impediment to the establishment of an appeal from the state courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. it would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the supreme court. the state tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the supreme court, may be made to lie from the state courts to district courts of the union. publius. no. . sec. th art. st. federalist no. the judiciary continued in relation to trial by jury from mclean's edition, new york. hamilton to the people of the state of new york: the objection to the plan of the convention, which has met with most success in this state, and perhaps in several of the other states, is that relative to the want of a constitutional provision for the trial by jury in civil cases. the disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. the mere silence of the constitution in regard to civil causes, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to criminal causes. to argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning. with regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only not provided for, is entirely abolished. every man of discernment must at once perceive the wide difference between silence and abolition. but as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. the maxims on which they rely are of this nature: "a specification of particulars is an exclusion of generals"; or, "the expression of one thing is the exclusion of another." hence, say they, as the constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. the rules of legal interpretation are rules of commonsense, adopted by the courts in the construction of the laws. the true test, therefore, of a just application of them is its conformity to the source from which they are derived. this being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? if such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. a power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. this discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. the specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought proper. the pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation. from these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. in relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. this will be best done by examples. the plan of the convention declares that the power of congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. this specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. in like manner the judicial authority of the federal judicatures is declared by the constitution to comprehend certain cases particularly specified. the expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. these examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. but that there may be no misapprehensions upon this subject, i shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them. let us suppose that by the laws of this state a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. in such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. but let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? the position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature. from these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the state constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. the foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the state courts only, and in the manner which the state constitutions and laws prescribe. all land causes, except where claims under the grants of different states come into question, and all other controversies between the citizens of the same state, unless where they depend upon positive violations of the articles of union, by acts of the state legislatures, will belong exclusively to the jurisdiction of the state tribunals. add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government. the friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. for my own part, the more the operation of the institution has fallen under my observation, the more reason i have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. but i must acknowledge that i cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. the trial by jury in criminal cases, aided by the habeas-corpus act, seems therefore to be alone concerned in the question. and both of these are provided for, in the most ample manner, in the plan of the convention. it has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. this observation deserves to be canvassed. it is evident that it can have no influence upon the legislature, in regard to the amount of taxes to be laid, to the objects upon which they are to be imposed, or to the rule by which they are to be apportioned. if it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws. as to the mode of collection in this state, under our own constitution, the trial by jury is in most cases out of use. the taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. and it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. the dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. it would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied. and as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case. the excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. the strongest argument in its favor is, that it is a security against corruption. as there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. the force of this consideration is, however, diminished by others. the sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. it is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. in the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. but making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. it greatly multiplies the impediments to its success. as matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. by increasing the obstacles to success, it discourages attempts to seduce the integrity of either. the temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes. notwithstanding, therefore, the doubts i have expressed, as to the essentiality of trial by jury in civil cases to liberty, i admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. there is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. for my own part, at every new view i take of the subject, i become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention. the great difference between the limits of the jury trial in different states is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. in this state, our judicial establishments resemble, more nearly than in any other, those of great britain. we have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in england), a court of admiralty and a court of chancery. in the courts of common law only, the trial by jury prevails, and this with some exceptions. in all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury. in new jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. in that state the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in new jersey than in new york. in pennsylvania, this is perhaps still more the case, for there is no court of chancery in that state, and its common-law courts have equity jurisdiction. it has a court of admiralty, but none of probates, at least on the plan of ours. delaware has in these respects imitated pennsylvania. maryland approaches more nearly to new york, as does also virginia, except that the latter has a plurality of chancellors. north carolina bears most affinity to pennsylvania; south carolina to virginia. i believe, however, that in some of those states which have distinct courts of admiralty, the causes depending in them are triable by juries. in georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. in connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. their common-law courts have admiralty and, to a certain extent, equity jurisdiction. in cases of importance, their general assembly is the only court of chancery. in connecticut, therefore, the trial by jury extends in practice further than in any other state yet mentioned. rhode island is, i believe, in this particular, pretty much in the situation of connecticut. massachusetts and new hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. in the four eastern states, the trial by jury not only stands upon a broader foundation than in the other states, but it is attended with a peculiarity unknown, in its full extent, to any of them. there is an appeal of course from one jury to another, till there have been two verdicts out of three on one side. from this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several states; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the states; and secondly, that more or at least as much might have been hazarded by taking the system of any one state for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation. the propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. the minority of pennsylvania have proposed this mode of expression for the purpose "trial by jury shall be as heretofore" and this i maintain would be senseless and nugatory. the united states, in their united or collective capacity, are the object to which all general provisions in the constitution must necessarily be construed to refer. now it is evident that though trial by jury, with various limitations, is known in each state individually, yet in the united states, as such, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. it would therefore be destitute of a precise meaning, and inoperative from its uncertainty. as, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if i apprehend that intent rightly, it would be in itself inexpedient. i presume it to be, that causes in the federal courts should be tried by jury, if, in the state where the courts sat, that mode of trial would obtain in a similar case in the state courts; that is to say, admiralty causes should be tried in connecticut by a jury, in new york without one. the capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every wellregulated judgment towards it. whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties. but this is not, in my estimation, the greatest objection. i feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. i think it so particularly in cases which concern the public peace with foreign nations that is, in most cases where the question turns wholly on the laws of nations. of this nature, among others, are all prize causes. juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. there would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable. it will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of europe, and that, pursuant to such treaties, they are determinable in great britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. this alone demonstrates the impolicy of inserting a fundamental provision in the constitution which would make the state systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable. my convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. the great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions to general rules. to unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. they require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. the simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars. it is true that the separation of the equity from the legal jurisdiction is peculiar to the english system of jurisprudence: which is the model that has been followed in several of the states. but it is equally true that the trial by jury has been unknown in every case in which they have been united. and the separation is essential to the preservation of that institution in its pristine purity. the nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this state, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode. these appeared to be conclusive reasons against incorporating the systems of all the states, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the pennsylvania minority. let us now examine how far the proposition of massachusetts is calculated to remedy the supposed defect. it is in this form: "in civil actions between citizens of different states, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it." this, at best, is a proposition confined to one description of causes; and the inference is fair, either that the massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. if the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. if the last, it affords a strong corroboration of the extreme difficulty of the thing. but this is not all: if we advert to the observations already made respecting the courts that subsist in the several states of the union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. in this state, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in england upon that subject. in many of the other states the boundaries are less precise. in some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. hence the same irregularity and confusion would be introduced by a compliance with this proposition, that i have already noticed as resulting from the regulation proposed by the pennsylvania minority. in one state a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another state, a cause exactly similar to the other, must be decided without the intervention of a jury, because the state judicatories varied as to common-law jurisdiction. it is obvious, therefore, that the massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different states. to devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. it would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the states in the union, or that would perfectly quadrate with the several state institutions. it may be asked, why could not a reference have been made to the constitution of this state, taking that, which is allowed by me to be a good one, as a standard for the united states? i answer that it is not very probable the other states would entertain the same opinion of our institutions as we do ourselves. it is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. if the plan of taking one state as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the states would have been taken as the model. it has been shown that many of them would be improper ones. and i leave it to conjecture, whether, under all circumstances, it is most likely that new york, or some other state, would have been preferred. but admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other states, at the partiality which had been shown to the institutions of one. the enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. to avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. for this i believe, no precedent is to be found in any member of the union; and the considerations which have been stated in discussing the proposition of the minority of pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan. in short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government. i cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. they have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the state constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a constitution for the united states. the best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. for my part, i acknowledge myself to be convinced that even in this state it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. it is conceded by all reasonable men that it ought not to obtain in all cases. the examples of innovations which contract its ancient limits, as well in these states as in great britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. i suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature. this is now clearly understood to be the case in great britain, and it is equally so in the state of connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in connecticut or great britain. it may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. the truth is that the general genius of a government is all that can be substantially relied upon for permanent effects. particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government. it certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that connecticut, which has been always regarded as the most popular state in the union, can boast of no constitutional provision for either. publius. it has been erroneously insinuated, with regard to the court of chancery, that this court generally tries disputed facts by a jury. the truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question. it is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to special circumstances, which form exceptions to general rules. vide no. , in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the supreme court, is examined and refuted. federalist no. certain general and miscellaneous objections to the constitution considered and answered from mclean's edition, new york. hamilton to the people of the state of new york: in the course of the foregoing review of the constitution, i have taken notice of, and endeavored to answer most of the objections which have appeared against it. there, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. these shall now be discussed; but as the subject has been drawn into great length, i shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper. the most considerable of the remaining objections is that the plan of the convention contains no bill of rights. among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the states are in a similar predicament. i add that new york is of the number. and yet the opposers of the new system, in this state, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. to justify their zeal in this matter, they allege two things: one is that, though the constitution of new york has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the constitution adopts, in their full extent, the common and statute law of great britain, by which many other rights, not expressed in it, are equally secured. to the first i answer, that the constitution proposed by the convention contains, as well as the constitution of this state, a number of such provisions. independent of those which relate to the structure of the government, we find the following: article , section , clause "judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the united states; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." section , of the same article, clause "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." clause "no bill of attainder or ex-post-facto law shall be passed." clause "no title of nobility shall be granted by the united states; and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." article , section , clause "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed." section , of the same article "treason against the united states shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." and clause , of the same section "the congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." it may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this state. the establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of titles of nobility, to which we have no corresponding provision in our constitution, are perhaps greater securities to liberty and republicanism than any it contains. the creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. the observations of the judicious blackstone, in reference to the latter, are well worthy of recital: "to bereave a man of life, usays he,e or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." and as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls "the bulwark of the british constitution." nothing need be said to illustrate the importance of the prohibition of titles of nobility. this may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. to the second that is, to the pretended establishment of the common and state law by the constitution, i answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." they are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. the only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the revolution. this consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. it has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. such was magna charta, obtained by the barons, sword in hand, from king john. such were the subsequent confirmations of that charter by succeeding princes. such was the petition of right assented to by charles i., in the beginning of his reign. such, also, was the declaration of right presented by the lords and commons to the prince of orange in , and afterwards thrown into the form of an act of parliament called the bill of rights. it is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "we, the people of the united states, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america." here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. but a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. if, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this state. but the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired. i go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. they would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. for why declare that things shall not be done which there is no power to do? why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? i will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. they might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. this may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. on the subject of the liberty of the press, as much as has been said, i cannot forbear adding a remark or two: in the first place, i observe, that there is not a syllable concerning it in the constitution of this state; in the next, i contend, that whatever has been said about it in that of any other state, amounts to nothing. what signifies a declaration, that "the liberty of the press shall be inviolably preserved"? what is the liberty of the press? who can give it any definition which would not leave the utmost latitude for evasion? i hold it to be impracticable; and from this i infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. and here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. there remains but one other view of this matter to conclude the point. the truth is, after all the declamations we have heard, that the constitution is itself, in every rational sense, and to every useful purpose, a bill of rights. the several bills of rights in great britain form its constitution, and conversely the constitution of each state is its bill of rights. and the proposed constitution, if adopted, will be the bill of rights of the union. is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? this is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the state constitutions. is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? this we have seen has also been attended to, in a variety of cases, in the same plan. adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. it may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. it certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. and hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "it is improper," say the objectors, "to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the states to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." this argument, if it proves any thing, proves that there ought to be no general government whatever. for the powers which, it seems to be agreed on all hands, ought to be vested in the union, cannot be safely intrusted to a body which is not under every requisite control. but there are satisfactory reasons to show that the objection is in reality not well founded. there is in most of the arguments which relate to distance a palpable illusion of the imagination. what are the sources of information by which the people in montgomery county must regulate their judgment of the conduct of their representatives in the state legislature? of personal observation they can have no benefit. this is confined to the citizens on the spot. they must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. this does not apply to montgomery county only, but to all the counties at any considerable distance from the seat of government. it is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the state governments. the executive and legislative bodies of each state will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. and we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their state representatives. it ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. the public papers will be expeditious messengers of intelligence to the most remote inhabitants of the union. among the many curious objections which have appeared against the proposed constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the united states. this has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. the newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. in addition to the remarks i have made upon the subject in another place, i shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "states neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government." the last objection of any consequence, which i at present recollect, turns upon the article of expense. if it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. the great bulk of the citizens of america are with reason convinced, that union is the basis of their political happiness. men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government a single body being an unsafe depositary of such ample authorities. in conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. the two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which congress, under the existing confederation, may be composed. it is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. it is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people. whence is the dreaded augmentation of expense to spring? one source indicated, is the multiplication of offices under the new government. let us examine this a little. it is evident that the principal departments of the administration under the present government, are the same which will be required under the new. there are now a secretary of war, a secretary of foreign affairs, a secretary for domestic affairs, a board of treasury, consisting of three persons, a treasurer, assistants, clerks, etc. these officers are indispensable under any system, and will suffice under the new as well as the old. as to ambassadors and other ministers and agents in foreign countries, the proposed constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. as to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. it will be in most cases nothing more than an exchange of state for national officers. in the collection of all duties, for instance, the persons employed will be wholly of the latter description. the states individually will stand in no need of any for this purpose. what difference can it make in point of expense to pay officers of the customs appointed by the state or by the united states? there is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former. where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? the chief item which occurs to me respects the support of the judges of the united states. i do not add the president, because there is now a president of congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the president of the united states. the support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. but upon no reasonable plan can it amount to a sum which will be an object of material consequence. let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. the first thing which presents itself is that a great part of the business which now keeps congress sitting through the year will be transacted by the president. even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the senate, and subject to their final concurrence. hence it is evident that a portion of the year will suffice for the session of both the senate and the house of representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. the extra business of treaties and appointments may give this extra occupation to the senate. from this circumstance we may infer that, until the house of representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future congress. but there is another circumstance of great importance in the view of economy. the business of the united states has hitherto occupied the state legislatures, as well as congress. the latter has made requisitions which the former have had to provide for. hence it has happened that the sessions of the state legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the states. more than half their time has been frequently employed in matters which related to the united states. now the members who compose the legislatures of the several states amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. the congress under the proposed government will do all the business of the united states themselves, without the intervention of the state legislatures, who thenceforth will have only to attend to the affairs of their particular states, and will not have to sit in any proportion as long as they have heretofore done. this difference in the time of the sessions of the state legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system. the result from these observations is that the sources of additional expense from the establishment of the proposed constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the union. publius. . vide blackstone's "commentaries," vol. ., p. . . vide blackstone's "commentaries," vol. iv., p. . . to show that there is a power in the constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. it is said that duties may be laid upon the publications so high as to amount to a prohibition. i know not by what logic it could be maintained, that the declarations in the state constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. it cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. we know that newspapers are taxed in great britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. and if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. the same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution, which has nothing of the kind. it would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained. federalist no. concluding remarks from mclean's edition, new york. hamilton to the people of the state of new york: according to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: "the analogy of the proposed government to your own state constitution," and "the additional security which its adoption will afford to republican government, to liberty, and to property." but these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid. it is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this state holds, not less with regard to many of the supposed defects, than to the real excellences of the former. among the pretended defects are the re-eligibility of the executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. these and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this state, as on the one proposed for the union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable. the additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the union will impose on local factions and insurrections, and on the ambition of powerful individuals in single states, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the states in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the state governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals. thus have i, fellow-citizens, executed the task i had assigned to myself; with what success, your conduct must determine. i trust at least you will admit that i have not failed in the assurance i gave you respecting the spirit with which my endeavors should be conducted. i have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the constitution. the charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. the perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. and the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. it is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which i did not intend; it is certain that i have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much. let us now pause and ask ourselves whether, in the course of these papers, the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. this is a duty from which nothing can give him a dispensation. 't is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. no partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of america has already given its sanction to the plan which he is to approve or reject. i shall not dissemble that i feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that i am unable to discern any real force in those by which it has been opposed. i am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. "why," say they, "should we adopt an imperfect thing? why not amend it and make it perfect before it is irrevocably established?" this may be plausible enough, but it is only plausible. in the first place i remark, that the extent of these concessions has been greatly exaggerated. they have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. this, as far as i have understood the meaning of those who make the concessions, is an entire perversion of their sense. no advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire. i answer in the next place, that i should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. i never expect to see a perfect work from imperfect man. the result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. the compacts which are to embrace thirteen distinct states in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. how can perfection spring from such materials? the reasons assigned in an excellent little pamphlet lately published in this city, are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. i will not repeat the arguments there used, as i presume the production itself has had an extensive circulation. it is certainly well worthy the perusal of every friend to his country. there is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. i cannot resolve to conclude without first taking a survey of it in this aspect. it appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the constitution. the moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each state. to its complete establishment throughout the union, it will therefore require the concurrence of thirteen states. if, on the contrary, the constitution proposed should once be ratified by all the states as it stands, alterations in it may at any time be effected by nine states. here, then, the chances are as thirteen to nine in favor of subsequent amendment, rather than of the original adoption of an entire system. this is not all. every constitution for the united states must inevitably consist of a great variety of particulars, in which thirteen independent states are to be accommodated in their interests or opinions of interest. we may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. the degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. but every amendment to the constitution, if once established, would be a single proposition, and might be brought forward singly. there would then be no necessity for management or compromise, in relation to any other point no giving nor taking. the will of the requisite number would at once bring the matter to a decisive issue. and consequently, whenever nine, or rather ten states, were united in the desire of a particular amendment, that amendment must infallibly take place. there can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete constitution. in opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. for my own part i acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, i think there is no weight in the observation just stated. i also think there is little weight in it on another account. the intrinsic difficulty of governing thirteen states at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. but there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. it is this that the national rulers, whenever nine states concur, will have no option upon the subject. by the fifth article of the plan, the congress will be obliged "on the application of the legislatures of two thirds of the states, which at present amount to nine, to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the constitution, when ratified by the legislatures of three fourths of the states, or by conventions in three fourths thereof." the words of this article are peremptory. the congress "shall call a convention." nothing in this particular is left to the discretion of that body. and of consequence, all the declamation about the disinclination to a change vanishes in air. nor however difficult it may be supposed to unite two thirds or three fourths of the state legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. we may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority. if the foregoing argument is a fallacy, certain it is that i am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object. the zeal for attempts to amend, prior to the establishment of the constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: "to balance a large state or society usays hee, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. the judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments." these judicious reflections contain a lesson of moderation to all the sincere lovers of the union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the states from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from time and experience. it may be in me a defect of political fortitude, but i acknowledge that i cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. a nation, without a national government, is, in my view, an awful spectacle. the establishment of a constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which i look forward with trembling anxiety. i can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen states, and after having passed over so considerable a part of the ground, to recommence the course. i dread the more the consequences of new attempts, because i know that powerful individuals, in this and in other states, are enemies to a general national government in every possible shape. publius. entitled "an address to the people of the state of new york." it may rather be said ten, for though two thirds may set on foot the measure, three fourths must ratify. hume's "essays," vol. i., page : "the rise of arts and sciences." the federalist papers by alexander hamilton, john jay, and james madison federalist no. general introduction for the independent journal. saturday, october , hamilton to the people of the state of new york: after an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new constitution for the united states of america. the subject speaks its own importance; comprehending in its consequences nothing less than the existence of the union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. it has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. if there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. this idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. but this is a thing more ardently to be wished than seriously to be expected. the plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth. among the most formidable of the obstacles which the new constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every state to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the state establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. it is not, however, my design to dwell upon observations of this nature. i am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable--the honest errors of minds led astray by preconceived jealousies and fears. so numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. this circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. and a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. for in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. heresies in either can rarely be cured by persecution. and yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. a torrent of angry and malignant passions will be let loose. to judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. an enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. an over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. it will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. on the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. history will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. in the course of the preceding observations, i have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. you will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new constitution. yes, my countrymen, i own to you that, after having given it an attentive consideration, i am clearly of opinion it is your interest to adopt it. i am convinced that this is the safest course for your liberty, your dignity, and your happiness. i affect not reserves which i do not feel. i will not amuse you with an appearance of deliberation when i have decided. i frankly acknowledge to you my convictions, and i will freely lay before you the reasons on which they are founded. the consciousness of good intentions disdains ambiguity. i shall not, however, multiply professions on this head. my motives must remain in the depository of my own breast. my arguments will be open to all, and may be judged of by all. they shall at least be offered in a spirit which will not disgrace the cause of truth. i propose, in a series of papers, to discuss the following interesting particulars: the utility of the union to your political prosperity the insufficiency of the present confederation to preserve that union the necessity of a government at least equally energetic with the one proposed, to the attainment of this object the conformity of the proposed constitution to the true principles of republican government its analogy to your own state constitution and lastly, the additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property. in the progress of this discussion i shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. it may perhaps be thought superfluous to offer arguments to prove the utility of the union, a point, no doubt, deeply engraved on the hearts of the great body of the people in every state, and one, which it may be imagined, has no adversaries. but the fact is, that we already hear it whispered in the private circles of those who oppose the new constitution, that the thirteen states are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.( ) this doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. for nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new constitution or a dismemberment of the union. it will therefore be of use to begin by examining the advantages of that union, the certain evils, and the probable dangers, to which every state will be exposed from its dissolution. this shall accordingly constitute the subject of my next address. publius . the same idea, tracing the arguments to their consequences, is held out in several of the late publications against the new constitution. federalist no. concerning dangers from foreign force and influence for the independent journal. wednesday, october , jay to the people of the state of new york: when the people of america reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident. nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. it is well worthy of consideration therefore, whether it would conduce more to the interest of the people of america that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government. it has until lately been a received and uncontradicted opinion that the prosperity of the people of america depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. but politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the states into distinct confederacies or sovereignties. however extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy. it has often given me pleasure to observe that independent america was not composed of detached and distant territories, but that one connected, fertile, wide-spreading country was the portion of our western sons of liberty. providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. a succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities. with equal pleasure i have as often taken notice that providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. this country and this people seem to have been made for each other, and it appears as if it was the design of providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties. similar sentiments have hitherto prevailed among all orders and denominations of men among us. to all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. as a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. a strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. they formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well-balanced government for a free people. it is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer. this intelligent people perceived and regretted these defects. still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being persuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at philadelphia, to take that important subject under consideration. this convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. in the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils. admit, for so is the fact, that this plan is only recommended, not imposed, yet let it be remembered that it is neither recommended to blind approbation, nor to blind reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. but this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. experience on a former occasion teaches us not to be too sanguine in such hopes. it is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of america to form the memorable congress of . that body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to persuade the people to reject the advice of that patriotic congress. many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so. they considered that the congress was composed of many wise and experienced men. that, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. that, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. that they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable. these and similar considerations then induced the people to rely greatly on the judgment and integrity of the congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. but if the people at large had reason to confide in the men of that congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience. it is worthy of remark that not only the first, but every succeeding congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of america depended on its union. to preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. with what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the union? or why is it suggested that three or four confederacies would be better than one? i am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the union rests on great and weighty reasons, which i shall endeavor to develop and explain in some ensuing papers. they who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the union in the utmost jeopardy. that certainly would be the case, and i sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the union arrives, america will have reason to exclaim, in the words of the poet: "farewell! a long farewell to all my greatness." publius federalist no. the same subject continued (concerning dangers from foreign force and influence) for the independent journal. saturday, november , jay to the people of the state of new york: it is not a new observation that the people of any country (if, like the americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. that consideration naturally tends to create great respect for the high opinion which the people of america have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes. the more attentively i consider and investigate the reasons which appear to have given birth to this opinion, the more i become convinced that they are cogent and conclusive. among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first. the safety of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively. at present i mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from foreign arms and influence, as from dangers of the like kind arising from domestic causes. as the former of these comes first in order, it is proper it should be the first discussed. let us therefore proceed to examine whether the people are not right in their opinion that a cordial union, under an efficient national government, affords them the best security that can be devised against hostilities from abroad. the number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether real or pretended, which provoke or invite them. if this remark be just, it becomes useful to inquire whether so many just causes of war are likely to be given by united america as by disunited america; for if it should turn out that united america will probably give the fewest, then it will follow that in this respect the union tends most to preserve the people in a state of peace with other nations. the just causes of war, for the most part, arise either from violation of treaties or from direct violence. america has already formed treaties with no less than six foreign nations, and all of them, except prussia, are maritime, and therefore able to annoy and injure us. she has also extensive commerce with portugal, spain, and britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to. it is of high importance to the peace of america that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate states or by three or four distinct confederacies. because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in state assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,--especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the states. hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual states, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us. because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,--whereas, adjudications on the same points and questions, in thirteen states, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. the wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended. because the prospect of present loss or advantage may often tempt the governing party in one or two states to swerve from good faith and justice; but those temptations, not reaching the other states, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. the case of the treaty of peace with britain adds great weight to this reasoning. because, even if the governing party in a state should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the state, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. but the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. so far, therefore, as either designed or accidental violations of treaties and the laws of nations afford just causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the safety of the people. as to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two states than of the union. not a single indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of indian hostilities having been provoked by the improper conduct of individual states, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants. the neighborhood of spanish and british territories, bordering on some states and not on others, naturally confines the causes of quarrel more immediately to the borderers. the bordering states, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested. but not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. they will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending state. the pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. the national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a state or confederacy of little consideration or power. in the year , the state of genoa having offended louis xiv., endeavored to appease him. he demanded that they should send their doge, or chief magistrate, accompanied by four of their senators, to france, to ask his pardon and receive his terms. they were obliged to submit to it for the sake of peace. would he on any occasion either have demanded or have received the like humiliation from spain, or britain, or any other powerful nation? publius federalist no. the same subject continued (concerning dangers from foreign force and influence) for the independent journal. wednesday, november , jay to the people of the state of new york: my last paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by just causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the state governments or the proposed little confederacies. but the safety of the people of america against dangers from foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed that there are pretended as well as just causes of war. it is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. these and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. but, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances. with france and with britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. with them and with most other european nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it. in the trade to china and india, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. the extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns. spain thinks it convenient to shut the mississippi against us on the one side, and britain excludes us from the saint lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. from these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure. the people of america are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. wisely, therefore, do they consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it. that situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country. as the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever. one government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the union they may be found. it can move on uniform principles of policy. it can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. in the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. it can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than state governments or separate confederacies can possibly do, for want of concert and unity of system. it can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the chief magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies. what would the militia of britain be if the english militia obeyed the government of england, if the scotch militia obeyed the government of scotland, and if the welsh militia obeyed the government of wales? suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of great britain would? we have heard much of the fleets of britain, and the time may come, if we are wise, when the fleets of america may engage attention. but if one national government, had not so regulated the navigation of britain as to make it a nursery for seamen--if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. let england have its navigation and fleet--let scotland have its navigation and fleet--let wales have its navigation and fleet--let ireland have its navigation and fleet--let those four of the constituent parts of the british empire be be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance. apply these facts to our own case. leave america divided into thirteen or, if you please, into three or four independent governments--what armies could they raise and pay--what fleets could they ever hope to have? if one was attacked, would the others fly to its succor, and spend their blood and money in its defense? would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? although such conduct would not be wise, it would, nevertheless, be natural. the history of the states of greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. but admit that they might be willing to help the invaded state or confederacy. how, and when, and in what proportion shall aids of men and money be afforded? who shall command the allied armies, and from which of them shall he receive his orders? who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people. but whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. if they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. if, on the other hand, they find us either destitute of an effectual government (each state doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to britain, another to france, and a third to spain, and perhaps played off against each other by the three, what a poor, pitiful figure will america make in their eyes! how liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves. publius federalist no. the same subject continued (concerning dangers from foreign force and influence) for the independent journal. saturday, november , jay to the people of the state of new york: queen anne, in her letter of the st july, , to the scotch parliament, makes some observations on the importance of the union then forming between england and scotland, which merit our attention. i shall present the public with one or two extracts from it: "an entire and perfect union will be the solid foundation of lasting peace: it will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. it must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be enabled to resist all its enemies." "we most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only effectual way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, use their utmost endeavors to prevent or delay this union." it was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. this subject is copious and cannot easily be exhausted. the history of great britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. we may profit by their experience without paying the price which it cost them. although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. should the people of america divide themselves into three or four nations, would not the same thing happen? would not similar jealousies arise, and be in like manner cherished? instead of their being "joined in affection" and free from all apprehension of different "interests," envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all america, would be the only objects of their policy and pursuits. hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them. the most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. for it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years. whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. much time would not be necessary to enable her to discern these unfriendly dispositions. she would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. the north is generally the region of strength, and many local circumstances render it probable that the most northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. no sooner would this become evident than the northern hive would excite the same ideas and sensations in the more southern parts of america which it formerly did in the southern parts of europe. nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. they who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., formidable only to each other. from these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies. when did the independent states, into which britain and spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? the proposed confederacies will be distinct nations. each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. hence it might and probably would happen that the foreign nation with whom the southern confederacy might be at war would be the one with whom the northern confederacy would be the most desirous of preserving peace and friendship. an alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith. nay, it is far more probable that in america, as in europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. considering our distance from europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. and here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. how many conquests did the romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect. let candid men judge, then, whether the division of america into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations. publius federalist no. concerning dangers from dissensions between the states for the independent journal. wednesday, november , hamilton to the people of the state of new york: the three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. i shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind--those which will in all probability flow from dissensions between the states themselves, and from domestic factions and convulsions. these have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation. a man must be far gone in utopian speculations who can seriously doubt that, if these states should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. to presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. to look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. the causes of hostility among nations are innumerable. there are some which have a general and almost constant operation upon the collective bodies of society. of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety. there are others which have a more circumscribed though an equally operative influence within their spheres. such are the rivalships and competitions of commerce between commercial nations. and there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification. the celebrated pericles, in compliance with the resentment of a prostitute,( ) at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the sammians. the same man, stimulated by private pique against the megarensians,( ) another nation of greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary phidias,( ) or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity,( ) or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the grecian annals by the name of the peloponnesian war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the athenian commonwealth. the ambitious cardinal, who was prime minister to henry viii., permitting his vanity to aspire to the triple crown,( ) entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the emperor charles v. to secure the favor and interest of this enterprising and powerful monarch, he precipitated england into a war with france, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of europe in general. for if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the emperor charles v., of whose intrigues wolsey was at once the instrument and the dupe. the influence which the bigotry of one female,( ) the petulance of another,( ) and the cabals of a third,( ) had in the contemporary policy, ferments, and pacifications, of a considerable part of europe, are topics that have been too often descanted upon not to be generally known. to multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. if shays had not been a desperate debtor, it is much to be doubted whether massachusetts would have been plunged into a civil war. but notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the states, though dismembered and alienated from each other. the genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. they will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord. is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? if this be their true interest, have they in fact pursued it? has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? have republics in practice been less addicted to war than monarchies? are not the former administered by men as well as the latter? are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? has commerce hitherto done anything more than change the objects of war? is not the love of wealth as domineering and enterprising a passion as that of power or glory? have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. sparta, athens, rome, and carthage were all republics; two of them, athens and carthage, of the commercial kind. yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. sparta was little better than a wellregulated camp; and rome was never sated of carnage and conquest. carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. hannibal had carried her arms into the heart of italy and to the gates of rome, before scipio, in turn, gave him an overthrow in the territories of carthage, and made a conquest of the commonwealth. venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other italian states, pope julius ii. found means to accomplish that formidable league,( ) which gave a deadly blow to the power and pride of this haughty republic. the provinces of holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of europe. they had furious contests with england for the dominion of the sea, and were among the most persevering and most implacable of the opponents of louis xiv. in the government of britain the representatives of the people compose one branch of the national legislature. commerce has been for ages the predominant pursuit of that country. few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people. there have been, if i may so express it, almost as many popular as royal wars. the cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the state. in that memorable struggle for superiority between the rival houses of austria and bourbon, which so long kept europe in a flame, it is well known that the antipathies of the english against the french, seconding the ambition, or rather the avarice, of a favorite leader,( ) protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. the wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,--the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation, and sometimes even the more culpable desire of sharing in the commerce of other nations without their consent. the last war but between britain and spain sprang from the attempts of the british merchants to prosecute an illicit trade with the spanish main. these unjustifiable practices on their part produced severity on the part of the spaniards toward the subjects of great britain which were not more justifiable, because they exceeded the bounds of a just retaliation and were chargeable with inhumanity and cruelty. many of the english who were taken on the spanish coast were sent to dig in the mines of potosi; and by the usual progress of a spirit of resentment, the innocent were, after a while, confounded with the guilty in indiscriminate punishment. the complaints of the merchants kindled a violent flame throughout the nation, which soon after broke out in the house of commons, and was communicated from that body to the ministry. letters of reprisal were granted, and a war ensued, which in its consequences overthrew all the alliances that but twenty years before had been formed with sanguine expectations of the most beneficial fruits. from this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue? let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the state of north carolina, the late menacing disturbances in pennsylvania, and the actual insurrections and rebellions in massachusetts, declare--! so far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the states, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. an intelligent writer expresses himself on this subject to this effect: "neighboring nations (says he) are naturally enemies of each other unless their common weakness forces them to league in a confederate republic, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors."( ) this passage, at the same time, points out the evil and suggests the remedy. publius . aspasia, vide "plutarch's life of pericles." . ibid. . ibid. . ibid. phidias was supposed to have stolen some public gold, with the connivance of pericles, for the embellishment of the statue of minerva. . worn by the popes. . madame de maintenon. . duchess of marlborough. . madame de pompadour. . the league of cambray, comprehending the emperor, the king of france, the king of aragon, and most of the italian princes and states. . the duke of marlborough. . vide "principes des negociations" par l'abbé de mably. federalist no. the same subject continued (concerning dangers from dissensions between the states) for the independent journal. thursday, november , hamilton to the people of the state of new york: it is sometimes asked, with an air of seeming triumph, what inducements could the states have, if disunited, to make war upon each other? it would be a full answer to this question to say--precisely the same inducements which have, at different times, deluged in blood all the nations in the world. but, unfortunately for us, the question admits of a more particular answer. there are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed. territorial disputes have at all times been found one of the most fertile sources of hostility among nations. perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. this cause would exist among us in full force. we have a vast tract of unsettled territory within the boundaries of the united states. there still are discordant and undecided claims between several of them, and the dissolution of the union would lay a foundation for similar claims between them all. it is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the revolution, and which usually went under the name of crown lands. the states within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the union; especially as to all that part of the western territory which, either by actual possession, or through the submission of the indian proprietors, was subjected to the jurisdiction of the king of great britain, till it was relinquished in the treaty of peace. this, it has been said, was at all events an acquisition to the confederacy by compact with a foreign power. it has been the prudent policy of congress to appease this controversy, by prevailing upon the states to make cessions to the united states for the benefit of the whole. this has been so far accomplished as, under a continuation of the union, to afford a decided prospect of an amicable termination of the dispute. a dismemberment of the confederacy, however, would revive this dispute, and would create others on the same subject. at present, a large part of the vacant western territory is, by cession at least, if not by any anterior right, the common property of the union. if that were at an end, the states which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. the other states would no doubt insist on a proportion, by right of representation. their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the confederacy, remained undiminished. if, contrary to probability, it should be admitted by all the states, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. different principles would be set up by different states for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment. in the wide field of western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. to reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. the circumstances of the dispute between connecticut and pennsylvania, respecting the land at wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. the articles of confederation obliged the parties to submit the matter to the decision of a federal court. the submission was made, and the court decided in favor of pennsylvania. but connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. nothing here said is intended to convey the slightest censure on the conduct of that state. she no doubt sincerely believed herself to have been injured by the decision; and states, like individuals, acquiesce with great reluctance in determinations to their disadvantage. those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this state and the district of vermont, can vouch the opposition we experienced, as well from states not interested as from those which were interested in the claim; and can attest the danger to which the peace of the confederacy might have been exposed, had this state attempted to assert its rights by force. two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring states, who had obtained grants of lands under the actual government of that district. even the states which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this state, than to establish their own pretensions. these were new hampshire, massachusetts, and connecticut. new jersey and rhode island, upon all occasions, discovered a warm zeal for the independence of vermont; and maryland, till alarmed by the appearance of a connection between canada and that state, entered deeply into the same views. these being small states, saw with an unfriendly eye the perspective of our growing greatness. in a review of these transactions we may trace some of the causes which would be likely to embroil the states with each other, if it should be their unpropitious destiny to become disunited. the competitions of commerce would be another fruitful source of contention. the states less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. each state, or separate confederacy, would pursue a system of commercial policy peculiar to itself. this would occasion distinctions, preferences, and exclusions, which would beget discontent. the habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. we should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest. the spirit of enterprise, which characterizes the commercial part of america, has left no occasion of displaying itself unimproved. it is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular states might endeavor to secure exclusive benefits to their own citizens. the infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. the opportunities which some states would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary states. the relative situation of new york, connecticut, and new jersey would afford an example of this kind. new york, from the necessities of revenue, must lay duties on her importations. a great part of these duties must be paid by the inhabitants of the two other states in the capacity of consumers of what we import. new york would neither be willing nor able to forego this advantage. her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. would connecticut and new jersey long submit to be taxed by new york for her exclusive benefit? should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? should we be able to preserve it against the incumbent weight of connecticut on the one side, and the co-operating pressure of new jersey on the other? these are questions that temerity alone will answer in the affirmative. the public debt of the union would be a further cause of collision between the separate states or confederacies. the apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. how would it be possible to agree upon a rule of apportionment satisfactory to all? there is scarcely any that can be proposed which is entirely free from real objections. these, as usual, would be exaggerated by the adverse interest of the parties. there are even dissimilar views among the states as to the general principle of discharging the public debt. some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. these would be inclined to magnify the difficulties of a distribution. others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the state in the total amount of the national debt, would be strenuous for some equitable and effective provision. the procrastinations of the former would excite the resentments of the latter. the settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. the citizens of the states interested would clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the states would be hazarded to the double contingency of external invasion and internal contention. suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some states than upon others. those which were sufferers by it would naturally seek for a mitigation of the burden. the others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. their refusal would be too plausible a pretext to the complaining states to withhold their contributions, not to be embraced with avidity; and the non-compliance of these states with their engagements would be a ground of bitter discussion and altercation. if even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the states would result from a diversity of other causes--the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. there is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. for it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money. laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them, may be considered as another probable source of hostility. we are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual states hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. we have observed the disposition to retaliation excited in connecticut in consequence of the enormities perpetrated by the legislature of rhode island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of parchment, but of the sword, would chastise such atrocious breaches of moral obligation and social justice. the probability of incompatible alliances between the different states or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. from the view they have exhibited of this part of the subject, this conclusion is to be drawn, that america, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of european politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. divide et impera( ) must be the motto of every nation that either hates or fears us.( ) publius . divide and command. . in order that the whole subject of these papers may as soon as possible be laid before the public, it is proposed to publish them four times a week--on tuesday in the new york packet and on thursday in the daily advertiser. federalist no. the consequences of hostilities between the states from the new york packet. tuesday, november , . hamilton to the people of the state of new york: assuming it therefore as an established truth that the several states, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation. war between the states, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. the disciplined armies always kept on foot on the continent of europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. the art of fortification has contributed to the same ends. the nations of europe are encircled with chains of fortified places, which mutually obstruct invasion. campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's country. similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. the history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition. in this country the scene would be altogether reversed. the jealousy of military establishments would postpone them as long as possible. the want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. the populous states would, with little difficulty, overrun their less populous neighbors. conquests would be as easy to be made as difficult to be retained. war, therefore, would be desultory and predatory. plunder and devastation ever march in the train of irregulars. the calamities of individuals would make the principal figure in the events which would characterize our military exploits. this picture is not too highly wrought; though, i confess, it would not long remain a just one. safety from external danger is the most powerful director of national conduct. even the ardent love of liberty will, after a time, give way to its dictates. the violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. to be more safe, they at length become willing to run the risk of being less free. the institutions chiefly alluded to are standing armies and the correspondent appendages of military establishments. standing armies, it is said, are not provided against in the new constitution; and it is therefore inferred that they may exist under it.( ) their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. but standing armies, it may be replied, must inevitably result from a dissolution of the confederacy. frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. the weaker states or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. they would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. they would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. it is of the nature of war to increase the executive at the expense of the legislative authority. the expedients which have been mentioned would soon give the states or confederacies that made use of them a superiority over their neighbors. small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. neither the pride nor the safety of the more important states or confederacies would permit them long to submit to this mortifying and adventitious superiority. they would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the old world. this, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard. these are not vague inferences drawn from supposed or speculative defects in a constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. it may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of greece? different answers, equally satisfactory, may be given to this question. the industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. the means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility. there is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. the rulers of the former can have no good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. these armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. the laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. the smallness of the army renders the natural strength of the community an overmatch for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. the army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people. in a country in the predicament last described, the contrary of all this happens. the perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. the continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. the military state becomes elevated above the civil. the inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. the transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. the kingdom of great britain falls within the first description. an insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. a sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. no motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. there has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. this peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. if, on the contrary, britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. it is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom. if we are wise enough to preserve the union we may for ages enjoy an advantage similar to that of an insulated situation. europe is at a great distance from us. her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. extensive military establishments cannot, in this position, be necessary to our security. but if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of europe--our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other. this is an idea not superficial or futile, but solid and weighty. it deserves the most serious and mature consideration of every prudent and honest man of whatever party. if such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a constitution, the rejection of which would in all probability put a final period to the union. the airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable. publius . this objection will be fully examined in its proper place, and it will be shown that the only natural precaution which could have been taken on this subject has been taken; and a much better one than is to be found in any constitution that has been heretofore framed in america, most of which contain no guard at all on this subject. federalist no. the union as a safeguard against domestic faction and insurrection for the independent journal. wednesday, november , hamilton to the people of the state of new york: a firm union will be of the utmost moment to the peace and liberty of the states, as a barrier against domestic faction and insurrection. it is impossible to read the history of the petty republics of greece and italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. if they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. if now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. if momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated. from the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. they have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. and, i trust, america will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors. but it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. if it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. the science of politics, however, like most other sciences, has received great improvement. the efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. the regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. they are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. to this catalogue of circumstances that tend to the amelioration of popular systems of civil government, i shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new constitution; i mean the enlargement of the orbit within which such systems are to revolve, either in respect to the dimensions of a single state or to the consolidation of several smaller states into one great confederacy. the latter is that which immediately concerns the object under consideration. it will, however, be of use to examine the principle in its application to a single state, which shall be attended to in another place. the utility of a confederacy, as well to suppress faction and to guard the internal tranquillity of states, as to increase their external force and security, is in reality not a new idea. it has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. the opponents of the plan proposed have, with great assiduity, cited and circulated the observations of montesquieu on the necessity of a contracted territory for a republican government. but they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. when montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these states. neither virginia, massachusetts, pennsylvania, new york, north carolina, nor georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. if we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger states as a desirable thing. such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of america. referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the size of the more considerable members of the union, but would not militate against their being all comprehended in one confederate government. and this is the true question, in the discussion of which we are at present interested. so far are the suggestions of montesquieu from standing in opposition to a general union of the states, that he explicitly treats of a confederate republic as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism. "it is very probable," (says he( )) "that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. i mean a confederate republic." "this form of government is a convention by which several smaller states agree to become members of a larger one, which they intend to form. it is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body." "a republic of this kind, able to withstand an external force, may support itself without any internal corruptions. the form of this society prevents all manner of inconveniences." "if a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. were he to have too great influence over one, this would alarm the rest. were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation." "should a popular insurrection happen in one of the confederate states the others are able to quell it. should abuses creep into one part, they are reformed by those that remain sound. the state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty." "as this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies." i have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. they have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the union to repress domestic faction and insurrection. a distinction, more subtle than accurate, has been raised between a confederacy and a consolidation of the states. the essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. it is contended that the national council ought to have no concern with any object of internal administration. an exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. these positions are, in the main, arbitrary; they are supported neither by principle nor precedent. it has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. and it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government. the definition of a confederate republic seems simply to be "an assemblage of societies," or an association of two or more states into one state. the extent, modifications, and objects of the federal authority are mere matters of discretion. so long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. the proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the senate, and leaves in their possession certain exclusive and very important portions of sovereign power. this fully corresponds, in every rational import of the terms, with the idea of a federal government. in the lycian confederacy, which consisted of twenty-three cities or republics, the largest were entitled to three votes in the common council, those of the middle class to two, and the smallest to one. the common council had the appointment of all the judges and magistrates of the respective cities. this was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. yet montesquieu, speaking of this association, says: "were i to give a model of an excellent confederate republic, it would be that of lycia." thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory. publius . "spirit of laws," vol. i., book ix., chap. i. federalist no. the same subject continued (the union as a safeguard against domestic faction and insurrection) from the daily advertiser. thursday, november , . madison to the people of the state of new york: among the numerous advantages promised by a well constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. the friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. he will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. the instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. the valuable improvements made by the american constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. however anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. it will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. these must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. by a faction, i understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. there are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. there are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. it could never be more truly said than of the first remedy, that it was worse than the disease. liberty is to faction what air is to fire, an aliment without which it instantly expires. but it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. the second expedient is as impracticable as the first would be unwise. as long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. as long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. the diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. the protection of these faculties is the first object of government. from the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties. the latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. a zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. so strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. but the most common and durable source of factions has been the various and unequal distribution of property. those who hold and those who are without property have ever formed distinct interests in society. those who are creditors, and those who are debtors, fall under a like discrimination. a landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. the regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. with equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? and what are the different classes of legislators but advocates and parties to the causes which they determine? is a law proposed concerning private debts? it is a question to which the creditors are parties on one side and the debtors on the other. justice ought to hold the balance between them. yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. the apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. every shilling with which they overburden the inferior number, is a shilling saved to their own pockets. it is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. enlightened statesmen will not always be at the helm. nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. the inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects. if a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. it may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the constitution. when a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. by what means is this object attainable? evidently by one of two only. either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. if the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. they are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. from this view of the subject it may be concluded that a pure democracy, by which i mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. a common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. a republic, by which i mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the union. the two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. the effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. on the other hand, the effect may be inverted. men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. the question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations: in the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. in the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters. it must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. by enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. the federal constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the state legislatures. the other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. the smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the union over the states composing it. does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? it will not be denied that the representation of the union will be most likely to possess these requisite endowments. does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? in an equal degree does the increased variety of parties comprised within the union, increase this security. does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? here, again, the extent of the union gives it the most palpable advantage. the influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states. a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state. in the extent and proper structure of the union, therefore, we behold a republican remedy for the diseases most incident to republican government. and according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of federalists. publius federalist no. the utility of the union in respect to commercial relations and a navy for the independent journal. saturday, november , hamilton to the people of the state of new york: the importance of the union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. this applies as well to our intercourse with foreign countries as with each other. there are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of america, has already excited uneasy sensations in several of the maritime powers of europe. they seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. those of them which have colonies in america look forward to what this country is capable of becoming, with painful solicitude. they foresee the dangers that may threaten their american dominions from the neighborhood of states, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an active commerce in our own bottoms. this would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers. if we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. by prohibitory regulations, extending, at the same time, throughout the states, we may oblige foreign countries to bid against each other, for the privileges of our markets. this assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people--increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so--to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from america, in the ships of another country. suppose, for instance, we had a government in america, capable of excluding great britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? when these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. it has been said that prohibitions on our part would produce no change in the system of britain, because she could prosecute her trade with us through the medium of the dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. but would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? would not the principal part of its profits be intercepted by the dutch, as a compensation for their agency and risk? would not the mere circumstance of freight occasion a considerable deduction? would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of british commodities in our markets, and by transferring to other hands the management of this interesting branch of the british commerce? a mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the american trade, and with the importunities of the west india islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. such a point gained from the british government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade. a further resource for influencing the conduct of european nations toward us, in this respect, would arise from the establishment of a federal navy. there can be no doubt that the continuance of the union under an efficient government would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. this would be more peculiarly the case in relation to operations in the west indies. a few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. our position is, in this respect, a most commanding one. and if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the west indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. a price would be set not only upon our friendship, but upon our neutrality. by a steady adherence to the union we may hope, erelong, to become the arbiter of europe in america, and to be able to incline the balance of european competitions in this part of the world as our interest may dictate. but in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. in a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. the rights of neutrality will only be respected when they are defended by an adequate power. a nation, despicable by its weakness, forfeits even the privilege of being neutral. under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of european jealousy to restrain our growth. this situation would even take away the motive to such combinations, by inducing an impracticability of success. an active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. we might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature. but in a state of disunion, these combinations might exist and might operate with success. it would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a passive commerce. we should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. that unequaled spirit of enterprise, which signalizes the genius of the american merchants and navigators, and which is in itself an inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world. there are rights of great moment to the trade of america which are rights of the union--i allude to the fisheries, to the navigation of the western lakes, and to that of the mississippi. the dissolution of the confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. the disposition of spain with regard to the mississippi needs no comment. france and britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. they, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. what more natural than that they should be disposed to exclude from the lists such dangerous competitors? this branch of trade ought not to be considered as a partial benefit. all the navigating states may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. as a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several states, will become, a universal resource. to the establishment of a navy, it must be indispensable. to this great national object, a navy, union will contribute in various ways. every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. a navy of the united states, as it would embrace the resources of all, is an object far less remote than a navy of any single state or partial confederacy, which would only embrace the resources of a single part. it happens, indeed, that different portions of confederated america possess each some peculiar advantage for this essential establishment. the more southern states furnish in greater abundance certain kinds of naval stores--tar, pitch, and turpentine. their wood for the construction of ships is also of a more solid and lasting texture. the difference in the duration of the ships of which the navy might be composed, if chiefly constructed of southern wood, would be of signal importance, either in the view of naval strength or of national economy. some of the southern and of the middle states yield a greater plenty of iron, and of better quality. seamen must chiefly be drawn from the northern hive. the necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy. an unrestrained intercourse between the states themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. the veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. commercial enterprise will have much greater scope, from the diversity in the productions of different states. when the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. the variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. it can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctuations of markets. particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. the speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the united states would bid fair to be much more favorable than that of the thirteen states without union or with partial unions. it may perhaps be replied to this, that whether the states are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. a unity of commercial, as well as political, interests, can only result from a unity of government. there are other points of view in which this subject might be placed, of a striking and animating kind. but they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. i shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of american affairs. the world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. unhappily for the other three, europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. africa, asia, and america, have successively felt her domination. the superiority she has long maintained has tempted her to plume herself as the mistress of the world, and to consider the rest of mankind as created for her benefit. men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in america--that even dogs cease to bark after having breathed awhile in our atmosphere.( ) facts have too long supported these arrogant pretensions of the europeans. it belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. union will enable us to do it. disunion will will add another victim to his triumphs. let americans disdain to be the instruments of european greatness! let the thirteen states, bound together in a strict and indissoluble union, concur in erecting one great american system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world! publius "recherches philosophiques sur les americains." federalist no. the utility of the union in respect to revenue from the new york packet. tuesday, november , . hamilton to the people of the state of new york: the effects of union upon the commercial prosperity of the states have been sufficiently delineated. its tendency to promote the interests of revenue will be the subject of our present inquiry. the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. by multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. the assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,--all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. the often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. it has been found in various countries that, in proportion as commerce has flourished, land has risen in value. and how could it have happened otherwise? could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state--could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? it is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction. the ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. the hereditary dominions of the emperor of germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. in some parts of this territory are to be found the best gold and silver mines in europe. and yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. he has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war. but it is not in this aspect of the subject alone that union will be seen to conduce to the purpose of revenue. there are other points of view, in which its influence will appear more immediate and decisive. it is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the states have remained empty. the popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them. no person acquainted with what happens in other countries will be surprised at this circumstance. in so opulent a nation as that of britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in america, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. duties on imported articles form a large branch of this latter description. in america, it is evident that we must a long time depend for the means of revenue chiefly on such duties. in most parts of it, excises must be confined within a narrow compass. the genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. the pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the imperceptible agency of taxes on consumption. if these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. and it cannot admit of a serious doubt, that this state of things must rest on the basis of a general union. as far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. as far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade. the relative situation of these states; the number of rivers with which they are intersected, and of bays that wash their shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse;--all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. the separate states or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. the temper of our governments, for a long time to come, would not permit those rigorous precautions by which the european nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice. in france, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. mr. neckar computes the number of these patrols at upwards of twenty thousand. this shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the states should be placed in a situation, with respect to each other, resembling that of france with respect to her neighbors. the arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country. if, on the contrary, there be but one government pervading all the states, there will be, as to the principal part of our commerce, but one side to guard--the atlantic coast. vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. they would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. an ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. a few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. and the government having the same interest to provide against violations everywhere, the co-operation of its measures in each state would have a powerful tendency to render them effectual. here also we should preserve by union, an advantage which nature holds out to us, and which would be relinquished by separation. the united states lie at a great distance from europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. the passage from them to us, in a few hours, or in a single night, as between the coasts of france and britain, and of other neighboring nations, would be impracticable. this is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one state, through the medium of another, would be both easy and safe. the difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring state, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment. it is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the states separately, or to any partial confederacies. hitherto, i believe, it may safely be asserted, that these duties have not upon an average exceeded in any state three per cent. in france they are estimated to be about fifteen per cent., and in britain they exceed this proportion.( ) there seems to be nothing to hinder their being increased in this country to at least treble their present amount. the single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. upon a ratio to the importation into this state, the whole quantity imported into the united states may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. that article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. there is, perhaps, nothing so much a subject of national extravagance as these spirits. what will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? a nation cannot long exist without revenues. destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. this is an extremity to which no government will of choice accede. revenue, therefore, must be had at all events. in this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. it has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the states where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. in populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the state; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. as the necessities of the state, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. and as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. but public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion. publius . if my memory be right they amount to twenty per cent. federalist no. advantage of the union in respect to economy in government for the independent journal. wednesday, november , hamilton to the people of the state of new york: as connected with the subject of revenue, we may with propriety consider that of economy. the money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. if the states are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for--and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. the entire separation of the states into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. the ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies--one consisting of the four northern, another of the four middle, and a third of the five southern states. there is little probability that there would be a greater number. according to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of great britain. no well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. when the dimensions of a state attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. this idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions. the supposition that each confederacy into which the states would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general union. if we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different states, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. the four eastern states, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. new york, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. there are other obvious reasons that would facilitate her accession to it. new jersey is too small a state to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. even pennsylvania would have strong inducements to join the northern league. an active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. the more southern states, from various circumstances, may not think themselves much interested in the encouragement of navigation. they may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. pennsylvania may not choose to confound her interests in a connection so adverse to her policy. as she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the southern, rather than towards the stronger power of the northern, confederacy. this would give her the fairest chance to avoid being the flanders of america. whatever may be the determination of pennsylvania, if the northern confederacy includes new jersey, there is no likelihood of more than one confederacy to the south of that state. nothing can be more evident than that the thirteen states will be able to support a national government better than one half, or one third, or any number less than the whole. this reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground. if, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the states would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part. publius federalist no. objections to the proposed constitution from extent of territory answered from the new york packet. friday, november , . madison to the people of the state of new york: we have seen the necessity of the union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. all that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the union embraces. a few observations on this subject will be the more proper, as it is perceived that the adversaries of the new constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. the error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. i remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. the true distinction between these forms was also adverted to on a former occasion. it is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. a democracy, consequently, will be confined to a small spot. a republic may be extended over a large region. to this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient greece and modern italy. under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory. such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. if europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, america can claim the merit of making the discovery the basis of unmixed and extensive republics. it is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. as the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. can it be said that the limits of the united states exceed this distance? it will not be said by those who recollect that the atlantic coast is the longest side of the union, that during the term of thirteen years, the representatives of the states have been almost continually assembled, and that the members from the most distant states are not chargeable with greater intermissions of attendance than those from the states in the neighborhood of congress. that we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the union. the limits, as fixed by the treaty of peace, are: on the east the atlantic, on the south the latitude of thirty-one degrees, on the west the mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. the southern shore of lake erie lies below that latitude. computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. the mean distance from the atlantic to the mississippi does not probably exceed seven hundred and fifty miles. on a comparison of this extent with that of several countries in europe, the practicability of rendering our system commensurate to it appears to be demonstrable. it is not a great deal larger than germany, where a diet representing the whole empire is continually assembled; or than poland before the late dismemberment, where another national diet was the depositary of the supreme power. passing by france and spain, we find that in great britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the union. favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory. in the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. the subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. were it proposed by the plan of the convention to abolish the governments of the particular states, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction. a second observation to be made is that the immediate object of the federal constitution is to secure the union of the thirteen primitive states, which we know to be practicable; and to add to them such other states as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. the arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task. let it be remarked, in the third place, that the intercourse throughout the union will be facilitated by new improvements. roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen states. the communication between the western and atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete. a fourth and still more important consideration is, that as almost every state will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the states which lie at the greatest distance from the heart of the union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. it may be inconvenient for georgia, or the states forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. if they should derive less benefit, therefore, from the union in some respects than the less distant states, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout. i submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. hearken not to the unnatural voice which tells you that the people of america, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow citizens of one great, respectable, and flourishing empire. hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. no, my countrymen, shut your ears against this unhallowed language. shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of american citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their union, and excite horror at the idea of their becoming aliens, rivals, enemies. and if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. but why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? is it not the glory of the people of america, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? to this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the american theatre, in favor of private rights and public happiness. had no important step been taken by the leaders of the revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the united states might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. happily for america, happily, we trust, for the whole human race, they pursued a new and more noble course. they accomplished a revolution which has no parallel in the annals of human society. they reared the fabrics of governments which have no model on the face of the globe. they formed the design of a great confederacy, which it is incumbent on their successors to improve and perpetuate. if their works betray imperfections, we wonder at the fewness of them. if they erred most in the structure of the union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide. publius federalist no. the insufficiency of the present confederation to preserve the union for the independent journal. saturday, december , hamilton to the people of the state of new york. in the course of the preceding papers, i have endeavored, my fellow citizens, to place before you, in a clear and convincing light, the importance of union to your political safety and happiness. i have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of america together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. in the sequel of the inquiry through which i propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. if the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. it will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch. in pursuance of the plan which i have laid down for the discussion of the subject, the point next in order to be examined is the "insufficiency of the present confederation to the preservation of the union." it may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new constitution. it must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. the facts that support this opinion are no longer objects of speculation. they have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the union. we may indeed with propriety be said to have reached almost the last stage of national humiliation. there is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. are there engagements to the performance of which we are held by every tie respectable among men? these are the subjects of constant and unblushing violation. do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? these remain without any proper or satisfactory provision for their discharge. have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? these are still retained, to the prejudice of our interests, not less than of our rights. are we in a condition to resent or to repel the aggression? we have neither troops, nor treasury, nor government.( ) are we even in a condition to remonstrate with dignity? the just imputations on our own faith, in respect to the same treaty, ought first to be removed. are we entitled by nature and compact to a free participation in the navigation of the mississippi? spain excludes us from it. is public credit an indispensable resource in time of public danger? we seem to have abandoned its cause as desperate and irretrievable. is commerce of importance to national wealth? ours is at the lowest point of declension. is respectability in the eyes of foreign powers a safeguard against foreign encroachments? the imbecility of our government even forbids them to treat with us. our ambassadors abroad are the mere pageants of mimic sovereignty. is a violent and unnatural decrease in the value of land a symptom of national distress? the price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. is private credit the friend and patron of industry? that most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. to shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes? this is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity. it is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. while they admit that the government of the united states is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. they seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of state authority; at sovereignty in the union, and complete independence in the members. they still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. this renders a full display of the principal defects of the confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric. the great and radical vice in the construction of the existing confederation is in the principle of legislation for states or governments, in their corporate or collective capacities, and as contradistinguished from the individuals of which they consist. though this principle does not run through all the powers delegated to the union, yet it pervades and governs those on which the efficacy of the rest depends. except as to the rule of appointment, the united states has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of america. the consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the union, yet in practice they are mere recommendations which the states observe or disregard at their option. it is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of government; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy. there is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. in the early part of the present century there was an epidemical rage in europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. with a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. if the particular states in this country are disposed to stand in a similar relation to each other, and to drop the project of a general discretionary superintendence, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us. but if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the union to the persons of the citizens,--the only proper objects of government. government implies the power of making laws. it is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. if there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. this penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the coercion of the magistracy, or by the coercion of arms. the first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or states. it is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. in an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it. there was a time when we were told that breaches, by the states, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the union. this language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. it at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. why has government been instituted at all? because the passions of men will not conform to the dictates of reason and justice, without constraint. has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? the contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. a spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity. in addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. from this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. this tendency is not difficult to be accounted for. it has its origin in the love of power. power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. this simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. the reverse of this results from the constitution of human nature. if, therefore, the measures of the confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. the rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. they will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. all this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. the same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits. in our case, the concurrence of thirteen distinct sovereign wills is requisite, under the confederation, to the complete execution of every important measure that proceeds from the union. it has happened as was to have been foreseen. the measures of the union have not been executed; the delinquencies of the states have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. congress at this time scarcely possess the means of keeping up the forms of administration, till the states can have time to agree upon a more substantial substitute for the present shadow of a federal government. things did not come to this desperate extremity at once. the causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the union. the greater deficiencies of some states furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent states. why should we do more in proportion than those who are embarked with us in the same political voyage? why should we consent to bear more than our proper share of the common burden? these were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. each state, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. publius . "i mean for the union." federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) from the new york packet. tuesday, december , . hamilton to the people of the state of new york: the tendency of the principle of legislation for states, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. the confirmations of this fact will be worthy of a distinct and particular examination. i shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the lycian and achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. this exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: it has been seen that delinquencies in the members of the union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war. it remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. if there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. it would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. independent of this motive of sympathy, if a large and influential state should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those states which were not chargeable with any violation or omission of duty. this would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent states. if associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a confederacy, from the firm union of which they had so much to fear. when the sword is once drawn, the passions of men observe no bounds of moderation. the suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the states against which the arms of the union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. the first war of this kind would probably terminate in a dissolution of the union. this may be considered as the violent death of the confederacy. its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. it is not probable, considering the genius of this country, that the complying states would often be inclined to support the authority of the union by engaging in a war against the non-complying states. they would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. and the guilt of all would thus become the security of all. our past experience has exhibited the operation of this spirit in its full light. there would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. in the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. the pretense of the latter would always be at hand. and the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. it is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council. it seems to require no pains to prove that the states ought not to prefer a national constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. and yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. the resources of the union would not be equal to the maintenance of an army considerable enough to confine the larger states within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. whoever considers the populousness and strength of several of these states singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. a project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity. even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign states, supported by military coercion, has never been found effectual. it has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half. the result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed constitution. it must carry its agency to the persons of the citizens. it must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. the majesty of the national authority must be manifested through the medium of the courts of justice. the government of the union, like that of each state, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. it must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular states. to this reasoning it may perhaps be objected, that if any state should be disaffected to the authority of the union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached. the plausibility of this objection will vanish the moment we advert to the essential difference between a mere non-compliance and a direct and active resistance. if the interposition of the state legislatures be necessary to give effect to a measure of the union, they have only not to act, or to act evasively, and the measure is defeated. this neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the constitution. the state leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage. but if the execution of the laws of the national government should not require the intervention of the state legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. no omissions nor evasions would answer the end. they would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. an experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. the success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. if the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. if the people were not tainted with the spirit of their state representatives, they, as the natural guardians of the constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority. if opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the state governments. the magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. as to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. and as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. when they happen, they commonly amount to revolutions and dismemberments of empire. no form of government can always either avoid or control them. it is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities. publius federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. wednesday, december , hamilton to the people of the state of new york: an objection, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of america. it may be said that it would tend to render the government of the union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the states for local purposes. allowing the utmost latitude to the love of power which any reasonable man can require, i confess i am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the states of the authorities of that description. the regulation of the mere domestic police of a state appears to me to hold out slender allurements to ambition. commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. the administration of private justice between the citizens of the same state, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. it is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government. but let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several states, would control the indulgence of so extravagant an appetite. it will always be far more easy for the state governments to encroach upon the national authorities than for the national government to encroach upon the state authorities. the proof of this proposition turns upon the greater degree of influence which the state governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty. the superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the state administrations would be directed. it is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments than towards the government of the union; unless the force of that principle should be destroyed by a much better administration of the latter. this strong propensity of the human heart would find powerful auxiliaries in the objects of state regulation. the variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. there is one transcendant advantage belonging to the province of the state governments, which alone suffices to place the matter in a clear and satisfactory light,--i mean the ordinary administration of criminal and civil justice. this, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. it is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. this great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the union. the operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. the reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them. though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. there was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. each principal vassal was a kind of sovereign, within his particular demesnes. the consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. the power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. this period of european affairs is emphatically styled by historians, the times of feudal anarchy. when the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. but in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states. in those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. the barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority. this is not an assertion founded merely in speculation or conjecture. among other illustrations of its truth which might be cited, scotland will furnish a cogent example. the spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with england subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. the separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. it will be well if they are not able to counteract its legitimate and necessary authority. the points of similitude consist in the rivalship of power, applicable to both, and in the concentration of large portions of the strength of the community into particular depositories, in one case at the disposal of individuals, in the other case at the disposal of political bodies. a concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. this review shall form the subject of some ensuing papers. publius federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) for the new york packet. friday, december , madison, with hamilton to the people of the state of new york: among the confederacies of antiquity, the most considerable was that of the grecian republics, associated under the amphictyonic council. from the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present confederation of the american states. the members retained the character of independent and sovereign states, and had equal votes in the federal council. this council had a general authority to propose and resolve whatever it judged necessary for the common welfare of greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. the amphictyons were the guardians of religion, and of the immense riches belonging to the temple of delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. as a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple. in theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. in several material instances, they exceed the powers enumerated in the articles of confederation. the amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions. very different, nevertheless, was the experiment from the theory. the powers, like those of the present congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. hence the weakness, the disorders, and finally the destruction of the confederacy. the more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. athens, as we learn from demosthenes, was the arbiter of greece seventy-three years. the lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of leuctra, the thebans had their turn of domination. it happened but too often, according to plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party. even in the midst of defensive and dangerous wars with persia and macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. the intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage. after the conclusion of the war with xerxes, it appears that the lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. the athenians, finding that the lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. this piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. the smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude. had the greeks, says the abbe milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the persian arms, to establish such a reformation. instead of this obvious policy, athens and sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from xerxes. their mutual jealousies, fears, hatreds, and injuries ended in the celebrated peloponnesian war; which itself ended in the ruin and slavery of the athenians who had begun it. as a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. the phocians having ploughed up some consecrated ground belonging to the temple of apollo, the amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. the phocians, being abetted by athens and sparta, refused to submit to the decree. the thebans, with others of the cities, undertook to maintain the authority of the amphictyons, and to avenge the violated god. the latter, being the weaker party, invited the assistance of philip of macedon, who had secretly fostered the contest. philip gladly seized the opportunity of executing the designs he had long planned against the liberties of greece. by his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the amphictyonic council; and by his arts and his arms, made himself master of the confederacy. such were the consequences of the fallacious principle on which this interesting establishment was founded. had greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of macedon; and might have proved a barrier to the vast projects of rome. the achaean league, as it is called, was another society of grecian republics, which supplies us with valuable instruction. the union here was far more intimate, and its organization much wiser, than in the preceding instance. it will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it. the cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. the senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. according to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred. it appears that the cities had all the same laws and customs, the same weights and measures, and the same money. but how far this effect proceeded from the authority of the federal council is left in uncertainty. it is said only that the cities were in a manner compelled to receive the same laws and usages. when lacedaemon was brought into the league by philopoemen, it was attended with an abolition of the institutions and laws of lycurgus, and an adoption of those of the achaeans. the amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. this circumstance alone proves a very material difference in the genius of the two systems. it is much to be regretted that such imperfect monuments remain of this curious political fabric. could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. one important fact seems to be witnessed by all the historians who take notice of achaean affairs. it is, that as well after the renovation of the league by aratus, as before its dissolution by the arts of macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising singly all the prerogatives of sovereignty. the abbe mably, in his observations on greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the achaean republic, because it was there tempered by the general authority and laws of the confederacy. we are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. the contrary is sufficiently displayed in the vicissitudes and fate of the republic. whilst the amphictyonic confederacy remained, that of the achaeans, which comprehended the less important cities only, made little figure on the theatre of greece. when the former became a victim to macedon, the latter was spared by the policy of philip and alexander. under the successors of these princes, however, a different policy prevailed. the arts of division were practiced among the achaeans. each city was seduced into a separate interest; the union was dissolved. some of the cities fell under the tyranny of macedonian garrisons; others under that of usurpers springing out of their own confusions. shame and oppression erelong awaken their love of liberty. a few cities reunited. their example was followed by others, as opportunities were found of cutting off their tyrants. the league soon embraced almost the whole peloponnesus. macedon saw its progress; but was hindered by internal dissensions from stopping it. all greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in sparta and athens, of the rising glory of the achaeans, threw a fatal damp on the enterprise. the dread of the macedonian power induced the league to court the alliance of the kings of egypt and syria, who, as successors of alexander, were rivals of the king of macedon. this policy was defeated by cleomenes, king of sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the achaeans, and who, as an enemy to macedon, had interest enough with the egyptian and syrian princes to effect a breach of their engagements with the league. the achaeans were now reduced to the dilemma of submitting to cleomenes, or of supplicating the aid of macedon, its former oppressor. the latter expedient was adopted. the contests of the greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. a macedonian army quickly appeared. cleomenes was vanquished. the achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. all that their most abject compliances could obtain from him was a toleration of the exercise of their laws. philip, who was now on the throne of macedon, soon provoked by his tyrannies, fresh combinations among the greeks. the achaeans, though weakened by internal dissensions and by the revolt of messene, one of its members, being joined by the aetolians and athenians, erected the standard of opposition. finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. the romans, to whom the invitation was made, eagerly embraced it. philip was conquered; macedon subdued. a new crisis ensued to the league. dissensions broke out among it members. these the romans fostered. callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. the more effectually to nourish discord and disorder the romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty( ) throughout greece. with the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. by these arts this union, the last hope of greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of rome found little difficulty in completing the ruin which their arts had commenced. the achaeans were cut to pieces, and achaia loaded with chains, under which it is groaning at this hour. i have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head. publius . this was but another name more specious for the independence of the members on the federal head. federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) for the independent journal. saturday, december , madison, with hamilton to the people of the state of new york: the examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. there are existing institutions, founded on a similar principle, which merit particular consideration. the first which presents itself is the germanic body. in the early ages of christianity, germany was occupied by seven distinct nations, who had no common chief. the franks, one of the number, having conquered the gauls, established the kingdom which has taken its name from them. in the ninth century charlemagne, its warlike monarch, carried his victorious arms in every direction; and germany became a part of his vast dominions. on the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. but the principal vassals, whose fiefs had become hereditary, and who composed the national diets which charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. the force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. the most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. the imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the suabian, and the accession of the first emperor of the austrian lines. in the eleventh century the emperors enjoyed full sovereignty: in the fifteenth they had little more than the symbols and decorations of power. out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the germanic empire. its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members. the diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. the members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. and the ban is denounced against such as shall violate any of these restrictions. the members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber. the prerogatives of the emperor are numerous. the most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. in certain cases, the electors form a council to him. in quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. but his revenue and dominions, in other qualities, constitute him one of the most powerful princes in europe. from such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. nothing would be further from the reality. the fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels. the history of germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general imbecility, confusion, and misery. in the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. in one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of saxony. the late king of prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. controversies and wars among the members themselves have been so common, that the german annals are crowded with the bloody pages which describe them. previous to the peace of westphalia, germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and sweden, with the other half, on the opposite side. peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the germanic constitution. if the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters. the small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury. the impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. this experiment has only served to demonstrate more fully the radical vice of the constitution. each circle is the miniature picture of the deformities of this political monster. they either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy. we may form some judgment of this scheme of military coercion from a sample given by thuanus. in donawerth, a free and imperial city of the circle of suabia, the abbe de st. croix enjoyed certain immunities which had been reserved to him. in the exercise of these, on some public occasions, outrages were committed on him by the people of the city. the consequence was that the city was put under the ban of the empire, and the duke of bavaria, though director of another circle, obtained an appointment to enforce it. he soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory,( ) he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains. it may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? the answer is obvious: the weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and hereditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in europe;--these causes support a feeble and precarious union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness. if more direct examples were wanting, poland, as a government over local sovereigns, might not improperly be taken notice of. nor could any proof more striking be given of the calamities flowing from such institutions. equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories. the connection among the swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions. they have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty. they are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accommodating disputes among the cantons. the provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. this tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. the competency of this regulation may be estimated by a clause in their treaty of , with victor amadeus of savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party. so far as the peculiarity of their case will admit of comparison with that of the united states, it serves to confirm the principle intended to be established. whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. the controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. the protestant and catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages. that separation had another consequence, which merits attention. it produced opposite alliances with foreign powers: of berne, at the head of the protestant association, with the united provinces; and of luzerne, at the head of the catholic association, with france. publius . pfeffel, "nouvel abrég. chronol. de l'hist., etc., d'allemagne," says the pretext was to indemnify himself for the expense of the expedition. federalist no. the same subject continued (the insufficiency of the present confederation to preserve the union) from the new york packet. tuesday, december , . madison, with hamilton to the people of the state of new york: the united netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed. the union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. in all important cases, not only the provinces but the cities must be unanimous. the sovereignty of the union is represented by the states-general, consisting usually of about fifty deputies appointed by the provinces. they hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure. the states-general have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. in all these cases, however, unanimity and the sanction of their constituents are requisite. they have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. the provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. a council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration. the executive magistrate of the union is the stadtholder, who is now an hereditary prince. his principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon. as stadtholder of the union, he has, however, considerable prerogatives. in his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the states-general, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts. in his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns. in his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them. his revenue, exclusive of his private income, amounts to three hundred thousand florins. the standing army which he commands consists of about forty thousand men. such is the nature of the celebrated belgic confederacy, as delineated on parchment. what are the characters which practice has stamped upon it? imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war. it was long ago remarked by grotius, that nothing but the hatred of his countrymen to the house of austria kept them from being ruined by the vices of their constitution. the union of utrecht, says another respectable writer, reposes an authority in the states-general, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory. the same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota. in matters of contribution, it is the practice to waive the articles of the constitution. the danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. the great wealth and influence of the province of holland enable her to effect both these purposes. it has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confederacy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense. foreign ministers, says sir william temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. in , the treaty of hanover was delayed by these means a whole year. instances of a like nature are numerous and notorious. in critical emergencies, the states-general are often compelled to overleap their constitutional bounds. in , they concluded a treaty of themselves at the risk of their heads. the treaty of westphalia, in , by which their independence was formerly and finally recognized, was concluded without the consent of zealand. even as recently as the last treaty of peace with great britain, the constitutional principle of unanimity was departed from. a weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. "under such a government," says the abbe mably, "the union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. this spring is the stadtholder." it is remarked by sir william temple, "that in the intermissions of the stadtholdership, holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place." these are not the only circumstances which have controlled the tendency to anarchy and dissolution. the surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy. the true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by extraordinary assemblies, convened for the special purpose, to apply a remedy. as many times has their laudable zeal found it impossible to unite the public councils in reforming the known, the acknowledged, the fatal evils of the existing constitution. let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to heaven, for the propitious concord which has distinguished the consultations for our political happiness. a design was also conceived of establishing a general tax to be administered by the federal authority. this also had its adversaries and failed. this unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. all nations have their eyes fixed on the awful spectacle. the first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: the next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own. i make no apology for having dwelt so long on the contemplation of these federal precedents. experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. the important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy. publius federalist no. other defects of the present confederation for the independent journal. wednesday, december , hamilton to the people of the state of new york: having in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, i shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. to form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease. the next most palpable defect of the subsisting confederation, is the total want of a sanction to its laws. the united states, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. there is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the states, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each state shall retain every power, jurisdiction, and right, not expressly delegated to the united states in congress assembled." there is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. if we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the united states afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. it will appear, from the specimens which have been cited, that the american confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world. the want of a mutual guaranty of the state governments is another capital imperfection in the federal plan. there is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. the want of a guaranty, though it might in its consequences endanger the union, does not so immediately attack its existence as the want of a constitutional sanction to its laws. without a guaranty the assistance to be derived from the union in repelling those domestic dangers which may sometimes threaten the existence of the state constitutions, must be renounced. usurpation may rear its crest in each state, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. a successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the union to the friends and supporters of the government. the tempestuous situation from which massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a caesar or by a cromwell? who can predict what effect a despotism, established in massachusetts, would have upon the liberties of new hampshire or rhode island, of connecticut or new york? the inordinate pride of state importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. a scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. it could be no impediment to reforms of the state constitution by a majority of the people in a legal and peaceable mode. this right would remain undiminished. the guaranty could only operate against changes to be effected by violence. towards the preventions of calamities of this kind, too many checks cannot be provided. the peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the state. the natural cure for an ill-administration, in a popular or representative constitution, is a change of men. a guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community. the principle of regulating the contributions of the states to the common treasury by quotas is another fundamental error in the confederation. its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. i speak of it now solely with a view to equality among the states. those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of state contributions, has any pretension to being a just representative. if we compare the wealth of the united netherlands with that of russia or germany, or even of france, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. if the like parallel were to be run between several of the american states, it would furnish a like result. let virginia be contrasted with north carolina, pennsylvania with connecticut, or maryland with new jersey, and we shall be convinced that the respective abilities of those states, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. the position may be equally illustrated by a similar process between the counties of the same state. no man who is acquainted with the state of new york will doubt that the active wealth of king's county bears a much greater proportion to that of montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion! the wealth of nations depends upon an infinite variety of causes. situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. the consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. the attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression. this inequality would of itself be sufficient in america to work the eventual destruction of the union, if any mode of enforcing a compliance with its requisitions could be devised. the suffering states would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some states, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. this, however, is an evil inseparable from the principle of quotas and requisitions. there is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. the amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. the rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. if inequalities should arise in some states from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other states, from the duties on other objects. in the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised. it is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. they prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. when applied to this object, the saying is as just as it is witty, that, "in political arithmetic, two and two do not always make four." if duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. this forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them. impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. either the value of land, or the number of the people, may serve as a standard. the state of agriculture and the populousness of a country have been considered as nearly connected with each other. and, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. in every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. the expense of an accurate valuation is, in all situations, a formidable objection. in a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large. publius federalist no. the same subject continued (other defects of the present confederation) from the new york packet. friday, december , . hamilton to the people of the state of new york: in addition to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the union. the want of a power to regulate commerce is by all parties allowed to be of the number. the utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. it is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. the want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the states. no nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the united states, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. it is not, therefore, to be wondered at that mr. jenkinson, in ushering into the house of commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of great britain, and that it would be prudent to persist in the plan until it should appear whether the american government was likely or not to acquire greater consistency.( ) several states have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the state, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist. the interfering and unneighborly regulations of some states, contrary to the true spirit of the union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the confederacy. "the commerce of the german empire( ) is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which germany is so happily watered are rendered almost useless." though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of state regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. the power of raising armies, by the most obvious construction of the articles of the confederation, is merely a power of making requisitions upon the states for quotas of men. this practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. it gave birth to a competition between the states which created a kind of auction for men. in order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. the hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure. this method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. the states near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. the immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. the states which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. we shall not, however, see much reason to regret the want of this hope, when we consider how little prospect there is, that the most delinquent states will ever be able to make compensation for their pecuniary failures. the system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the union, and of inequality and injustice among the members. the right of equal suffrage among the states is another exceptionable part of the confederation. every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to rhode island an equal weight in the scale of power with massachusetts, or connecticut, or new york; and to delaware an equal voice in the national deliberations with pennsylvania, or virginia, or north carolina. its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. sophistry may reply, that sovereigns are equal, and that a majority of the votes of the states will be a majority of confederated america. but this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. it may happen that this majority of states is a small minority of the people of america;( ) and two thirds of the people of america could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. the larger states would after a while revolt from the idea of receiving the law from the smaller. to acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. it is neither rational to expect the first, nor just to require the last. the smaller states, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration. it may be objected to this, that not seven but nine states, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine states would always comprehend a majority of the union. but this does not obviate the impropriety of an equal vote between states of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine states which contain less than a majority of the people;( ) and it is constitutionally possible that these nine may give the vote. besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven states, would extend its operation to interests of the first magnitude. in addition to this, it is to be observed that there is a probability of an increase in the number of states, and no provision for a proportional augmentation of the ratio of votes. but this is not all: what at first sight may seem a remedy, is, in reality, a poison. to give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. congress, from the nonattendance of a few states, have been frequently in the situation of a polish diet, where a single vote has been sufficient to put a stop to all their movements. a sixtieth part of the union, which is about the proportion of delaware and rhode island, has several times been able to oppose an entire bar to its operations. this is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. the necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. but its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. in those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. the public business must, in some way or other, go forward. if a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. and yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. it is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. its situation must always savor of weakness, sometimes border upon anarchy. it is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. the mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. when the concurrence of a large number is required by the constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. in such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. in the first case, he would have to corrupt a smaller number; in the last, a greater number. upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. and, in a commercial view, we may be subjected to similar inconveniences. a nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves. evils of this description ought not to be regarded as imaginary. one of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. an hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. the world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind. in republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. how much this contributed to the ruin of the ancient commonwealths has been already delineated. it is well known that the deputies of the united provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. the earl of chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. and in sweden the parties were alternately bought by france and england in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled. a circumstance which crowns the defects of the confederation remains yet to be mentioned, the want of a judiciary power. laws are a dead letter without courts to expound and define their true meaning and operation. the treaties of the united states, to have any force at all, must be considered as part of the law of the land. their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. to produce uniformity in these determinations, they ought to be submitted, in the last resort, to one supreme tribunal. and this tribunal ought to be instituted under the same authority which forms the treaties themselves. these ingredients are both indispensable. if there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. there are endless diversities in the opinions of men. we often see not only different courts but the judges of the came court differing from each other. to avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. this is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. in this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. as often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. the treaties of the united states, under the present constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. the faith, the reputation, the peace of the whole union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. is it possible that foreign nations can either respect or confide in such a government? is it possible that the people of america will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation? in this review of the confederation, i have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. it must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters. the organization of congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the union. a single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed constitution admit, ought to reside in the united states. if that plan should not be adopted, and if the necessity of the union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. thus, we should create in reality that very tyranny which the adversaries of the new constitution either are, or affect to be, solicitous to avert. it has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the people. resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. owing its ratification to the law of a state, it has been contended that the same authority might repeal the law by which it was ratified. however gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. the possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. the fabric of american empire ought to rest on the solid basis of the consent of the people. the streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. publius . this, as nearly as i can recollect, was the sense of his speech on introducing the last bill. . encyclopedia, article "empire." . new hampshire, rhode island, new jersey, delaware, georgia, south carolina, and maryland are a majority of the whole number of the states, but they do not contain one third of the people. . add new york and connecticut to the foregoing seven, and they will be less than a majority. federalist no. the necessity of a government as energetic as the one proposed to the preservation of the union from the new york packet. tuesday, december , . hamilton to the people of the state of new york: the necessity of a constitution, at least equally energetic with the one proposed, to the preservation of the union, is the point at the examination of which we are now arrived. this inquiry will naturally divide itself into three branches--the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. its distribution and organization will more properly claim our attention under the succeeding head. the principal purposes to be answered by union are these--the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the states; the superintendence of our intercourse, political and commercial, with foreign countries. the authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. these powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. the circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. this power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. this is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. it rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained. whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. and unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the national forces. defective as the present confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. as their requisitions are made constitutionally binding upon the states, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the united states should command whatever resources were by them judged requisite to the "common defense and general welfare." it was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head. the experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, i imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the union energy and duration, we must abandon the vain project of legislating upon the states in their collective capacities; we must extend the laws of the federal government to the individual citizens of america; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. the result from all this is that the union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments. if the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the objects, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. shall the union be constituted the guardian of the common safety? are fleets and armies and revenues necessary to this purpose? the government of the union must be empowered to pass all laws, and to make all regulations which have relation to them. the same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. is the administration of justice between the citizens of the same state the proper department of the local governments? these must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success. who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the whole, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the states, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the state governments the effective powers by which it is to be provided for? is not a want of co-operation the infallible consequence of such a system? and will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished? every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. it will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. if any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. a government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the national interests. wherever these can with propriety be confided, the coincident powers may safely accompany them. this is the true result of all just reasoning upon the subject. and the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. they ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. the powers are not too extensive for the objects of federal administration, or, in other words, for the management of our national interests; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. if it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. for the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their proper and efficient management. let us not attempt to reconcile contradictions, but firmly embrace a rational alternative. i trust, however, that the impracticability of one general system cannot be shown. i am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and i flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. this, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the union of so large an empire. if we embrace the tenets of those who oppose the adoption of the proposed constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present confederacy. publius federalist no. the powers necessary to the common defense further considered for the independent journal. wednesday, december , hamilton to the people of the state of new york: to the powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, i have met with but one specific objection, which, if i understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, i shall now endeavor to show, rests on weak and unsubstantial foundations. it has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of america, as expressed in most of the existing constitutions. the proprietary of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the legislative authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our state constitutions, and rejected in all the rest. a stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the executive the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. if he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. disappointed in his first surmise, the person i have supposed would be apt to pursue his conjectures a little further. he would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. it must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor. if, under this impression, he proceeded to pass in review the several state constitutions, how great would be his disappointment to find that two only of them( ) contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the legislature to authorize their existence. still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. he would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. it would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the states. here, at length, he would expect to meet with a solution of the enigma. no doubt, he would observe to himself, the existing confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions. if he should now apply himself to a careful and critical survey of the articles of confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the state legislatures in this particular, had not imposed a single restraint on that of the united states. if he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! how else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of america as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? if, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings. but however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. from a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed. though a wide ocean separates the united states from europe, yet there are various considerations that warn us against an excess of confidence or security. on one side of us, and stretching far into our rear, are growing settlements subject to the dominion of britain. on the other side, and extending to meet the british settlements, are colonies and establishments subject to the dominion of spain. this situation and the vicinity of the west india islands, belonging to these two powers create between them, in respect to their american possessions and in relation to us, a common interest. the savage tribes on our western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. the improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. britain and spain are among the principal maritime powers of europe. a future concert of views between these nations ought not to be regarded as improbable. the increasing remoteness of consanguinity is every day diminishing the force of the family compact between france and spain. and politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. these circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger. previous to the revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our western frontier. no person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the indians. these garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. the first is impracticable; and if practicable, would be pernicious. the militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. and if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. it would be as burdensome and injurious to the public as ruinous to private citizens. the latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature. in proportion to our increase in strength, it is probable, nay, it may be said certain, that britain and spain would augment their military establishments in our neighborhood. if we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our western settlements might be annoyed. there are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. it may be added that some of those posts will be keys to the trade with the indian nations. can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? to act this part would be to desert all the usual maxims of prudence and policy. if we mean to be a commercial people, or even to be secure on our atlantic side, we must endeavor, as soon as possible, to have a navy. to this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. when a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself. publius this statement of the matter is taken from the printed collection of state constitutions. pennsylvania and north carolina are the two which contain the interdiction in these words: "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." this is, in truth, rather a caution than a prohibition. new hampshire, massachusetts, delaware, and maryland have, in each of their bills of rights, a clause to this effect: "standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature"; which is a formal admission of the authority of the legislature. new york has no bills of rights, and her constitution says not a word about the matter. no bills of rights appear annexed to the constitutions of the other states, except the foregoing, and their constitutions are equally silent. i am told, however that one or two states have bills of rights which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect. federalist no. the same subject continued (the powers necessary to the common defense further considered) from the new york packet. friday, december , . hamilton to the people of the state of new york: it may perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the state governments, under the direction of the union. but this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some states, dangerous to all, and baneful to the confederacy. the territories of britain, spain, and of the indian nations in our neighborhood do not border on particular states, but encircle the union from maine to georgia. the danger, though in different degrees, is therefore common. and the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. it happens that some states, from local situation, are more directly exposed. new york is of this class. upon the plan of separate provisions, new york would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. this would neither be equitable as it respected new york nor safe as it respected the other states. various inconveniences would attend such a system. the states, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. the security of all would thus be subjected to the parsimony, improvidence, or inability of a part. if the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other states would quickly take the alarm at seeing the whole military force of the union in the hands of two or three of its members, and those probably amongst the most powerful. they would each choose to have some counterpoise, and pretenses could easily be contrived. in this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority. reasons have been already given to induce a supposition that the state governments will too naturally be prone to a rivalship with that of the union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. if, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the union. on the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. as far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. for it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion. the framers of the existing confederation, fully aware of the danger to the union from the separate possession of military forces by the states, have, in express terms, prohibited them from having either ships or troops, unless with the consent of congress. the truth is, that the existence of a federal government and military establishments under state authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. there are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. the design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to keeping them up in a season of tranquillity or not. if it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. when armies are once raised what shall be denominated "keeping them up," contrary to the sense of the constitution? what time shall be requisite to ascertain the violation? shall it be a week, a month, a year? or shall we say they may be continued as long as the danger which occasioned their being raised continues? this would be to admit that they might be kept up in time of peace, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. who shall judge of the continuance of the danger? this must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. it is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision. the supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! indian hostilities, instigated by spain or britain, would always be at hand. provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. if we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project. if, to obviate this consequence, it should be resolved to extend the prohibition to the raising of armies in time of peace, the united states would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its constitution to prepare for defense, before it was actually invaded. as the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the state. we must receive the blow, before we could even prepare to return it. all that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. we must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation. here i expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. this doctrine, in substance, had like to have lost us our independence. it cost millions to the united states that might have been saved. the facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. the steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. considerations of economy, not less than of stability and vigor, confirm this position. the american militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. war, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice. all violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. pennsylvania, at this instant, affords an example of the truth of this remark. the bill of rights of that state declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. the conduct of massachusetts affords a lesson on the same subject, though on different ground. that state (without waiting for the sanction of congress, as the articles of the confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. the particular constitution of massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. it also teaches us, in its application to the united states, how little the rights of a feeble government are likely to be respected, even by its own constituents. and it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity. it was a fundamental maxim of the lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. the peloponnesian confederates, having suffered a severe defeat at sea from the athenians, demanded lysander, who had before served with success in that capacity, to command the combined fleets. the lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing lysander with the real power of admiral, under the nominal title of vice-admiral. this instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable. publius federalist no. the idea of restraining the legislative authority in regard to the common defense considered. for the independent journal. saturday, december , hamilton to the people of the state of new york: it was a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between power and privilege, and combines the energy of government with the security of private rights. a failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better. the idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. we have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, pennsylvania and north carolina are the only two states by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. the opponents of the proposed constitution combat, in this respect, the general decision of america; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. as if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. it may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. but a danger of this kind is not to be apprehended. the citizens of america have too much discernment to be argued into anarchy. and i am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community. it may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these states have in general sprung. in england, for a long time after the norman conquest, the authority of the monarch was almost unlimited. inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. but it was not till the revolution in , which elevated the prince of orange to the throne of great britain, that english liberty was completely triumphant. as incident to the undefined power of making war, an acknowledged prerogative of the crown, charles ii. had, by his own authority, kept on foot in time of peace a body of , regular troops. and this number james ii. increased to , ; who were paid out of his civil list. at the revolution, to abolish the exercise of so dangerous an authority, it became an article of the bill of rights then framed, that "the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of parliament, was against law." in that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. the patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. they were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. from the same source, the people of america may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. the circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. the attempts of two of the states to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. the principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. even in some of the states, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, without the consent of the legislature. i call them unnecessary, because the reason which had introduced a similar provision into the english bill of rights is not applicable to any of the state constitutions. the power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. accordingly, in some of these constitutions, and among others, in that of this state of new york, which has been justly celebrated, both in europe and america, as one of the best of the forms of government established in this country, there is a total silence upon the subject. it is remarkable, that even in the two states which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. it is not said, that standing armies shall not be kept up, but that they ought not to be kept up, in time of peace. this ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe. can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the state? let the fact already mentioned, with respect to pennsylvania, decide. what then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it? let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new constitution, for restraining the appropriations of money for military purposes to the period of two years. the former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation. the legislature of the united states will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. they are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. as the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. the provision for the support of a military force will always be a favorable topic for declamation. as often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. independent of parties in the national legislature itself, as often as the period of discussion arrived, the state legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the voice, but, if necessary, the arm of their discontent. schemes to subvert the liberties of a great community require time to mature them for execution. an army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. is it probable that such a combination would exist at all? is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? is it presumable, that every man, the instant he took his seat in the national senate or house of representatives, would commence a traitor to his constituents and to his country? can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? if such presumptions can fairly be made, there ought at once to be an end of all delegated authority. the people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many states as there are counties, in order that they may be able to manage their own concerns in person. if such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. it would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. what colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? it is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery. it has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. but the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? if we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamities for which there is neither preventative nor cure. it cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense. but it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. it is not easy to conceive a possibility that dangers so formidable can assail the whole union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. but in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable. publius federalist no. the same subject continued (the idea of restraining the legislative authority in regard to the common defense considered) from the new york packet. tuesday, december , . hamilton to the people of the state of new york: it has been urged, in different shapes, that a constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. this, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. as far as i have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. unless we presume at the same time that the powers of the general government will be worse administered than those of the state government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. i believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. it must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. these can only be judged of by general principles and maxims. various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the state legislatures which are select bodies of men, and which are to appoint the members of the national senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust. several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. it will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members. the hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. will not the government of the union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole confederacy, be more likely to repress the former sentiment and to inspire the latter, than that of a single state, which can only command the resources within itself? a turbulent faction in a state may easily suppose itself able to contend with the friends to the government in that state; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the union. if this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the confederacy than to that of a single member. i will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. man is very much a creature of habit. a thing that rarely strikes his senses will generally have but little influence upon his mind. a government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. the inference is, that the authority of the union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. the more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion. one thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the states in their political or collective capacities. it has been shown that in such a confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence. the plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several states, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. it is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each state, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole union. it merits particular attention in this place, that the laws of the confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the supreme law of the land; to the observance of which all officers, legislative, executive, and judicial, in each state, will be bound by the sanctity of an oath. thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws.( ) any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the union, if its powers are administered with a common share of prudence. if we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. but though the adversaries of the proposed constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, i would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct? publius . the sophistry which has been employed to show that this will tend to the destruction of the state governments, will, in its will, in its proper place, be fully detected. federalist no. the same subject continued (the idea of restraining the legislative authority in regard to the common defense considered) for the independent journal. wednesday, december , hamilton to the people of the state of new york: that there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. should such emergencies at any time happen under the national government, there could be no remedy but force. the means to be employed must be proportioned to the extent of the mischief. if it should be a slight commotion in a small part of a state, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. an insurrection, whatever may be its immediate cause, eventually endangers all government. regard to the public peace, if not to the rights of the union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support. if, on the contrary, the insurrection should pervade a whole state, or a principal part of it, the employment of a different kind of force might become unavoidable. it appears that massachusetts found it necessary to raise troops for repressing the disorders within that state; that pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. suppose the state of new york had been inclined to re-establish her lost jurisdiction over the inhabitants of vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? would she not have been compelled to raise and to maintain a more regular force for the execution of her design? if it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the state governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? is it not surprising that men who declare an attachment to the union in the abstract, should urge as an objection to the proposed constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics? let us pursue this examination in another light. suppose, in lieu of one general system, two, or three, or even four confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these confederacies? would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the states? would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? all candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the states, or different governments for different parcels of them, or even if there should be an entire separation of the states, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions. independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. this is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society.( ) if the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. in a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. the citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. the usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. the smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. in this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance. the obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. the natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. but in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. the people, by throwing themselves into either scale, will infallibly make it preponderate. if their rights are invaded by either, they can make use of the other as the instrument of redress. how wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! it may safely be received as an axiom in our political system, that the state governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. the legislatures will have better means of information. they can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. they can readily communicate with each other in the different states, and unite their common forces for the protection of their common liberty. the great extent of the country is a further security. we have already experienced its utility against the attacks of a foreign power. and it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. if the federal army should be able to quell the resistance of one state, the distant states would have it in their power to make head with fresh forces. the advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive. we should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. for a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. when will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their state governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? the apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning. publius . its full efficacy will be examined hereafter. federalist no. concerning the militia from the new york packet. wednesday, january , hamilton to the people of the state of new york: the power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the confederacy. it requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. it would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. this desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. it is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. if a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. if standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the state is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. if the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. if it cannot avail itself of the former, it will be obliged to recur to the latter. to render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. in order to cast an odium upon the power of calling forth the militia to execute the laws of the union, it has been remarked that there is nowhere any provision in the proposed constitution for calling out the posse comitatus, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. there is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. the same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the posse comitatus. the latter, fortunately, is as much short of the truth as the former exceeds it. it would be as absurd to doubt, that a right to pass all laws necessary and proper to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. it being therefore evident that the supposition of a want of power to require the aid of the posse comitatus is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. what reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? what shall we think of the motives which could induce men of sense to reason in this manner? how shall we prevent a conflict between charity and conviction? by a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. it is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. what plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. but so far from viewing the matter in the same light with those who object to select corps as dangerous, were the constitution ratified, and were i to deliver my sentiments to a member of the federal legislature from this state on the subject of a militia establishment, i should hold to him, in substance, the following discourse: "the project of disciplining all the militia of the united states is as futile as it would be injurious, if it were capable of being carried into execution. a tolerable expertness in military movements is a business that requires time and practice. it is not a day, or even a week, that will suffice for the attainment of it. to oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. it would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the states. to attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "but though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. the attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. by thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the state shall require it. this will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. this appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." thus differently from the adversaries of the proposed constitution should i reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. but how the national legislature may reason on the point, is a thing which neither they nor i can foresee. there is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? what shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? what reasonable cause of apprehension can be inferred from a power in the union to prescribe regulations for the militia, and to command its services when necessary, while the particular states are to have the sole and exclusive appointment of the officers? if it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the states ought at once to extinguish it. there can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. in reading many of the publications against the constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes-- "gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. a sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. that of new hampshire is to be marched to georgia, of georgia to new hampshire, of new york to kentucky, and of kentucky to lake champlain. nay, the debts due to the french and dutch are to be paid in militiamen instead of louis d'ors and ducats. at one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of massachusetts; and that of massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic virginians. do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of america for infallible truths? if there should be an army to be made use of as the engine of despotism, what need of the militia? if there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? is this the way in which usurpers stride to dominion over a numerous and enlightened nation? do they begin by exciting the detestation of the very instruments of their intended usurpations? do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? or are they the inflammatory ravings of incendiaries or distempered enthusiasts? if we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs. in times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring state should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. this was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. if the power of affording it be placed under the direction of the union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too feeble impulses of duty and sympathy. publius federalist no. concerning the general power of taxation from the new york packet. friday, december , . hamilton to the people of the state of new york: it has been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. but these are not the only objects to which the jurisdiction of the union, in respect to revenue, must necessarily be empowered to extend. it must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. the conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another. money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. a complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. from a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish. in the ottoman or turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. the consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. in america, from a like cause, the government of the union has gradually dwindled into a state of decay, approaching nearly to annihilation. who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require? the present confederation, feeble as it is intended to repose in the united states, an unlimited power of providing for the pecuniary wants of the union. but proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the united states; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the states. these have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. but though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the confederacy should remain dependent on the intermediate agency of its members. what the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. it is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies. what remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? what substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury. the more intelligent adversaries of the new constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call internal and external taxation. the former they would reserve to the state governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. this distinction, however, would violate the maxim of good sense and sound policy, which dictates that every power ought to be in proportion to its object; and would still leave the general government in a kind of tutelage to the state governments, inconsistent with every idea of vigor or efficiency. who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the union? taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. i believe it may be regarded as a position warranted by the history of mankind, that, in the usual progress of things, the necessities of a nation, in every stage of its existence, will be found at least equal to its resources. to say that deficiencies may be provided for by requisitions upon the states, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. its inevitable tendency, whenever it is brought into activity, must be to enfeeble the union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. can it be expected that the deficiencies would be better supplied in this mode than the total wants of the union have heretofore been supplied in the same mode? it ought to be recollected that if less will be required from the states, they will have proportionably less means to answer the demand. if the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. how is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? how can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? how can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? how will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? how can it undertake or execute any liberal or enlarged plans of public good? let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. we will presume, for argument's sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the union. thus circumstanced, a war breaks out. what would be the probable conduct of the government in such an emergency? taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the state? it is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. to imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. in the modern system of war, nations the most wealthy are obliged to have recourse to large loans. a country so little opulent as ours must feel this necessity in a much stronger degree. but who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? the loans it might be able to procure would be as limited in their extent as burdensome in their conditions. they would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums. it may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. but two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans. the power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. foreigners, as well as the citizens of america, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice. reflections of this kind may have trifling weight with men who hope to see realized in america the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it. publius federalist no. the same subject continued (concerning the general power of taxation) from the new york packet. tuesday, january , . hamilton to the people of the state of new york: in disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. these contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. of this nature are the maxims in geometry, that "the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other." of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. and there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible. the objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. the infinite divisibility of matter, or, in other words, the infinite divisibility of a finite thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled. but in the sciences of morals and politics, men are found far less tractable. to a certain degree, it is right and useful that this should be the case. caution and investigation are a necessary armor against error and imposition. but this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. the obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. how else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the union, should have to encounter any adversaries among men of discernment? though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. they are in substance as follows: a government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people. as the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. as revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies. as theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the states in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes. did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. but we find, in fact, that the antagonists of the proposed constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. it may therefore be satisfactory to analyze the arguments with which they combat it. those of them which have been most labored with that view, seem in substance to amount to this: "it is not true, because the exigencies of the union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. revenue is as requisite to the purposes of the local administrations as to those of the union; and the former are at least of equal importance with the latter to the happiness of the people. it is, therefore, as necessary that the state governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the union. but an indefinite power of taxation in the latter might, and probably would in time, deprive the former of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. as the laws of the union are to become the supreme law of the land, as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for state objects upon the pretense of an interference with its own. it might allege a necessity of doing this in order to give efficacy to the national revenues. and thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the state governments." this mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. it is only in the latter light that it can be admitted to have any pretensions to fairness. the moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. whatever may be the limits or modifications of the powers of the union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. i repeat here what i have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. the state governments, by their original constitutions, are invested with complete sovereignty. in what does our security consist against usurpation from that quarter? doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. if the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded. it should not be forgotten that a disposition in the state governments to encroach upon the rights of the union is quite as probable as a disposition in the union to encroach upon the rights of the state governments. what side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. as in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the state governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. but it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the constitution. every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the state governments. upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the united states. publius federalist no. the same subject continued (concerning the general power of taxation) from the independent journal. wednesday, january , . hamilton to the people of the state of new york: although i am of opinion that there would be no real danger of the consequences which seem to be apprehended to the state governments from a power in the union to control them in the levies of money, because i am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the state governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet i am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual states should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. and making this concession, i affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution. an entire consolidation of the states into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. but as the plan of the convention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the united states. this exclusive delegation, or rather this alienation, of state sovereignty, would only exist in three cases: where the constitution in express terms granted an exclusive authority to the union; where it granted in one instance an authority to the union, and in another prohibited the states from exercising the like authority; and where it granted an authority to the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. i use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; i mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. these three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: the last clause but one in the eighth section of the first article provides expressly that congress shall exercise "exclusive legislation" over the district to be appropriated as the seat of government. this answers to the first case. the first clause of the same section empowers congress "to lay and collect taxes, duties, imposts and excises"; and the second clause of the tenth section of the same article declares that, "no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws." hence would result an exclusive power in the union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any state; in consequence of which qualification, it now only extends to the duties on imports. this answers to the second case. the third will be found in that clause which declares that congress shall have power "to establish an uniform rule of naturalization throughout the united states." this must necessarily be exclusive; because if each state had power to prescribe a distinct rule, there could not be a uniform rule. a case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. i mean the power of imposing taxes on all articles other than exports and imports. this, i contend, is manifestly a concurrent and coequal authority in the united states and in the individual states. there is plainly no expression in the granting clause which makes that power exclusive in the union. there is no independent clause or sentence which prohibits the states from exercising it. so far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the states in relation to duties on imports and exports. this restriction implies an admission that, if it were not inserted, the states would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the states remains undiminished. in any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the union of the power of laying such duties implied the exclusion of the states, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; i mean that the states, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the union. the restriction in question amounts to what lawyers call a negative pregnant that is, a negation of one thing, and an affirmance of another; a negation of the authority of the states to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. it would be mere sophistry to argue that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature. the restraining or prohibitory clause only says, that they shall not, without the consent of congress, lay such duties; and if we are to understand this in the sense last mentioned, the constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the states, with the consent of the national legislature, might tax imports and exports; and that they might tax every other article, unless controlled by the same body. if this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the union? it is evident that this could not have been the intention, and that it will not bear a construction of the kind. as to a supposition of repugnancy between the power of taxation in the states and in the union, it cannot be supported in that sense which would be requisite to work an exclusion of the states. it is, indeed, possible that a tax might be laid on a particular article by a state which might render it inexpedient that thus a further tax should be laid on the same article by the union; but it would not imply a constitutional inability to impose a further tax. the quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. the particular policy of the national and of the state systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. it is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty. the necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the states are not explicitly divested in favor of the union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed constitution. we there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the states, to insert negative clauses prohibiting the exercise of them by the states. the tenth section of the first article consists altogether of such provisions. this circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position i have advanced and refutes every hypothesis to the contrary. publius federalist no. the same subject continued (concerning the general power of taxation) from the independent journal. wednesday, january , . hamilton to the people of the state of new york: the residue of the argument against the provisions of the constitution in respect to taxation is ingrafted upon the following clause. the last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature "to make all laws which shall be necessary and proper for carrying into execution the powers by that constitution vested in the government of the united states, or in any department or officer thereof"; and the second clause of the sixth article declares, "that the constitution and the laws of the united states made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any state to the contrary notwithstanding." these two clauses have been the source of much virulent invective and petulant declamation against the proposed constitution. they have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. they are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. this is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity. what is a power, but the ability or faculty of doing a thing? what is the ability to do a thing, but the power of employing the means necessary to its execution? what is a legislative power, but a power of making laws? what are the means to execute a legislative power but laws? what is the power of laying and collecting taxes, but a legislative power, or a power of making laws, to lay and collect taxes? what are the proper means of executing such a power, but necessary and proper laws? this simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. it conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect? i have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the union. but the same process will lead to the same result, in relation to all other powers declared in the constitution. and it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. if there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. the declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless. but suspicion may ask, why then was it introduced? the answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union. the convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the state governments will finally sap the foundations of the union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. but it may be again asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the union? i answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and i answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. if the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution as the exigency may suggest and prudence justify. the propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the federal legislature should attempt to vary the law of descent in any state, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the state? suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a state; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its constitution plainly supposes to exist in the state governments? if there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths. but it is said that the laws of the union are to be the supreme law of the land. but what inference can be drawn from this, or what would they amount to, if they were not to be supreme? it is evident they would amount to nothing. a law, by the very meaning of the term, includes supremacy. it is a rule which those to whom it is prescribed are bound to observe. this results from every political association. if individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. if a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. it would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for political power and supremacy. but it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. these will be merely acts of usurpation, and will deserve to be treated as such. hence we perceive that the clause which declares the supremacy of the laws of the union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. it will not, i presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the constitution; which i mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed. though a law, therefore, laying a tax for the use of the united states would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the state, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the constitution. as far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. it is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. the inference from the whole is, that the individual states would, under the proposed constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. it will be shown in the next paper that this concurrent jurisdiction in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the state authority to that of the union. publius federalist no. the same subject continued (concerning the general power of taxation) from the independent journal. saturday, january , . hamilton to the people of the state of new york: i flatter myself it has been clearly shown in my last number that the particular states, under the proposed constitution, would have coequal authority with the union in the article of revenue, except as to duties on imports. as this leaves open to the states far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. that the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the state governments to provide. to argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. however proper such reasonings might be to show that a thing ought not to exist, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. it is well known that in the roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. but a man would have been regarded as frantic who should have attempted at rome to disprove their existence. it will be readily understood that i allude to the comitia centuriata and the comitia tributa. the former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. and yet these two legislatures coexisted for ages, and the roman republic attained to the utmost height of human greatness. in the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. and in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the states will naturally reduce themselves within a very narrow compass; and in the interim, the united states will, in all probability, find it convenient to abstain wholly from those objects to which the particular states would be inclined to resort. to form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a state provision. we shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. in pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. there ought to be a capacity to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. it is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the union, and to maintain those establishments which, for some time to come, would suffice in time of peace. but would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? if, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. the support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic. admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. a cloud has been for some time hanging over the european world. if it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? no reasonable man would hastily pronounce that we are entirely out of its reach. or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. who could have imagined at the conclusion of the last war that france and britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? to judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character. what are the chief sources of expense in every government? what has occasioned that enormous accumulation of debts with which several of the european nations are oppressed? the answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. the expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense. in the kingdom of great britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. if, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. if we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good. but let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. it is true that several of the states, separately, are encumbered with considerable debts, which are an excrescence of the late war. but this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the state governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every state ought to fall considerably short of two hundred thousand pounds. in framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. if this principle be a just one our attention would be directed to a provision in favor of the state governments for an annual sum of about two hundred thousand pounds; while the exigencies of the union could be susceptible of no limits, even in imagination. in this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an exclusive source of revenue for any sum beyond the extent of two hundred thousand pounds? to extend its power further, in exclusion of the authority of the union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them. suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the union and its members, in proportion to their comparative necessities; what particular fund could have been selected for the use of the states, that would not either have been too much or too little too little for their present, too much for their future wants? as to the line of separation between external and internal taxes, this would leave to the states, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. if we desert this boundary and content ourselves with leaving to the states an exclusive power of taxing houses and lands, there would still be a great disproportion between the means and the end; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. if any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular states, and would have left them dependent on the union for a provision for this purpose. the preceding train of observation will justify the position which has been elsewhere laid down, that "a concurrent jurisdiction in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of state authority to that of the union." any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great interests of the union to the power of the individual states. the convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the federal government with an adequate and independent power in the states to provide for their own necessities. there remain a few other lights, in which this important subject of taxation will claim a further consideration. publius federalist no. the same subject continued (concerning the general power of taxation) for the independent journal. saturday, january , hamilton to the people of the state of new york: before we proceed to examine any other objections to an indefinite power of taxation in the union, i shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several states as among the citizens of the same state. suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. there are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. but all extremes are pernicious in various ways. exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. when the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. i am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. it is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. the merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale. the maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing states. but it is not so generally true as to render it equitable, that those duties should form the only national fund. when they are paid by the merchant they operate as an additional tax upon the importing state, whose citizens pay their proportion of them in the character of consumers. in this view they are productive of inequality among the states; which inequality would be increased with the increased extent of the duties. the confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing states. the states which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those states which are not in the same favorable situation. they would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. to make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. new york is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the union to external taxation may be aware of. new york is an importing state, and is not likely speedily to be, to any great extent, a manufacturing state. she would, of course, suffer in a double light from restraining the jurisdiction of the union to commercial imposts. so far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. i readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, hope, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. the first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. but even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. let us now return to the examination of objections. one which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the house of representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. this argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. but when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. the object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. i reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries. the idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. unless it were expressly provided in the constitution, that each different occupation should send one or more members, the thing would never take place in practice. mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. many of them, indeed, are immediately connected with the operations of commerce. they know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. they are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. these considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. we must therefore consider merchants as the natural representatives of all these classes of the community. with regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community. nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, i take to be perfectly united, from the wealthiest landlord down to the poorest tenant. no tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. but if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? if we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all. it is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. but we have seen that this will never happen under any arrangement that leaves the votes of the people free. where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. but where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? will not the landholder know and feel whatever will promote or insure the interest of landed property? and will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society? if we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? this dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent. there is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. the man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. it might be demonstrated that the most productive system of finance will always be the least burdensome. there can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. and this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. in any other sense the proposition has either no meaning, or an absurd one. and in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found. publius federalist no. the same subject continued (concerning the general power of taxation) from the new york packet. tuesday, january , . hamilton to the people of the state of new york: we have seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. if it should be objected that we have seen other descriptions of men in the local legislatures, i answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. there are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. the door ought to be equally open to all; and i trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of state legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive. the subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, what greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? it is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. but i forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency. there is another objection of a somewhat more precise nature that claims our attention. it has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the union and of the particular states. the supposition of a want of proper knowledge seems to be entirely destitute of foundation. if any question is depending in a state legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? no doubt from the information of the members of the county. cannot the like knowledge be obtained in the national legislature from the representatives of each state? and is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each state; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry? nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature. inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation. the taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the direct and those of the indirect kind. though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. and indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. the knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. the circumstances that may distinguish its situation in one state from its situation in another must be few, simple, and easy to be comprehended. the principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular state; and there could be no difficulty in ascertaining the revenue system of each. this could always be known from the respective codes of laws, as well as from the information of the members from the several states. the objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. land taxes are commonly laid in one of two modes, either by actual valuations, permanent or periodical, or by occasional assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. in either case, the execution of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. all that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. and what is there in all this that cannot as well be performed by the national legislature as by a state legislature? the attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan. but there is a simple point of view in which this matter may be placed that must be altogether satisfactory. the national legislature can make use of the system of each state within that state. the method of laying and collecting this species of taxes in each state can, in all its parts, be adopted and employed by the federal government. let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each state, as described in the second section of the first article. an actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. the abuse of this power of taxation seems to have been provided against with guarded circumspection. in addition to the precaution just mentioned, there is a provision that "all duties, imposts, and excises shall be uniform throughout the united states." it has been very properly observed by different speakers and writers on the side of the constitution, that if the exercise of the power of internal taxation by the union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. by way of answer to this, it has been triumphantly asked, why not in the first instance omit that ambiguous power, and rely upon the latter resource? two solid answers may be given. the first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. the contrary, indeed, appears most probable. the second answer is, that the existence of such a power in the constitution will have a strong influence in giving efficacy to requisitions. when the states know that the union can apply itself without their agency, it will be a powerful motive for exertion on their part. as to the interference of the revenue laws of the union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. the laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. an effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. as neither can control the other, each will have an obvious and sensible interest in this reciprocal forbearance. and where there is an immediate common interest, we may safely count upon its operation. when the particular debts of the states are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. a small land tax will answer the purpose of the states, and will be their most simple and most fit resource. many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. as to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the union, which applies to the duties on imports; the other, where the object has not fallen under any state regulation or provision, which may be applicable to a variety of objects. in other cases, the probability is that the united states will either wholly abstain from the objects preoccupied for local purposes, or will make use of the state officers and state regulations for collecting the additional imposition. this will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the state governments and to the people. at all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan. as to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. if such a spirit should infest the councils of the union, the most certain road to the accomplishment of its aim would be to employ the state officers as much as possible, and to attach them to the union by an accumulation of their emoluments. this would serve to turn the tide of state influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. but all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. they can answer no other end than to cast a mist over the truth. as to the suggestion of double taxation, the answer is plain. the wants of the union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the state government. the quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under state regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression! as to poll taxes, i, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those states( ) which have uniformly been the most tenacious of their rights, i should lament to see them introduced into practice under the national government. but does it follow because there is a power to lay them that they will actually be laid? every state in the union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. are the state governments to be stigmatized as tyrannies, because they possess this power? if they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? as little friendly as i am to the species of imposition, i still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. there are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. and the government, from the possibility of such emergencies, ought ever to have the option of making use of them. the real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. there may exist certain critical and tempestuous conjunctures of the state, in which a poll tax may become an inestimable resource. and as i know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, i acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security. (i have now gone through the examination of such of the powers proposed to be vested in the united states, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. i have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the constitution, or of too manifest propriety to admit of controversy. the mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. this has determined me to refer it to the branch of our inquiries upon which we shall next enter.)(e ) (i have now gone through the examination of those powers proposed to be conferred upon the federal government which relate more peculiarly to its energy, and to its efficiency for answering the great and primary objects of union. there are others which, though omitted here, will, in order to render the view of the subject more complete, be taken notice of under the next head of our inquiries. i flatter myself the progress already made will have sufficed to satisfy the candid and judicious part of the community that some of the objections which have been most strenuously urged against the constitution, and which were most formidable in their first appearance, are not only destitute of substance, but if they had operated in the formation of the plan, would have rendered it incompetent to the great ends of public happiness and national prosperity. i equally flatter myself that a further and more critical investigation of the system will serve to recommend it still more to every sincere and disinterested advocate for good government and will leave no doubt with men of this character of the propriety and expediency of adopting it. happy will it be for ourselves, and more honorable for human nature, if we have wisdom and virtue enough to set so glorious an example to mankind!)(e ) publius . the new england states. e . two versions of this paragraph appear in different editions. federalist no. concerning the difficulties of the convention in devising a proper form of government. from the daily advertiser. friday, january , . madison to the people of the state of new york: in reviewing the defects of the existing confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. but as the ultimate object of these papers is to determine clearly and fully the merits of this constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects. that this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. it is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. to those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. in some, it has been too evident from their own publications, that they have scanned the proposed constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. in placing, however, these different characters on a level, with respect to the weight of their opinions, i wish not to insinuate that there may not be a material difference in the purity of their intentions. it is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. the predetermined adversary, on the other hand, can have been governed by no venial motive whatever. the intentions of the first may be upright, as they may on the contrary be culpable. the views of the last cannot be upright, and must be culpable. but the truth is, that these papers are not addressed to persons falling under either of these characters. they solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others. with equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. the novelty of the undertaking immediately strikes us. it has been shown in the course of these papers, that the existing confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. it has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. the most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them. among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. an irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the state administrations. on comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. the genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. a frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand. how far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. from the cursory view here taken, it must clearly appear to have been an arduous part. not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the state governments. every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. the faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. the boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. the most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. a still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted. when we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. the experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. the precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in great britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. the jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. all new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. the use of words is to express ideas. perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. but no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. and this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. when the almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated. here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. any one of these must produce a certain degree of obscurity. the convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all. to the difficulties already mentioned may be added the interfering pretensions of the larger and smaller states. we cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. we may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. it is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. there are features in the constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations. nor could it have been the large and small states only, which would marshal themselves in opposition to each other on various points. other combinations, resulting from a difference of local position and policy, must have created additional difficulties. as every state may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the united states are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. and although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it. would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a constitution planned in his closet or in his imagination? the real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. it is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. it is impossible for the man of pious reflection not to perceive in it a finger of that almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution. we had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the united netherlands for reforming the baneful and notorious vices of their constitution. the history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. if, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. in revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. the first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. the second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments. federalist no. the same subject continued, and the incoherence of the objections to the new plan exposed. from the independent journal. saturday, january , . madison to the people of the state of new york: it is not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity. minos, we learn, was the primitive founder of the government of crete, as zaleucus was of that of the locrians. theseus first, and after him draco and solon, instituted the government of athens. lycurgus was the lawgiver of sparta. the foundation of the original government of rome was laid by romulus, and the work completed by two of his elective successors, numa and tullius hostilius. on the abolition of royalty the consular administration was substituted by brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by tullius hostilius, and to which his address obtained the assent and ratification of the senate and people. this remark is applicable to confederate governments also. amphictyon, we are told, was the author of that which bore his name. the achaean league received its first birth from achaeus, and its second from aratus. what degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. in some, however, the proceeding was strictly regular. draco appears to have been intrusted by the people of athens with indefinite powers to reform its government and laws. and solon, according to plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. the proceedings under lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens. whence could it have proceeded, that a people, jealous as the greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? whence could it have proceeded, that the athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? these questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. history informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. and lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. if these lessons teach us, on one hand, to admire the improvement made by america on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them. is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? this conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the articles of confederation. it is observable that among the numerous objections and amendments suggested by the several states, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. and if we except the observations which new jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. there is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some states, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of self-preservation. one state, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. every candid reader will make the proper reflections on these important facts. a patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. the physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. they are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. the prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? and if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? such a patient and in such a situation is america at this moment. she has been sensible of her malady. she has obtained a regular and unanimous advice from men of her own deliberate choice. and she is warned by others against following this advice under pain of the most fatal consequences. do the monitors deny the reality of her danger? no. do they deny the necessity of some speedy and powerful remedy? no. are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? let them speak for themselves. this one tells us that the proposed constitution ought to be rejected, because it is not a confederation of the states, but a government over individuals. another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. a third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. a fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the states in their political capacity. a fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. an objector in a large state exclaims loudly against the unreasonable equality of representation in the senate. an objector in a small state is equally loud against the dangerous inequality in the house of representatives. from this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. from another quarter, and sometimes from the same quarter, on another occasion, the cry is that the congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. a patriot in a state that does not import or export, discerns insuperable objections against the power of direct taxation. the patriotic adversary in a state of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. this politician discovers in the constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. with another class of adversaries to the constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. in the eyes of one the junction of the senate with the president in the responsible function of appointing to offices, instead of vesting this executive power in the executive alone, is the vicious part of the organization. to another, the exclusion of the house of representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. with another, the admission of the president into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. no part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. "we concur fully," reply others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. our principal dislike to the organization arises from the extensive powers already lodged in that department." even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. the demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the president himself. as it can give no umbrage to the writers against the plan of the federal constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, i leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the constitution, now before the public, would not stand as fair a chance for immortality, as lycurgus gave to that of sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a better, but until another should be agreed upon by this new assembly of lawgivers. it is a matter both of wonder and regret, that those who raise so many objections against the new constitution should never call to mind the defects of that which is to be exchanged for it. it is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. no man would refuse to give brass for silver or gold, because the latter had some alloy in it. no man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. but waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing confederation? is an indefinite power to raise money dangerous in the hands of the federal government? the present congress can make requisitions to any amount they please, and the states are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. is an indefinite power to raise troops dangerous? the confederation gives to congress that power also; and they have already begun to make use of it. is it improper and unsafe to intermix the different powers of government in the same body of men? congress, a single body of men, are the sole depositary of all the federal powers. is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? the confederation places them both in the hands of congress. is a bill of rights essential to liberty? the confederation has no bill of rights. is it an objection against the new constitution, that it empowers the senate, with the concurrence of the executive, to make treaties which are to be the laws of the land? the existing congress, without any such control, can make treaties which they themselves have declared, and most of the states have recognized, to be the supreme law of the land. is the importation of slaves permitted by the new constitution for twenty years? by the old it is permitted forever. i shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of congress on the state for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. then, say i, in the first place, that the confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing congress; in either of which events, the contrast just stated will hold good. but this is not all. out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the union. it is now no longer a point of speculation and hope, that the western territory is a mine of vast wealth to the united states; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. a very large proportion of this fund has been already surrendered by individual states; and it may with reason be expected that the remaining states will not persist in withholding similar proofs of their equity and generosity. we may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the united states, will soon become a national stock. congress have assumed the administration of this stock. they have begun to render it productive. congress have undertaken to do more: they have proceeded to form new states, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such states shall be admitted into the confederacy. all this has been done; and done without the least color of constitutional authority. yet no blame has been whispered; no alarm has been sounded. a great and independent fund of revenue is passing into the hands of a single body of men, who can raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time. and yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the union against the future powers and resources of a body constructed like the existing congress, than to save it from the dangers threatened by the present impotency of that assembly? i mean not, by any thing here said, to throw censure on the measures which have been pursued by congress. i am sensible they could not have done otherwise. the public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. but is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? a dissolution or usurpation is the dreadful dilemma to which it is continually exposed. publius federalist no. the conformity of the plan to republican principles for the independent journal. wednesday, january , madison to the people of the state of new york: the last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. the first question that offers itself is, whether the general form and aspect of the government be strictly republican. it is evident that no other form would be reconcilable with the genius of the people of america; with the fundamental principles of the revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. if the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. what, then, are the distinctive characters of the republican form? were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different states, no satisfactory one would ever be found. holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. the same title has been bestowed on venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. the government of england, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. these examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions. if we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. it is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the united states, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. according to the constitution of every state in the union, some or other of the officers of government are appointed indirectly only by the people. according to most of them, the chief magistrate himself is so appointed. and according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. according to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. according to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. on comparing the constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. the house of representatives, like that of one branch at least of all the state legislatures, is elected immediately by the great body of the people. the senate, like the present congress, and the senate of maryland, derives its appointment indirectly from the people. the president is indirectly derived from the choice of the people, according to the example in most of the states. even the judges, with all other officers of the union, will, as in the several states, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of state constitutions the house of representatives is periodically elective, as in all the states; and for the period of two years, as in the state of south carolina. the senate is elective, for the period of six years; which is but one year more than the period of the senate of maryland, and but two more than that of the senates of new york and virginia. the president is to continue in office for the period of four years; as in new york and delaware, the chief magistrate is elected for three years, and in south carolina for two years. in the other states the election is annual. in several of the states, however, no constitutional provision is made for the impeachment of the chief magistrate. and in delaware and virginia he is not impeachable till out of office. the president of the united states is impeachable at any time during his continuance in office. the tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. the tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the state constitutions. could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments; and in its express guaranty of the republican form to each of the latter. "but it was not sufficient," say the adversaries of the proposed constitution, "for the convention to adhere to the republican form. they ought, with equal care, to have preserved the federal form, which regards the union as a confederacy of sovereign states; instead of which, they have framed a national government, which regards the union as a consolidation of the states." and it is asked by what authority this bold and radical innovation was undertaken? the handle which has been made of this objection requires that it should be examined with some precision. without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority. first. in order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced. on examining the first relation, it appears, on one hand, that the constitution is to be founded on the assent and ratification of the people of america, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong. it is to be the assent and ratification of the several states, derived from the supreme authority in each state, the authority of the people themselves. the act, therefore, establishing the constitution, will not be a national, but a federal act. that it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the union, nor from that of a majority of the states. it must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the united states would bind the minority, in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the states as evidence of the will of a majority of the people of the united states. neither of these rules have been adopted. each state, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. in this relation, then, the new constitution will, if established, be a federal, and not a national constitution. the next relation is, to the sources from which the ordinary powers of government are to be derived. the house of representatives will derive its powers from the people of america; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. so far the government is national, not federal. the senate, on the other hand, will derive its powers from the states, as political and coequal societies; and these will be represented on the principle of equality in the senate, as they now are in the existing congress. so far the government is federal, not national. the executive power will be derived from a very compound source. the immediate election of the president is to be made by the states in their political characters. the votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. the eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. from this aspect of the government it appears to be of a mixed character, presenting at least as many federal as national features. the difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. on trying the constitution by this criterion, it falls under the national, not the federal character; though perhaps not so completely as has been understood. in several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. so far the national countenance of the government on this side seems to be disfigured by a few federal features. but this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government. but if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. the idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. among a people consolidated into one nation, this supremacy is completely vested in the national legislature. among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. in the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. in the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. in this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects. it is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. but this does not change the principle of the case. the decision is to be impartially made, according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure this impartiality. some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. if we try the constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. were it wholly federal, on the other hand, the concurrence of each state in the union would be essential to every alteration that would be binding on all. the mode provided by the plan of the convention is not founded on either of these principles. in requiring more than a majority, and principles. in requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of states sufficient, it loses again the federal and partakes of the national character. the proposed constitution, therefore, is, in strictness, neither a national nor a federal constitution, but a composition of both. in its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national. publius federalist no. on the powers of the convention to form a mixed government examined and sustained for the new york packet. friday, january , . madison to the people of the state of new york: the second point to be examined is, whether the convention were authorized to frame and propose this mixed constitution. the powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. as all of these, however, had reference, either to the recommendation from the meeting at annapolis, in september, , or to that from congress, in february, , it will be sufficient to recur to these particular acts. the act from annapolis recommends the "appointment of commissioners to take into consideration the situation of the united states; to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the union; and to report such an act for that purpose, to the united states in congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same." the recommendatory act of congress is in the words following: "whereas, there is provision in the articles of confederation and perpetual union, for making alterations therein, by the assent of a congress of the united states, and of the legislatures of the several states; and whereas experience hath evinced, that there are defects in the present confederation; as a mean to remedy which, several of the states, and particularly the state of new york, by express instructions to their delegates in congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government: "resolved, that in the opinion of congress it is expedient, that on the second monday of may next a convention of delegates, who shall have been appointed by the several states, be held at philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in congress, and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the union." from these two acts, it appears, st, that the object of the convention was to establish, in these states, a firm national government; d, that this government was to be such as would be adequate to the exigencies of government and the preservation of the union; d, that these purposes were to be effected by alterations and provisions in the articles of confederation, as it is expressed in the act of congress, or by such further provisions as should appear necessary, as it stands in the recommendatory act from annapolis; th, that the alterations and provisions were to be reported to congress, and to the states, in order to be agreed to by the former and confirmed by the latter. from a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. they were to frame a national government, adequate to the exigencies of government, and of the union; and to reduce the articles of confederation into such form as to accomplish these purposes. there are two rules of construction, dictated by plain reason, as well as founded on legal axioms. the one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. the other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a national and adequate government could not possibly, in the judgment of the convention, be affected by alterations and provisions in the articles of confederation; which part of the definition ought to have been embraced, and which rejected? which was the more important, which the less important part? which the end; which the means? let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. let them declare, whether it was of most importance to the happiness of the people of america, that the articles of confederation should be disregarded, and an adequate government be provided, and the union preserved; or that an adequate government should be omitted, and the articles of confederation preserved. let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. but is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no alterations or provisions in the articles of the confederation could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? no stress, it is presumed, will, in this case, be laid on the title; a change of that could never be deemed an exercise of ungranted power. alterations in the body of the instrument are expressly authorized. new provisions therein are also expressly authorized. here then is a power to change the title; to insert new articles; to alter old ones. must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government. will it be said that the alterations ought not to have touched the substance of the confederation? the states would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been in contemplation. will it be said that the fundamental principles of the confederation were not within the purview of the convention, and ought not to have been varied? i ask, what are these principles? do they require that, in the establishment of the constitution, the states should be regarded as distinct and independent sovereigns? they are so regarded by the constitution proposed. do they require that the members of the government should derive their appointment from the legislatures, not from the people of the states? one branch of the new government is to be appointed by these legislatures; and under the confederation, the delegates to congress may all be appointed immediately by the people, and in two states( ) are actually so appointed. do they require that the powers of the government should act on the states, and not immediately on individuals? in some instances, as has been shown, the powers of the new government will act on the states in their collective characters. in some instances, also, those of the existing government act immediately on individuals. in cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the indians; of claims under grants of land by different states; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the confederation operate immediately on the persons and interests of individual citizens. do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the states? the confederation itself authorizes a direct tax, to a certain extent, on the post office. the power of coinage has been so construed by congress as to levy a tribute immediately from that source also. but pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? had not congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the confederation? had not every state but one; had not new york herself, so far complied with the plan of congress as to recognize the principle of the innovation? do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the states should be left in possession of their sovereignty and independence? we have seen that in the new government, as in the old, the general powers are limited; and that the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. the truth is, that the great principles of the constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of confederation. the misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. in one particular it is admitted that the convention have departed from the tenor of their commission. instead of reporting a plan requiring the confirmation of the legislatures of all the states, they have reported a plan which is to be confirmed by the people, and may be carried into effect by nine states only. it is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. the forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve states to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a majority of one sixtieth of the people of america to a measure approved and called for by the voice of twelve states, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. as this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, i dismiss it without further observation. the third point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. in the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a constitution for the united states. we have seen in what manner they have borne the trial even on that supposition. it is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the states, and so understood by the convention; and that the latter have accordingly planned and proposed a constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. this reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. let us view the ground on which the convention stood. it may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. it could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. they had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the united states. they had seen in the origin and progress of the experiment, the alacrity with which the proposition, made by a single state (virginia), towards a partial amendment of the confederation, had been attended to and promoted. they had seen the liberty assumed by a very few deputies from a very few states, convened at annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen states. they had seen, in a variety of instances, assumptions by congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. they must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"( ) since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens. they must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the states were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that conventions were elected in the several states for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. they must have borne in mind, that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. it might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve states who usurped the power of sending deputies to the convention, a body utterly unknown to their constitutions; for congress, who recommended the appointment of this body, equally unknown to the confederation; and for the state of new york, in particular, which first urged and then complied with this unauthorized interposition? but that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a constitution for their country: does it follow that the constitution ought, for that reason alone, to be rejected? if, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? the prudent inquiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice be good. the sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of america. how far this character is due to the constitution, is the subject under investigation. publius . connecticut and rhode island. . declaration of independence. federalist no. general view of the powers conferred by the constitution for the independent journal. saturday, january , madison to the people of the state of new york: the constitution proposed by the convention may be considered under two general points of view. the first relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the states. the second, to the particular structure of the government, and the distribution of this power among its several branches. under the first view of the subject, two important questions arise: . whether any part of the powers transferred to the general government be unnecessary or improper? . whether the entire mass of them be dangerous to the portion of jurisdiction left in the several states? is the aggregate power of the general government greater than ought to have been vested in it? this is the first question. it cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. they have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. this method of handling the subject cannot impose on the good sense of the people of america. it may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the greater, not the perfect, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. they will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. that we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: . security against foreign danger; . regulation of the intercourse with foreign nations; . maintenance of harmony and proper intercourse among the states; . certain miscellaneous objects of general utility; . restraint of the states from certain injurious acts; . provisions for giving due efficacy to all these powers. the powers falling within the first class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. security against foreign danger is one of the primitive objects of civil society. it is an avowed and essential object of the american union. the powers requisite for attaining it must be effectually confided to the federal councils. is the power of declaring war necessary? no man will answer this question in the negative. it would be superfluous, therefore, to enter into a proof of the affirmative. the existing confederation establishes this power in the most ample form. is the power of raising armies and equipping fleets necessary? this is involved in the foregoing power. it is involved in the power of self-defense. but was it necessary to give an indefinite power of raising troops, as well as providing fleets; and of maintaining both in peace, as well as in war? the answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. the answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. with what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? if a federal constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. how could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? the means of security can only be regulated by the means and the danger of attack. they will, in fact, be ever determined by these rules, and by no others. it is in vain to oppose constitutional barriers to the impulse of self-preservation. it is worse than in vain; because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. if one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions. the fifteenth century was the unhappy epoch of military establishments in the time of peace. they were introduced by charles vii. of france. all europe has followed, or been forced into, the example. had the example not been followed by other nations, all europe must long ago have worn the chains of a universal monarch. were every nation except france now to disband its peace establishments, the same event might follow. the veteran legions of rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. not the less true is it, that the liberties of rome proved the final victim to her military triumphs; and that the liberties of europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. a standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. on the smallest scale it has its inconveniences. on an extensive scale its consequences may be fatal. on any scale it is an object of laudable circumspection and precaution. a wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. the clearest marks of this prudence are stamped on the proposed constitution. the union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. america united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than america disunited, with a hundred thousand veterans ready for combat. it was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in europe. being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of great britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. the distance of the united states from the powerful nations of the world gives them the same happy security. a dangerous establishment can never be necessary or plausible, so long as they continue a united people. but let it never, for a moment, be forgotten that they are indebted for this advantage to the union alone. the moment of its dissolution will be the date of a new order of things. the fears of the weaker, or the ambition of the stronger states, or confederacies, will set the same example in the new, as charles vii. did in the old world. the example will be followed here from the same motives which produced universal imitation there. instead of deriving from our situation the precious advantage which great britain has derived from hers, the face of america will be but a copy of that of the continent of europe. it will present liberty everywhere crushed between standing armies and perpetual taxes. the fortunes of disunited america will be even more disastrous than those of europe. the sources of evil in the latter are confined to her own limits. no superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. in america the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. a plentiful addition of evils would have their source in that relation in which europe stands to this quarter of the earth, and which no other quarter of the earth bears to europe. this picture of the consequences of disunion cannot be too highly colored, or too often exhibited. every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the union of america, and be able to set a due value on the means of preserving it. next to the effectual establishment of the union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. this precaution the constitution has prudently added. i will not repeat here the observations which i flatter myself have placed this subject in a just and satisfactory light. but it may not be improper to take notice of an argument against this part of the constitution, which has been drawn from the policy and practice of great britain. it is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the american constitution has lengthened this critical period to two years. this is the form in which the comparison is usually stated to the public: but is it a just form? is it a fair comparison? does the british constitution restrain the parliamentary discretion to one year? does the american impose on the congress appropriations for two years? on the contrary, it cannot be unknown to the authors of the fallacy themselves, that the british constitution fixes no limit whatever to the discretion of the legislature, and that the american ties down the legislature to two years, as the longest admissible term. had the argument from the british example been truly stated, it would have stood thus: the term for which supplies may be appropriated to the army establishment, though unlimited by the british constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. now, if in great britain, where the house of commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the united states, elected freely by the whole body of the people, every second year, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of two years? a bad cause seldom fails to betray itself. of this truth, the management of the opposition to the federal government is an unvaried exemplification. but among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. the attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a constitution fully adequate to the national defense and the preservation of the union, can save america from as many standing armies as it may be split into states or confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. the palpable necessity of the power to provide and maintain a navy has protected that part of the constitution against a spirit of censure, which has spared few other parts. it must, indeed, be numbered among the greatest blessings of america, that as her union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. in this respect our situation bears another likeness to the insular advantage of great britain. the batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. the inhabitants of the atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. if we except perhaps virginia and maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the union ought to feel more anxiety on this subject than new york. her seacoast is extensive. a very important district of the state is an island. the state itself is penetrated by a large navigable river for more than fifty leagues. the great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. should a war be the result of the precarious situation of european affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. in the present condition of america, the states more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. the power of regulating and calling forth the militia has been already sufficiently vindicated and explained. the power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. this power, also, has been examined already with much attention, and has, i trust, been clearly shown to be necessary, both in the extent and form given to it by the constitution. i will address one additional reflection only to those who contend that the power ought to have been restrained to external--taxation by which they mean, taxes on articles imported from other countries. it cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. but we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. as long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. as soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. in a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. a system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the constitution, on the language in which it is defined. it has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the united states," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. no stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. had no other enumeration or definition of the powers of the congress been found in the constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. a power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." but what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? if the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? for what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. but the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the constitution, we must take the liberty of supposing, had not its origin with the latter. the objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of confederation. the objects of the union among the states, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." the terms of article eighth are still more identical: "all charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the united states in congress, shall be defrayed out of a common treasury," etc. a similar language again occurs in article ninth. construe either of these articles by the rules which would justify the construction put on the new constitution, and they vest in the existing congress a power to legislate in all cases whatsoever. but what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? i appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of congress as they now make use of against the convention. how difficult it is for error to escape its own condemnation! publius federalist no. the powers conferred by the constitution further considered from the new york packet. tuesday, january , . madison to the people of the state of new york: the second class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year , the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. this class of powers forms an obvious and essential branch of the federal administration. if we are to be one nation in any respect, it clearly ought to be in respect to other nations. the powers to make treaties and to send and receive ambassadors, speak their own propriety. both of them are comprised in the articles of confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the states; and that a power of appointing and receiving "other public ministers and consuls," is expressly and very properly added to the former provision concerning ambassadors. the term ambassador, if taken strictly, as seems to be required by the second of the articles of confederation, comprehends the highest grade only of public ministers, and excludes the grades which the united states will be most likely to prefer, where foreign embassies may be necessary. and under no latitude of construction will the term comprehend consuls. yet it has been found expedient, and has been the practice of congress, to employ the inferior grades of public ministers, and to send and receive consuls. it is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of american consuls into foreign countries may perhaps be covered under the authority, given by the ninth article of the confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the united states. but the admission of consuls into the united states, where no previous treaty has stipulated it, seems to have been nowhere provided for. a supply of the omission is one of the lesser instances in which the convention have improved on the model before them. but the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. a list of the cases in which congress have been betrayed, or forced by the defects of the confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of confederation. these articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the confederacy with foreign nations. the provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. the definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. a definition of felonies on the high seas is evidently requisite. felony is a term of loose signification, even in the common law of england; and of various import in the statute law of that kingdom. but neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. the meaning of the term, as defined in the codes of the several states, would be as impracticable as the former would be a dishonorable and illegitimate guide. it is not precisely the same in any two of the states; and varies in each with every revision of its criminal laws. for the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper. the regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. it were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year , or rather that it had been suffered to have immediate operation. but it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. it ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these states, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few states which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the union. happy would it be for the unfortunate africans, if an equal prospect lay before them of being redeemed from the oppressions of their european brethren! attempts have been made to pervert this clause into an objection against the constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from europe to america. i mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. the powers included in the third class are those which provide for the harmony and proper intercourse among the states. under this head might be included the particular restraints imposed on the authority of the states, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. i shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several states and the indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the united states; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each state shall be proved, and the effect they shall have in other states; and to establish post offices and post roads. the defect of power in the existing confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. to the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. a very material object of this power was the relief of the states which import and export through other states, from the improper contributions levied on them by the latter. were these at liberty to regulate the trade between state and state, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. we may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. to those who do not view the question through the medium of passion or of interest, the desire of the commercial states to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. but the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. the necessity of a superintending authority over the reciprocal trade of confederated states, has been illustrated by other examples as well as our own. in switzerland, where the union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. in germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. among the restraints imposed by the union of the netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. the regulation of commerce with the indian tribes is very properly unfettered from two limitations in the articles of confederation, which render the provision obscure and contradictory. the power is there restrained to indians, not members of any of the states, and is not to violate or infringe the legislative right of any state within its own limits. what description of indians are to be deemed members of a state, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. and how the trade with indians, though not members of a state, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. this is not the only case in which the articles of confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. all that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the constitution has supplied a material omission in the articles of confederation. the authority of the existing congress is restrained to the regulation of coin struck by their own authority, or that of the respective states. it must be seen at once that the proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different states. the punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. the regulation of weights and measures is transferred from the articles of confederation, and is founded on like considerations with the preceding power of regulating coin. the dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. in the fourth article of the confederation, it is declared "that the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall, in every other, enjoy all the privileges of trade and commerce," etc. there is a confusion of language here, which is remarkable. why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another; or what was meant by superadding to "all privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be determined. it seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a state, although not citizens of such state, are entitled, in every other state, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own state: so that it may be in the power of a particular state, or rather every state is laid under a necessity, not only to confer the rights of citizenship in other states upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. but were an exposition of the term "inhabitants" to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. the very improper power would still be retained by each state, of naturalizing aliens in every other state. in one state, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. an alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one state be preposterously rendered paramount to the law of another, within the jurisdiction of the other. we owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. by the laws of several states, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. what would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another state, and then asserted their rights as such, both to residence and citizenship, within the state proscribing them? whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. the new constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the united states. the power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different states, that the expediency of it seems not likely to be drawn into question. the power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each state shall be proved, and the effect they shall have in other states, is an evident and valuable improvement on the clause relating to this subject in the articles of confederation. the meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. the power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous states, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. the power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. nothing which tends to facilitate the intercourse between the states can be deemed unworthy of the public care. publius federalist no. the same subject continued (the powers conferred by the constitution further considered) for the independent journal. wednesday, january , madison to the people of the state of new york: the fourth class comprises the following miscellaneous powers: . a power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries." the utility of this power will scarcely be questioned. the copyright of authors has been solemnly adjudged, in great britain, to be a right of common law. the right to useful inventions seems with equal reason to belong to the inventors. the public good fully coincides in both cases with the claims of individuals. the states cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of congress. . "to exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of congress, become the seat of the government of the united states; and to exercise like authority over all places purchased by the consent of the legislatures of the states in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." the indispensable necessity of complete authority at the seat of government, carries its own evidence with it. it is a power exercised by every legislature of the union, i might say of the world, by virtue of its general supremacy. without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the state comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy. this consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single state, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. the extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. and as it is to be appropriated to this use with the consent of the state ceding it; as the state will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the state, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the state in their adoption of the constitution, every imaginable objection seems to be obviated. the necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. the public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular state. nor would it be proper for the places on which the security of the entire union may depend, to be in any degree dependent on a particular member of it. all objections and scruples are here also obviated, by requiring the concurrence of the states concerned, in every such establishment. . "to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained." as treason may be committed against the united states, the authority of the united states ought to be enabled to punish it. but as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. . "to admit new states into the union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress." in the articles of confederation, no provision is found on this important subject. canada was to be admitted of right, on her joining in the measures of the united states; and the other colonies, by which were evidently meant the other british colonies, at the discretion of nine states. the eventual establishment of new states seems to have been overlooked by the compilers of that instrument. we have seen the inconvenience of this omission, and the assumption of power into which congress have been led by it. with great propriety, therefore, has the new system supplied the defect. the general precaution, that no new states shall be formed, without the concurrence of the federal authority, and that of the states concerned, is consonant to the principles which ought to govern such transactions. the particular precaution against the erection of new states, by the partition of a state without its consent, quiets the jealousy of the larger states; as that of the smaller is quieted by a like precaution, against a junction of states without their consent. . "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states," with a proviso, that "nothing in the constitution shall be so construed as to prejudice any claims of the united states, or of any particular state." this is a power of very great importance, and required by considerations similar to those which show the propriety of the former. the proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the western territory sufficiently known to the public. . "to guarantee to every state in the union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." in a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. the more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained. but a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the constitution? governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. "as the confederate republic of germany," says montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of holland and switzerland." "greece was undone," he adds, "as soon as the king of macedon obtained a seat among the amphictyons." in the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. it may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the state governments, without the concurrence of the states themselves. these questions admit of ready answers. if the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the constitution. but who can say what experiments may be produced by the caprice of particular states, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? to the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. but the authority extends no further than to a guaranty of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. as long, therefore, as the existing republican forms are continued by the states, they are guaranteed by the federal constitution. whenever the states may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. the only restriction imposed on them is, that they shall not exchange republican for antirepublican constitutions; a restriction which, it is presumed, will hardly be considered as a grievance. a protection against invasion is due from every society to the parts composing it. the latitude of the expression here used seems to secure each state, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. the history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. protection against domestic violence is added with equal propriety. it has been remarked, that even among the swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. a recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. at first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. but theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. why may not illicit combinations, for purposes of violence, be formed as well by a majority of a state, especially a small state as by a majority of a county, or a district of the same state; and if the authority of the state ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the state authority? besides, there are certain parts of the state constitutions which are so interwoven with the federal constitution, that a violent blow cannot be given to the one without communicating the wound to the other. insurrections in a state will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. it will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. the existence of a right to interpose, will generally prevent the necessity of exerting it. is it true that force and right are necessarily on the same side in republican governments? may not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? may not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! may it not happen, in fine, that the minority of citizens may become a majority of persons, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the state has not admitted to the rights of suffrage? i take no notice of an unhappy species of population abounding in some of the states, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. in cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a state to pieces, than the representatives of confederate states, not heated by the local flame? to the impartiality of judges, they would unite the affection of friends. happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! should it be asked, what is to be the redress for an insurrection pervading all the states, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. among the advantages of a confederate republic enumerated by montesquieu, an important one is, "that should a popular insurrection happen in one of the states, the others are able to quell it. should abuses creep into one part, they are reformed by those that remain sound." . "to consider all debts contracted, and engagements entered into, before the adoption of this constitution, as being no less valid against the united states, under this constitution, than under the confederation." this can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the united states, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. among the lesser criticisms which have been exercised on the constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the united states, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. the authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. they may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would dare, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. . "to provide for amendments to be ratified by three fourths of the states under two exceptions only." that useful alterations will be suggested by experience, could not but be foreseen. it was requisite, therefore, that a mode for introducing them should be provided. the mode preferred by the convention seems to be stamped with every mark of propriety. it guards equally against that extreme facility, which would render the constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. it, moreover, equally enables the general and the state governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. the exception in favor of the equality of suffrage in the senate, was probably meant as a palladium to the residuary sovereignty of the states, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the states particularly attached to that equality. the other exception must have been admitted on the same considerations which produced the privilege defended by it. . "the ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states, ratifying the same." this article speaks for itself. the express authority of the people alone could give due validity to the constitution. to have required the unanimous ratification of the thirteen states, would have subjected the essential interests of the whole to the caprice or corruption of a single member. it would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. two questions of a very delicate nature present themselves on this occasion: . on what principle the confederation, which stands in the solemn form of a compact among the states, can be superseded without the unanimous consent of the parties to it? . what relation is to subsist between the nine or more states ratifying the constitution, and the remaining few who do not become parties to it? the first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's god, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. perhaps, also, an answer may be found without searching beyond the principles of the compact itself. it has been heretofore noted among the defects of the confederation, that in many of the states it had received no higher sanction than a mere legislative ratification. the principle of reciprocality seems to require that its obligation on the other states should be reduced to the same standard. a compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. it is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular states to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? the time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. the scene is now changed, and with it the part which the same motives dictate. the second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. it is one of those cases which must be left to provide for itself. in general, it may be observed, that although no political relation can subsist between the assenting and dissenting states, yet the moral relations will remain uncancelled. the claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other. publius federalist no. restrictions on the authority of the several states from the new york packet. friday, january , . madison to the people of the state of new york: a fifth class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several states: . "no state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility." the prohibition against treaties, alliances, and confederations makes a part of the existing articles of union; and for reasons which need no explanation, is copied into the new constitution. the prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. according to the former, letters of marque could be granted by the states after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the united states. this alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible. the right of coining money, which is here taken from the states, was left in their hands by the confederation, as a concurrent right with that of congress, under an exception in favor of the exclusive right of congress to regulate the alloy and value. in this instance, also, the new provision is an improvement on the old. whilst the alloy and value depended on the general authority, a right of coinage in the particular states could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. the latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority. the extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. the loss which america has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. in addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the states the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. had every state a right to regulate the value of its coin, there might be as many different currencies as states, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other states be injured, and animosities be kindled among the states themselves. the subjects of foreign powers might suffer from the same cause, and hence the union be discredited and embroiled by the indiscretion of a single member. no one of these mischiefs is less incident to a power in the states to emit paper money, than to coin gold or silver. the power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the states, on the same principle with that of issuing a paper currency. bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. the two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and i am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. the sober people of america are weary of the fluctuating policy which has directed the public councils. they have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. they have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. they very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. the prohibition with respect to titles of nobility is copied from the articles of confederation and needs no comment. . "no state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any state on imports or exports, shall be for the use of the treasury of the united states; and all such laws shall be subject to the revision and control of the congress. no state shall, without the consent of congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay." the restraint on the power of the states over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. it is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the states a reasonable discretion in providing for the conveniency of their imports and exports, and to the united states a reasonable check against the abuse of this discretion. the remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. the sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest. . of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof." few parts of the constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. without the substance of this power, the whole constitution would be a dead letter. those who object to the article, therefore, as a part of the constitution, can only mean that the form of the provision is improper. but have they considered whether a better form could have been substituted? there are four other possible methods which the constitution might have taken on this subject. they might have copied the second article of the existing confederation, which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. had the convention taken the first method of adopting the second article of confederation, it is evident that the new congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "expressly" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. it would be easy to show, if it were necessary, that no important power, delegated by the articles of confederation, has been or can be executed by congress, without recurring more or less to the doctrine of construction or implication. as the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the constitution by exercising powers indispensably necessary and proper, but, at the same time, not expressly granted. had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same. had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. if, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, not necessary or proper, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. had the constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. no axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the union. if it be asked what is to be the consequence, in case the congress shall misconstrue this part of the constitution, and exercise powers not warranted by its true meaning, i answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the state legislatures should violate the irrespective constitutional authorities. in the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. the truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the state legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. there being no such intermediate body between the state legislatures and the people interested in watching the conduct of the former, violations of the state constitutions are more likely to remain unnoticed and unredressed. . "this constitution and the laws of the united states which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." the indiscreet zeal of the adversaries to the constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. to be fully sensible of this, we need only suppose for a moment that the supremacy of the state constitutions had been left complete by a saving clause in their favor. in the first place, as these constitutions invest the state legislatures with absolute sovereignty, in all cases not excepted by the existing articles of confederation, all the authorities contained in the proposed constitution, so far as they exceed those enumerated in the confederation, would have been annulled, and the new congress would have been reduced to the same impotent condition with their predecessors. in the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former would, in such states, have brought into question every power contained in the proposed constitution. in the third place, as the constitutions of the states differ much from each other, it might happen that a treaty or national law, of great and equal importance to the states, would interfere with some and not with other constitutions, and would consequently be valid in some of the states, at the same time that it would have no effect in others. in fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. . "the senators and representatives, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and the several states, shall be bound by oath or affirmation to support this constitution." it has been asked why it was thought necessary, that the state magistracy should be bound to support the federal constitution, and unnecessary that a like oath should be imposed on the officers of the united states, in favor of the state constitutions. several reasons might be assigned for the distinction. i content myself with one, which is obvious and conclusive. the members of the federal government will have no agency in carrying the state constitutions into effect. the members and officers of the state governments, on the contrary, will have an essential agency in giving effect to the federal constitution. the election of the president and senate will depend, in all cases, on the legislatures of the several states. and the election of the house of representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the states. . among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, i pass them over in this. we have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the union. the question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the union shall be established; or, in other words, whether the union itself shall be preserved. publius federalist no. the alleged danger from the powers of the union to the state governments. considered for the independent journal. saturday, january , madison to the people of the state of new york: having shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several states. the adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular states. but if the union, as has been shown, be essential to the security of the people of america against foreign danger; if it be essential to their security against contentions and wars among the different states; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the union be essential to the happiness of the people of america, is it not preposterous, to urge as an objection to a government, without which the objects of the union cannot be attained, that such a government may derogate from the importance of the governments of the individual states? was, then, the american revolution effected, was the american confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of america should enjoy peace, liberty, and safety, but that the government of the individual states, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? we have heard of the impious doctrine in the old world, that the people were made for kings, not kings for the people. is the same doctrine to be revived in the new, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? it is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. were the plan of the convention adverse to the public happiness, my voice would be, reject the plan. were the union itself inconsistent with the public happiness, it would be, abolish the union. in like manner, as far as the sovereignty of the states cannot be reconciled to the happiness of the people, the voice of every good citizen must be, let the former be sacrificed to the latter. how far the sacrifice is necessary, has been shown. how far the unsacrificed residue will be endangered, is the question before us. several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the state governments. the more i revolve the subject, the more fully i am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. we have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the states will retain, under the proposed constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. in the achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. the lycian confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. on the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. these cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other. in the feudal system, we have seen a similar propensity exemplified. notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments. had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in europe would at this time consist of as many independent princes as there were formerly feudatory barons. the state governments will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. the state governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. without the intervention of the state legislatures, the president of the united states cannot be elected at all. they must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. the senate will be elected absolutely and exclusively by the state legislatures. even the house of representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the state legislatures. thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the state governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. on the other side, the component parts of the state governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members. the number of individuals employed under the constitution of the united states will be much smaller than the number employed under the particular states. there will consequently be less of personal influence on the side of the former than of the latter. the members of the legislative, executive, and judiciary departments of thirteen and more states, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. compare the members of the three great departments of the thirteen states, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, i may add, of possibility, and in this view alone, we may pronounce the advantage of the states to be decisive. if the federal government is to have collectors of revenue, the state governments will have theirs also. and as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. it is true, that the confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the states; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the states to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the union, will generally be made by the officers, and according to the rules, appointed by the several states. indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the states will be clothed with the correspondent authority of the union. should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of state officers in the opposite scale. within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the state. the powers delegated by the proposed constitution to the federal government, are few and defined. those which are to remain in the state governments are numerous and indefinite. the former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. the powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state. the operations of the federal government will be most extensive and important in times of war and danger; those of the state governments, in times of peace and security. as the former periods will probably bear a small proportion to the latter, the state governments will here enjoy another advantage over the federal government. the more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular states. if the new constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of new powers to the union, than in the invigoration of its original powers. the regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. the powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing congress by the articles of confederation. the proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. the change relating to taxation may be regarded as the most important; and yet the present congress have as complete authority to require of the states indefinite supplies of money for the common defense and general welfare, as the future congress will have to require them of individual citizens; and the latter will be no more bound than the states themselves have been, to pay the quotas respectively taxed on them. had the states complied punctually with the articles of confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the state governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. to maintain that such an event would have ensued, would be to say at once, that the existence of the state governments is incompatible with any system whatever that accomplishes the essential purposes of the union. publius federalist no. the influence of the state and federal governments compared from the new york packet. tuesday, january , . madison to the people of the state of new york: resuming the subject of the last paper, i proceed to inquire whether the federal government or the state governments will have the advantage with regard to the predilection and support of the people. notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the united states. i assume this position here as it respects the first, reserving the proofs for another place. the federal and state governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. the adversaries of the constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. these gentlemen must here be reminded of their error. they must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective states. into the administration of these a greater number of individuals will expect to rise. from the gift of these a greater number of offices and emoluments will flow. by the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. with the affairs of these, the people will be more familiarly and minutely conversant. and with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline. experience speaks the same language in this case. the federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever. it was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large. it was, nevertheless, invariably found, after the transient enthusiasm for the early congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. if, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the state governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. and in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the state governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. the remaining points on which i propose to compare the federal and state governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. it has been already proved that the members of the federal will be more dependent on the members of the state governments, than the latter will be on the former. it has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the state governments, than of the federal government. so far as the disposition of each towards the other may be influenced by these causes, the state governments must clearly have the advantage. but in a distinct and very important point of view, the advantage will lie on the same side. the prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the states; whilst it will rarely happen, that the members of the state governments will carry into the public councils a bias in favor of the general government. a local spirit will infallibly prevail much more in the members of congress, than a national spirit will prevail in the legislatures of the particular states. every one knows that a great proportion of the errors committed by the state legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the state, to the particular and separate views of the counties or districts in which they reside. and if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular state, how can it be imagined that they will make the aggregate prosperity of the union, and the dignity and respectability of its government, the objects of their affections and consultations? for the same reason that the members of the state legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. the states will be to the latter what counties and towns are to the former. measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual states. what is the spirit that has in general characterized the proceedings of congress? a perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective states, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular states. i mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the state legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual states, or the prerogatives of their governments. the motives on the part of the state governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. were it admitted, however, that the federal government may feel an equal disposition with the state governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. if an act of a particular state, though unfriendly to the national government, be generally popular in that state and should not too grossly violate the oaths of the state officers, it is executed immediately and, of course, by means on the spot and depending on the state alone. the opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the state, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. on the other hand, should an unwarrantable measure of the federal government be unpopular in particular states, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. the disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the union; the frowns of the executive magistracy of the state; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any state, difficulties not to be despised; would form, in a large state, very serious impediments; and where the sentiments of several adjoining states happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. but ambitious encroachments of the federal government, on the authority of the state governments, would not excite the opposition of a single state, or of a few states only. they would be signals of general alarm. every government would espouse the common cause. a correspondence would be opened. plans of resistance would be concerted. one spirit would animate and conduct the whole. the same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. but what degree of madness could ever drive the federal government to such an extremity. in the contest with great britain, one part of the empire was employed against the other. the more numerous part invaded the rights of the less numerous part. the attempt was unjust and unwise; but it was not in speculation absolutely chimerical. but what would be the contest in the case we are supposing? who would be the parties? a few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. the only refuge left for those who prophesy the downfall of the state governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. the reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. that the people and the states should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the states should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. extravagant as the supposition is, let it however be made. let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. the highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. this proportion would not yield, in the united states, an army of more than twenty-five or thirty thousand men. to these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. it may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. those who are best acquainted with the last successful resistance of this country against the british arms, will be most inclined to deny the possibility of it. besides the advantage of being armed, which the americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. notwithstanding the military establishments in the several kingdoms of europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. and it is not certain, that with this aid alone they would not be able to shake off their yokes. but were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in europe would be speedily overturned in spite of the legions which surround it. let us not insult the free and gallant citizens of america with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. the argument under the present head may be put into a very concise form, which appears altogether conclusive. either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. on the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. on the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the state governments, who will be supported by the people. on summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual states, as they are indispensably necessary to accomplish the purposes of the union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the state governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. publius federalist no. the particular structure of the new government and the distribution of power among its different parts. for the independent journal. wednesday, january , . madison to the people of the state of new york: having reviewed the general form of the proposed government and the general mass of power allotted to it, i proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. one of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. in the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. the several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. were the federal constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. i persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. in order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. the oracle who is always consulted and cited on this subject is the celebrated montesquieu. if he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. let us endeavor, in the first place, to ascertain his meaning on this point. the british constitution was to montesquieu what homer has been to the didactic writers on epic poetry. as the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the constitution of england as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. that we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. on the slightest view of the british constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. the executive magistrate forms an integral part of the legislative authority. he alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. all the members of the judiciary department are appointed by him, can be removed by him on the address of the two houses of parliament, and form, when he pleases to consult them, one of his constitutional councils. one branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. the judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. from these facts, by which montesquieu was guided, it may clearly be inferred that, in saying "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. his meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. this would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. this, however, is not among the vices of that constitution. the magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. the judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. the entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. the entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. the reasons on which montesquieu grounds his maxim are a further demonstration of his meaning. "when the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner." again: "were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. were it joined to the executive power, the judge might behave with all the violence of an oppressor." some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author. if we look into the constitutions of the several states, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. new hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring "that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit; or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity." her constitution accordingly mixes these departments in several respects. the senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. the president, who is the head of the executive department, is the presiding member also of the senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. the executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. several of the officers of state are also appointed by the legislature. and the members of the judiciary department are appointed by the executive department. the constitution of massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. it declares "that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them." this declaration corresponds precisely with the doctrine of montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. it goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. in the very constitution to which it is prefixed, a partial mixture of powers has been admitted. the executive magistrate has a qualified negative on the legislative body, and the senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. the members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. lastly, a number of the officers of government are annually appointed by the legislative department. as the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the constitution have, in this last point at least, violated the rule established by themselves. i pass over the constitutions of rhode island and connecticut, because they were formed prior to the revolution, and even before the principle under examination had become an object of political attention. the constitution of new york contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. it gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary departments in the exercise of this control. in its council of appointment members of the legislative are associated with the executive authority, in the appointment of officers, both executive and judiciary. and its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. the constitution of new jersey has blended the different powers of government more than any of the preceding. the governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the state; is a member of the supreme court of appeals, and president, with a casting vote, of one of the legislative branches. the same legislative branch acts again as executive council of the governor, and with him constitutes the court of appeals. the members of the judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. according to the constitution of pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates. in conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. the judges of the supreme court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department. the members of the executive council are made ex-officio justices of peace throughout the state. in delaware, the chief executive magistrate is annually elected by the legislative department. the speakers of the two legislative branches are vice-presidents in the executive department. the executive chief, with six others, appointed, three by each of the legislative branches constitutes the supreme court of appeals; he is joined with the legislative department in the appointment of the other judges. throughout the states, it appears that the members of the legislature may at the same time be justices of the peace; in this state, the members of one branch of it are ex-officio justices of the peace; as are also the members of the executive council. the principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. all officers may be removed on address of the legislature. maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. the language of virginia is still more pointed on this subject. her constitution declares, "that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either house of assembly." yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. the executive prerogative of pardon, also, is in one case vested in the legislative department. the constitution of north carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. in south carolina, the constitution makes the executive magistracy eligible by the legislative department. it gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the state. in the constitution of georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. even justices of the peace are to be appointed by the legislature. in citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, i wish not to be regarded as an advocate for the particular organizations of the several state governments. i am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. it is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. what i have wished to evince is, that the charge brought against the proposed constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in america. this interesting subject will be resumed in the ensuing paper. publius federalist no. these departments should not be so far separated as to have no constitutional control over each other. from the new york packet. friday, february , . madison to the people of the state of new york: it was shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. i shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. it is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. it is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. it will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. after discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. what this security ought to be, is the great problem to be solved. will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? this is the security which appears to have been principally relied on by the compilers of most of the american constitutions. but experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. the legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. the founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. a respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. they seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. in a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. in a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. but in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. the legislative department derives a superiority in our governments from other circumstances. its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. it is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. on the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. i have appealed to our own experience for the truth of what i advance on this subject. were it necessary to verify this experience by particular proofs, they might be multiplied without end. i might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. i might collect vouchers in abundance from the records and archives of every state in the union. but as a more concise, and at the same time equally satisfactory, evidence, i will refer to the example of two states, attested by two unexceptionable authorities. the first example is that of virginia, a state which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. the authority in support of it is mr. jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. in order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting notes on the state of virginia, p. . "all the powers of government, legislative, executive, and judiciary, result to the legislative body. the concentrating these in the same hands, is precisely the definition of despotic government. it will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. one hundred and seventy-three despots would surely be as oppressive as one. let those who doubt it, turn their eyes on the republic of venice. as little will it avail us, that they are chosen by ourselves. an elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. for this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. but no barrier was provided between these several powers. the judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. if, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of assembly, which will render them obligatory on the other branches. they have accordingly, in many instances, decided rights which should have been left to judiciary controversy, and the direction of the executive, during the whole time of their session, is becoming habitual and familiar." the other state which i shall take for an example is pennsylvania; and the other authority, the council of censors, which assembled in the years and . a part of the duty of this body, as marked out by the constitution, was "to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution." in the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. a great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. the constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution. executive powers had been usurped. the salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. it appears, also, that the executive department had not been innocent of frequent breaches of the constitution. there are three observations, however, which ought to be made on this head: first, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by congress or the commander-in-chief; second, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; third, the executive department of pennsylvania is distinguished from that of the other states by the number of members composing it. in this respect, it has as much affinity to a legislative assembly as to an executive council. and being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands. the conclusion which i am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. publius federalist no. method of guarding against the encroachments of any one department of government by appealing to the people through a convention. for the independent journal. saturday, february , . madison to the people of the state of new york: the author of the "notes on the state of virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in , by the legislature, for the establishment of a constitution for that commonwealth. the plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. one of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. his proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose." as the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. the several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? there is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. but there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. in the first place, the provision does not reach the case of a combination of two of the departments against the third. if the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. i do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. in the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. if it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. the reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. when the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect. in a nation of philosophers, this consideration ought to be disregarded. a reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. but a nation of philosophers is as little to be expected as the philosophical race of kings wished for by plato. and in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. the danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of america, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. we are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. the future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. but the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. we have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. the appeals to the people, therefore, would usually be made by the executive and judiciary departments. but whether made by one side or the other, would each side enjoy equal advantages on the trial? let us view their different situations. the members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. the latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. the former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. the members of the legislative department, on the other hand, are numerous. they are distributed and dwell among the people at large. their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. the nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. with these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. but the legislative party would not only be able to plead their cause most successfully with the people. they would probably be constituted themselves the judges. the same influence which had gained them an election into the legislature, would gain them a seat in the convention. if this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. the convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. they would consequently be parties to the very question to be decided by them. it might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. the usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. a strong party among themselves might take side with the other branches. the executive power might be in the hands of a peculiar favorite of the people. in such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. but still it could never be expected to turn on the true merits of the question. it would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. it would be connected with persons of distinguished character and extensive influence in the community. it would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. the passions, therefore, not the reason, of the public would sit in judgment. but it is the reason, alone, of the public, that ought to control and regulate the government. the passions ought to be controlled and regulated by the government. we found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. it appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. how far the provisions of a different nature contained in the plan above quoted might be adequate, i do not examine. some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision. publius federalist no. periodical appeals to the people considered from the new york packet. tuesday, february , . madison to the people of the state of new york: it may be contended, perhaps, that instead of occasional appeals to the people, which are liable to the objections urged against them, periodical appeals are the proper and adequate means of preventing and correcting infractions of the constitution. it will be attended to, that in the examination of these expedients, i confine myself to their aptitude for enforcing the constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for altering the constitution itself. in the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge. if the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. if the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. in the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? in the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. and in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. the scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the states. one of the objects of the council of censors which met in pennsylvania in and , was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other." this important and novel experiment in politics merits, in several points of view, very particular attention. in some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. but as applied to the case under consideration, it involves some facts, which i venture to remark, as a complete and satisfactory illustration of the reasoning which i have employed. first. it appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the state. second. it appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. two of the members had been vice-presidents of the state, and several other members of the executive council, within the seven preceding years. one of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period. third. every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. throughout the continuance of the council, it was split into two fixed and violent parties. the fact is acknowledged and lamented by themselves. had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. in all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, passion, not reason, must have presided over their decisions. when men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. when they are governed by a common passion, their opinions, if they are so to be called, will be the same. fourth. it is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places. fifth. i have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. it even appears, if i mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. this censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. this conclusion cannot be invalidated by alleging that the state in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. is it to be presumed, that at any future septennial epoch the same state will be free from parties? is it to be presumed that any other state, at the same or any other given period, will be exempt from them? such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. the important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices. publius federalist no. the structure of the government must furnish the proper checks and balances between the different departments. for the independent journal. wednesday, february , . madison to the people of the state of new york: to what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? the only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. without presuming to undertake a full development of this important idea, i will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. in order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. some difficulties, however, and some additional expense would attend the execution of it. some deviations, therefore, from the principle must be admitted. in the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. it is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. but the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. the provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. ambition must be made to counteract ambition. the interest of the man must be connected with the constitutional rights of the place. it may be a reflection on human nature, that such devices should be necessary to control the abuses of government. but what is government itself, but the greatest of all reflections on human nature? if men were angels, no government would be necessary. if angels were to govern men, neither external nor internal controls on government would be necessary. in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. a dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. this policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. we see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other--that the private interest of every individual may be a sentinel over the public rights. these inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state. but it is not possible to give to each department an equal power of self-defense. in republican government, the legislative authority necessarily predominates. the remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. it may even be necessary to guard against dangerous encroachments by still further precautions. as the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. an absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. but perhaps it would be neither altogether safe nor alone sufficient. on ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. may not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? if the principles on which these observations are founded be just, as i persuade myself they are, and they be applied as a criterion to the several state constitutions, and to the federal constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. there are, moreover, two considerations particularly applicable to the federal system of america, which place that system in a very interesting point of view. first. in a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. in the compound republic of america, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. hence a double security arises to the rights of the people. the different governments will control each other, at the same time that each will be controlled by itself. second. it is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. different interests necessarily exist in different classes of citizens. if a majority be united by a common interest, the rights of the minority will be insecure. there are but two methods of providing against this evil: the one by creating a will in the community independent of the majority--that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. the first method prevails in all governments possessing an hereditary or self-appointed authority. this, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. the second method will be exemplified in the federal republic of the united states. whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. in a free government the security for civil rights must be the same as that for religious rights. it consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. the degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. this view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the union may be formed into more circumscribed confederacies, or states oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. justice is the end of government. it is the end of civil society. it ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. in a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. it can be little doubted that if the state of rhode island was separated from the confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. in the extended republic of the united states, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. it is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. and happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle. publius federalist no. the house of representatives from the new york packet. friday, february , . madison to the people of the state of new york: from the more general inquiries pursued in the four last papers, i pass on to a more particular examination of the several parts of the government. i shall begin with the house of representatives. the first view to be taken of this part of the government relates to the qualifications of the electors and the elected. those of the former are to be the same with those of the electors of the most numerous branch of the state legislatures. the definition of the right of suffrage is very justly regarded as a fundamental article of republican government. it was incumbent on the convention, therefore, to define and establish this right in the constitution. to have left it open for the occasional regulation of the congress, would have been improper for the reason just mentioned. to have submitted it to the legislative discretion of the states, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the state governments that branch of the federal government which ought to be dependent on the people alone. to have reduced the different qualifications in the different states to one uniform rule, would probably have been as dissatisfactory to some of the states as it would have been difficult to the convention. the provision made by the convention appears, therefore, to be the best that lay within their option. it must be satisfactory to every state, because it is conformable to the standard already established, or which may be established, by the state itself. it will be safe to the united states, because, being fixed by the state constitutions, it is not alterable by the state governments, and it cannot be feared that the people of the states will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal constitution. the qualifications of the elected, being less carefully and properly defined by the state constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. a representative of the united states must be of the age of twenty-five years; must have been seven years a citizen of the united states; must, at the time of his election, be an inhabitant of the state he is to represent; and, during the time of his service, must be in no office under the united states. under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. the term for which the representatives are to be elected falls under a second view which may be taken of this branch. in order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. first. as it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. but what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. let us consult experience, the guide that ought always to be followed whenever it can be found. the scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. and even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. the first to which this character ought to be applied, is the house of commons in great britain. the history of this branch of the english constitution, anterior to the date of magna charta, is too obscure to yield instruction. the very existence of it has been made a question among political antiquaries. the earliest records of subsequent date prove that parliaments were to sit only every year; not that they were to be elected every year. and even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. to remedy this grievance, it was provided by a statute in the reign of charles ii, that the intermissions should not be protracted beyond a period of three years. on the accession of william iii, when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that parliaments ought to be held frequently. by another statute, which passed a few years later in the same reign, the term "frequently," which had alluded to the triennial period settled in the time of charles ii, is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. the last change, from three to seven years, is well known to have been introduced pretty early in the present century, under an alarm for the hanoverian succession. from these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. and if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the house of representatives on their constituents. elections in ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. the parliament which commenced with george ii. was continued throughout his whole reign, a period of about thirty-five years. the only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election. the ability also of the irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. of late these shackles, if i mistake not, have been broken; and octennial parliaments have besides been established. what effect may be produced by this partial reform, must be left to further experience. the example of ireland, from this view of it, can throw but little light on the subject. as far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. let us bring our inquiries nearer home. the example of these states, when british colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. the principle of representation, in one branch of the legislature at least, was established in all of them. but the periods of election were different. they varied from one to seven years. have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the revolution, that biennial elections would have been dangerous to the public liberties? the spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement this remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent virginia was the colony which stood first in resisting the parliamentary usurpations of great britain; it was the first also in espousing, by public act, the resolution of independence. in virginia, nevertheless, if i have not been misinformed, elections under the former government were septennial. this particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in septennial elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and i conceive it to be a very substantial proof, that the liberties of the people can be in no danger from biennial elections. the conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. the first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the british parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the irish legislature. it is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. in the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. and in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the house of representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. with less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other. publius federalist no. the same subject continued (the house of representatives) for the independent journal. saturday, february , . madison to the people of the state of new york: i shall here, perhaps, be reminded of a current observation, "that where annual elections end, tyranny begins." if it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. i need not look for a proof beyond the case before us. what is the reason on which this proverbial observation is founded? no man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. the election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? turning our attention to the periods established among ourselves, for the election of the most numerous branches of the state legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. in connecticut and rhode island, the periods are half-yearly. in the other states, south carolina excepted, they are annual. in south carolina they are biennial--as is proposed in the federal government. here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that connecticut or rhode island is better governed, or enjoys a greater share of rational liberty, than south carolina; or that either the one or the other of these states is distinguished in these respects, and by these causes, from the states whose elections are different from both. in searching for the grounds of this doctrine, i can discover but one, and that is wholly inapplicable to our case. the important distinction so well understood in america, between a constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. even in great britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the constitution, it is maintained that the authority of the parliament is transcendent and uncontrollable, as well with regard to the constitution, as the ordinary objects of legislative provision. they have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. they have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. an attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. where no constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the united states, was to be attempted. some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? the most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. but what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount constitution? or who will pretend that the liberties of the people of america will not be more secure under biennial elections, unalterably fixed by such a constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? the second question stated is, whether biennial elections be necessary or useful. the propriety of answering this question in the affirmative will appear from several very obvious considerations. no man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. a part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. the period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. the period of legislative service established in most of the states for the more numerous branch is, as we have seen, one year. the question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for state legislation? the very statement of the question, in this form, suggests the answer that ought to be given to it. in a single state, the requisite knowledge relates to the existing laws which are uniform throughout the state, and with which all the citizens are more or less conversant; and to the general affairs of the state, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. the great theatre of the united states presents a very different scene. the laws are so far from being uniform, that they vary in every state; whilst the public affairs of the union are spread throughout a very extensive region, and are extremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. yet some knowledge of the affairs, and even of the laws, of all the states, ought to be possessed by the members from each of the states. how can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulations of the different states? how can the trade between the different states be duly regulated, without some knowledge of their relative situations in these and other respects? how can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these objects in the different states? how can uniform regulations for the militia be duly provided, without a similar knowledge of many internal circumstances by which the states are distinguished from each other? these are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. the other interior objects will require a proportional degree of information with regard to them. it is true that all these difficulties will, by degrees, be very much diminished. the most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. improvements on the first draughts will every year become both easier and fewer. past transactions of the government will be a ready and accurate source of information to new members. the affairs of the union will become more and more objects of curiosity and conversation among the citizens at large. and the increased intercourse among those of different states will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. but with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state, as to justify the longer period of service assigned to those who are to transact it. a branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. in regulating our own commerce he ought to be not only acquainted with the treaties between the united states and other nations, but also with the commercial policy and laws of other nations. he ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. and although the house of representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. some portion of this knowledge may, no doubt, be acquired in a man's closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature. there are other considerations, of less importance, perhaps, but which are not unworthy of notice. the distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. no argument can be drawn on this subject, from the case of the delegates to the existing congress. they are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. the election of the representatives by the people would not be governed by the same principle. a few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. the greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. this remark is no less applicable to the relation which will subsist between the house of representatives and the senate. it is an inconvenience mingled with the advantages of our frequent elections even in single states, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. if a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant states. each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. all these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people. publius federalist no. the apportionment of members among the states from the new york packet. tuesday, february , . madison to the people of the state of new york: the next view which i shall take of the house of representatives relates to the appointment of its members to the several states which is to be determined by the same rule with that of direct taxes. it is not contended that the number of people in each state ought not to be the standard for regulating the proportion of those who are to represent the people of each state. the establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. in the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection. in the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. but notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the states, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of america, not to have found a ready preference with the convention. all this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? slaves are considered as property, not as persons. they ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. this is the objection, as i understand it, stated in its full force. i shall be equally candid in stating the reasoning which may be offered on the opposite side. "we subscribe to the doctrine," might one of our southern brethren observe, "that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. but we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. the true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. in being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another--the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. in being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others--the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. the federal constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. this is in fact their true character. it is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. "this question may be placed in another light. it is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? could it be reasonably expected, that the southern states would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred? might not some surprise also be expressed, that those who reproach the southern states with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the states are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? "it may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the states possessing them. they neither vote themselves nor increase the votes of their masters. upon what principle, then, ought they to be taken into the federal estimate of representation? in rejecting them altogether, the constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. "this objection is repelled by a single observation. it is a fundamental principle of the proposed constitution, that as the aggregate number of representatives allotted to the several states is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each state is to be exercised by such part of the inhabitants as the state itself may designate. the qualifications on which the right of suffrage depend are not, perhaps, the same in any two states. in some of the states the difference is very material. in every state, a certain proportion of inhabitants are deprived of this right by the constitution of the state, who will be included in the census by which the federal constitution apportions the representatives. in this point of view the southern states might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular states towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other states, are not admitted to all the rights of citizens. a rigorous adherence, however, to this principle, is waived by those who would be gainers by it. all that they ask is that equal moderation be shown on the other side. let the case of the slaves be considered, as it is in truth, a peculiar one. let the compromising expedient of the constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifths of the man. "after all, may not another ground be taken on which this article of the constitution will admit of a still more ready defense? we have hitherto proceeded on the idea that representation related to persons only, and not at all to property. but is it a just idea? government is instituted no less for protection of the property, than of the persons, of individuals. the one as well as the other, therefore, may be considered as represented by those who are charged with the government. upon this principle it is, that in several of the states, and particularly in the state of new york, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. in the federal constitution, this policy does not prevail. the rights of property are committed into the same hands with the personal rights. some attention ought, therefore, to be paid to property in the choice of those hands. "for another reason, the votes allowed in the federal legislature to the people of each state, ought to bear some proportion to the comparative wealth of the states. states have not, like individuals, an influence over each other, arising from superior advantages of fortune. if the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. a state possesses no such influence over other states. it is not probable that the richest state in the confederacy will ever influence the choice of a single representative in any other state. nor will the representatives of the larger and richer states possess any other advantage in the federal legislature, over the representatives of other states, than what may result from their superior number alone. as far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. the new constitution is, in this respect, materially different from the existing confederation, as well as from that of the united netherlands, and other similar confederacies. in each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. under the proposed constitution, the federal acts will take effect without the necessary intervention of the individual states. they will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller state, or a state more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a state legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes." such is the reasoning which an advocate for the southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, i must confess that it fully reconciles me to the scale of representation which the convention have established. in one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. as the accuracy of the census to be obtained by the congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the states, it is of great importance that the states should feel as little bias as possible, to swell or to reduce the amount of their numbers. were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. were the rule to decide their share of taxation alone, a contrary temptation would prevail. by extending the rule to both objects, the states will have opposite interests, which will control and balance each other, and produce the requisite impartiality. publius federalist no. the total number of the house of representatives for the independent journal. wednesday, february , . madison to the people of the state of new york: the number of which the house of representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. scarce any article, indeed, in the whole constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. the charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. in general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several states is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. passing over the difference between the smallest and largest states, as delaware, whose most numerous branch consists of twenty-one representatives, and massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among states nearly equal in population. the number of representatives in pennsylvania is not more than one fifth of that in the state last mentioned. new york, whose population is to that of south carolina as six to five, has little more than one third of the number of representatives. as great a disparity prevails between the states of georgia and delaware or rhode island. in pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. in rhode island, they bear a proportion of at least one for every thousand. and according to the constitution of georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other states. another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. were the representatives in virginia to be regulated by the standard in rhode island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. on the other hand, the ratio of pennsylvania, if applied to the state of delaware, would reduce the representative assembly of the latter to seven or eight members. nothing can be more fallacious than to found our political calculations on arithmetical principles. sixty or seventy men may be more properly trusted with a given degree of power than six or seven. but it does not follow that six or seven hundred would be proportionably a better depositary. and if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. the truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. in all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. had every athenian citizen been a socrates, every athenian assembly would still have been a mob. it is necessary also to recollect here the observations which were applied to the case of biennial elections. for the same reason that the limited powers of the congress, and the control of the state legislatures, justify less frequent elections than the public safely might otherwise require, the members of the congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. with these general ideas in our mind, let us weigh the objections which have been stated against the number of members proposed for the house of representatives. it is said, in the first place, that so small a number cannot be safely trusted with so much power. the number of which this branch of the legislature is to consist, at the outset of the government, will be sixty-five. within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. it will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the united states will by that time, if it does not already, amount to three millions. at the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred, and of fifty years, to four hundred. this is a number which, i presume, will put an end to all fears arising from the smallness of the body. i take for granted here what i shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the constitution. on a contrary supposition, i should admit the objection to have very great weight indeed. the true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the united states? i must own that i could not give a negative answer to this question, without first obliterating every impression which i have received with regard to the present genius of the people of america, the spirit which actuates the state legislatures, and the principles which are incorporated with the political character of every class of citizens i am unable to conceive that the people of america, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. i am unable to conceive that the state legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. i am equally unable to conceive that there are at this time, or can be in any short time, in the united states, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them. what change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. but judging from the circumstances now before us, and from the probable state of them within a moderate period of time, i must pronounce that the liberties of america cannot be unsafe in the number of hands proposed by the federal constitution. from what quarter can the danger proceed? are we afraid of foreign gold? if foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? the congress which conducted us through the revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellowcitizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term. they held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny. is the danger apprehended from the other branches of the federal government? but where are the means to be found by the president, or the senate, or both? their emoluments of office, it is to be presumed, will not, and without a previous corruption of the house of representatives cannot, more than suffice for very different purposes; their private fortunes, as they must all be american citizens, cannot possibly be sources of danger. the only means, then, which they can possess, will be in the dispensation of appointments. is it here that suspicion rests her charge? sometimes we are told that this fund of corruption is to be exhausted by the president in subduing the virtue of the senate. now, the fidelity of the other house is to be the victim. the improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. but, fortunately, the constitution has provided a still further safeguard. the members of the congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. no offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. the sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. as there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. republican government presupposes the existence of these qualities in a higher degree than any other form. were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. publius federalist no. the same subject continued (the total number of the house of representatives) for the independent journal. saturday, february , . madison to the people of the state of new york: the second charge against the house of representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. as this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the united states, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. it is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. but this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. an ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. in determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority. what are to be the objects of federal legislation? those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia. a proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual state, a very few representatives would be very sufficient vehicles of it to the federal councils. taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. so far the preceding remark is applicable to this object. as far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the state may be necessary. but will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the state? divide the largest state into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. besides this source of information, the laws of the state, framed by representatives from every part of it, will be almost of themselves a sufficient guide. in every state there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. a skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the states, the more simple objects will be preferred. to be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the state codes, we need only suppose for a moment that this or any other state were divided into a number of parts, each having and exercising within itself a power of local legislation. is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it? the federal councils will derive great advantage from another circumstance. the representatives of each state will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the state legislature, where all the local information and interests of the state are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the united states. (the observations made on the subject of taxation apply with greater force to the case of the militia. for however different the rules of discipline may be in different states, they are the same throughout each particular state; and depend on circumstances which can differ but little in different parts of the same state.)(e ) (with regard to the regulation of the militia, there are scarcely any circumstances in reference to which local knowledge can be said to be necessary. the general face of the country, whether mountainous or level, most fit for the operations of infantry or cavalry, is almost the only consideration of this nature that can occur. the art of war teaches general principles of organization, movement, and discipline, which apply universally.)(e ) the attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. this information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single state, but of those among different states. taking each state by itself, its laws are the same, and its interests but little diversified. a few men, therefore, will possess all the knowledge requisite for a proper representation of them. were the interests and affairs of each individual state perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole state might be competently represented by a single member taken from any part of it. on a comparison of the different states together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. whilst a few representatives, therefore, from each state, may bring with them a due knowledge of their own state, every representative will have much information to acquire concerning all the other states. the changes of time, as was formerly remarked, on the comparative situation of the different states, will have an assimilating effect. the effect of time on the internal affairs of the states, taken singly, will be just the contrary. at present some of the states are little more than a society of husbandmen. few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. these, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each state, a fuller representation. the foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. the experience of great britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. the number of inhabitants in the two kingdoms of england and scotland cannot be stated at less than eight millions. the representatives of these eight millions in the house of commons amount to five hundred and fifty-eight. of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons.( ) it cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. on the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. they might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. we will, however, consider them in this light alone, and will not extend the deduction to a considerable number of others, who do not reside among their constitutents, are very faintly connected with them, and have very little particular knowledge of their affairs. with all these concessions, two hundred and seventy-nine persons only will be the depository of the safety, interest, and happiness of eight millions that is to say, there will be one representative only to maintain the rights and explain the situation of twenty-eight thousand six hundred and seventy constitutents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the british code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. allowing to this case the weight which is due to it, and comparing it with that of the house of representatives as above explained it seems to give the fullest assurance, that a representative for every thirty thousand inhabitants will render the latter both a safe and competent guardian of the interests which will be confided to it. publius . burgh's "political disquisitions." e . two versions of this paragraph appear in different editions. federalist no. the alleged tendency of the new plan to elevate the few at the expense of the many considered in connection with representation. from the new york packet. tuesday, february , . madison to the people of the state of new york: the third charge against the house of representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. of all the objections which have been framed against the federal constitution, this is perhaps the most extraordinary. whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government. the aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. the elective mode of obtaining rulers is the characteristic policy of republican government. the means relied on in this form of government for preventing their degeneracy are numerous and various. the most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people. let me now ask what circumstance there is in the constitution of the house of representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens? who are to be the electors of the federal representatives? not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. the electors are to be the great body of the people of the united states. they are to be the same who exercise the right in every state of electing the corresponding branch of the legislature of the state. who are to be the objects of popular choice? every citizen whose merit may recommend him to the esteem and confidence of his country. no qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people. if we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents. in the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements. in the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. there is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns. ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. but the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment. in the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. his pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people. all these securities, however, would be found very insufficient without the restraint of frequent elections. hence, in the fourth place, the house of representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. i will add, as a fifth circumstance in the situation of the house of representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. this has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. it creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. if it be asked, what is to restrain the house of representatives from making legal discriminations in favor of themselves and a particular class of the society? i answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of america--a spirit which nourishes freedom, and in return is nourished by it. if this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. such will be the relation between the house of representatives and their constituents. duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. it is possible that these may all be insufficient to control the caprice and wickedness of man. but are they not all that government will admit, and that human prudence can devise? are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? are they not the identical means on which every state government in the union relies for the attainment of these important ends? what then are we to understand by the objection which this paper has combated? what are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them? were the objection to be read by one who had not seen the mode prescribed by the constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the state constitutions was in some respect or other, very grossly departed from. we have seen how far such a supposition would err, as to the two first points. nor would it, in fact, be less erroneous as to the last. the only difference discoverable between the two cases is, that each representative of the united states will be elected by five or six thousand citizens; whilst in the individual states, the election of a representative is left to about as many hundreds. will it be pretended that this difference is sufficient to justify an attachment to the state governments, and an abhorrence to the federal government? if this be the point on which the objection turns, it deserves to be examined. is it supported by reason? this cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich. is the consequence from this doctrine admissible? if we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens? is the doctrine warranted by facts? it was shown in the last paper, that the real representation in the british house of commons very little exceeds the proportion of one for every thirty thousand inhabitants. besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. to this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the british code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many. but we need not resort to foreign experience on this subject. our own is explicit and decisive. the districts in new hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the congress. those of massachusetts are larger than will be necessary for that purpose; and those of new york still more so. in the last state the members of assembly for the cities and counties of new york and albany are elected by very nearly as many voters as will be entitled to a representative in the congress, calculating on the number of sixty-five representatives only. it makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. if the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. pennsylvania is an additional example. some of her counties, which elect her state representatives, are almost as large as her districts will be by which her federal representatives will be elected. the city of philadelphia is supposed to contain between fifty and sixty thousand souls. it will therefore form nearly two districts for the choice of federal representatives. it forms, however, but one county, in which every elector votes for each of its representatives in the state legislature. and what may appear to be still more directly to our purpose, the whole city actually elects a single member for the executive council. this is the case in all the other counties of the state. are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? has it appeared on trial that the senators of new hampshire, massachusetts, and new york, or the executive council of pennsylvania, or the members of the assembly in the two last states, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other states by very small divisions of the people? but there are cases of a stronger complexion than any which i have yet quoted. one branch of the legislature of connecticut is so constituted that each member of it is elected by the whole state. so is the governor of that state, of massachusetts, and of this state, and the president of new hampshire. i leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty. publius federalist no. objection that the number of members will not be augmented as the progress of population demands. considered for the independent journal wednesday, february , . madison to the people of the state of new york: the remaining charge against the house of representatives, which i am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. it has been admitted, that this objection, if well supported, would have great weight. the following observations will show that, like most other objections against the constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. . those who urge the objection seem not to have recollected that the federal constitution will not suffer by a comparison with the state constitutions, in the security provided for a gradual augmentation of the number of representatives. the number which is to prevail in the first instance is declared to be temporary. its duration is limited to the short term of three years. within every successive term of ten years a census of inhabitants is to be repeated. the unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each state shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. if we review the constitutions of the several states, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal constitution, and that the most effectual security in any of them is resolvable into a mere directory provision. . as far as experience has taken place on this subject, a gradual increase of representatives under the state constitutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. . there is a peculiarity in the federal constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. the peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the states: in the former, consequently, the larger states will have most weight; in the latter, the advantage will be in favor of the smaller states. from this circumstance it may with certainty be inferred that the larger states will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. and it so happens that four only of the largest will have a majority of the whole votes in the house of representatives. should the representatives or people, therefore, of the smaller states oppose at any time a reasonable addition of members, a coalition of a very few states will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the constitution. it may be alleged, perhaps, that the senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. this is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. the following reflections will, if i mistake not, be admitted to be conclusive and satisfactory on this point. notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the house, composed of the greater number of members, when supported by the more powerful states, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses. this advantage must be increased by the consciousness, felt by the same side of being supported in its demands by right, by reason, and by the constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations. it is farther to be considered, that in the gradation between the smallest and largest states, there are several, which, though most likely in general to arrange themselves among the former are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. hence it is by no means certain that a majority of votes, even in the senate, would be unfriendly to proper augmentations in the number of representatives. it will not be looking too far to add, that the senators from all the new states may be gained over to the just views of the house of representatives, by an expedient too obvious to be overlooked. as these states will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. the large states, therefore, who will prevail in the house of representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing states will be bound to contend for the latter, by the interest which their states will feel in the former. these considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller states, or their predominant influence in the councils of the senate, a constitutional and infallible resource still remains with the larger states, by which they will be able at all times to accomplish their just purposes. the house of representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. they, in a word, hold the purse--that powerful instrument by which we behold, in the history of the british constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. this power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. but will not the house of representatives be as much interested as the senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the senate? or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? these questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. to those causes we are to ascribe the continual triumph of the british house of commons over the other branches of the government, whenever the engine of a money bill has been employed. an absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. the utmost degree of firmness that can be displayed by the federal senate or president, will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles. in this review of the constitution of the house of representatives, i have passed over the circumstances of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which would probably have been as rich a theme of declamation against the constitution as has been shown by the smallness of the number proposed. i omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service a large number of such characters as the people will probably elect. one observation, however, i must be permitted to add on this subject as claiming, in my judgment, a very serious attention. it is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. in the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. in the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. in the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. on the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. the people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. experience will forever admonish them that, on the contrary, after securing a sufficient number for the purposes of safety, of local information, and of diffusive sympathy with the whole society, they will counteract their own views by every addition to their representatives. the countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. the machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. as connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. it has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. that some advantages might have resulted from such a precaution, cannot be denied. it might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. but these considerations are outweighed by the inconveniences in the opposite scale. in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. it would be no longer the majority that would rule: the power would be transferred to the minority. were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in states where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us. publius federalist no. concerning the power of congress to regulate the election of members from the new york packet. friday, february , . hamilton to the people of the state of new york: the natural order of the subject leads us to consider, in this place, that provision of the constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. it is in these words: "the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators."( ) this provision has not only been declaimed against by those who condemn the constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system. i am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. its propriety rests upon the evidence of this plain proposition, that every government ought to contain in itself the means of its own preservation. every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. it will not be alleged, that an election law could have been framed and inserted in the constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. it will, i presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the state legislatures, or primarily in the latter and ultimately in the former. the last mode has, with reason, been preferred by the convention. they have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the state legislatures, would leave the existence of the union entirely at their mercy. they could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. it is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. the constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. nor has any satisfactory reason been yet assigned for incurring that risk. the extravagant surmises of a distempered jealousy can never be dignified with that character. if we are in a humor to presume abuses of power, it is as fair to presume them on the part of the state governments as on the part of the general government. and as it is more consonant to the rules of a just theory, to trust the union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed. suppose an article had been introduced into the constitution, empowering the united states to regulate the elections for the particular states, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the state governments? the violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the state governments. an impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation. as an objection to this position, it may be remarked that the constitution of the national senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the state legislatures to regulate the federal elections. it may be alleged, that by declining the appointment of senators, they might at any time give a fatal blow to the union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. the interest of each state, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. this argument, though specious, will not, upon examination, be found solid. it is certainly true that the state legislatures, by forbearing the appointment of senators, may destroy the national government. but it will not follow that, because they have a power to do this in one instance, they ought to have it in every other. there are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the senate, to recommend their admission into the system. so far as that construction may expose the union to the possibility of injury from the state legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the states, in their political capacities, wholly from a place in the organization of the national government. if this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the state governments of that absolute safeguard which they will enjoy under this provision. but however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites. it may be easily discerned also that the national government would run a much greater risk from a power in the state legislatures over the elections of its house of representatives, than from their power of appointing the members of its senate. the senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no state is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. the joint result of these circumstances would be, that a temporary combination of a few states to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the states that we can have any thing to fear. the first might proceed from sinister designs in the leading members of a few of the state legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness in which event no good citizen could desire its continuance. but with regard to the federal house of representatives, there is intended to be a general election of members once in two years. if the state legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the union, if the leaders of a few of the most important states should have entered into a previous conspiracy to prevent an election. i shall not deny, that there is a degree of weight in the observation, that the interests of each state, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the state legislatures. but the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. the people of america may be warmly attached to the government of the union, at times when the particular rulers of particular states, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those states, may be in a very opposite temper. this diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the states at the present moment, on the present question. the scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the state administrations as are capable of preferring their own emolument and advancement to the public weal. with so effectual a weapon in their hands as the exclusive power of regulating elections for the national government, a combination of a few such men, in a few of the most considerable states, where the temptation will always be the strongest, might accomplish the destruction of the union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal house of representatives. it ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. its preservation, therefore ought in no case that can be avoided, to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust. publius . st clause, th section, of the st article. federalist no. the same subject continued (concerning the power of congress to regulate the election of members) from the independent journal. saturday, february , . hamilton to the people of the state of new york: we have seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the state legislatures. let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the union itself. it is not pretended, that this right would ever be used for the exclusion of any state from its share in the representation. the interest of all would, in this respect at least, be the security of all. but it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others, by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. of all chimerical suppositions, this seems to be the most chimerical. on the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive. the improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the state governments. it is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible. in addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. the dissimilarity in the ingredients which will compose the national government, and still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections. there is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. and though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. but the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. the house of representatives being to be elected immediately by the people, the senate by the state legislatures, the president by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors. as to the senate, it is impossible that any regulation of "time and manner," which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. the collective sense of the state legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. for what inducement could the senate have to concur in a preference in which itself would not be included? or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? the composition of the one would in this case counteract that of the other. and we can never suppose that it would embrace the appointments to the senate, unless we can at the same time suppose the voluntary co-operation of the state legislatures. if we make the latter supposition, it then becomes immaterial where the power in question is placed--whether in their hands or in those of the union. but what is to be the object of this capricious partiality in the national councils? is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? or, to speak in the fashionable language of the adversaries to the constitution, will it court the elevation of "the wealthy and the well-born," to the exclusion and debasement of all the rest of the society? if this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, i presume it will readily be admitted, that the competition for it will lie between landed men and merchants. and i scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils. the inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter. the several states are in various degrees addicted to agriculture and commerce. in most, if not all of them, agriculture is predominant. in a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. in proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single state, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single state. in a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. as long as this interest prevails in most of the state legislatures, so long it must maintain a correspondent superiority in the national senate, which will generally be a faithful copy of the majorities of those assemblies. it cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. in applying thus particularly to the senate a general observation suggested by the situation of the country, i am governed by the consideration, that the credulous votaries of state power cannot, upon their own principles, suspect, that the state legislatures would be warped from their duty by any external influence. but in reality the same situation must have the same effect, in the primitive composition at least of the federal house of representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other. in order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? as there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. it will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the union than in those of any of its members. secondly, that there would be no temptation to violate the constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. and thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. the importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity. i the rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as i understand the meaning of the objectors, they contemplate a discrimination of another kind. they appear to have in view, as the objects of the preference with which they endeavor to alarm us, those whom they designate by the description of "the wealthy and the well-born." these, it seems, are to be exalted to an odious pre-eminence over the rest of their fellow-citizens. at one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body. but upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? are "the wealthy and the well-born," as they are called, confined to particular spots in the several states? have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? are they only to be met with in the towns or cities? or are they, on the contrary, scattered over the face of the country as avarice or chance may have happened to cast their own lot or that of their predecessors? if the latter is the case, (as every intelligent man knows it to be,( )) is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account? the truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. but this forms no part of the power to be conferred upon the national government. its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. the qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the constitution, and are unalterable by the legislature. let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers, still i imagine it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the people. the improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. what will be the conclusion? with a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors? would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective states to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people? publius . particularly in the southern states and in this state. federalist no. the same subject continued (concerning the power of congress to regulate the election of members) from the new york packet. tuesday, february , . hamilton to the people of the state of new york: the more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. this, say they, was a necessary precaution against an abuse of the power. a declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. but it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. the different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice. if those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several state constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. a review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. but as that view would lead into long and tedious details, i shall content myself with the single example of the state in which i write. the constitution of new york makes no other provision for locality of elections, than that the members of the assembly shall be elected in the counties; those of the senate, in the great districts into which the state is or may be divided: these at present are four in number, and comprehend each from two to six counties. it may readily be perceived that it would not be more difficult to the legislature of new york to defeat the suffrages of the citizens of new york, by confining elections to particular places, than for the legislature of the united states to defeat the suffrages of the citizens of the union, by the like expedient. suppose, for instance, the city of albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the senate and assembly for that county and district? can we imagine that the electors who reside in the remote subdivisions of the counties of albany, saratoga, cambridge, etc., or in any part of the county of montgomery, would take the trouble to come to the city of albany, to give their votes for members of the assembly or senate, sooner than they would repair to the city of new york, to participate in the choice of the members of the federal house of representatives? the alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. and, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an inconvenient distance from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this state; and for this reason it will be impossible to acquit the one, and to condemn the other. a similar comparison would lead to the same conclusion in respect to the constitutions of most of the other states. if it should be said that defects in the state constitutions furnish no apology for those which are to be found in the plan proposed, i answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. to those who are disposed to consider, as innocent omissions in the state constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single state should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the united states? if they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. and in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single state should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen states, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests. hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. but there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: i allude to the circumstance of uniformity in the time of elections for the federal house of representatives. it is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. if each state may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. the times of election in the several states, as they are now established for local purposes, vary between extremes as wide as march and november. the consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. if an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. the mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. there is a contagion in example which few men have sufficient force of mind to resist. i am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations. uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the senate, and for conveniently assembling the legislature at a stated period in each year. it may be asked, why, then, could not a time have been fixed in the constitution? as the most zealous adversaries of the plan of the convention in this state are, in general, not less zealous admirers of the constitution of the state, the question may be retorted, and it may be asked, why was not a time for the like purpose fixed in the constitution of this state? no better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. the same answer may be given to the question put on the other side. and it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several states of the convenience of having the elections for their own governments and for the national government at the same epochs. publius federalist no. the senate for the independent journal. wednesday, february , madison to the people of the state of new york: having examined the constitution of the house of representatives, and answered such of the objections against it as seemed to merit notice, i enter next on the examination of the senate. the heads into which this member of the government may be considered are: i. the qualification of senators; ii. the appointment of them by the state legislatures; iii. the equality of representation in the senate; iv. the number of senators, and the term for which they are to be elected; v. the powers vested in the senate. i. the qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. a senator must be thirty years of age at least; as a representative must be twenty-five. and the former must have been a citizen nine years; as seven years are required for the latter. the propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. the term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils. ii. it is equally unnecessary to dilate on the appointment of senators by the state legislatures. among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. it is recommended by the double advantage of favoring a select appointment, and of giving to the state governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. iii. the equality of representation in the senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small states, does not call for much discussion. if indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a proportional share in the government, and that among independent and sovereign states, bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. but it is superfluous to try, by the standard of theory, a part of the constitution which is allowed on all hands to be the result, not of theory, but "of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable." a common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of america. a government founded on principles more consonant to the wishes of the larger states, is not likely to be obtained from the smaller states. the only option, then, for the former, lies between the proposed government and a government still more objectionable. under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. in this spirit it may be remarked, that the equal vote allowed to each state is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty. so far the equality ought to be no less acceptable to the large than to the small states; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the states into one simple republic. another advantage accruing from this ingredient in the constitution of the senate is, the additional impediment it must prove against improper acts of legislation. no law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the states. it must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller states, would be more rational, if any interests common to them, and distinct from those of the other states, would otherwise be exposed to peculiar danger. but as the larger states will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser states, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the constitution may be more convenient in practice than it appears to many in contemplation. iv. the number of senators, and the duration of their appointment, come next to be considered. in order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution. first. it is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. in this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. it doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. this is a precaution founded on such clear principles, and now so well understood in the united states, that it would be more than superfluous to enlarge on it. i will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government. second. the necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. examples on this subject might be cited without number; and from proceedings within the united states, as well as from the history of other nations. but a position that will not be contradicted, need not be proved. all that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. it ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration. third. another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. it is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. it may be affirmed, on the best grounds, that no small share of the present embarrassments of america is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. what indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate? a good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. some governments are deficient in both these qualities; most governments are deficient in the first. i scruple not to assert, that in american governments too little attention has been paid to the last. the federal constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first. fourth. the mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. every new election in the states is found to change one half of the representatives. from this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. but a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. the remark is verified in private life, and becomes more just, as well as more important, in national transactions. to trace the mischievous effects of a mutable government would fill a volume. i will hint a few only, each of which will be perceived to be a source of innumerable others. in the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. an individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. his more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. one nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. but the best instruction on this subject is unhappily conveyed to america by the example of her own situation. she finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs. the internal effects of a mutable policy are still more calamitous. it poisons the blessing of liberty itself. it will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. this is a state of things in which it may be said with some truth that laws are made for the few, not for the many. in another point of view, great injury results from an unstable government. the want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. what prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? what farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? in a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy. but the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. no government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability. publius federalist no. the senate continued for the independent journal. saturday, march , madison to the people of the state of new york: a fifth desideratum, illustrating the utility of a senate, is the want of a due sense of national character. without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence. an attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. what has not america lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind? yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. it can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. the half-yearly representatives of rhode island would probably have been little affected in their deliberations on the iniquitous measures of that state, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister states; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring. i add, as a sixth defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. this remark will, perhaps, appear not only new, but paradoxical. it must nevertheless be acknowledged, when explained, to be as undeniable as it is important. responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. the objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. the importance of the latter description to the collective and permanent welfare of every country, needs no explanation. and yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. it is sufficiently difficult to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents. the proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects. thus far i have considered the circumstances which point out the necessity of a well-constructed senate only as they relate to the representatives of the people. to a people as little blinded by prejudice or corrupted by flattery as those whom i address, i shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. as the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. in these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? what bitter anguish would not the people of athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next. it may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. i am far from denying that this is a distinction of peculiar importance. i have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. at the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. it may even be remarked, that the same extended situation, which will exempt the people of america from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. it adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. sparta, rome, and carthage are, in fact, the only states to whom that character can be applied. in each of the two first there was a senate for life. the constitution of the senate in the last is less known. circumstantial evidence makes it probable that it was not different in this particular from the two others. it is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. these examples, though as unfit for the imitation, as they are repugnant to the genius, of america, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. i am not unaware of the circumstances which distinguish the american from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from the one case to the other. but after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. there are others peculiar to the former, which require the control of such an institution. the people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act. the difference most relied on, between the american and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. the use which has been made of this difference, in reasonings contained in former papers, will have shown that i am disposed neither to deny its existence nor to undervalue its importance. i feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, is by no means precisely true in the latitude commonly given to it. without entering into a disquisition which here would be misplaced, i will refer to a few known facts, in support of what i advance. in the most pure democracies of greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and representing the people in their executive capacity. prior to the reform of solon, athens was governed by nine archons, annually elected by the people at large. the degree of power delegated to them seems to be left in great obscurity. subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually elected by the people; and partially representing them in their legislative capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people. the senate of carthage, also, whatever might be its power, or the duration of its appointment, appears to have been elective by the suffrages of the people. similar instances might be traced in most, if not all the popular governments of antiquity. lastly, in sparta we meet with the ephori, and in rome with the tribunes; two bodies, small indeed in numbers, but annually elected by the whole body of the people, and considered as the representatives of the people, almost in their plenipotentiary capacity. the cosmi of crete were also annually elected by the people, and have been considered by some authors as an institution analogous to those of sparta and rome, with this difference only, that in the election of that representative body the right of suffrage was communicated to a part only of the people. from these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. the true distinction between these and the american governments, lies in the total exclusion of the people, in their collective capacity, from any share in the latter, and not in the total exclusion of the representatives of the people from the administration of the former. the distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the united states. but to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. for it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of greece. in answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy. to this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the united states. but a more particular reply may be given. before such a revolution can be effected, the senate, it is to be observed, must in the first place corrupt itself; must next corrupt the state legislatures; must then corrupt the house of representatives; and must finally corrupt the people at large. it is evident that the senate must be first corrupted before it can attempt an establishment of tyranny. without corrupting the state legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. without exerting the means of corruption with equal success on the house of representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. is there any man who can seriously persuade himself that the proposed senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions? if reason condemns the suspicion, the same sentence is pronounced by experience. the constitution of maryland furnishes the most apposite example. the senate of that state is elected, as the federal senate will be, indirectly by the people, and for a term less by one year only than the federal senate. it is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal senate. there are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. if the federal senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the senate of maryland, but no such symptoms have appeared. on the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal constitution, have been gradually extinguished by the progress of the experiment; and the maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any state in the union. but if anything could silence the jealousies on this subject, it ought to be the british example. the senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. the house of representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the united states. unfortunately, however, for the anti-federal argument, the british history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the house of representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch. as far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. in sparta, the ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. the tribunes of rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. the fact is the more remarkable, as unanimity was required in every act of the tribunes, even after their number was augmented to ten. it proves the irresistible force possessed by that branch of a free government, which has the people on its side. to these examples might be added that of carthage, whose senate, according to the testimony of polybius, instead of drawing all power into its vortex, had, at the commencement of the second punic war, lost almost the whole of its original portion. besides the conclusive evidence resulting from this assemblage of facts, that the federal senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the house of representatives, with the people on their side, will at all times be able to bring back the constitution to its primitive form and principles. against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves. publius federalist no. the powers of the senate from the independent journal. wednesday, march , . jay to the people of the state of new york: it is a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it. the second section gives power to the president, "by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur." the power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. the convention appears to have been attentive to both these points: they have directed the president to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the state legislatures. this mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors. as the select assemblies for choosing the president, as well as the state legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. the constitution manifests very particular attention to this object. by excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. if the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. the inference which naturally results from these considerations is this, that the president and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several states or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. with such men the power of making treaties may be safely lodged. although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. they who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. it was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. the duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved. there are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. it is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the senate necessary both to treaties and to laws. it seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite. these are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. the convention have done well, therefore, in so disposing of the power of making treaties, that although the president must, in forming them, act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. they who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. to discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. the loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. as in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. so often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the constitution would have been inexcusably defective, if no attention had been paid to those objects. those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. for these, the president will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the senate, he may at any time convene them. thus we see that the constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other. but to this plan, as to most others that have ever appeared, objections are contrived and urged. some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. these gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. all constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. it surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected. others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. they insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. this idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. these gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. they who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. the proposed constitution, therefore, has not in the least extended the obligation of treaties. they are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government. however useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. from this cause, probably, proceed the fears and apprehensions of some, that the president and senate may make treaties without an equal eye to the interests of all the states. others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties? as all the states are equally represented in the senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. in proportion as the united states assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. it will not be in the power of the president and senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter. as to corruption, the case is not supposable. he must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the president and two thirds of the senate will ever be capable of such unworthy conduct. the idea is too gross and too invidious to be entertained. but in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations. with respect to their responsibility, it is difficult to conceive how it could be increased. every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. in short, as the constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments. publius federalist no. the powers of the senate continued from the new york packet. friday, march , . hamilton to the people of the state of new york: the remaining powers which the plan of the convention allots to the senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. as in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. we will, therefore, conclude this head with a view of the judicial character of the senate. a well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. the subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. they are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself. the prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. in many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. the delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. the difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny. the convention, it appears, thought the senate the most fit depositary of this important trust. those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it. what, it may be asked, is the true spirit of the institution itself? is it not designed as a method of national inquest into the conduct of public men? if this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? it is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? the model from which the idea of this institution has been borrowed, pointed out that course to the convention. in great britain it is the province of the house of commons to prefer the impeachment, and of the house of lords to decide upon it. several of the state constitutions have followed the example. as well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. is not this the true light in which it ought to be regarded? where else than in the senate could have been found a tribunal sufficiently dignified, or sufficiently independent? what other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers? could the supreme court have been relied upon as answering this description? it is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. a deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. the hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. the necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. this can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. there will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. the awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons. these considerations seem alone sufficient to authorize a conclusion, that the supreme court would have been an improper substitute for the senate, as a court of impeachments. there remains a further consideration, which will not a little strengthen this conclusion. it is this: the punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. after having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? that the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. the loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. it may be said, that the intervention of a jury, in the second instance, would obviate the danger. but juries are frequently influenced by the opinions of judges. they are sometimes induced to find special verdicts, which refer the main question to the decision of the court. who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt? would it have been an improvement of the plan, to have united the supreme court with the senate, in the formation of the court of impeachments? this union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? to a certain extent, the benefits of that union will be obtained from making the chief justice of the supreme court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. this was perhaps the prudent mean. i forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded. would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? there are weighty arguments, as well against, as in favor of, such a plan. to some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. but an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. it must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the state governments to be called upon whenever an impeachment was actually depending. it will not be easy to imagine any third mode materially different, which could rationally be proposed. as the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. the second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the state, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the house of representatives. though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men. but though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the constitution ought for this reason to be rejected. if mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. where is the standard of perfection to be found? who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his infallible criterion for the fallible criterion of his more conceited neighbor? to answer the purpose of the adversaries of the constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious. publius federalist no. objections to the power of the senate to set as a court for impeachments further considered. from the independent journal. saturday, march , . hamilton to the people of the state of new york: a review of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter. the first of these objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well-established maxim which requires a separation between the different departments of power. the true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. this partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. an absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. and it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. the division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. as the concurrence of two thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire. it is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this state; while that constitution makes the senate, together with the chancellor and judges of the supreme court, not only a court of impeachments, but the highest judicatory in the state, in all causes, civil and criminal. the proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of new york, in the last resort, may, with truth, be said to reside in its senate. if the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of new york?( ) a second objection to the senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. the senate, it is observed, is to have concurrent authority with the executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. to an objection so little precise in itself, it is not easy to find a very precise answer. where is the measure or criterion to which we can appeal, for determining what will give the senate too much, too little, or barely the proper degree of influence? will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience? if we take this course, it will lead to a more intelligible, if not to a more certain result. the disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if i mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. the expediency of the junction of the senate with the executive, in the power of appointing to offices, will, i trust, be placed in a light not less satisfactory, in the disquisitions under the same head. and i flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. if this be truly the case, the hypothetical dread of the too great weight of the senate ought to be discarded from our reasonings. but this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. it was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most popular branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the government. but independent of this most active and operative principle, to secure the equilibrium of the national house of representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the senate. the exclusive privilege of originating money bills will belong to the house of representatives. the same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? the same house will be the umpire in all elections of the president, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. the constant possibility of the thing must be a fruitful source of influence to that body. the more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the union, for the first office in it. it would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the senate. a third objection to the senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. it is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. the principle of this objection would condemn a practice, which is to be seen in all the state governments, if not in all the governments with which we are acquainted: i mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. with equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. but that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the senate, who will merely sanction the choice of the executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers. if any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the senate in the business of appointments. it will be the office of the president to nominate, and, with the advice and consent of the senate, to appoint. there will, of course, be no exertion of choice on the part of the senate. they may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose--they can only ratify or reject the choice of the president. they might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. thus it could hardly happen, that the majority of the senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy. a fourth objection to the senate in the capacity of a court of impeachments, is derived from its union with the executive in the power of making treaties. this, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. after having combined with the executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty? this objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet i am deceived if it does not rest upon an erroneous foundation. the security essentially intended by the constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. the joint agency of the chief magistrate of the union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several states, is designed to be the pledge for the fidelity of the national councils in this particular. the convention might with propriety have meditated the punishment of the executive, for a deviation from the instructions of the senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law--a principle which, i believe, has never been admitted into any government. how, in fact, could a majority in the house of representatives impeach themselves? not better, it is evident, than two thirds of the senate might try themselves. and yet what reason is there, that a majority of the house of representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the senate, sacrificing the same interests in an injurious treaty with a foreign power? the truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good. so far as might concern the misbehavior of the executive in perverting the instructions or contravening the views of the senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. we may thus far count upon their pride, if not upon their virtue. and so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace. publius . in that of new jersey, also, the final judiciary authority is in a branch of the legislature. in new hampshire, massachusetts, pennsylvania, and south carolina, one branch of the legislature is the court for the trial of impeachments. federalist no. the executive department from the new york packet. tuesday, march , . hamilton to the people of the state of new york: the constitution of the executive department of the proposed government, claims next our attention. there is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment. here the writers against the constitution seem to have taken pains to signalize their talent of misrepresentation. calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended president of the united states; not merely as the embryo, but as the full-grown progeny, of that detested parent. to establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. the authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of new york, have been magnified into more than royal prerogatives. he has been decorated with attributes superior in dignity and splendor to those of a king of great britain. he has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. he has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. the images of asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. we have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio. attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. in the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. they so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. it is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of great britain and a magistrate of the character marked out for that of the president of the united states. it is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition. in one instance, which i cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the president of the united states a power which by the instrument reported is expressly allotted to the executives of the individual states. i mean the power of filling casual vacancies in the senate. this bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party( ); and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing. the second clause of the second section of the second article empowers the president of the united states "to nominate, and by and with the advice and consent of the senate, to appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of united states whose appointments are not in the constitution otherwise provided for, and which shall be established by law." immediately after this clause follows another in these words: "the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." it is from this last provision that the pretended power of the president to fill vacancies in the senate has been deduced. a slight attention to the connection of the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable. the first of these two clauses, it is clear, only provides a mode for appointing such officers, "whose appointments are not otherwise provided for in the constitution, and which shall be established by law"; of course it cannot extend to the appointments of senators, whose appointments are otherwise provided for in the constitution( ), and who are established by the constitution, and will not require a future establishment by law. this position will hardly be contested. the last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the senate, for the following reasons: first. the relation in which that clause stands to the other, which declares the general mode of appointing officers of the united states, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. the ordinary power of appointment is confined to the president and senate jointly, and can therefore only be exercised during the session of the senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the president, singly, to make temporary appointments "during the recess of the senate, by granting commissions which shall expire at the end of their next session." second. if this clause is to be considered as supplementary to the one which precedes, the vacancies of which it speaks must be construed to relate to the "officers" described in the preceding one; and this, we have seen, excludes from its description the members of the senate. third. the time within which the power is to operate, "during the recess of the senate," and the duration of the appointments, "to the end of the next session" of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the state legislatures, who are to make the permanent appointments, and not to the recess of the national senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the state, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national senate. the circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the president. but last, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. the former provides, that "the senate of the united states shall be composed of two senators from each state, chosen by the legislature thereof for six years"; and the latter directs, that, "if vacancies in that body should happen by resignation or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." here is an express power given, in clear and unambiguous terms, to the state executives, to fill casual vacancies in the senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the president of the united states, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy. i have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the constitution submitted to the consideration of the people. nor have i scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. i hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of america. publius . see cato, no. v. . article i, section , clause . federalist no. the mode of electing the president from the independent journal. wednesday, march , . hamilton to the people of the state of new york: the mode of appointment of the chief magistrate of the united states is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. the most plausible of these, who has appeared in print, has even deigned to admit that the election of the president is pretty well guarded.( ) i venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. it unites in an eminent degree all the advantages, the union of which was to be wished for.(e ) it was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. this end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. it was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. a small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. it was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. this evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the president of the united states. but the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. the choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. and as the electors, chosen in each state, are to assemble and vote in the state in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. these most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. how could they better gratify this, than by raising a creature of their own to the chief magistracy of the union? but the convention have guarded against all danger of this sort, with the most provident and judicious attention. they have not made the appointment of the president to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of america, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. and they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the president in office. no senator, representative, or other person holding a place of trust or profit under the united states, can be of the numbers of the electors. thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. the business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen states, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty. another and no less important desideratum was, that the executive should be independent for his continuance in office on all but the people themselves. he might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. this advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice. all these advantages will happily combine in the plan devised by the convention; which is, that the people of each state shall choose a number of persons as electors, equal to the number of senators and representatives of such state in the national government, who shall assemble within the state, and vote for some fit person as president. their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the president. but as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the house of representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office. the process of election affords a moral certainty, that the office of president will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single state; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the united states. it will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. and this will be thought no inconsiderable recommendation of the constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. though we cannot acquiesce in the political heresy of the poet who says: "for forms of government let fools contest--that which is best administered is best,"--yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. the vice-president is to be chosen in the same manner with the president; with this difference, that the senate is to do, in respect to the former, what is to be done by the house of representatives, in respect to the latter. the appointment of an extraordinary person, as vice-president, has been objected to as superfluous, if not mischievous. it has been alleged, that it would have been preferable to have authorized the senate to elect out of their own body an officer answering that description. but two considerations seem to justify the ideas of the convention in this respect. one is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the president should have only a casting vote. and to take the senator of any state from his seat as senator, to place him in that of president of the senate, would be to exchange, in regard to the state from which he came, a constant for a contingent vote. the other consideration is, that as the vice-president may occasionally become a substitute for the president, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. it is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this state. we have a lieutenant-governor, chosen by the people at large, who presides in the senate, and is the constitutional substitute for the governor, in casualties similar to those which would authorize the vice-president to exercise the authorities and discharge the duties of the president. publius . vide federal farmer. e . some editions substitute "desired" for "wished for". federalist no. the real character of the executive from the new york packet. friday, march , . hamilton to the people of the state of new york: i proceed now to trace the real characters of the proposed executive, as they are marked out in the plan of the convention. this will serve to place in a strong light the unfairness of the representations which have been made in regard to it. the first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. this will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of great britain, there is not less a resemblance to the grand seignior, to the khan of tartary, to the man of the seven mountains, or to the governor of new york. that magistrate is to be elected for four years; and is to be re-eligible as often as the people of the united states shall think him worthy of their confidence. in these circumstances there is a total dissimilitude between him and a king of great britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between him and a governor of new york, who is elected for three years, and is re-eligible without limitation or intermission. if we consider how much less time would be requisite for establishing a dangerous influence in a single state, than for establishing a like influence throughout the united states, we must conclude that a duration of four years for the chief magistrate of the union is a degree of permanency far less to be dreaded in that office, than a duration of three years for a corresponding office in a single state. the president of the united states would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. the person of the king of great britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. in this delicate and important circumstance of personal responsibility, the president of confederated america would stand upon no better ground than a governor of new york, and upon worse ground than the governors of maryland and delaware. the president of the united states is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. the king of great britain, on his part, has an absolute negative upon the acts of the two houses of parliament. the disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. the qualified negative of the president differs widely from this absolute negative of the british sovereign; and tallies exactly with the revisionary authority of the council of revision of this state, of which the governor is a constituent part. in this respect the power of the president would exceed that of the governor of new york, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied. the president is to be the "commander-in-chief of the army and navy of the united states, and of the militia of the several states, when called into the actual service of the united states. he is to have power to grant reprieves and pardons for offenses against the united states, except in cases of impeachment; to recommend to the consideration of congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the united states." in most of these particulars, the power of the president will resemble equally that of the king of great britain and of the governor of new york. the most material points of difference are these:--first. the president will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the union. the king of great britain and the governor of new york have at all times the entire command of all the militia within their several jurisdictions. in this article, therefore, the power of the president would be inferior to that of either the monarch or the governor. second. the president is to be commander-in-chief of the army and navy of the united states. in this respect his authority would be nominally the same with that of the king of great britain, but in substance much inferior to it. it would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the british king extends to the declaring of war and to the raising and regulating of fleets and armies--all which, by the constitution under consideration, would appertain to the legislature.( ) the governor of new york, on the other hand, is by the constitution of the state vested only with the command of its militia and navy. but the constitutions of several of the states expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of new hampshire and massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a president of the united states. third. the power of the president, in respect to pardons, would extend to all cases, except those of impeachment. the governor of new york may pardon in all cases, even in those of impeachment, except for treason and murder. is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the president? all conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. if a governor of new york, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. a president of the union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? the better to judge of this matter, it will be necessary to recollect, that, by the proposed constitution, the offense of treason is limited "to levying war upon the united states, and adhering to their enemies, giving them aid and comfort"; and that by the laws of new york it is confined within similar bounds. fourth. the president can only adjourn the national legislature in the single case of disagreement about the time of adjournment. the british monarch may prorogue or even dissolve the parliament. the governor of new york may also prorogue the legislature of this state for a limited time; a power which, in certain situations, may be employed to very important purposes. the president is to have power, with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur. the king of great britain is the sole and absolute representative of the nation in all foreign transactions. he can of his own accord make treaties of peace, commerce, alliance, and of every other description. it has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of parliament. but i believe this doctrine was never heard of, until it was broached upon the present occasion. every jurist( ) of that kingdom, and every other man acquainted with its constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. the parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. but this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. in this respect, therefore, there is no comparison between the intended power of the president and the actual power of the british sovereign. the one can perform alone what the other can do only with the concurrence of a branch of the legislature. it must be admitted, that, in this instance, the power of the federal executive would exceed that of any state executive. but this arises naturally from the sovereign power which relates to treaties. if the confederacy were to be dissolved, it would become a question, whether the executives of the several states were not solely invested with that delicate and important prerogative. the president is also to be authorized to receive ambassadors and other public ministers. this, though it has been a rich theme of declamation, is more a matter of dignity than of authority. it is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor. the president is to nominate, and, with the advice and consent of the senate, to appoint ambassadors and other public ministers, judges of the supreme court, and in general all officers of the united states established by law, and whose appointments are not otherwise provided for by the constitution. the king of great britain is emphatically and truly styled the fountain of honor. he not only appoints to all offices, but can create offices. he can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. there is evidently a great inferiority in the power of the president, in this particular, to that of the british king; nor is it equal to that of the governor of new york, if we are to interpret the meaning of the constitution of the state by the practice which has obtained under it. the power of appointment is with us lodged in a council, composed of the governor and four members of the senate, chosen by the assembly. the governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment. if he really has the right of nominating, his authority is in this respect equal to that of the president, and exceeds it in the article of the casting vote. in the national government, if the senate should be divided, no appointment could be made; in the government of new york, if the council should be divided, the governor can turn the scale, and confirm his own nomination.( ) if we compare the publicity which must necessarily attend the mode of appointment by the president and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of new york, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this state, in the disposition of offices, must, in practice, be greatly superior to that of the chief magistrate of the union. hence it appears that, except as to the concurrent authority of the president in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the governor of new york. and it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of great britain. but to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group. the president of the united states would be an officer elected by the people for four years; the king of great britain is a perpetual and hereditary prince. the one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. the one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. the one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. the one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. the one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. the one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. the one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. the one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! what answer shall we give to those who would persuade us that things so unlike resemble each other? the same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism. publius . a writer in a pennsylvania paper, under the signature of tamony, has asserted that the king of great britain owes his prerogative as commander-in-chief to an annual mutiny bill. the truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, "contrary to all reason and precedent," as blackstone vol. i., page , expresses it, by the long parliament of charles i. but by the statute the th of charles ii., chap. , it was declared to be in the king alone, for that the sole supreme government and command of the militia within his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty and his royal predecessors, kings and queens of england, and that both or either house of parliament cannot nor ought to pretend to the same. . vide blackstone's commentaries, vol i., p. . . candor, however, demands an acknowledgment that i do not think the claim of the governor to a right of nomination well founded. yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. and independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion. federalist no. the executive department further considered from the independent journal. saturday, march , . hamilton to the people of the state of new york: there is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. the enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. energy in the executive is a leading character in the definition of good government. it is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. every man the least conversant in roman history, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of rome. there can be no need, however, to multiply arguments or examples on this head. a feeble executive implies a feeble execution of the government. a feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic executive, it will only remain to inquire, what are the ingredients which constitute this energy? how far can they be combined with those other ingredients which constitute safety in the republican sense? and how far does this combination characterize the plan which has been reported by the convention? the ingredients which constitute energy in the executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. the ingredients which constitute safety in the republican sense are, first, a due dependence on the people, secondly, a due responsibility. those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single executive and a numerous legislature. they have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. that unity is conducive to energy will not be disputed. decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. this unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. of the first, the two consuls of rome may serve as an example; of the last, we shall find examples in the constitutions of several of the states. new york and new jersey, if i recollect right, are the only states which have intrusted the executive authority wholly to single men.( ) both these methods of destroying the unity of the executive have their partisans; but the votaries of an executive council are the most numerous. they are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction. the experience of other nations will afford little instruction on this head. as far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the executive. we have seen that the achaeans, on an experiment of two praetors, were induced to abolish one. the roman history records many instances of mischiefs to the republic from the dissensions between the consuls, and between the military tribunes, who were at times substituted for the consuls. but it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. that the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the consuls, of making a division of the government between them. the patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. in addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the consuls to divide the administration between themselves by lot--one of them remaining at rome to govern the city and its environs, the other taking the command in the more distant provinces. this expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. but quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the executive, under any modification whatever. wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. if it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. from either, and especially from all these causes, the most bitter dissensions are apt to spring. whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. if they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. and what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy. men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. but if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. they seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the executive. it is here too that they may be most pernicious. in the legislature, promptitude of decision is oftener an evil than a benefit. the differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. when a resolution too is once taken, the opposition must be at an end. that resolution is a law, and resistance to it punishable. but no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. here, they are pure and unmixed. there is no point at which they cease to operate. they serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. they constantly counteract those qualities in the executive which are the most necessary ingredients in its composition--vigor and expedition, and this without any counterbalancing good. in the conduct of war, in which the energy of the executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. it must be confessed that these observations apply with principal weight to the first case supposed--that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible executive. an artful cabal in that council would be able to distract and to enervate the whole system of administration. if no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. (but one of the weightiest objections to a plurality in the executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. responsibility is of two kinds--to censure and to punishment. the first is the more important of the two, especially in an elective office. man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. but the multiplication of the executive adds to the difficulty of detection in either case. it often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. it is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. the circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.)(e ) (but one of the weightiest objections to a plurality in the executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. responsibility is of two kinds--to censure and to punishment. the first is the more important of the two, especially in an elective office. man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. but the multiplication of the executive adds to the difficulty of detection in either case. it often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. it is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. the circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.)(e ) "i was overruled by my council. the council were so divided in their opinions that it was impossible to obtain any better resolution on the point." these and similar pretexts are constantly at hand, whether true or false. and who is there that will either take the trouble or incur the odium, of a strict scrutiny into the secret springs of the transaction? should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties? in the single instance in which the governor of this state is coupled with a council--that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. scandalous appointments to important offices have been made. some cases, indeed, have been so flagrant that all parties have agreed in the impropriety of the thing. when inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. in tenderness to individuals, i forbear to descend to particulars. it is evident from these considerations, that the plurality of the executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, second, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it. in england, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred. nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. but even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. he is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. but in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the british constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. in the monarchy of great britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. in the american republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the chief magistrate himself. the idea of a council to the executive, which has so generally obtained in the state constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. if the maxim should be admitted to be applicable to the case, i should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. but i do not think the rule at all applicable to the executive power. i clearly concur in opinion, in this particular, with a writer whom the celebrated junius pronounces to be "deep, solid, and ingenious," that "the executive power is more easily confined when it is one";( ) that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the executive is rather dangerous than friendly to liberty. a little consideration will satisfy us, that the species of security sought for in the multiplication of the executive, is unattainable. numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. the united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. when power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. the decemvirs of rome, whose name denotes their number,( ) were more to be dreaded in their usurpation than any one of them would have been. no person would think of proposing an executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. the extreme of these numbers, is not too great for an easy combination; and from such a combination america would have more to fear, than from the ambition of any single individual. a council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults. i forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. i will only add that, prior to the appearance of the constitution, i rarely met with an intelligent man from any of the states, who did not admit, as the result of experience, that the unity of the executive of this state was one of the best of the distinguishing features of our constitution. publius . new york has no council except for the single purpose of appointing to offices; new jersey has a council whom the governor may consult. but i think, from the terms of the constitution, their resolutions do not bind him. . de lolme. . ten. e . two versions of these paragraphs appear in different editions. federalist no. the duration in office of the executive from the new york packet. tuesday, march , . hamilton to the people of the state of new york: duration in office has been mentioned as the second requisite to the energy of the executive authority. this has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. with regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. it is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. this remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. the inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he must lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. if the case should only be, that he might lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. in either case, feebleness and irresolution must be the characteristics of the station. there are some who would be inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation. but such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. the republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. it is a just observation, that the people commonly intend the public good. this often applies to their very errors. but their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. they know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. when occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. but however inclined we might be to insist upon an unbounded complaisance in the executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. the latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. in either supposition, it is certainly desirable that the executive should be in a situation to dare to act his own opinion with vigor and decision. the same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. to what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? such a separation must be merely nominal, and incapable of producing the ends for which it was established. it is one thing to be subordinate to the laws, and another to be dependent on the legislative body. the first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the constitution, unites all power in the same hands. the tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. in governments purely republican, this tendency is almost irresistible. the representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. they often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the constitution. it may perhaps be asked, how the shortness of the duration in office can affect the independence of the executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. one answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment. it may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. it cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. he might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. as, on the one hand, a duration of four years will contribute to the firmness of the executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. if a british house of commons, from the most feeble beginnings, from the mere power of assenting or disagreeing to the imposition of a new tax, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the church as state; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation( ) attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a president of the united states? what, but that he might be unequal to the task which the constitution assigns him? i shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments. publius . this was the case with respect to mr. fox's india bill, which was carried in the house of commons, and rejected in the house of lords, to the entire satisfaction, as it is said, of the people. federalist no. the same subject continued, and re-eligibility of the executive considered. from the independent journal. wednesday, march , . hamilton to the people of the state of new york: the administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification. it is limited to executive details, and falls peculiarly within the province of the executive department. the actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war--these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. the persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. this view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. to reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. these considerations, and the influence of personal confidences and attachments, would be likely to induce every new president to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government. with a positive duration of considerable extent, i connect the circumstance of re-eligibility. the first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. the last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration. nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates--i mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. this exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary. one ill effect of the exclusion would be a diminution of the inducements to good behavior. there are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them. this position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. the most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good. another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. an avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. his avarice might be a guard upon his avarice. add to this that the same man might be vain or ambitious, as well as avaricious. and if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. but with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition. an ambitious man, too, when he found himself seated on the summit of his country's honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty. would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess? a third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. that experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. what more desirable or more essential than this quality in the governors of nations? where more desirable or more essential than in the first magistrate of a nation? can it be wise to put this desirable and essential quality under the ban of the constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? this, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellowcitizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility. a fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. there is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. how unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration. a fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. by necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures. it is not generally to be expected, that men will vary and measures remain uniform. the contrary is the usual course of things. and we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy. these are some of the disadvantages which would flow from the principle of exclusion. they apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other. what are the advantages promised to counterbalance these disadvantages? they are represented to be: st, greater independence in the magistrate; d, greater security to the people. unless the exclusion be perpetual, there will be no pretense to infer the first advantage. but even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? may he have no connections, no friends, for whom he may sacrifice it? may he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only may, but must, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? it is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement. as to the second supposed advantage, there is still greater reason to entertain doubts concerning it. if the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. and if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. there may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege. there is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive. publius federalist no. the provision for the support of the executive, and the veto power from the new york packet. friday, march , . hamilton to the people of the state of new york: the third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. it is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. the legislature, with a discretionary power over the salary and emoluments of the chief magistrate, could render him as obsequious to their will as they might think proper to make him. they might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. these expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. there are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man's support is a power over his will. if it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the executive by the terrors or allurements of the pecuniary arrangements of the legislative body. it is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed constitution. it is there provided that "the president of the united states shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the united states, or any of them." it is impossible to imagine any provision which would have been more eligible than this. the legislature, on the appointment of a president, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. this done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. they can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. neither the union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. he can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the constitution. the last of the requisites to energy, which have been enumerated, are competent powers. let us proceed to consider those which are proposed to be vested in the president of the united states. the first thing that offers itself to our observation, is the qualified negative of the president upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body. the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. from these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. he might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. and in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. if even no propensity had ever discovered itself in the legislative body to invade the rights of the executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defense. but the power in question has a further use. it not only serves as a shield to the executive, but it furnishes an additional security against the enaction of improper laws. it establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. the propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body. but this observation, when examined, will appear rather specious than solid. the propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflexion, would condemn. the primary inducement to conferring the power in question upon the executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. the oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. it is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them. it may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. but this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. they will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. the injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones. nor is this all. the superior weight and influence of the legislative body in a free government, and the hazard to the executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. a king of great britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of parliament. he would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. all well-informed men in that kingdom will accede to the justness of this remark. a very considerable period has elapsed since the negative of the crown has been exercised. if a magistrate so powerful and so well fortified as a british monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a president of the united states, clothed for the short period of four years with the executive authority of a government wholly and purely republican? it is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. an argument, indeed, against its expediency, has been drawn from this very source. it has been represented, on this account, as a power odious in appearance, useless in practice. but it will not follow, that because it might be rarely exercised, it would never be exercised. in the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility. in the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. i speak now with an eye to a magistrate possessing only a common share of firmness. there are men who, under any circumstances, will have the courage to do their duty at every hazard. but the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. instead of an absolute negative, it is proposed to give the executive the qualified negative already described. this is a power which would be much more readily exercised than the other. a man who might be afraid to defeat a law by his single veto, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. he would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. a direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. in proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. it is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the executive. it is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. a power of this nature in the executive, will often have a silent and unperceived, though forcible, operation. when men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared. this qualified negative, as has been elsewhere remarked, is in this state vested in a council, consisting of the governor, with the chancellor and judges of the supreme court, or any two of them. it has been freely employed upon a variety of occasions, and frequently with success. and its utility has become so apparent, that persons who, in compiling the constitution, were violent opposers of it, have from experience become its declared admirers.( ) i have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this state, in favor of that of massachusetts. two strong reasons may be imagined for this preference. one is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. it is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. it is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the executive. publius . mr. abraham yates, a warm opponent of the plan of the convention is of this number. federalist no. the command of the military and naval forces, and the pardoning power of the executive. from the new york packet. tuesday, march , . hamilton to the people of the state of new york: the president of the united states is to be "commander-in-chief of the army and navy of the united states, and of the militia of the several states when called into the actual service of the united states." the propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the state constitutions in general, that little need be said to explain or enforce it. even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. the direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority. "the president may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." this i consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office. he is also to be authorized to grant "reprieves and pardons for offenses against the united states, except in cases of impeachment." humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. as the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. the reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. on the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. on these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men. the expediency of vesting the power of pardoning in the president has, if i mistake not, been only contested in relation to the crime of treason. this, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. i shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. as treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. and this ought the rather to be the case, as the supposition of the connivance of the chief magistrate ought not to be entirely excluded. but there are also strong objections to such a plan. it is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. it deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in massachusetts. in every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. and when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. on the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. but the principal argument for reposing the power of pardoning in this case to the chief magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. the dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. the loss of a week, a day, an hour, may sometimes be fatal. if it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the president, it may be answered in the first place, that it is questionable, whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. a proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt. publius federalist no. the treaty-making power of the executive for the independent journal. wednesday, march , hamilton to the people of the state of new york: the president is to have power, "by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur." though this provision has been assailed, on different grounds, with no small degree of vehemence, i scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. one ground of objection is the trite topic of the intermixture of powers; some contending that the president ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the senate. another source of objection is derived from the small number of persons by whom a treaty may be made. of those who espouse this objection, a part are of opinion that the house of representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of all the members of the senate, to two thirds of the members present. as i flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, i shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated. with regard to the intermixture of powers, i shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the executive with the senate, in the article of treaties, is no infringement of that rule. i venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. the essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. the power of making treaties is, plainly, neither the one nor the other. it relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. they are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. the power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. the qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them. however proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. it has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. but a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. an avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. an ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. the history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the united states. to have intrusted the power of making treaties to the senate alone, would have been to relinquish the benefits of the constitutional agency of the president in the conduct of foreign negotiations. it is true that the senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. besides this, the ministerial servant of the senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. while the union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the executive. though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. it must indeed be clear to a demonstration that the joint possession of the power in question, by the president and senate, would afford a greater prospect of security, than the separate possession of it by either of them. and whoever has maturely weighed the circumstances which must concur in the appointment of a president, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity. the remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the house of representatives to a share in the formation of treaties. the fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. the very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. the greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project. the only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. it has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. this consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. if two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. and the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. proofs of this position might be adduced from the examples of the roman tribuneship, the polish diet, and the states-general of the netherlands, did not an example at home render foreign precedents unnecessary. to require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. the former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. the latter, by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect. and as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. it ought not to be forgotten that, under the existing confederation, two members may, and usually do, represent a state; whence it happens that congress, who now are solely invested with all the powers of the union, rarely consist of a greater number of persons than would compose the intended senate. if we add to this, that as the members vote by states, and that where there is only a single member present from a state, his vote is lost, it will justify a supposition that the active voices in the senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing congress. when, in addition to these considerations, we take into view the co-operation of the president, we shall not hesitate to infer that the people of america would have greater security against an improper use of the power of making treaties, under the new constitution, than they now enjoy under the confederation. and when we proceed still one step further, and look forward to the probable augmentation of the senate, by the erection of new states, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the senate would be likely to become, would be very little fit for the proper discharge of the trust. publius federalist no. the appointing power of the executive from the new york packet. tuesday, april , . hamilton to the people of the state of new york: the president is "to nominate, and, by and with the advice and consent of the senate, to appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states whose appointments are not otherwise provided for in the constitution. but the congress may by law vest the appointment of such inferior officers as they think proper, in the president alone, or in the courts of law, or in the heads of departments. the president shall have power to fill up all vacancies which may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." it has been observed in a former paper, that "the true test of a good government is its aptitude and tendency to produce a good administration." if the justness of this observation be admitted, the mode of appointing the officers of the united states contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. it is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the union; and it will not need proof, that on this point must essentially depend the character of its administration. it will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. it ought either to be vested in a single man, or in a select assembly of a moderate number; or in a single man, with the concurrence of such an assembly. the exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. when, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. the people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men. those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the president, will, i presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. premising this, i proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. the sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. he will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. he will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. a single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. there is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. the choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. in either case, the intrinsic merit of the candidate will be too often out of sight. in the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. in the last, the coalition will commonly turn upon some interested equivalent: "give us the man we wish for this office, and you shall have the one you wish for that." this will be the usual condition of the bargain. and it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. the truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. they contend that the president ought solely to have been authorized to make the appointments under the federal government. but it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. in the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. there can, in this view, be no difference between nominating and appointing. the same motives which would influence a proper discharge of his duty in one case, would exist in the other. and as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice. but might not his nomination be overruled? i grant it might, yet this could only be to make place for another nomination by himself. the person ultimately appointed must be the object of his preference, though perhaps not in the first degree. it is also not very probable that his nomination would often be overruled. the senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. they could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. to what purpose then require the co-operation of the senate? i answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. it would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. in addition to this, it would be an efficacious source of stability in the administration. it will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. the possibility of rejection would be a strong motive to care in proposing. the danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. he would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same state to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. to this reasoning it has been objected that the president, by the influence of the power of nomination, may secure the complaisance of the senate to his views. this supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. the institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. it has been found to exist in the most corrupt periods of the most corrupt governments. the venalty of the british house of commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. but it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. though it might therefore be allowable to suppose that the executive might occasionally influence some individuals in the senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. a man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the senate, to rest satisfied, not only that it will be impracticable to the executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. nor is the integrity of the senate the only reliance. the constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that "no senator or representative shall during the time for which he was elected, be appointed to any civil office under the united states, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the united states, shall be a member of either house during his continuance in office." publius federalist no. the appointing power continued and other powers of the executive considered. from the independent journal. wednesday, april , . hamilton to the people of the state of new york: it has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. the consent of that body would be necessary to displace as well as to appoint. a change of the chief magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government. to this union of the senate with the president, in the article of appointments, it has in some cases been suggested that it would serve to give the president an undue influence over the senate, and in others that it would have an opposite tendency--a strong proof that neither suggestion is true. to state the first in its proper form, is to refute it. it amounts to this: the president would have an improper influence over the senate, because the senate would have the power of restraining him. this is an absurdity in terms. it cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control. let us take a view of the converse of the proposition: "the senate would influence the executive." as i have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. in what manner is this influence to be exerted? in relation to what objects? the power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. how could the senate confer a benefit upon the president by the manner of employing their right of negative upon his nominations? if it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, i answer, that the instances in which the president could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the senate. the power which can originate the disposition of honors and emoluments, is more likely to attract than to be attracted by the power which can merely obstruct their course. if by influencing the president be meant restraining him, this is precisely what must have been intended. and it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that magistrate. the right of nomination would produce all the (good, without the ill.)(e ) (good of that of appointment, and would in a great measure avoid its evils.)(e ) upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this state, a decided preference must be given to the former. in that plan the power of nomination is unequivocally vested in the executive. and as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. the blame of a bad nomination would fall upon the president singly and absolutely. the censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of their having counteracted the good intentions of the executive. if an ill appointment should be made, the executive for nominating, and the senate for approving, would participate, though in different degrees, in the opprobrium and disgrace. the reverse of all this characterizes the manner of appointment in this state. the council of appointment consists of from three to five persons, of whom the governor is always one. this small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. it is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. the censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. and while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. the most that the public can know, is that the governor claims the right of nomination; that two out of the inconsiderable number of four men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. whether a governor of this state avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture. every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. and as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. the private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. if, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. such a council would also be more liable to executive influence than the senate, because they would be fewer in number, and would act less immediately under the public inspection. such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the executive. and yet such a council has been warmly contended for as an essential amendment in the proposed constitution. i could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; i mean that of uniting the house of representatives in the power of making them. i shall, however, do little more than mention it, as i cannot imagine that it is likely to gain the countenance of any considerable part of the community. a body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. all the advantages of the stability, both of the executive and of the senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. the example of most of the states in their local constitutions encourages us to reprobate the idea. the only remaining powers of the executive are comprehended in giving information to congress of the state of the union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the united states. except some cavils about the power of convening either house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. it required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. in regard to the power of convening either house of the legislature, i shall barely remark, that in respect to the senate at least, we can readily discover a good reason for it. as this body has a concurrent power with the executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the house of representatives. as to the reception of ambassadors, what i have said in a former paper will furnish a sufficient answer. we have now completed a survey of the structure and powers of the executive department, which, i have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. the remaining inquiry is: does it also combine the requisites to safety, in a republican sense--a due dependence on the people, a due responsibility? the answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the president once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. but these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. in the only instances in which the abuse of the executive authority was materially to be feared, the chief magistrate of the united states would, by that plan, be subjected to the control of a branch of the legislative body. what more could be desired by an enlightened and reasonable people? publius e . these two alternate endings of this sentence appear in different editions. federalist no. the judiciary department from mclean's edition, new york. wednesday, may , hamilton to the people of the state of new york: we proceed now to an examination of the judiciary department of the proposed government. in unfolding the defects of the existing confederation, the utility and necessity of a federal judicature have been clearly pointed out. it is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. to these points, therefore, our observations shall be confined. the manner of constituting it seems to embrace these several objects: st. the mode of appointing the judges. d. the tenure by which they are to hold their places. d. the partition of the judiciary authority between different courts, and their relations to each other. first. as to the mode of appointing the judges; this is the same with that of appointing the officers of the union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition. second. as to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility. according to the plan of the convention, all judges who may be appointed by the united states are to hold their offices during good behavior; which is conformable to the most approved of the state constitutions and among the rest, to that of this state. its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. the standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. in a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. and it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. the executive not only dispenses the honors, but holds the sword of the community. the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. it may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. this simple view of the matter suggests several important consequences. it proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power( ); that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. it equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; i mean so long as the judiciary remains truly distinct from both the legislature and the executive. for i agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."( ) and it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. the complete independence of the courts of justice is peculiarly essential in a limited constitution. by a limited constitution, i understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. without this, all the reservations of particular rights or privileges would amount to nothing. some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. it is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. as this doctrine is of great importance in all the american constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. there is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. no legislative act, therefore, contrary to the constitution, can be valid. to deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. if it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. it is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. it is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. the interpretation of the laws is the proper and peculiar province of the courts. a constitution is, in fact, and must be regarded by the judges, as a fundamental law. it therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. if there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. it only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges ought to be governed by the latter rather than the former. they ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. this exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. it not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. in such a case, it is the province of the courts to liquidate and fix their meaning and operation. so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. the rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. but this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. it is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. they thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will should have the preference. but in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. they teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. it can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. this might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. the courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. the observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. if, then, the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. this independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. though i trust the friends of the proposed constitution will never concur with its enemies,( ) in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. but it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community. but it is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. these sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. it not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. this is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. the benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. and every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. that inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. if the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws. there is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. it has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. and making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. these considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. in the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. the experience of great britain affords an illustrious comment on the excellence of the institution. publius . the celebrated montesquieu, speaking of them, says: "of the three powers above mentioned, the judiciary is next to nothing."--spirit of laws. vol. i, page . . idem, page . . vide protest of the minority of the convention of pennsylvania, martin's speech, etc. federalist no. the judiciary continued from mclean's edition, new york. wednesday, may , hamilton to the people of the state of new york: next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. the remark made in relation to the president is equally applicable here. in the general course of human nature, a power over a man's subsistence amounts to a power over his will. and we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. the enlightened friends to good government in every state, have seen cause to lament the want of precise and explicit precautions in the state constitutions on this head. some of these indeed have declared that permanent( ) salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. something still more positive and unequivocal has been evinced to be requisite. the plan of the convention accordingly has provided that the judges of the united states "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." this, all circumstances considered, is the most eligible provision that could have been devised. it will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the constitution inadmissible. what might be extravagant to-day, might in half a century become penurious and inadequate. it was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. a man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. the clause which has been quoted combines both advantages. the salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. it will be observed that a difference has been made by the convention between the compensation of the president and of the judges, that of the former can neither be increased nor diminished; that of the latter can only not be diminished. this probably arose from the difference in the duration of the respective offices. as the president is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. but with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service. this provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the states in regard to their own judges. the precautions for their responsibility are comprised in the article respecting impeachments. they are liable to be impeached for malconduct by the house of representatives, and tried by the senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. this is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges. the want of a provision for removing the judges on account of inability has been a subject of complaint. but all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. the mensuration of the faculties of the mind has, i believe, no place in the catalogue of known arts. an attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. the result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. the constitution of new york, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. no man can be a judge beyond sixty. i believe there are few at present who do not disapprove of this provision. there is no station, in relation to which it is less proper than to that of a judge. the deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. in a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. publius . vide constitution of massachusetts, chapter , section , article . federalist no. the powers of the judiciary from mclean's edition, new york. wednesday, may , . hamilton to the people of the state of new york: to judge with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects. it seems scarcely to admit of controversy, that the judiciary authority of the union ought to extend to these several descriptions of cases: st, to all those which arise out of the laws of the united states, passed in pursuance of their just and constitutional powers of legislation; d, to all those which concern the execution of the provisions expressly contained in the articles of union; d, to all those in which the united states are a party; th, to all those which involve the peace of the confederacy, whether they relate to the intercourse between the united states and foreign nations, or to that between the states themselves; th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the state tribunals cannot be supposed to be impartial and unbiased. the first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. what, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them? the states, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the union, and others with the principles of good government. the imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. no man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. this power must either be a direct negative on the state laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of union. there is no third course that i can imagine. the latter appears to have been thought by the convention preferable to the former, and, i presume, will be most agreeable to the states. as to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. if there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. the mere necessity of uniformity in the interpretation of the national laws, decides the question. thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. still less need be said in regard to the third point. controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. any other plan would be contrary to reason, to precedent, and to decorum. the fourth point rests on this plain proposition, that the peace of the whole ought not to be left at the disposal of a part. the union will undoubtedly be answerable to foreign powers for the conduct of its members. and the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. as the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. this is not less essential to the preservation of the public faith, than to the security of the public tranquillity. a distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. the former kind may be supposed proper for the federal jurisdiction, the latter for that of the states. but it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. and a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. so great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals. the power of determining causes between two states, between one state and the citizens of another, and between the citizens of different states, is perhaps not less essential to the peace of the union than that which has been just examined. history gives us a horrid picture of the dissensions and private wars which distracted and desolated germany prior to the institution of the imperial chamber by maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. this was a court invested with authority to decide finally all differences among the members of the germanic body. a method of terminating territorial disputes between the states, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. but there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the union. to some of these we have been witnesses in the course of our past experience. it will readily be conjectured that i allude to the fraudulent laws which have been passed in too many of the states. and though the proposed constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. whatever practices may have a tendency to disturb the harmony between the states, are proper objects of federal superintendence and control. it may be esteemed the basis of the union, that "the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states." and if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the union will be entitled, the national judiciary ought to preside in all cases in which one state or its citizens are opposed to another state or its citizens. to secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different states and their citizens, and which, owing its official existence to the union, will never be likely to feel any bias inauspicious to the principles on which it is founded. the fifth point will demand little animadversion. the most bigoted idolizers of state authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. these so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. the most important part of them are, by the present confederation, submitted to federal jurisdiction. the reasonableness of the agency of the national courts in cases in which the state tribunals cannot be supposed to be impartial, speaks for itself. no man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. this principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different states and their citizens. and it ought to have the same operation in regard to some cases between citizens of the same state. claims to land under grants of different states, founded upon adverse pretensions of boundary, are of this description. the courts of neither of the granting states could be expected to be unbiased. the laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the state to which they belonged. and even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government. having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. it is to comprehend "all cases in law and equity arising under the constitution, the laws of the united states, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the united states shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands and grants of different states; and between a state or the citizens thereof and foreign states, citizens, and subjects." this constitutes the entire mass of the judicial authority of the union. let us now review it in detail. it is, then, to extend: first. to all cases in law and equity, arising under the constitution and the laws of the united states. this corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the united states. it has been asked, what is meant by "cases arising under the constitution," in contradiction from those "arising under the laws of the united states"? the difference has been already explained. all the restrictions upon the authority of the state legislatures furnish examples of it. they are not, for instance, to emit paper money; but the interdiction results from the constitution, and will have no connection with any law of the united states. should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the constitution and not the laws of the united states, in the ordinary signification of the terms. this may serve as a sample of the whole. it has also been asked, what need of the word "equity". what equitable causes can grow out of the constitution and laws of the united states? there is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the states. it is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. in such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. agreements to convey lands claimed under the grants of different states, may afford another example of the necessity of an equitable jurisdiction in the federal courts. this reasoning may not be so palpable in those states where the formal and technical distinction between law and equity is not maintained, as in this state, where it is exemplified by every day's practice. the judiciary authority of the union is to extend: second. to treaties made, or which shall be made, under the authority of the united states, and to all cases affecting ambassadors, other public ministers, and consuls. these belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace. third. to cases of admiralty and maritime jurisdiction. these form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts. fourth. to controversies to which the united states shall be a party. these constitute the third of those classes. fifth. to controversies between two or more states; between a state and citizens of another state; between citizens of different states. these belong to the fourth of those classes, and partake, in some measure, of the nature of the last. sixth. to cases between the citizens of the same state, claiming lands under grants of different states. these fall within the last class, and are the only instances in which the proposed constitution directly contemplates the cognizance of disputes between the citizens of the same state. seventh. to cases between a state and the citizens thereof, and foreign states, citizens, or subjects. these have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature. from this review of the particular powers of the federal judiciary, as marked out in the constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. if some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. the possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. publius federalist no. the judiciary continued, and the distribution of the judicial authority. from mclean's edition, new york. wednesday, may , . hamilton to the people of the state of new york: let us now return to the partition of the judiciary authority between different courts, and their relations to each other. "the judicial power of the united states is" (by the plan of the convention) "to be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish."( ) that there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. the reasons for it have been assigned in another place, and are too obvious to need repetition. the only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. the same contradiction is observable in regard to this matter which has been remarked in several other cases. the very men who object to the senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. the arguments, or rather suggestions, upon which this charge is founded, are to this effect: "the authority of the proposed supreme court of the united states, which is to be a separate and independent body, will be superior to that of the legislature. the power of construing the laws according to the spirit of the constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. this is as unprecedented as it is dangerous. in britain, the judicial power, in the last resort, resides in the house of lords, which is a branch of the legislature; and this part of the british government has been imitated in the state constitutions in general. the parliament of great britain, and the legislatures of the several states, can at any time rectify, by law, the exceptionable decisions of their respective courts. but the errors and usurpations of the supreme court of the united states will be uncontrollable and remediless." this, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. in the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every state. i admit, however, that the constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the constitution. but this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited constitution; and as far as it is true, is equally applicable to most, if not to all the state governments. there can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. but perhaps the force of the objection may be thought to consist in the particular organization of the supreme court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of great britain and that of the state. to insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. it shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a part of the legislative body. but though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. from a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. the same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the constitution in the character of legislators, would be disposed to repair the breach in the character of judges. nor is this all. every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. there is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. and there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. the members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. the habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. these considerations teach us to applaud the wisdom of those states who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of new hampshire, massachusetts, pennsylvania, delaware, maryland, virginia, north carolina, south carolina, and georgia; and the preference which has been given to those models is highly to be commended. it is not true, in the second place, that the parliament of great britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the united states. the theory, neither of the british, nor the state constitutions, authorizes the revisal of a judicial sentence by a legislative act. nor is there any thing in the proposed constitution, more than in either of them, by which it is forbidden. in the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. a legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. this is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the state governments, as to the national government now under consideration. not the least difference can be pointed out in any view of the subject. it may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. this may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. and the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. this is alone a complete security. there never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. while this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the senate a court for the trial of impeachments. having now examined, and, i trust, removed the objections to the distinct and independent organization of the supreme court, i proceed to consider the propriety of the power of constituting inferior courts,( ) and the relations which will subsist between these and the former. the power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the supreme court in every case of federal cognizance. it is intended to enable the national government to institute or authorize, in each state or district of the united states, a tribunal competent to the determination of matters of national jurisdiction within its limits. but why, it is asked, might not the same purpose have been accomplished by the instrumentality of the state courts? this admits of different answers. though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national constitution. to confer the power of determining such causes upon the existing courts of the several states, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. but ought not a more direct and explicit provision to have been made in favor of the state courts? there are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the states would be improper channels of the judicial authority of the union. state judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. and if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. in proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. and well satisfied as i am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. i should consider every thing calculated to give, in practice, an unrestrained course to appeals, as a source of public and private inconvenience. i am not sure, but that it will be found highly expedient and useful, to divide the united states into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every state. the judges of these courts, with the aid of the state judges, may hold circuits for the trial of causes in the several parts of the respective districts. justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. this plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed constitution. these reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the union. the supreme court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party." public ministers of every class are the immediate representatives of their sovereigns. all questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. in cases in which a state might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. though it may rather be a digression from the immediate subject of this paper, i shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. it has been suggested that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. this is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal. the circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repeated here. a recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. the contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. they confer no right of action, independent of the sovereign will. to what purpose would it be to authorize suits against states for the debts they owe? how could recoveries be enforced? it is evident, it could not be done without waging war against the contracting state; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. let us resume the train of our observations. we have seen that the original jurisdiction of the supreme court would be confined to two classes of causes, and those of a nature rarely to occur. in all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the supreme court would have nothing more than an appellate jurisdiction, "with such exceptions and under such regulations as the congress shall make." the propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. some well-intentioned men in this state, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. a technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. but if i am not misinformed, the same meaning would not be given to it in any part of new england. there an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. the word "appellate," therefore, will not be understood in the same sense in new england as in new york, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular state. the expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. the mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. if, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the supreme court. but it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the supreme court. why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this state, that the latter has jurisdiction of the fact as well as the law? it is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.( ) this is jurisdiction of both fact and law; nor is it even possible to separate them. though the common-law courts of this state ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. i contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the supreme court of facts decided by juries in the inferior courts. the following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. the appellate jurisdiction of the supreme court (it may have been argued) will extend to causes determinable in different modes, some in the course of the common law, others in the course of the civil law. in the former, the revision of the law only will be, generally speaking, the proper province of the supreme court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. it is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. it will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the states all causes are tried in this mode( ); and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. to avoid all inconveniencies, it will be safest to declare generally, that the supreme court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. this will enable the government to modify it in such a manner as will best answer the ends of public justice and security. this view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. the legislature of the united states would certainly have full power to provide, that in appeals to the supreme court there should be no re-examination of facts where they had been tried in the original causes by juries. this would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. the amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the supreme court, and the rest consigned to the subordinate tribunals; that the supreme court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. publius . article , sec. . . this power has been absurdly represented as intended to abolish all the county courts in the several states, which are commonly called inferior courts. but the expressions of the constitution are, to constitute "tribunals inferior to the supreme court"; and the evident design of the provision is to enable the institution of local courts, subordinate to the supreme, either in states or larger districts. it is ridiculous to imagine that county courts were in contemplation. . this word is composed of jus and dictio, juris dictio or a speaking and pronouncing of the law. . i hold that the states will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. federalist no. the judiciary continued. from mclean's edition, new york. wednesday, may , hamilton to the people of the state of new york: the erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole. such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. the principal of these respect the situation of the state courts in regard to those causes which are to be submitted to federal jurisdiction. is this to be exclusive, or are those courts to possess a concurrent jurisdiction? if the latter, in what relation will they stand to the national tribunals? these are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. the principles established in a former paper( ) teach us that the states will retain all pre-existing authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the union; or where a particular authority is granted to the union, and the exercise of a like authority is prohibited to the states; or where an authority is granted to the union, with which a similar authority in the states would be utterly incompatible. though these principles may not apply with the same force to the judiciary as to the legislative power, yet i am inclined to think that they are, in the main, just with respect to the former, as well as the latter. and under this impression, i shall lay it down as a rule, that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. the only thing in the proposed constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain and establish." this might either be construed to signify, that the supreme and subordinate courts of the union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one supreme court, and as many subordinate courts as congress should think proper to appoint; or in other words, that the united states should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. the first excludes, the last admits, the concurrent jurisdiction of the state tribunals; and as the first would amount to an alienation of state power by implication, the last appears to me the most natural and the most defensible construction. but this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the state courts have previous cognizance. it is not equally evident in relation to cases which may grow out of, and be peculiar to, the constitution to be established; for not to allow the state courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. i mean not therefore to contend that the united states, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but i hold that the state courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and i am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. this i infer from the nature of judiciary power, and from the general genius of the system. the judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. those of japan, not less than of new york, may furnish the objects of legal discussion to our courts. when in addition to this we consider the state governments and the national governments, as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive, that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the union, where it was not expressly prohibited. here another question occurs: what relation would subsist between the national and state courts in these instances of concurrent jurisdiction? i answer, that an appeal would certainly lie from the latter, to the supreme court of the united states. the constitution in direct terms gives an appellate jurisdiction to the supreme court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. the objects of appeal, not the tribunals from which it is to be made, are alone contemplated. from this circumstance, and from the reason of the thing, it ought to be construed to extend to the state tribunals. either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the union may be eluded at the pleasure of every plaintiff or prosecutor. neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. nor do i perceive any foundation for such a supposition. agreeably to the remark already made, the national and state systems are to be regarded as one whole. the courts of the latter will of course be natural auxiliaries to the execution of the laws of the union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. the evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the union. to confine, therefore, the general expressions giving appellate jurisdiction to the supreme court, to appeals from the subordinate federal courts, instead of allowing their extension to the state courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. but could an appeal be made to lie from the state courts to the subordinate federal judicatories? this is another of the questions which have been raised, and of greater difficulty than the former. the following considerations countenance the affirmative. the plan of the convention, in the first place, authorizes the national legislature "to constitute tribunals inferior to the supreme court."( ) it declares, in the next place, that "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as congress shall ordain and establish"; and it then proceeds to enumerate the cases to which this judicial power shall extend. it afterwards divides the jurisdiction of the supreme court into original and appellate, but gives no definition of that of the subordinate courts. the only outlines described for them, are that they shall be "inferior to the supreme court," and that they shall not exceed the specified limits of the federal judiciary. whether their authority shall be original or appellate, or both, is not declared. all this seems to be left to the discretion of the legislature. and this being the case, i perceive at present no impediment to the establishment of an appeal from the state courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. it would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the supreme court. the state tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the supreme court, may be made to lie from the state courts to district courts of the union. publius . no. . . sec. , art. . federalist no. the judiciary continued in relation to trial by jury from mclean's edition, new york. wednesday, may , hamilton to the people of the state of new york: the objection to the plan of the convention, which has met with most success in this state, and perhaps in several of the other states, is that relative to the want of a constitutional provision for the trial by jury in civil cases. the disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. the mere silence of the constitution in regard to civil causes, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to criminal causes. to argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning. with regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only not provided for, is entirely abolished. every man of discernment must at once perceive the wide difference between silence and abolition. but as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. the maxims on which they rely are of this nature: "a specification of particulars is an exclusion of generals"; or, "the expression of one thing is the exclusion of another." hence, say they, as the constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. the rules of legal interpretation are rules of common sense, adopted by the courts in the construction of the laws. the true test, therefore, of a just application of them is its conformity to the source from which they are derived. this being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? if such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. a power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. this discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. the specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought proper. the pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation. from these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. in relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. this will be best done by examples. the plan of the convention declares that the power of congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. this specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. in like manner the judicial authority of the federal judicatures is declared by the constitution to comprehend certain cases particularly specified. the expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. these examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. but that there may be no misapprehensions upon this subject, i shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them. let us suppose that by the laws of this state a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. in such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. but let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? the position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature. from these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the state constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. the foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the state courts only, and in the manner which the state constitutions and laws prescribe. all land causes, except where claims under the grants of different states come into question, and all other controversies between the citizens of the same state, unless where they depend upon positive violations of the articles of union, by acts of the state legislatures, will belong exclusively to the jurisdiction of the state tribunals. add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government. the friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. for my own part, the more the operation of the institution has fallen under my observation, the more reason i have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. but i must acknowledge that i cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. the trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. and both of these are provided for, in the most ample manner, in the plan of the convention. it has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. this observation deserves to be canvassed. it is evident that it can have no influence upon the legislature, in regard to the amount of taxes to be laid, to the objects upon which they are to be imposed, or to the rule by which they are to be apportioned. if it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws. as to the mode of collection in this state, under our own constitution, the trial by jury is in most cases out of use. the taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. and it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. the dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. it would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied. and as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case. the excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. the strongest argument in its favor is, that it is a security against corruption. as there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. the force of this consideration is, however, diminished by others. the sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. it is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. in the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. but making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. it greatly multiplies the impediments to its success. as matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. by increasing the obstacles to success, it discourages attempts to seduce the integrity of either. the temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes. notwithstanding, therefore, the doubts i have expressed, as to the essentiality of trial by jury in civil cases to liberty, i admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. there is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. for my own part, at every new view i take of the subject, i become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention. the great difference between the limits of the jury trial in different states is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. in this state, our judicial establishments resemble, more nearly than in any other, those of great britain. we have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in england), a court of admiralty and a court of chancery. in the courts of common law only, the trial by jury prevails, and this with some exceptions. in all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.( ) in new jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. in that state the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in new jersey than in new york. in pennsylvania, this is perhaps still more the case, for there is no court of chancery in that state, and its common-law courts have equity jurisdiction. it has a court of admiralty, but none of probates, at least on the plan of ours. delaware has in these respects imitated pennsylvania. maryland approaches more nearly to new york, as does also virginia, except that the latter has a plurality of chancellors. north carolina bears most affinity to pennsylvania; south carolina to virginia. i believe, however, that in some of those states which have distinct courts of admiralty, the causes depending in them are triable by juries. in georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. in connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. their common-law courts have admiralty and, to a certain extent, equity jurisdiction. in cases of importance, their general assembly is the only court of chancery. in connecticut, therefore, the trial by jury extends in practice further than in any other state yet mentioned. rhode island is, i believe, in this particular, pretty much in the situation of connecticut. massachusetts and new hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. in the four eastern states, the trial by jury not only stands upon a broader foundation than in the other states, but it is attended with a peculiarity unknown, in its full extent, to any of them. there is an appeal of course from one jury to another, till there have been two verdicts out of three on one side. from this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several states; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the states; and secondly, that more or at least as much might have been hazarded by taking the system of any one state for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation. the propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. the minority of pennsylvania have proposed this mode of expression for the purpose--"trial by jury shall be as heretofore"--and this i maintain would be senseless and nugatory. the united states, in their united or collective capacity, are the object to which all general provisions in the constitution must necessarily be construed to refer. now it is evident that though trial by jury, with various limitations, is known in each state individually, yet in the united states, as such, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. it would therefore be destitute of a precise meaning, and inoperative from its uncertainty. as, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if i apprehend that intent rightly, it would be in itself inexpedient. i presume it to be, that causes in the federal courts should be tried by jury, if, in the state where the courts sat, that mode of trial would obtain in a similar case in the state courts; that is to say, admiralty causes should be tried in connecticut by a jury, in new york without one. the capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every wellregulated judgment towards it. whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties. but this is not, in my estimation, the greatest objection. i feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. i think it so particularly in cases which concern the public peace with foreign nations--that is, in most cases where the question turns wholly on the laws of nations. of this nature, among others, are all prize causes. juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. there would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable. it will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of europe, and that, pursuant to such treaties, they are determinable in great britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. this alone demonstrates the impolicy of inserting a fundamental provision in the constitution which would make the state systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable. my convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. the great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions( ) to general rules. to unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. they require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. the simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars. it is true that the separation of the equity from the legal jurisdiction is peculiar to the english system of jurisprudence: which is the model that has been followed in several of the states. but it is equally true that the trial by jury has been unknown in every case in which they have been united. and the separation is essential to the preservation of that institution in its pristine purity. the nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this state, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode. these appeared to be conclusive reasons against incorporating the systems of all the states, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the pennsylvania minority. let us now examine how far the proposition of massachusetts is calculated to remedy the supposed defect. it is in this form: "in civil actions between citizens of different states, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it." this, at best, is a proposition confined to one description of causes; and the inference is fair, either that the massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. if the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. if the last, it affords a strong corroboration of the extreme difficulty of the thing. but this is not all: if we advert to the observations already made respecting the courts that subsist in the several states of the union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. in this state, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in england upon that subject. in many of the other states the boundaries are less precise. in some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. hence the same irregularity and confusion would be introduced by a compliance with this proposition, that i have already noticed as resulting from the regulation proposed by the pennsylvania minority. in one state a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another state, a cause exactly similar to the other, must be decided without the intervention of a jury, because the state judicatories varied as to common-law jurisdiction. it is obvious, therefore, that the massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different states. to devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. it would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the states in the union, or that would perfectly quadrate with the several state institutions. it may be asked, why could not a reference have been made to the constitution of this state, taking that, which is allowed by me to be a good one, as a standard for the united states? i answer that it is not very probable the other states would entertain the same opinion of our institutions as we do ourselves. it is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. if the plan of taking one state as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the states would have been taken as the model. it has been shown that many of them would be improper ones. and i leave it to conjecture, whether, under all circumstances, it is most likely that new york, or some other state, would have been preferred. but admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other states, at the partiality which had been shown to the institutions of one. the enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. to avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. for this i believe, no precedent is to be found in any member of the union; and the considerations which have been stated in discussing the proposition of the minority of pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan. in short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government. i cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. they have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the state constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished( ) by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a constitution for the united states. the best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. for my part, i acknowledge myself to be convinced that even in this state it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. it is conceded by all reasonable men that it ought not to obtain in all cases. the examples of innovations which contract its ancient limits, as well in these states as in great britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. i suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature. this is now clearly understood to be the case in great britain, and it is equally so in the state of connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in connecticut or great britain. it may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. the truth is that the general genius of a government is all that can be substantially relied upon for permanent effects. particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government. it certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that connecticut, which has been always regarded as the most popular state in the union, can boast of no constitutional provision for either. publius . it has been erroneously insinuated with regard to the court of chancery, that this court generally tries disputed facts by a jury. the truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question. . it is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to special circumstances, which form exceptions to general rules. . vide no. , in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the supreme court, is examined and refuted. federalist no. certain general and miscellaneous objections to the constitution considered and answered. from mclean's edition, new york. wednesday, may , hamilton to the people of the state of new york: in the course of the foregoing review of the constitution, i have taken notice of, and endeavored to answer most of the objections which have appeared against it. there, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. these shall now be discussed; but as the subject has been drawn into great length, i shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper. the most considerable of the remaining objections is that the plan of the convention contains no bill of rights. among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the states are in a similar predicament. i add that new york is of the number. and yet the opposers of the new system, in this state, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. to justify their zeal in this matter, they allege two things: one is that, though the constitution of new york has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the constitution adopts, in their full extent, the common and statute law of great britain, by which many other rights, not expressed in it, are equally secured. to the first i answer, that the constitution proposed by the convention contains, as well as the constitution of this state, a number of such provisions. independent of those which relate to the structure of the government, we find the following: article , section , clause --"judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the united states; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." section , of the same article, clause --"the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." clause --"no bill of attainder or ex-post-facto law shall be passed." clause --"no title of nobility shall be granted by the united states; and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." article , section , clause --"the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed." section , of the same article--"treason against the united states shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." and clause , of the same section--"the congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." it may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this state. the establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of titles of nobility, to which we have no corresponding provision in our constitution, are perhaps greater securities to liberty and republicanism than any it contains. the creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. the observations of the judicious blackstone,( ) in reference to the latter, are well worthy of recital: "to bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." and as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the bulwark of the british constitution."( ) nothing need be said to illustrate the importance of the prohibition of titles of nobility. this may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. to the second that is, to the pretended establishment of the common and state law by the constitution, i answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." they are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. the only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the revolution. this consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. it has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. such was magna charta, obtained by the barons, sword in hand, from king john. such were the subsequent confirmations of that charter by succeeding princes. such was the petition of right assented to by charles i., in the beginning of his reign. such, also, was the declaration of right presented by the lords and commons to the prince of orange in , and afterwards thrown into the form of an act of parliament called the bill of rights. it is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "we, the people of the united states, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america." here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. but a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. if, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this state. but the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired. i go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. they would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. for why declare that things shall not be done which there is no power to do? why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? i will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. they might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. this may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. on the subject of the liberty of the press, as much as has been said, i cannot forbear adding a remark or two: in the first place, i observe, that there is not a syllable concerning it in the constitution of this state; in the next, i contend, that whatever has been said about it in that of any other state, amounts to nothing. what signifies a declaration, that "the liberty of the press shall be inviolably preserved"? what is the liberty of the press? who can give it any definition which would not leave the utmost latitude for evasion? i hold it to be impracticable; and from this i infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.( ) and here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. there remains but one other view of this matter to conclude the point. the truth is, after all the declamations we have heard, that the constitution is itself, in every rational sense, and to every useful purpose, a bill of rights. the several bills of rights in great britain form its constitution, and conversely the constitution of each state is its bill of rights. and the proposed constitution, if adopted, will be the bill of rights of the union. is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? this is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the state constitutions. is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? this we have seen has also been attended to, in a variety of cases, in the same plan. adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. it may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. it certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. and hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "it is improper (say the objectors) to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the states to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." this argument, if it proves any thing, proves that there ought to be no general government whatever. for the powers which, it seems to be agreed on all hands, ought to be vested in the union, cannot be safely intrusted to a body which is not under every requisite control. but there are satisfactory reasons to show that the objection is in reality not well founded. there is in most of the arguments which relate to distance a palpable illusion of the imagination. what are the sources of information by which the people in montgomery county must regulate their judgment of the conduct of their representatives in the state legislature? of personal observation they can have no benefit. this is confined to the citizens on the spot. they must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. this does not apply to montgomery county only, but to all the counties at any considerable distance from the seat of government. it is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the state governments. the executive and legislative bodies of each state will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. and we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their state representatives. it ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. the public papers will be expeditious messengers of intelligence to the most remote inhabitants of the union. among the many curious objections which have appeared against the proposed constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the united states. this has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. the newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. in addition to the remarks i have made upon the subject in another place, i shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "states neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government."( ) the last objection of any consequence, which i at present recollect, turns upon the article of expense. if it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. the great bulk of the citizens of america are with reason convinced, that union is the basis of their political happiness. men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government--a single body being an unsafe depositary of such ample authorities. in conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. the two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which congress, under the existing confederation, may be composed. it is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. it is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people. whence is the dreaded augmentation of expense to spring? one source indicated, is the multiplication of offices under the new government. let us examine this a little. it is evident that the principal departments of the administration under the present government, are the same which will be required under the new. there are now a secretary of war, a secretary of foreign affairs, a secretary for domestic affairs, a board of treasury, consisting of three persons, a treasurer, assistants, clerks, etc. these officers are indispensable under any system, and will suffice under the new as well as the old. as to ambassadors and other ministers and agents in foreign countries, the proposed constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. as to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. it will be in most cases nothing more than an exchange of state for national officers. in the collection of all duties, for instance, the persons employed will be wholly of the latter description. the states individually will stand in no need of any for this purpose. what difference can it make in point of expense to pay officers of the customs appointed by the state or by the united states? there is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former. where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? the chief item which occurs to me respects the support of the judges of the united states. i do not add the president, because there is now a president of congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the president of the united states. the support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. but upon no reasonable plan can it amount to a sum which will be an object of material consequence. let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. the first thing which presents itself is that a great part of the business which now keeps congress sitting through the year will be transacted by the president. even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the senate, and subject to their final concurrence. hence it is evident that a portion of the year will suffice for the session of both the senate and the house of representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. the extra business of treaties and appointments may give this extra occupation to the senate. from this circumstance we may infer that, until the house of representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future congress. but there is another circumstance of great importance in the view of economy. the business of the united states has hitherto occupied the state legislatures, as well as congress. the latter has made requisitions which the former have had to provide for. hence it has happened that the sessions of the state legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the states. more than half their time has been frequently employed in matters which related to the united states. now the members who compose the legislatures of the several states amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. the congress under the proposed government will do all the business of the united states themselves, without the intervention of the state legislatures, who thenceforth will have only to attend to the affairs of their particular states, and will not have to sit in any proportion as long as they have heretofore done. this difference in the time of the sessions of the state legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system. the result from these observations is that the sources of additional expense from the establishment of the proposed constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the union. publius . vide blackstone's commentaries, vol. , p. . . idem, vol. , p. . . to show that there is a power in the constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. it is said that duties may be laid upon the publications so high as to amount to a prohibition. i know not by what logic it could be maintained, that the declarations in the state constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. it cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. we know that newspapers are taxed in great britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. and if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. the same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution, which has nothing of the kind. it would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained. . vide rutherford's institutes, vol. , book ii, chapter x, sections xiv and xv. vide also grotius, book ii, chapter ix, sections viii and ix. federalist no. concluding remarks from mclean's edition, new york. wednesday, may , hamilton to the people of the state of new york: according to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: "the analogy of the proposed government to your own state constitution," and "the additional security which its adoption will afford to republican government, to liberty, and to property." but these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid. it is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this state holds, not less with regard to many of the supposed defects, than to the real excellences of the former. among the pretended defects are the re-eligibility of the executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. these and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this state, as on the one proposed for the union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable. the additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the union will impose on local factions and insurrections, and on the ambition of powerful individuals in single states, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the states in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the state governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals. thus have i, fellow-citizens, executed the task i had assigned to myself; with what success, your conduct must determine. i trust at least you will admit that i have not failed in the assurance i gave you respecting the spirit with which my endeavors should be conducted. i have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the constitution. the charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. the perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. and the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. it is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which i did not intend; it is certain that i have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much. let us now pause and ask ourselves whether, in the course of these papers, the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. this is a duty from which nothing can give him a dispensation. 't is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. no partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of america has already given its sanction to the plan which he is to approve or reject. i shall not dissemble that i feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that i am unable to discern any real force in those by which it has been opposed. i am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. "why," say they, "should we adopt an imperfect thing? why not amend it and make it perfect before it is irrevocably established?" this may be plausible enough, but it is only plausible. in the first place i remark, that the extent of these concessions has been greatly exaggerated. they have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. this, as far as i have understood the meaning of those who make the concessions, is an entire perversion of their sense. no advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire. i answer in the next place, that i should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. i never expect to see a perfect work from imperfect man. the result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. the compacts which are to embrace thirteen distinct states in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. how can perfection spring from such materials? the reasons assigned in an excellent little pamphlet lately published in this city,( ) are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. i will not repeat the arguments there used, as i presume the production itself has had an extensive circulation. it is certainly well worthy the perusal of every friend to his country. there is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. i cannot resolve to conclude without first taking a survey of it in this aspect. it appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the constitution. the moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each state. to its complete establishment throughout the union, it will therefore require the concurrence of thirteen states. if, on the contrary, the constitution proposed should once be ratified by all the states as it stands, alterations in it may at any time be effected by nine states. here, then, the chances are as thirteen to nine( ) in favor of subsequent amendment, rather than of the original adoption of an entire system. this is not all. every constitution for the united states must inevitably consist of a great variety of particulars, in which thirteen independent states are to be accommodated in their interests or opinions of interest. we may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. the degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. but every amendment to the constitution, if once established, would be a single proposition, and might be brought forward singly. there would then be no necessity for management or compromise, in relation to any other point--no giving nor taking. the will of the requisite number would at once bring the matter to a decisive issue. and consequently, whenever nine, or rather ten states, were united in the desire of a particular amendment, that amendment must infallibly take place. there can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete constitution. in opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. for my own part i acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, i think there is no weight in the observation just stated. i also think there is little weight in it on another account. the intrinsic difficulty of governing thirteen states at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. but there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. it is this that the national rulers, whenever nine states concur, will have no option upon the subject. by the fifth article of the plan, the congress will be obliged "on the application of the legislatures of two thirds of the states (which at present amount to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the constitution, when ratified by the legislatures of three fourths of the states, or by conventions in three fourths thereof." the words of this article are peremptory. the congress "shall call a convention." nothing in this particular is left to the discretion of that body. and of consequence, all the declamation about the disinclination to a change vanishes in air. nor however difficult it may be supposed to unite two thirds or three fourths of the state legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. we may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority. if the foregoing argument is a fallacy, certain it is that i am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object. the zeal for attempts to amend, prior to the establishment of the constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: "to balance a large state or society (says he), whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. the judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments."( ) these judicious reflections contain a lesson of moderation to all the sincere lovers of the union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the states from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from time and experience. it may be in me a defect of political fortitude, but i acknowledge that i cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. a nation, without a national government, is, in my view, an awful spectacle. the establishment of a constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which i look forward with trembling anxiety. i can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen states, and after having passed over so considerable a part of the ground, to recommence the course. i dread the more the consequences of new attempts, because i know that powerful individuals, in this and in other states, are enemies to a general national government in every possible shape. publius . entitled "an address to the people of the state of new york." . it may rather be said ten, for though two thirds may set on foot the measure, three fourths must ratify. . hume's essays, vol. i, p. : "the rise of arts and sciences." john c. calhoun, "on nullification and the force bill." u.s. senate, february mr. president: at the last session of congress, it was avowed on all sides that the public debt, as to all practical purposes, was in fact paid, the small surplus remaining being nearly covered by the money in the treasury and the bonds for duties which had already accrued; but with the arrival of this event our last hope was doomed to be disappointed. after a long session of many months, and the most earnest effort on the part of south carolina and the other southern states to obtain relief, all that could be effected was a small reduction of such a character that, while it diminished the amount of burden, it distributed that burden more unequally than even the obnoxious act of ; reversing the principle adopted by the bill of , of laying higher duties on the unprotected than the protected articles, by repealing almost entirely the duties laid upon the former, and imposing the burden almost entirely on the latter. it was thus that, instead of relief--instead of an equal distribution of burdens and benefits of the government, on the payment of the debt, as had been fondly anticipated--the duties were so arranged as to be, in fact, bounties on one side and taxation on the other; thus placing the two great sections of the country in direct conflict in reference to its fiscal action, and thereby letting in that flood of political corruption which threatens to sweep away our constitution and our liberty. this unequal and unjust arrangement was pronounced, both by the administration, through its proper organ, the secretary of the treasury, and by the opposition, to be a *permanent* adjustment; and it was thus that all hope of relief through the action of the general government terminated; and the crisis so long apprehended at length arrived, at which the state was compelled to choose between absolute acquiescence in a ruinous system of oppression, or a resort to her reserved powers--powers of which she alone was the rightful judge, and which only, in this momentous juncture, could save her. she determined on the latter. the consent of two-thirds of her legislature was necessary for the call of a convention, which was considered the only legitimate organ through which the people, in their sovereignty, could speak. after an arduous struggle the states-rights party succeeded; more than two-thirds of both branches of the legislature favorable to a convention were elected; a convention was called--the ordinance adopted. the convention was succeeded by a meeting of the legislature, when the laws to carry the ordinance into execution were enacted--all of which have been communicated by the president, have been referred to the committee on the judiciary, and this bill is the result of their labor. having now corrected some of the prominent misrepresentations as to the nature of this controversy, and given a rapid sketch of the movement of the state in reference to it, i will next proceed to notice some objections connected with the ordinance and the proceedings under it. the first and most prominent of these is directed against what is called the test oath, which an effort has been made to render odious. so far from deserving the denunciation that has been levelled against it, i view this provision of the ordinance as but the natural result of the doctrines entertained by the state, and the position which she occupies. the people of carolina believe that the union is a union of states, and not of individuals; that it was formed by the states, and that the citizens of the several states were bound to it through the acts of their several states; that each state ratified the constitution for itself, and that it was only by such ratification of a state that any obligation was imposed upon its citizens. thus believing, it is the opinion of the people of carolina that it belongs to the state which has imposed the obligation to declare, in the last resort, the extent of this obligation, as far as her citizens are concerned; and this upon the plain principles which exist in all analogous cases of compact between sovereign bodies. on this principle the people of the state, acting in their sovereign capacity in convention, precisely as they did in the adoption of their own and the federal constitution, have declared, by the ordinance, that the acts of congress which imposed duties under the authority to lay imposts, were acts not for revenue, as intended by the constitution, but for protection, and therefore null and void. the ordinance thus enacted by the people of the state themselves, acting as a sovereign community, is as obligatory on the citizens of the state as any portion of the constitution. in prescribing, then, the oath to obey the ordinance, no more was done than to prescribe an oath to obey the constitution. it is, in fact, but a particular oath of allegiance, and in every respect similar to that which is prescribed, under the constitution of the united states, to be administered to all the officers of the state and federal governments; and is no more deserving the harsh and bitter epithets which have been heaped upon it than that or any similar oath. it ought to be borne in mind that, according to the opinion which prevails in carolina, the right of resistance to the unconstitutional acts of congress belongs to the state, and not to her individual citizens; and that, though the latter may, in a mere question of *meum* and *tuum,* resist through the courts an unconstitutional encroachment upon their rights, yet the final stand against usurpation rests not with them, but with the state of which they are members; and such act of resistance by a state binds the conscience and allegiance of the citizen. but there appears to be a general misapprehension as to the extent to which the state has acted under this part of the ordinance. instead of sweeping every officer by a general proscription of the minority, as has been represented in debate, as far as my knowledge extends, not a single individual has been removed. the state has, in fact, acted with the greatest tenderness, all circumstances considered, toward citizens who differed from the majority; and, in that spirit, has directed the oath to be administered only in the case of some official act directed to be performed in which obedience to the ordinance is involved.... it is next objected that the enforcing acts have legislated the united states out of south carolina. i have already replied to this objection on another occasion, and will now but repeat what i then said: that they have been legislated out only to the extent that they had no right to enter. the constitution has admitted the jurisdiction of the united states within the limits of the several states only so far as the delegated powers authorize; beyond that they are intruders, and may rightfully be expelled; and that they have been efficiently expelled by the legislation of the state through her civil process, as has been acknowledged on all sides in the debate, is only a confirmation of the truth of the doctrine for which the majority in carolina have contended. the very point at issue between the two parties there is, whether nullification is a peaceful and an efficient remedy against an unconstitutional act of the general government, and may be asserted, as such, through the state tribunals. both parties agree that the acts against which it is directed are unconstitutional and oppressive. the controversy is only as to the means by which our citizens may be protected against the acknowledged encroachments on their rights. this being the point at issue between the parties, and the very object of the majority being an efficient protection of the citizens through the state tribunals, the measures adopted to enforce the ordinance, of course, received the most decisive character. we were not children, to act by halves. yet for acting thus efficiently the state is denounced, and this bill reported, to overrule, by military force, the civil tribunal and civil process of the state! sir, i consider this bill, and the arguments which have been urged on this floor in its support, as the most triumphant acknowledgment that nullification is peaceful and efficient, and so deeply intrenched in the principles of our system, that it cannot be assailed but by prostrating the constitution, and substituting the supremacy of military force in lieu of the supremacy of the laws. in fact, the advocates of this bill refute their own argument. they tell us that the ordinance is unconstitutional; that it infracts the constitution of south carolina, although, to me, the objection appears absurd, as it was adopted by the very authority which adopted the constitution itself. they also tell us that the supreme court is the appointed arbiter of all controversies between a state and the general government. why, then, do they not leave this controversy to that tribunal? why do they not confide to them the abrogation of the ordinance, and the laws made in pursuance of it, and the assertion of that supremacy which they claim for the laws of congress? the state stands pledged to resist no process of the court. why, then, confer on the president the extensive and unlimited powers provided in this bill? why authorize him to use military force to arrest the civil process of the state? but one answer can be given: that, in a contest between the state and the general government, if the resistance be limited on both sides to the civil process, the state, by its inherent sovereignty, standing upon its reserved powers, will prove too powerful in such a controversy, and must triumph over the federal government, sustained by its delegated and limited authority; and in this answer we have an acknowledgment of the truth of those great principles for which the state has so firmly and nobly contended.... notwithstanding all that has been said, i may say that neither the senator from delaware (mr. clayton), nor any other who has spoken on the same side, has directly and fairly met the great question at issue: is this a federal union? a union of states, as distinct from that of individuals? is the sovereignty in the several states, or in the american people in the aggregate? the very language which we are compelled to use when speaking of our political institutions affords proof conclusive as to its real character. the terms union, federal, united, all imply a combination of sovereignties, a confederation of states. they never apply to an association of individuals. who ever heard of the united state of new york, of massachusetts, or of virginia? who ever heard the term federal or union applied to the aggregation of individuals into one community? nor is the other point less clear--that the sovereignty is in the several states, and that our system is a union of twenty-four sovereign powers, under a constitutional compact, and not of a divided sovereignty between the states severally and the united states? in spite of all that has been said, i maintain that sovereignty is in its nature indivisible. it is the supreme power in a state, and we might just as well speak of half a square, or half of a triangle, as of half a sovereignty. it is a gross error to confound the *exercise* of sovereign powers with *sovereignty* itself, or the *delegation* of such powers with the *surrender* of them. a sovereign may delegate his powers to be exercised by as many agents as he may think proper, under such conditions and with such limitations as he may impose; but to surrender any portion of his sovereignty to another is to annihilate the whole. the senator from delaware (mr. clayton) calls this metaphysical reasoning, which he says he cannot comprehend. if by metaphysics he means that scholastic refinement which makes distinctions without difference, no one can hold it in more utter contempt than i do; but if, on the contrary, he means the power of analysis and combination--that power which reduces the most complex idea into its elements, which traces causes to their first principle, and, by the power of generalization and combination, unites the whole in one harmonious system--then, so far from deserving contempt, it is the highest attribute of the human mind. it is the power which raises man above the brute--which distinguishes his faculties from mere sagacity, which he holds in common with inferior animals. it is this power which has raised the astronomer from being a mere gazer at the stars to the high intellectual eminence of a newton or a laplace, and astronomy itself from a mere observation of isolated facts into that noble science which displays to our admiration the system of the universe. and shall this high power of the mind, which has effected such wonders when directed to the laws which control the material world, be forever prohibited, under a senseless cry of metaphysics, from being applied to the high purposes of political science and legislation? i hold them to be subject to laws as fixed as matter itself, and to be as fit a subject for the application of the highest intellectual power. denunciation may, indeed, fall upon the philosophical inquirer into these first principles, as it did upon galileo and bacon, when they first unfolded the great discoveries which have immortalized their names; but the time will come when truth will prevail in spite of prejudice and denunciation, and when politics and legislation will be considered as much a science as astronomy and chemistry. in connection with this part of the subject, i understood the senator from virginia (mr. rives) to say that sovereignty was divided, and that a portion remained with the states severally, and that the residue was vested in the union. by union, i suppose, the senator meant the united states. if such be his meaning--if he intended to affirm that the sovereignty was in the twenty-four states, in whatever light he may view them, our opinions will not disagree; but according to my conception, the whole sovereignty is in the several states, while the exercise of sovereign power is divided--a part being exercised under compact, through this general government, and the residue through the separate state governments. but if the senator from virginia (mr. rives) means to assert that the twenty-four states form but one community, with a single sovereign power as to the objects of the union, it will be but the revival of the old question, of whether the union is a union between states, as distinct communities, or a mere aggregate of the american people, as a mass of individuals; and in this light his opinions would lead directly to consolidation.... disguise it as you may, the controversy is one between power and liberty; and i tell the gentlemen who are opposed to me, that, as strong as may be the love of power on their side, the love of liberty is still stronger on ours. history furnishes many instances of similar struggles, where the love of liberty has prevailed against power under every disadvantage, and among them few more striking than that of our own revolution; where, as strong as was the parent country, and feeble as were the colonies, yet, under the impulse of liberty, and the blessing of god, they gloriously triumphed in the contest. there are, indeed, many striking analogies between that and the present controversy. they both originated substantially in the same cause--with this difference--in the present case, the power of taxation is converted into that of regulating industry; in the other the power of regulating industry, by the regulation of commerce, was attempted to be converted into the power of taxation. were i to trace the analogy further, we should find that the perversion of the taxing power, in the one case, has given precisely the same control to the northern section over the industry of the southern section of the union, which the power to regulate commerce gave to great britain over the industry of the colonies in the other; and that the very articles in which the colonies were permitted to have a free trade, and those in which the mother-country had a monopoly, are almost identically the same as those in which the southern states are permitted to have a free trade by the act of , and in which the northern states have, by the same act, secured a monopoly. the only difference is in the means. in the former, the colonies were permitted to have a free trade with all countries south of cape finisterre, a cape in the northern part of spain; while north of that, the trade of the colonies was prohibited, except through the mother-country, by means of her commercial regulations. if we compare the products of the country north and south of cape finisterre, we shall find them almost identical with the list of last year. nor does the analogy terminate here. the very arguments resorted to at the commencement of the american revolution, and the measures adopted, and the motives assigned to bring on that contest (to enforce the law), are almost identically the same. but to return from this digression to the consideration of the bill. whatever difference of opinion may exist upon other points, there is one on which i should suppose there can be none; that this bill rests upon principles which, if carried out, will ride over state sovereignties, and that it will be idle for any advocates hereafter to talk of state rights. the senator from virginia (mr. rives) says that he is the advocate of state rights; but he must permit me to tell him that, although he may differ in premises from the other gentlemen with whom he acts on this occasion, yet, in supporting this bill, he obliterates every vestige of distinction between him and them, saving only that, professing the principles of ' , his example will be more pernicious than that of the most open and bitter opponent of the rights of the states. i will also add, what i am compelled to say, that i must consider him (mr. rives) as less consistent than our old opponents, whose conclusions were fairly drawn from their premises, while his premises ought to have led him to opposite conclusions. the gentleman has told us that the new-fangled doctrines, as he chooses to call them, have brought state rights into disrepute. i must tell him, in reply, that what he calls new-fangled are but the doctrines of ' ; and that it is he (mr. rives), and others with him, who, professing these doctrines, have degraded them by explaining away their meaning and efficacy. he (mr. r.) has disclaimed, in behalf of virginia, the authorship of nullification. i will not dispute that point. if virginia chooses to throw away one of her brightest ornaments, she must not hereafter complain that it has become the property of another. but while i have, as a representatives of carolina, no right to complain of the disavowal of the senator from virginia, i must believe that he (mr. r.) has done his native state great injustice by declaring on this floor, that when she gravely resolved, in ' , that "in cases of deliberate and dangerous infractions of the constitution, the states, as parties to the compact, have the right, and are in duty bound, to interpose to arrest the progress of the evil, and to maintain within their respective limits the authorities, rights, and liberties appertaining to them," she meant no more than to proclaim the right to protest and to remonstrate. to suppose that, in putting forth so solemn a declaration, which she afterward sustained by so able and elaborate an argument, she meant no more than to assert what no one had ever denied, would be to suppose that the state had been guilty of the most egregious trifling that ever was exhibited on so solemn an occasion. the english constitution by walter bagehot contents i. introduction to the second edition. ii. the cabinet. iii. the monarchy. iv. the house of lords. v. the house of commons. vi. on changes of ministry. vii. its supposed checks and balances. viii. the prerequisites of cabinet government, and the peculiar form which they have assumed in england. ix. its history, and the effects of that history.--conclusion. no. i. introduction to the second edition. there is a great difficulty in the way of a writer who attempts to sketch a living constitution--a constitution that is in actual work and power. the difficulty is that the object is in constant change. an historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. but a contemporary writer who tries to paint what is before him is puzzled and a perplexed: what he sees is changing daily. he must paint it as it stood at some one time, or else he will be putting side by side in his representations things which never were contemporaneous in reality. the difficulty is the greater because a writer who deals with a living government naturally compares it with the most important other living governments, and these are changing too; what he illustrates are altered in one way, and his sources of illustration are altered probably in a different way. this difficulty has been constantly in my way in preparing a second edition of this book. it describes the english constitution as it stood in the years and . roughly speaking, it describes its working as it was in the time of lord palmerston; and since that time there have been many changes, some of spirit and some of detail. in so short a period there have rarely been more changes. if i had given a sketch of the palmerston time as a sketch of the present time, it would have been in many points untrue; and if i had tried to change the sketch of seven years since into a sketch of the present time, i should probably have blurred the picture and have given something equally unlike both. the best plan in such a case is, i think, to keep the original sketch in all essentials as it was at first written, and to describe shortly such changes either in the constitution itself, or in the constitutions compared with it, as seem material. there are in this book various expressions which allude to persons who were living and to events which were happening when it first appeared; and i have carefully preserved these. they will serve to warn the reader what time he is reading about, and to prevent his mistaking the date at which the likeness was attempted to be taken. i proceed to speak of the changes which have taken place either in the constitution itself or in the competing institutions which illustrate it. it is too soon as yet to attempt to estimate the effect of the reform act of . the people enfranchised under it do not yet know their own power; a single election, so far from teaching us how they will use that power, has not been even enough to explain to them that they have such power. the reform act of did not for many years disclose its real consequences; a writer in , whether he approved or disapproved of them, whether he thought too little of or whether he exaggerated them, would have been sure to be mistaken in them. a new constitution does not produce its full effect as long as all its subjects were reared under an old constitution, as long as its statesmen were trained by that old constitution. it is not really tested till it comes to be worked by statesmen and among a people neither of whom are guided by a different experience. in one respect we are indeed particularly likely to be mistaken as to the effect of the last reform bill. undeniably there has lately been a great change in our politics. it is commonly said that "there is not a brick of the palmerston house standing". the change since is a change not in one point but in a thousand points; it is a change not of particular details but of pervading spirit. we are now quarrelling as to the minor details of an education act; in lord palmerston's time no such act could have passed. in lord palmerston's time sir george grey said that the disestablishment of the irish church would be an "act of revolution"; it has now been disestablished by great majorities, with sir george grey himself assenting. a new world has arisen which is not as the old world; and we naturally ascribe the change to the reform act. but this is a complete mistake. if there had been no reform act at all there would, nevertheless, have been a great change in english politics. there has been a change of the sort which, above all, generates other changes--a change of generation. generally one generation in politics succeeds another almost silently; at every moment men of all ages between thirty and seventy have considerable influence; each year removes many old men, makes all others older, brings in many new. the transition is so gradual that we hardly perceive it. the board of directors of the political company has a few slight changes every year, and therefore the shareholders are conscious of no abrupt change. but sometimes there is an abrupt change. it occasionally happens that several ruling directors who are about the same age live on for many years, manage the company all through those years, and then go off the scene almost together. in that case the affairs of the company are apt to alter much, for good or for evil; sometimes it becomes more successful, sometimes it is ruined, but it hardly ever stays as it was. something like this happened before . all through the period between and , the pre-' statesmen--if i may so call them--lord derby, lord russell, lord palmerston, retained great power. lord palmerston to the last retained great prohibitive power. though in some ways always young, he had not a particle of sympathy with the younger generation; he brought forward no young men; he obstructed all that young men wished. in consequence, at his death a new generation all at once started into life; the pre-' all at once died out. most of the new politicians were men who might well have been lord palmerston's grandchildren. he came into parliament in , they entered it after . such an enormous change in the age of the workers necessarily caused a great change in the kind of work attempted and the way in which it was done. what we call the "spirit" of politics is more surely changed by a change of generation in the men than by any other change whatever. even if there had been no reform act, this single cause would have effected grave alterations. the mere settlement of the reform question made a great change too. if it could have been settled by any other change, or even without any change, the instant effect of the settlement would still have been immense. new questions would have appeared at once. a political country is like an american forest; you have only to cut down the old trees, and immediately new trees come up to replace them; the seeds were waiting in the ground, and they began to grow as soon as the withdrawal of the old ones brought in light and air. these new questions of themselves would have made a new atmosphere, new parties, new debates. of course i am not arguing that so important an innovation as the reform act of will not have very great effects. it must, in all likelihood, have many great ones. i am only saying that as yet we do not know what those effects are; that the great evident change since is certainly not strictly due to it; probably is not even in a principal measure due to it; that we have still to conjecture what it will cause and what it will not cause. the principal question arises most naturally from a main doctrine of these essays. i have said that cabinet government is possible in england because england was a deferential country. i meant that the nominal constituency was not the real constituency; that the mass of the "ten-pound" house-holders did not really form their own opinions, and did not exact of their representatives an obedience to those opinions; that they were in fact guided in their judgment by the better educated classes; that they preferred representatives from those classes, and gave those representatives much licence. if a hundred small shopkeepers had by miracle been added to any of the ' parliaments, they would have felt outcasts there. nothing could be more unlike those parliaments than the average mass of the constituency from which they were chosen. i do not of course mean that the ten-pound householders were great admirers of intellect or good judges of refinement. we all know that, for the most part, they were not so at all; very few englishmen are. they were not influenced by ideas, but by facts; not by things impalpable, but by things palpable. not to put too fine a point upon it, they were influenced by rank and wealth. no doubt the better sort of them believed that those who were superior to them in these indisputable respects were superior also in the more intangible qualities of sense and knowledge. but the mass of the old electors did not analyse very much: they liked to have one of their "betters" to represent them; if he was rich they respected him much; and if he was a lord, they liked him the better. the issue put before these electors was, which of two rich people will you choose? and each of those rich people was put forward by great parties whose notions were the notions of the rich--whose plans were their plans. the electors only selected one or two wealthy men to carry out the schemes of one or two wealthy associations. so fully was this so, that the class to whom the great body of the ten-pound householders belonged--the lower middle class--was above all classes the one most hardly treated in the imposition of the taxes. a small shopkeeper, or a clerk who just, and only just, was rich enough to pay income tax, was perhaps the only severely taxed man in the country. he paid the rates, the tea, sugar, tobacco, malt, and spirit taxes, as well as the income tax, but his means were exceedingly small. curiously enough the class which in theory was omnipotent, was the only class financially ill-treated. throughout the history of our former parliaments the constituency could no more have originated the policy which those parliaments selected than they could have made the solar system. as i have endeavoured to show in this volume, the deference of the old electors to their betters was the only way in which our old system could be maintained. no doubt countries can be imagined in which the mass of the electors would be thoroughly competent to form good opinions; approximations to that state happily exist. but such was not the state of the minor english shopkeepers. they were just competent to make a selection between two sets of superior ideas; or rather--for the conceptions of such people are more personal than abstract--between two opposing parties, each professing a creed of such ideas. but they could do no more. their own notions, if they had been cross-examined upon them, would have been found always most confused and often most foolish. they were competent to decide an issue selected by the higher classes, but they were incompetent to do more. the grave question now is, how far will this peculiar old system continue and how far will it be altered? i am afraid i must put aside at once the idea that it will be altered entirely and altered for the better. i cannot expect that the new class of voters will be at all more able to form sound opinions on complex questions than the old voters. there was indeed an idea--a very prevalent idea when the first edition of this book was published--that there then was an unrepresented class of skilled artisans who could form superior opinions on national matters, and ought to have the means of expressing them. we used to frame elaborate schemes to give them such means. but the reform act of did not stop at skilled labour; it enfranchised unskilled labour too. and no one will contend that the ordinary working man who has no special skill, and who is only rated because he has a house, can judge much of intellectual matters. the messenger in an office is not more intelligent than the clerks, not better educated, but worse; and yet the messenger is probably a very superior specimen of the newly enfranchised classes. the average can only earn very scanty wages by coarse labour. they have no time to improve themselves, for they are labouring the whole day through; and their early education was so small that in most cases it is dubious whether even if they had much time, they could use it to good purpose. we have not enfranchised a class less needing to be guided by their betters than the old class; on the contrary, the new class need it more than the old. the real question is, will they submit to it, will they defer in the same way to wealth and rank, and to the higher qualities of which these are the rough symbols and the common accompaniments? there is a peculiar difficulty in answering this question. generally, the debates upon the passing of an act contain much valuable instruction as to what may be expected of it. but the debates on the reform act of hardly tell anything. they are taken up with technicalities as to the ratepayers and the compound householder. nobody in the country knew what was being done. i happened at the time to visit a purely agricultural and conservative county, and i asked the local tories, "do you understand this reform bill? do you know that your conservative government has brought in a bill far more radical than any former bill, and that it is very likely to be passed?" the answer i got was, "what stuff you talk! how can it be a radical reform bill? why, bright opposes it!" there was no answering that in a way which a "common jury" could understand. the bill was supported by the times and opposed by mr. bright; and therefore the mass of the conservatives and of common moderate people, without distinction of party, had no conception of the effect. they said it was "london nonsense" if you tried to explain it to them. the nation indeed generally looks to the discussions in parliament to enlighten it as to the effect of bills. but in this case neither party, as a party, could speak out. many, perhaps most of the intelligent conservatives, were fearful of the consequences of the proposal; but as it was made by the heads of their own party, they did not like to oppose it, and the discipline of party carried them with it. on the other side, many, probably most of the intelligent liberals, were in consternation at the bill; they had been in the habit for years of proposing reform bills; they knew the points of difference between each bill, and perceived that this was by far the most sweeping which had ever been proposed by any ministry. but they were almost all unwilling to say so. they would have offended a large section in their constituencies if they had resisted a tory bill because it was too democratic; the extreme partisans of democracy would have said, "the enemies of the people have confidence enough in the people to entrust them with this power, but you, a 'liberal,' and a professed friend of the people, have not that confidence; if that is so, we will never vote for you again". many radical members who had been asking for years for household suffrage were much more surprised than pleased at the near chance of obtaining it; they had asked for it as bargainers ask for the highest possible price, but they never expected to get it. altogether the liberals, or at least the extreme liberals, were much like a man who has been pushing hard against an opposing door, till, on a sudden, the door opens, the resistance ceases, and he is thrown violently forward. persons in such an unpleasant predicament can scarcely criticise effectually, and certainly the liberals did not so criticise. we have had no such previous discussions as should guide our expectations from the reform bill, nor such as under ordinary circumstances we should have had. nor does the experience of the last election much help us. the circumstances were too exceptional. in the first place, mr. gladstone's personal popularity was such as has not been seen since the time of mr. pitt, and such as may never be seen again. certainly it will very rarely be seen. a bad speaker is said to have been asked how he got on as a candidate. "oh," he answered, "when i do not know what to say, i say 'gladstone,' and then they are sure to cheer, and i have time to think." in fact, that popularity acted as a guide both to constituencies and to members. the candidates only said they would vote with mr. gladstone, and the constituencies only chose those who said so. even the minority could only be described as anti-gladstone, just as the majority could only be described as pro-gladstone. the remains, too, of the old electoral organisation were exceedingly powerful; the old voters voted as they had been told, and the new voters mostly voted with them. in extremely few cases was there any new and contrary organisation. at the last election, the trial of the new system hardly began, and, as far as it did begin, it was favoured by a peculiar guidance. in the meantime our statesmen have the greatest opportunities they have had for many years, and likewise the greatest duty. they have to guide the new voters in the exercise of the franchise; to guide them quietly, and without saying what they are doing, but still to guide them. the leading statesmen in a free country have great momentary power. they settle the conversation of mankind. it is they who, by a great speech or two, determine what shall be said and what shall be written for long after. they, in conjunction with their counsellors, settle the programme of their party--the "platform," as the americans call it, on which they and those associated with them are to take their stand for the political campaign. it is by that programme, by a comparison of the programmes of different statesmen, that the world forms its judgment. the common ordinary mind is quite unfit to fix for itself what political question it shall attend to; it is as much as it can do to judge decently of the questions which drift down to it, and are brought before it; it almost never settles its topics; it can only decide upon the issues of those topics. and in settling what these questions shall be, statesmen have now especially a great responsibility if they raise questions which will excite the lower orders of mankind; if they raise questions on which those orders are likely to be wrong; if they raise questions on which the interest of those orders is not identical with, or is antagonistic to, the whole interest of the state, they will have done the greatest harm they can do. the future of this country depends on the happy working of a delicate experiment, and they will have done all they could to vitiate that experiment. just when it is desirable that ignorant men, new to politics, should have good issues, and only good issues, put before them, these statesmen will have suggested bad issues. they will have suggested topics which will bind the poor as a class together; topics which will excite them against the rich; topics the discussion of which in the only form in which that discussion reaches their ear will be to make them think that some new law can make them comfortable--that it is the present law which makes them uncomfortable--that government has at its disposal an inexhaustible fund out of which it can give to those who now want without also creating elsewhere other and greater wants. if the first work of the poor voters is to try to create a "poor man's paradise," as poor men are apt to fancy that paradise, and as they are apt to think they can create it, the great political trial now beginning will simply fail. the wide gift of the elective franchise will be a great calamity to the whole nation, and to those who gain it as great a calamity as to any. i do not of course mean that statesmen can choose with absolute freedom what topics they will deal with and what they will not. i am of course aware that they choose under stringent conditions. in excited states of the public mind they have scarcely a discretion at all; the tendency of the public perturbation determines what shall and what shall not be dealt with. but, upon the other hand, in quiet times statesmen have great power; when there is no fire lighted, they can settle what fire shall be lit. and as the new suffrage is happily to be tried in a quiet time, the responsibility of our statesmen is great because their power is great too. and the mode in which the questions dealt with are discussed is almost as important as the selection of these questions. it is for our principal statesmen to lead the public, and not to let the public lead them. no doubt when statesmen live by public favour, as ours do, this is a hard saying, and it requires to be carefully limited. i do not mean that our statesmen should assume a pedantic and doctrinaire tone with the english people; if there is anything which english people thoroughly detest, it is that tone exactly. and they are right in detesting it; if a man cannot give guidance and communicate instruction formally without telling his audience "i am better than you; i have studied this as you have not," then he is not fit for a guide or an instructor. a statesman who should show that gaucherie would exhibit a defect of imagination, and expose an incapacity for dealing with men which would be a great hindrance to him in his calling. but much argument is not required to guide the public, still less a formal exposition of that argument. what is mostly needed is the manly utterance of clear conclusions; if a statesman gives these in a felicitous way (and if with a few light and humorous illustrations, so much the better), he has done his part. he will have given the text, the scribes in the newspapers will write the sermon. a statesman ought to show his own nature, and talk in a palpable way what is to him important truth. and so he will both guide and benefit the nation. but if, especially at a time when great ignorance has an unusual power in public affairs, he chooses to accept and reiterate the decisions of that ignorance, he is only the hireling of the nation, and does little save hurt it. i shall be told that this is very obvious, and that everybody knows that and make , and that there is no use in inculcating it. but i answer that the lesson is not observed in fact; people do not so do their political sums. of all our political dangers, the greatest i conceive is that they will neglect the lesson. in plain english, what i fear is that both our political parties will bid for the support of the working man; that both of them will promise to do as he likes if he will only tell them what it is; that, as he now holds the casting vote in our affairs, both parties will beg and pray him to give that vote to them. i can conceive of nothing more corrupting or worse for a set of poor ignorant people than that two combinations of well-taught and rich men should constantly offer to defer to their decision, and compete for the office of executing it. vox populi will be vox diaboli if it is worked in that manner. and, on the other hand, my imagination conjures up a contrary danger. i can conceive that questions being raised which, if continually agitated, would combine the working men as a class together, the higher orders might have to consider whether they would concede the measure that would settle such questions, or whether they would risk the effect of the working men's combination. no doubt the question cannot be easily discussed in the abstract; much must depend on the nature of the measures in each particular case; on the evil they would cause if conceded; on the attractiveness of their idea to the working classes if refused. but in all cases it must be remembered that a political combination of the lower classes, as such and for their own objects, is an evil of the first magnitude; that a permanent combination of them would make them (now that so many of them have the suffrage) supreme in the country; and that their supremacy, in the state they now are, means the supremacy of ignorance over instruction and of numbers over knowledge. so long as they are not taught to act together, there is a chance of this being averted, and it can only be averted by the greatest wisdom and the greatest foresight in the higher classes. they must avoid, not only every evil, but every appearance of evil; while they have still the power they must remove, not only every actual grievance, but, where it is possible, every seeming grievance too; they must willingly concede every claim which they can safely concede, in order that they may not have to concede unwillingly some claim which would impair the safety of the country. this advice, too, will be said to be obvious; but i have the greatest fear that, when the time comes, it will be cast aside as timid and cowardly. so strong are the combative propensities of man that he would rather fight a losing battle than not fight at all. it is most difficult to persuade people that by fighting they may strengthen the enemy, yet that would be so here; since a losing battle--especially a long and well-fought one--would have thoroughly taught the lower orders to combine, and would have left the higher orders face to face with an irritated, organised, and superior voting power. the courage which strengthens an enemy and which so loses, not only the present battle, but many after battles, is a heavy curse to men and nations. in one minor respect, indeed, i think we may see with distinctness the effect of the reform bill of . i think it has completed one change which the act of began; it has completed the change which that act made in the relation of the house of lords to the house of commons. as i have endeavoured in this book to explain, the literary theory of the english constitution is on this point quite wrong as usual. according to that theory, the two houses are two branches of the legislature, perfectly equal and perfectly distinct. but before the act of they were not so distinct; there was a very large and a very strong common element. by their commanding influence in many boroughs and counties the lords nominated a considerable part of the commons; the majority of the other part were the richer gentry--men in most respects like the lords, and sympathising with the lords. under the constitution as it then was the two houses were not in their essence distinct; they were in their essence similar; they were, in the main, not houses of contrasted origin, but houses of like origin. the predominant part of both was taken from the same class--from the english gentry, titled and untitled. by the act of this was much altered. the aristocracy and the gentry lost their predominance in the house of commons; that predominance passed to the middle class. the two houses then became distinct, but then they ceased to be co-equal. the duke of wellington, in a most remarkable paper, has explained what pains he took to induce the lords to submit to their new position, and to submit, time after time, their will to the will of the commons. the reform act of has, i think, unmistakably completed the effect which the act of began, but left unfinished. the middle class element has gained greatly by the second change, and the aristocratic element has lost greatly. if you examine carefully the lists of members, especially of the most prominent members, of either side of the house, you will not find that they are in general aristocratic names. considering the power and position of the titled aristocracy, you will perhaps be astonished at the small degree in which it contributes to the active part of our governing assembly. the spirit of our present house of commons is plutocratic, not aristocratic; its most prominent statesmen are not men of ancient descent or of great hereditary estate; they are men mostly of substantial means, but they are mostly, too, connected more or less closely with the new trading wealth. the spirit of the two assemblies has become far more contrasted than it ever was. the full effect of the reform act of was indeed postponed by the cause which i mentioned just now. the statesmen who worked the system which was put up had themselves been educated under the system which was pulled down. strangely enough, their predominant guidance lasted as long as the system which they created. lord palmerston, lord russell, lord derby, died or else lost their influence within a year or two of . the complete consequences of the act of upon the house of lords could not be seen while the commons were subject to such aristocratic guidance. much of the change which might have been expected from the act of was held in suspense, and did not begin till that measure had been followed by another of similar and greater power. the work which the duke of wellington in part performed has now, therefore, to be completed also. he met the half difficulty; we have to surmount the whole one. we have to frame such tacit rules, to establish such ruling but unenacted customs, as will make the house of lords yield to the commons when and as often as our new constitution requires that it should yield. i shall be asked, how often is that, and what is the test by which you know it? i answer that the house of lords must yield whenever the opinion of the commons is also the opinion of the nation, and when it is clear that the nation has made up its mind. whether or not the nation has made up its mind is a question to be decided by all the circumstances of the case, and in the common way in which all practical questions are decided. there are some people who lay down a sort of mechanical test; they say the house of lords should be at liberty to reject a measure passed by the commons once or more, and then if the commons send it up again and again, infer that the nation is determined. but no important practical question in real life can be uniformly settled by a fixed and formal rule in this way. this rule would prove that the lords might have rejected the reform act of . whenever the nation was both excited and determined, such a rule would be an acute and dangerous political poison. it would teach the house of lords that it might shut its eyes to all the facts of real life and decide simply by an abstract formula. if in the lords had so acted, there would have been a revolution. undoubtedly there is a general truth in the rule. whether a bill has come up once only, or whether it has come up several times, is one important fact in judging whether the nation is determined to have that measure enacted; it is an indication, but it is only one of the indications. there are others equally decisive. the unanimous voice of the people may be so strong, and may be conveyed through so many organs, that it may be assumed to be lasting. englishmen are so very miscellaneous, that that which has really convinced a great and varied majority of them for the present may fairly be assumed to be likely to continue permanently to convince them. one sort might easily fall into a temporary and erroneous fanaticism, but all sorts simultaneously are very unlikely to do so. i should venture so far as to lay down for an approximate rule, that the house of lords ought, on a first-class subject, to be slow--very slow--in rejecting a bill passed even once by a large majority of the house of commons. i would not of course lay this down as an unvarying rule; as i have said, i have for practical purposes no belief in unvarying rules. majorities may be either genuine or fictitious, and if they are not genuine, if they do not embody the opinion of the representative as well as the opinion of the constituency, no one would wish to have any attention paid to them. but if the opinion of the nation be strong and be universal, if it be really believed by members of parliament, as well as by those who send them to parliament, in my judgment the lords should yield at once, and should not resist it. my main reason is one which has not been much urged. as a theoretical writer i can venture to say, what no elected member of parliament, conservative or liberal, can venture to say, that i am exceedingly afraid of the ignorant multitude of the new constituencies. i wish to have as great and as compact a power as possible to resist it. but a dissension between the lords and commons divides that resisting power; as i have explained, the house of commons still mainly represents the plutocracy, the lords represent the aristocracy. the main interest of both these classes is now identical, which is to prevent or to mitigate the rule of uneducated numbers. but to prevent it effectually, they must not quarrel among themselves; they must not bid one against the other for the aid of their common opponent. and this is precisely the effect of a division between lords and commons. the two great bodies of the educated rich go to the constituencies to decide between them, and the majority of the constituencies now consist of the uneducated poor. this cannot be for the advantage of any one. in doing so besides the aristocracy forfeit their natural position--that by which they would gain most power, and in which they would do most good. they ought to be the heads of the plutocracy. in all countries new wealth is ready to worship old wealth, if old wealth will only let it, and i need not say that in england new wealth is eager in its worship. satirist after satirist has told us how quick, how willing, how anxious are the newly-made rich to associate with the ancient rich. rank probably in no country whatever has so much "market" value as it has in england just now. of course there have been many countries in which certain old families, whether rich or poor, were worshipped by whole populations with a more intense and poetic homage; but i doubt if there has ever been any in which all old families and all titled families received more ready observance from those who were their equals, perhaps their superiors, in wealth, their equals in culture, and their inferiors only in descent and rank. the possessors of the "material" distinctions of life, as a political economist would class them, rush to worship those who possess the immaterial distinctions. nothing can be more politically useful than such homage, if it be skilfully used; no folly can be idler than to repel and reject it. the worship is the more politically important because it is the worship of the political superior for the political inferior. at an election the non-titled are much more powerful than the titled. certain individual peers have, from their great possessions, great electioneering influence, but, as a whole, the house of peers is not a principal electioneering force. it has so many poor men inside it, and so many rich men outside it, that its electioneering value is impaired. besides, it is in the nature of the curious influence of rank to work much more on men singly than on men collectively; it is an influence which most men--at least most englishmen--feel very much, but of which most englishmen are somewhat ashamed. accordingly, when any number of men are collected together, each of whom worships rank in his heart, the whole body will patiently hear--in many cases will cheer and approve--some rather strong speeches against rank. each man is a little afraid that his "sneaking kindness for a lord," as mr. gladstone put it, be found out; he is not sure how far that weakness is shared by those around him. and thus englishmen easily find themselves committed to anti-aristocratic sentiments which are the direct opposite of their real feeling, and their collective action may be bitterly hostile to rank while the secret sentiment of each separately is especially favourable to rank. in the close boroughs, which were largely held by peers, and were still more largely supposed to be held by them, were swept away with a tumult of delight; and in another similar time of great excitement, the lords themselves, if they deserve it, might pass away. the democratic passions gain by fomenting a diffused excitement, and by massing men in concourses; the aristocratic sentiments gain by calm and quiet, and act most on men by themselves, in their families, and when female influence is not absent. the overt electioneering power of the lords does not at all equal its real social power. the english plutocracy, as is often said of something yet coarser, must be "humoured, not drove"; they may easily be impelled against the aristocracy, though they respect it very much; and as they are much stronger than the aristocracy, they might, if angered, even destroy it; though in order to destroy it, they must help to arouse a wild excitement among the ignorant poor, which, if once roused, may not be easily calmed, and which may be fatal to far more than its beginners intend. this is the explanation of the anomaly which puzzles many clever lords. they think, if they do not say, "why are we pinned up here? why are we not in the commons where we could have so much more power? why is this nominal rank given us, at the price of substantial influence? if we prefer real weight to unreal prestige, why may we not have it?" the reply is, that the whole body of the lords have an incalculably greater influence over society while there is still a house of lords, than they would have if the house of lords were abolished; and that though one or two clever young peers might do better in the commons, the old order of peers, young and old, clever and not clever, is much better where it is. the selfish instinct of the mass of peers on this point is a keener and more exact judge of the real world than the fine intelligence of one or two of them. if the house of peers ever goes, it will go in a storm, and the storm will not leave all else as it is. it will not destroy the house of peers and leave the rich young peers, with their wealth and their titles, to sit in the commons. it would probably sweep all titles before it--at least all legal titles--and somehow or other it would break up the curious system by which the estates of great families all go to the eldest son. that system is a very artificial one; you may make a fine argument for it, but you cannot make a loud argument, an argument which would reach and rule the multitude. the thing looks like injustice, and in a time of popular passion it would not stand. much short of the compulsory equal division of the code napoleon, stringent clauses might be provided to obstruct and prevent these great aggregations of property. few things certainly are less likely than a violent tempest like this to destroy large and hereditary estates. but then, too, few things are less likely than an outbreak to destroy the house of lords--my point is, that a catastrophe which levels one will not spare the other. i conceive, therefore, that the great power of the house of lords should be exercised very timidly and very cautiously. for the sake of keeping the headship of the plutocracy, and through that of the nation, they should not offend the plutocracy; the points upon which they have to yield are mostly very minor ones, and they should yield many great points rather than risk the bottom of their power. they should give large donations out of income, if by so doing they keep, as they would keep, their capital intact. the duke of wellington guided the house of lords in this manner for years, and nothing could prosper better for them or for the country, and the lords have only to go back to the good path in which he directed them. the events of caused much discussion upon life peerages, and we have gained this great step, that whereas the former leader of the tory party in the lords--lord lyndhurst--defeated the last proposal to make life peers, lord derby, when leader of that party, desired to create them. as i have given in this book what seemed to me good reasons for making them, i need not repeat those reasons here; i need only say how the notion stands in my judgment now. i cannot look on life peerages in the way in which some of their strongest advocates regard them; i cannot think of them as a mode in which a permanent opposition or a contrast between the houses of lords and commons is to be remedied. to be effectual in that way, life peerages must be very numerous. now the house of lords will never consent to a very numerous life peerage without a storm; they must be in terror to do it, or they will not do it. and if the storm blows strongly enough to do so much, in all likelihood it will blow strongly enough to do much more. if the revolution is powerful enough and eager enough to make an immense number of life peers, probably it will sweep away the hereditary principle in the upper chamber entirely. of course one may fancy it to be otherwise; we may conceive of a political storm just going to a life-peerage limit, and then stopping suddenly. but in politics we must not trouble ourselves with exceedingly exceptional accidents; it is quite difficult enough to count on and provide for the regular and plain probabilities. to speak mathematically, we may easily miss the permanent course of the political curve if we engross our minds with its cusps and conjugate points. nor, on the other hand, can i sympathise with the objection to life peerages which some of the radical party take and feel. they think it will strengthen the lords, and so make them better able to oppose the commons; they think, if they do not say: "the house of lords is our enemy and that of all liberals; happily the mass of it is not intellectual; a few clever men are born there which we cannot help, but we will not 'vaccinate' it with genius; we will not put in a set of clever men for their lives who may as likely as not turn against us". this objection assumes that clever peers are just as likely to oppose the commons as stupid peers. but this i deny. most clever men who are in such a good place as the house of lords plainly is, will be very unwilling to lose it if they can help it; at the clear call of a great duty they might lose it, but only at such a call. and it does not take a clever man to see that systematic opposition of the commons is the only thing which can endanger the lords, or which will make an individual peer cease to be a peer. the greater you make the sense of the lords, the more they will see that their plain interest is to make friends of the plutocracy, and to be the chiefs of it, and not to wish to oppose the commons where that plutocracy rules. it is true that a completely new house of lords, mainly composed of men of ability, selected because they were able, might very likely attempt to make ability the predominant power in the state, and to rival, if not conquer, the house of commons, where the standard of intelligence is not much above the common english average. but in the present english world such a house of lords would soon lose all influence. people would say, "it was too clever by half," and in an englishman's mouth that means a very severe censure. the english people would think it grossly anomalous if their elected assembly of rich men were thwarted by a nominated assembly of talkers and writers. sensible men of substantial means are what we wish to be ruled by, and a peerage of genius would not compare with it in power. it is true, too, that at present some of the cleverest peers are not so ready as some others to agree with the commons. but it is not unnatural that persons of high rank and of great ability should be unwilling to bend to persons of lower rank, and of certainly not greater ability. a few of such peers (for they are very few) might say, "we had rather not have our peerage if we are to buy it at the price of yielding". but a life peer who had fought his way up to the peers, would never think so. young men who are born to rank may risk it, not middle-aged or old men who have earned their rank. a moderate number of life peers would almost always counsel moderation to the lords, and would almost always be right in counselling it. recent discussions have also brought into curious prominence another part of the constitution. i said in this book that it would very much surprise people if they were only told how many things the queen could do without consulting parliament, and it certainly has so proved, for when the queen abolished purchase in the army by an act of prerogative (after the lords had rejected the bill for doing so), there was a great and general astonishment. but this is nothing to what the queen can by law do without consulting parliament. not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the general commanding-in-chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of cornwall, and begin a war for the conquest of brittany. she could make every citizen in the united kingdom, male or female, a peer; she could make every parish in the united kingdom a "university"; she could dismiss most of the civil servants; she could pardon all offenders. in a word, the queen could by prerogative upset all the action of civil government within the government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenceless against foreign nations. why do we not fear that she would do this, or any approach to it? because there are two checks--one ancient and coarse, the other modern and delicate. the first is the check of impeachment. any minister who advised the queen so to use her prerogative as to endanger the safety of the realm, might be impeached for high treason, and would be so. such a minister would, in our technical law, be said to have levied, or aided to levy, "war against the queen". this counsel to her so to use her prerogative would by the judge be declared to be an act of violence against herself, and in that peculiar but effectual way the offender could be condemned and executed. against all gross excesses of the prerogative this is a sufficient protection. but it would be no protection against minor mistakes; any error of judgment committed bona fide, and only entailing consequences which one person might say were good, and another say were bad, could not be so punished. it would be possible to impeach any minister who disbanded the queen's army, and it would be done for certain. but suppose a minister were to reduce the army or the navy much below the contemplated strength--suppose he were only to spend upon them one-third of the amount which parliament had permitted him to spend--suppose a minister of lord palmerston's principles were suddenly and while in office converted to the principles of mr. bright and mr. cobden, and were to act on those principles, he could not be impeached. the law of treason neither could nor ought to be enforced against an act which was an error of judgment, not of intention--which was in good faith intended not to impair the well-being of the state, but to promote and augment it. against such misuses of the prerogative our remedy is a change of ministry. and in general this works very well. every minister looks long before he incurs that penalty, and no one incurs it wantonly. but, nevertheless, there are two defects in it. the first is that it may not be a remedy at all; it may be only a punishment. a minister may risk his dismissal; he may do some act difficult to undo, and then all which may be left will be to remove and censure him. and the second is that it is only one house of parliament which has much to say to this remedy, such as it is; the house of commons only can remove a minister by a vote of censure. most of the ministries for thirty years have never possessed the confidence of the lords, and in such cases a vote of censure by the lords could therefore have but little weight; it would be simply the particular expression of a general political disapproval. it would be like a vote of censure on a liberal government by the carlton, or on a tory government by the reform club. and in no case has an adverse vote by the lords the same decisive effect as a vote of the commons; the lower house is the ruling and the choosing house, and if a government really possesses that, it thoroughly possesses nine-tenths of what it requires. the support of the lords is an aid and a luxury; that of the commons is a strict and indispensable necessary. these difficulties are particularly raised by questions of foreign policy. on most domestic subjects, either custom or legislation has limited the use of the prerogative. the mode of governing the country, according to the existing laws, is mostly worn into a rut, and most administrations move in it because it is easier to move there than anywhere else. most political crises--the decisive votes, which determine the fate of government--are generally either on questions of foreign policy or of new laws; and the questions of foreign policy come out generally in this way, that the government has already done something, and that it is for the one part of the legislature alone--for the house of commons, and not for the house of lords--to say whether they have or have not forfeited their place by the treaty they have made. i think every one must admit that this is not an arrangement which seems right on the face of it. treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous. in the older forms of the english constitution, this may have been quite right; the power was then really lodged in the crown, and because parliament met very seldom, and for other reasons, it was then necessary that, on a multitude of points, the crown should have much more power than is amply sufficient for it at present. but now the real power is not in the sovereign, it is in the prime minister and in the cabinet--that is, in the hands of a committee appointed by parliament, and of the chairman of that committee. now, beforehand, no one would have ventured to suggest that a committee of parliament on foreign relations should be able to commit the country to the greatest international obligations without consulting either parliament or the country. no other select committee has any comparable power; and considering how carefully we have fettered and limited the powers of all other subordinate authorities, our allowing so much discretionary power on matters peculiarly dangerous and peculiarly delicate to rest in the sole charge of one secret committee is exceedingly strange. no doubt it may be beneficial; many seeming anomalies are so, but at first sight it does not look right. i confess that i should see no advantage in it if our two chambers were sufficiently homogeneous and sufficiently harmonious. on the contrary, if those two chambers were as they ought to be, i should believe it to be a great defect. if the administration had in both houses a majority--not a mechanical majority ready to accept anything, but a fair and reasonable one, predisposed to think the government right, but not ready to find it to be so in the face of facts and in opposition to whatever might occur; if a good government were thus placed, i should think it decidedly better that the agreements of the administration with foreign powers should be submitted to parliament. they would then receive that which is best for all arrangements of business, an understanding and sympathising criticism, but still a criticism. the majority of the legislature, being well disposed to the government, would not "find" against it except it had really committed some big and plain mistake. but if the government had made such a mistake, certainly the majority of the legislature would find against it. in a country fit for parliamentary institutions, the partisanship of members of the legislature never comes in manifest opposition to the plain interest of the nation; if it did, the nation being (as are all nations capable of parliamentary institutions) constantly attentive to public affairs, would inflict on them the maximum parliamentary penalty at the next election and at many future elections. it would break their career. no english majority dare vote for an exceedingly bad treaty; it would rather desert its own leader than ensure its own ruin. and an english minority, inheriting a long experience of parliamentary affairs, would not be exceedingly ready to reject a treaty made with a foreign government. the leaders of an english opposition are very conversant with the school-boy maxim, "two can play at that fun". they know that the next time they are in office the same sort of sharp practice may be used against them, and therefore they will not use it. so strong is this predisposition, that not long since a subordinate member of the opposition declared that the "front benches" of the two sides of the house--that is, the leaders of the government and the leaders of the opposition--were in constant tacit league to suppress the objections of independent members. and what he said is often quite true. there are often seeming objections which are not real objections; at least, which are, in the particular cases, outweighed by counter-considerations; and these "independent members," having no real responsibility, not being likely to be hurt themselves if they make a mistake, are sure to blurt out, and to want to act upon. but the responsible heads of the party who may have to decide similar things, or even the same things themselves, will not permit it. they refuse, out of interest as well as out of patriotism, to engage the country in a permanent foreign scrape, to secure for themselves and their party a momentary home advantage. accordingly, a government which negotiated a treaty would feel that its treaty would be subject certainly to a scrutiny, but still to a candid and lenient scrutiny; that it would go before judges, of whom the majority were favourable, and among whom the most influential part of the minority were in this case much opposed to excessive antagonism. and this seems to be the best position in which negotiators can be placed, namely, that they should be sure to have to account to considerate and fair persons, but not to have to account to inconsiderate and unfair ones. at present the government which negotiates a treaty can hardly be said to be accountable to any one. it is sure to be subjected to vague censure. benjamin franklin said, "i have never known a peace made, even the most advantageous, that was not censured as inadequate, and the makers condemned as injudicious or corrupt. 'blessed are the peace-makers' is, i suppose, to be understood in the other world, for in this they are frequently cursed." and this is very often the view taken now in england of treaties. there being nothing practical in the opposition--nothing likely to hamper them hereafter--the leaders of opposition are nearly sure to suggest every objection. the thing is done and cannot be undone, and the most natural wish of the opposition leaders is to prove that if they had been in office, and it therefore had been theirs to do it, they could have done it much better. on the other hand, it is quite possible that there may be no real criticism on a treaty at all; or the treaty has been made by the government, and as it cannot be unmade by any one, the opposition may not think it worth while to say much about it. the government, therefore, is never certain of any criticism; on the contrary, it has a good chance of escaping criticism; but if there be any criticism the government must expect it to be bitter, sharp, and captious--made as an irresponsible objector would make it, and not as a responsible statesman, who may have to deal with a difficulty if he make it, and therefore will be cautious how he says anything which may make it. this is what happens in common cases; and in the uncommon--the ninety-ninth case in a hundred--in which the opposition hoped to turn out the government because of the alleged badness of the treaty they have made, the criticism is sure to be of the most undesirable character, and to say what is most offensive to foreign nations. all the practised acumen of anti-government writers and speakers is sure to be engaged in proving that england has been imposed upon--that, as was said in one case, "the moral and the intellectual qualities have been divided; that our negotiation had the moral, and the negotiation on the other side the intellectual," and so on. the whole pitch of party malice is then expended, because there is nothing to check the party in opposition. the treaty has been made, and though it may be censured, and the party which made it ousted, yet the difficulty it was meant to cure is cured, and the opposing party, if it takes office, will not have that difficulty to deal with. in abstract theory these defects in our present practice would seem exceedingly great, but in practice they are not so. english statesmen and english parties have really a great patriotism; they can rarely be persuaded even by their passions or their interest to do anything contrary to the real interest of england, or anything which would lower england in the eyes of foreign nations. and they would seriously hurt themselves if they did. but still these are the real tendencies of our present practice, and these are only prevented by qualities in the nation and qualities in our statesmen, which will just as much exist if we change our practice. it certainly would be in many ways advantageous to change it. if we require that in some form the assent of parliament shall be given to such treaties, we should have a real discussion prior to the making of such treaties. we should have the reasons for the treaty plainly stated, and also the reasons against it. at present, as we have seen, the discussion is unreal. the thing is done and cannot be altered; and what is said often ought not to be said because it is captious, and what is not said ought as often to be said because it is material. we should have a manlier and plainer way of dealing with foreign policy, if ministers were obliged to explain clearly their foreign contracts before they were valid, just as they have to explain their domestic proposals before they can become laws. the objections to this are, as far as i know, three, and three only. first, that it would not be always desirable for ministers to state clearly the motives which induced them to agree to foreign compacts. "treaties," it is said, "are in one great respect different from laws, they concern not only the government which binds, the nation so bound, but a third party too--a foreign country--and the feelings of that country are to be considered as well as our own. and that foreign country will, probably, in the present state of the world be a despotic one, where discussion is not practised, where it is not understood, where the expressions of different speakers are not accurately weighed, where undue offence may easily be given." this objection might be easily avoided by requiring that the discussion upon treaties in parliament like that discussion in the american senate should be "in secret session," and that no report should be published of it. but i should, for my own part, be rather disposed to risk a public debate. despotic nations now cannot understand england; it is to them an anomaly "chartered by providence"; they have been time out of mind puzzled by its institutions, vexed at its statesmen, and angry at its newspapers. a little more of such perplexity and such vexation does not seem to me a great evil. and if it be meant, as it often is meant, that the whole truth as to treaties cannot be spoken out, i answer, that neither can the whole truth as to laws. all important laws affect large "vested interests"; they touch great sources of political strength; and these great interests require to be treated as delicately, and with as nice a manipulation of language, as the feelings of any foreign country. a parliamentary minister is a man trained by elaborate practice not to blurt out crude things, and an english parliament is an assembly which particularly dislikes anything gauche or anything imprudent. they would still more dislike it if it hurt themselves and the country as well as the speaker. i am, too, disposed to deny entirely that there can be any treaty for which adequate reasons cannot be given to the english people, which the english people ought to make. a great deal of the reticence of diplomacy had, i think history shows, much better be spoken out. the worst families are those in which the members never really speak their minds to one another; they maintain an atmosphere of unreality, and every one always lives in an atmosphere of suppressed ill-feeling. it is the same with nations. the parties concerned would almost always be better for hearing the substantial reasons which induced the negotiators to make the treaty, and the negotiators would do their work much better, for half the ambiguities in treaties are caused by the negotiators not liking the fact or not taking the pains to put their own meaning distinctly before their own minds. and they would be obliged to make it plain if they had to defend it and argue on it before a great assembly. secondly, it may be objected to the change suggested that parliament is not always sitting, and that if treaties required its assent, it might have to be sometimes summoned out of season, or the treaties would have to be delayed. and this is as far as it goes a just objection, but i do not imagine that it goes far. the great bulk of treaties could wait a little without harm, and in the very few cases when urgent haste is necessary, an autumn session of parliament could well be justified, for the occasion must be of grave and critical importance. thirdly, it may be said that if we required the consent of both houses of parliament to foreign treaties before they were valid we should much augment the power of the house of lords. and this is also, i think, a just objection as far as it goes. the house of lords, as it cannot turn out the ministry for making treaties, has in no case a decisive weight in foreign policy, though its debates on them are often excellent; and there is a real danger at present in giving it such weight. they are not under the same guidance as the house of commons. in the house of commons, of necessity, the ministry has a majority, and the majority will agree to the treaties the leaders have made if they fairly can. they will not be anxious to disagree with them. but the majority of the house of lords may always be, and has lately been generally an opposition majority, and therefore the treaty may be submitted to critics exactly pledged to opposite views. it might be like submitting the design of an architect known to hold "mediaeval principles" to a committee wedded to "classical principles". still, upon the whole, i think the augmentation of the power of the peers might be risked without real fear of serious harm. our present practice, as has been explained, only works because of the good sense of those by whom it is worked, and the new practice would have to rely on a similar good sense and practicality too. the house of lords must deal with the assent to treaties as they do with the assent to laws; they must defer to the voice of the country and the authority of the commons even in cases where their own judgment might guide them otherwise. in very vital treaties probably, being englishmen, they would be of the same mind as the rest of englishmen. if in such cases they showed a reluctance to act as the people wished, they would have the same lesson taught them as on vital and exciting questions of domestic legislation, and the case is not so likely to happen, for on these internal and organic questions the interest and the feeling of the peers is often presumably opposed to that of other classes--they may be anxious not to relinquish the very power which other classes are anxious to acquire; but in foreign policy there is no similar antagonism of interest--a peer and a non-peer have presumably in that matter the same interest and the same wishes. probably, if it were considered to be desirable to give to parliament a more direct control over questions of foreign policy than it possesses now, the better way would be not to require a formal vote to the treaty clause by clause. this would entail too much time, and would lead to unnecessary changes in minor details. it would be enough to let the treaty be laid upon the table of both houses, say for fourteen days, and to acquire validity unless objected to by one house or other before that interval had expired. ii. this is all which i think i need say on the domestic events which have changed, or suggested changes, in the english constitution since this book was written. but there are also some foreign events which have illustrated it, and of these i should like to say a few words. naturally, the most striking of these illustrative changes comes from france. since france has always been trying political experiments, from which others may profit much, though as yet she herself has profited little. she is now trying one singularly illustrative of the english constitution. when the first edition of this book was published i had great difficulty in persuading many people that it was possible in a non-monarchical state, for the real chief of the practical executive--the premier as we should call him--to be nominated and to be removable by the vote of the national assembly. the united states and its copies were the only present and familiar republics, and in these the system was exactly opposite. the executive was there appointed by the people as the legislature was too. no conspicuous example of any other sort of republic then existed. but now france has given an example--m. thiers is (with one exception) just the chef du pouvoir executif that i endeavoured more than once in this book to describe. he is appointed by and is removable by the assembly. he comes down and speaks in it just as our premier does; he is responsible for managing it just as our premier is. no one can any longer doubt the possibility of a republic in which the executive and the legislative authorities were united and fixed; no one can assert such union to be the incommunicable attribute of a constitutional monarchy. but, unfortunately, we can as yet only infer from this experiment that such a constitution is possible; we cannot as yet say whether it will be bad or good. the circumstances are very peculiar, and that in three ways. first, the trial of a specially parliamentary republic, of a republic where parliament appoints the minister, is made in a nation which has, to say the least of it, no peculiar aptitude for parliamentary government; which has possibly a peculiar inaptitude for it. in the last but one of these essays i have tried to describe one of the mental conditions of parliamentary government, which i call "rationality," by which i do not mean reasoning power, but rather the power of hearing the reasons of others, of comparing them quietly with one's own reasons, and then being guided by the result. but a french assembly is not easy to reason with. every assembly is divided into parties and into sections of parties, and in france each party, almost every section of a party, begins not to clamour but to scream, and to scream as only frenchmen can, as soon as it hears anything which it particularly dislikes. with an assembly in this temper, real discussion is impossible, and parliamentary government is impossible too, because the parliament can neither choose men nor measures. the french assemblies under the restored monarchy seem to have been quieter, probably because being elected from a limited constituency they did not contain so many sections of opinion; they had fewer irritants and fewer species of irritability. but the assemblies of the ' republic were disorderly in the extreme. i saw the last myself, and can certify that steady discussion upon a critical point was not possible in it. there was not an audience willing to hear. the assembly now sitting at versailles is undoubtedly also, at times, most tumultuous, and a parliamentary government in which it governs must be under a peculiar difficulty, because as a sovereign it is unstable, capricious, and unruly. the difficulty is the greater because there is no check, or little, from the french nation upon the assembly. the french, as a nation, do not care for or appreciate parliamentary government. i have endeavoured to explain how difficult it is for inexperienced mankind to take to such a government; how much more natural, that is, how much more easy to uneducated men is loyalty to a monarch. a nation which does not expect good from a parliament, cannot check or punish a parliament. france expects, i fear, too little from her parliaments ever to get what she ought. now that the suffrage is universal, the average intellect and the average culture of the constituent bodies are excessively low; and even such mind and culture as there is has long been enslaved to authority; the french peasant cares more for standing well with his present prefet than for anything else whatever; he is far too ignorant to check and watch his parliament, and far too timid to think of doing either if the executive authority nearest to him does not like it. the experiment of a strictly parliamentary republic--of a republic where the parliament appoints the executive--is being tried in france at an extreme disadvantage, because in france a parliament is unusually likely to be bad, and unusually likely also to be free enough to show its badness. secondly, the present polity of france is not a copy of the whole effective part of the british constitution, but only a part of it. by our constitution nominally the queen, but really the prime minister, has the power of dissolving the assembly. but m. thiers has no such power; and therefore, under ordinary circumstances, i believe, the policy would soon become unmanageable. the result would be, as i have tried to explain, that the assembly would be always changing its ministry, that having no reason to fear the penalty which that change so often brings in england, they would be ready to make it once a month. caprice is the characteristic vice of miscellaneous assemblies, and without some check their selection would be unceasingly mutable. this peculiar danger of the present constitution of france has however been prevented by its peculiar circumstances. the assembly have not been inclined to remove m. thiers, because in their lamentable present position they could not replace m. thiers. he has a monopoly of the necessary reputation. it is the empire--the empire which he always opposed--that has done him this kindness. for twenty years no great political reputation could arise in france. the emperor governed and no one member could show a capacity for government. m. rouher, though of vast real ability, was in the popular idea only the emperor's agent; and even had it been otherwise, m. rouher, the one great man of imperialism, could not have been selected as a head of the government, at a moment of the greatest reaction against the empire. of the chiefs before the twenty years' silence, of the eminent men known to be able to handle parliaments and to govern parliaments, m. thiers was the only one still physically able to begin again to do so. the miracle is, that at seventy-four even he should still be able. as no other great chief of the parliament regime existed, m. thiers is not only the best choice, but the only choice. if he were taken away, it would be most difficult to make any other choice, and that difficulty keeps him where he is. at every crisis the assembly feels that after m. thiers "the deluge," and he lives upon that feeling. a change of the president, though legally simple, is in practice all but impossible; because all know that such a change might be a change, not only of the president, but of much more too: that very probably it might be a change of the polity--that it might bring in a monarchy or an empire. lastly, by a natural consequence of the position, m. thiers does not govern as a parliamentary premier governs. he is not, he boasts that he is not, the head of a party. on the contrary, being the one person essential to all parties, he selects ministers from all parties, he constructs a cabinet in which no one minister agrees with any other in anything, and with all the members of which he himself frequently disagrees. the selection is quite in his hand. ordinarily a parliamentary premier cannot choose; he is brought in by a party; he is maintained in office by a party; and that party requires that as they aid him, he shall aid them; that as they give him the very best thing in the state, he shall give them the next best things. but m. thiers is under no such restriction. he can choose as he likes, and does choose. neither in the selection of his cabinet nor in the management of the chamber, is m. thiers guided as a similar person in common circumstances would have to be guided. he is the exception of a moment; he is not the example of a lasting condition. for these reasons, though we may use the present constitution of france as a useful aid to our imaginations, in conceiving of a purely parliamentary republic, of a monarchy minus the monarch, we must not think of it as much more. it is too singular in its nature and too peculiar in its accidents to be a guide to anything except itself. in this essay i made many remarks on the american constitution, in comparison with the english; and as to the american constitution we have had a whole world of experience since i first wrote. my great object was to contrast the office of president as an executive officer and to compare it with that of a prime minister; and i devoted much space to showing that in one principal respect the english system is by far the best. the english premier being appointed by the selection, and being removable at the pleasure, of the preponderant legislative assembly, is sure to be able to rely on that assembly. if he wants legislation to aid his policy he can obtain that legislation; he can carry out that policy. but the american president has no similar security. he is elected in one way, at one time, and congress (no matter which house) is elected in another way, at another time. the two have nothing to bind them together, and in matter of fact, they continually disagree. this was written in the time of mr. lincoln, when congress, the president, and all the north were united as one man in the war against the south. there was then no patent instance of mere disunion. but between the time when the essays were first written in the fortnightly, and their subsequent junction into a book, mr. lincoln was assassinated, and mr. johnson, the vice-president, became president, and so continued for nearly four years. at such a time the characteristic evils of the presidential system were shown most conspicuously. the president and the assembly, so far from being (as it is essential to good government that they should be) on terms of close union, were not on terms of common courtesy. so far from being capable of a continuous and concerted co-operation they were all the while trying to thwart one another. he had one plan for the pacification of the south and they another; they would have nothing to say to his plans, and he vetoed their plans as long as the constitution permitted, and when they were, in spite of him, carried, he, as far as he could (and this was very much), embarrassed them in action. the quarrel in most countries would have gone beyond the law, and come to blows; even in america, the most law-loving of countries, it went as far as possible within the law. mr. johnson described the most popular branch of the legislature--the house of representatives--as a body "hanging on the verge of government"; and that house impeached him criminally, in the hope that in that way they might get rid of him civilly. nothing could be so conclusive against the american constitution, as a constitution, as that incident. a hostile legislature and a hostile executive were so tied together, that the legislature tried, and tried in vain, to rid itself of the executive by accusing it of illegal practices. the legislature was so afraid of the president's legal power that it unfairly accused him of acting beyond the law. and the blame thus cast on the american constitution is so much praise to be given to the american political character. few nations, perhaps scarcely any nation, could have borne such a trial so easily and so perfectly. this was the most striking instance of disunion between the president and the congress that has ever yet occurred, and which probably will ever occur. probably for very many years the united states will have great and painful reason to remember that at the moment of all their history, when it was most important to them to collect and concentrate all the strength and wisdom of their policy on the pacification of the south, that policy was divided by a strife in the last degree unseemly and degrading. but it will be for a competent historian hereafter to trace out this accurately and in detail; the time is yet too recent, and i cannot pretend that i know enough to do so. i cannot venture myself to draw the full lessons from these events; i can only predict that when they are drawn, those lessons will be most important, and most interesting. there is, however, one series of events which have happened in america since the beginning of the civil war, and since the first publication of these essays, on which i should wish to say something in detail--i mean the financial events. these lie within the scope of my peculiar studies, and it is comparatively easy to judge of them, since whatever may be the case with refined statistical reasoning, the great results of money matters speak to and interest all mankind. and every incident in this part of american financial history exemplifies the contrast between a parliamentary and presidential government. the distinguishing quality of parliamentary government is, that in each stage of a public transaction there is a discussion; that the public assist at this discussion; that it can, through parliament, turn out an administration which is not doing as it likes, and can put in an administration which will do as it likes. but the characteristic of a presidential government is, in a multitude of cases, that there is no such discussion; that when there is a discussion the fate of government does not turn upon it, and, therefore, the people do not attend to it; that upon the whole the administration itself is pretty much doing as it likes, and neglecting as it likes, subject always to the check that it must not too much offend the mass of the nation. the nation commonly does not attend, but if by gigantic blunders you make it attend, it will remember it and turn you out when its time comes; it will show you that your power is short, and so on the instant weaken that power; it will make your present life in office unbearable and uncomfortable by the hundred modes in which a free people can, without ceasing, act upon the rulers which it elected yesterday, and will have to reject or re-elect to-morrow. in finance the most striking effect in america has, on the first view of it, certainly been good. it has enabled the government to obtain and to keep a vast surplus of revenue over expenditure. even before the civil war it did this--from to . mr. wells tells us that, strange as it may seem, "there was not a single year in which the unexpended balance in the national treasury--derived from various sources--at the end of the year, was not in excess of the total expenditure of the preceding year; while in not a few years the unexpended balance was absolutely greater than the sum of the entire expenditure of the twelve months preceding". but this history before the war is nothing to what has happened since. the following are the surpluses of revenue over expenditure since the end of the civil war:-- year ending june . surplus. (pounds) . . . . . . . . , , . . . . . . . . , , . . . . . . . . , , . . . . . . . . , , . . . . . . . . , , . . . . . . . . , , no one who knows anything of the working of parliamentary government, will for a moment imagine that any parliament would have allowed any executive to keep a surplus of this magnitude. in england, after the french war, the government of that day, which had brought it to a happy end, which had the glory of waterloo, which was in consequence exceedingly strong, which had besides elements of strength from close boroughs and treasury influence such as certainly no government has ever had since, and such perhaps as no government ever had before--that government proposed to keep a moderate surplus and to apply it to the reduction of the debt, but even this the english parliament would not endure. the administration with all its power derived both from good and evil had to yield; the income tax was abolished, with it went the surplus, and with the surplus all chance of any considerable reduction of the debt for that time. in truth taxation is so painful that in a sensitive community which has strong organs of expression and action, the maintenance of a great surplus is excessively difficult. the opposition will always say that it is unnecessary, is uncalled for, is injudicious; the cry will be echoed in every constituency; there will be a series of large meetings in the great cities; even in the smaller constituencies there will mostly be smaller meetings; every member of parliament will be pressed upon by those who elect him; upon this point there will be no distinction between town and country, the country gentleman and the farmer disliking high taxes as much as any in the towns. to maintain a great surplus by heavy taxes to pay off debt has never yet in this country been possible, and to maintain a surplus of the american magnitude would be plainly impossible. some part of the difference between england and america arises undoubtedly not from political causes but from economical. america is not a country sensitive to taxes; no great country has perhaps ever been so unsensitive in this respect; certainly she is far less sensitive than england. in reality america is too rich; daily industry there is too common, too skilful, and too productive, for her to care much for fiscal burdens. she is applying all the resources of science and skill and trained labour, which have been in long ages painfully acquired in old countries, to develop with great speed the richest soil and the richest mines of new countries; and the result is untold wealth. even under a parliamentary government such a community could and would bear taxation much more easily than englishmen ever would. but difference of physical character in this respect is of little moment in comparison with difference of political constitution. if america was under a parliamentary government, she would soon be convinced that in maintaining this great surplus and in paying this high taxation she would be doing herself great harm. she is not performing a great duty, but perpetrating a great injustice. she is injuring posterity by crippling and displacing industry, far more than she is aiding it by reducing the taxes it will have to pay. in the first place, the maintenance of the present high taxation compels the retention of many taxes which are contrary to the maxims of free-trade. enormous customs duties are necessary, and it would be all but impossible to impose equal excise duties even if the americans desired it. in consequence, besides what the americans pay to the government, they are paying a great deal to some of their own citizens, and so are rearing a set of industries which never ought to have existed, which are bad speculations at present because other industries would have paid better, and which may cause a great loss out of pocket hereafter when the debt is paid off and the fostering tax withdrawn. then probably industry will return to its natural channel, the artificial trade will be first depressed, then discontinued, and the fixed capital employed in the trade will all be depreciated and much of it be worthless. secondly, all taxes on trade and manufacture are injurious in various ways to them. you cannot put on a great series of such duties without cramping trade in a hundred ways and without diminishing their productiveness exceedingly. america is now working in heavy fetters, and it would probably be better for her to lighten those fetters even though a generation or two should have to pay rather higher taxes. those generations would really benefit, because they would be so much richer that the slightly increased cost of government would never be perceived. at any rate, under a parliamentary government this doctrine would have been incessantly inculcated; a whole party would have made it their business to preach it, would have made incessant small motions in parliament about it, which is the way to popularise their view. and in the end i do not doubt that they would have prevailed. they would have had to teach a lesson both pleasant and true, and such lessons are soon learned. on the whole, therefore, the result of the comparison is that a presidential government makes it much easier than the parliamentary to maintain a great surplus of income over expenditure, but that it does not give the same facility for examining whether it be good or not good to maintain a surplus, and, therefore, that it works blindly, maintaining surpluses when they do extreme harm just as much as when they are very beneficial. in this point the contrast of presidential with parliamentary government is mixed; one of the defects of parliamentary government probably is the difficulty under it of maintaining a surplus revenue to discharge debt, and this defect presidential government escapes, though at the cost of being likely to maintain that surplus upon inexpedient occasions as well as upon expedient. but in all other respects a parliamentary government has in finance an unmixed advantage over the presidential in the incessant discussion. though in one single case it produces evil as well as good, in most cases it produces good only. and three of these cases are illustrated by recent american experience. first, as mr. goldwin smith--no unfavourable judge of anything american--justly said some years since, the capital error made by the united states government was the "legal tender act," as it is called, by which it made inconvertible paper notes issued by the treasury the sole circulating medium of the country. the temptation to do this was very great, because it gave at once a great war fund when it was needed, and with no pain to any one. if the notes of a government supersede the metallic currency medium of a country to the extent of $ , , , this is equivalent to a recent loan of $ , , to the government for all purposes within the country. whenever the precious metals are not required, and for domestic purposes in such a case they are not required, notes will buy what the government want, and it can buy to the extent of its issue. but, like all easy expedients out of a great difficulty, it is accompanied by the greatest evils; if it had not been so, it would have been the regular device in such cases, and the difficulty would have been no difficulty at all; there would have been a known easy way out of it. as is well known, inconvertible paper issued by government is sure to be issued in great quantities, as the american currency soon was; it is sure to be depreciated as against coin; it is sure to disturb values and to derange markets; it is certain to defraud the lender; it is certain to give the borrower more than he ought to have. in the case of america there was a further evil. being a new country, she ought in her times of financial want to borrow of old countries; but the old countries were frightened by the probable issue of unlimited inconvertible paper, and they would not lend a shilling. much more than the mercantile credit of america was thus lost. the great commercial houses in england are the most natural and most effectual conveyers of intelligence from other countries to europe. if they had been financially interested in giving in a sound report as to the progress of the war, a sound report we should have had. but as the northern states raised no loans in lombard street (and could raise none because of their vicious paper money), lombard street did not care about them, and england was very imperfectly informed of the progress of the civil struggle, and on the whole matter, which was then new and very complex, england had to judge without having her usual materials for judgment, and (since the guidance of the "city" on political matter is very quietly and imperceptibly given) without knowing she had not those materials. of course, this error might have been committed, and perhaps would have been committed under a parliamentary government. but if it had, its effects would ere long have been thoroughly searched into and effectually frustrated. the whole force of the greatest inquiring machine and the greatest discussing machine which the world has ever known would have been directed to this subject. in a year or two the american public would have had it forced upon them in every form till they must have comprehended it. but under the presidential form of government, and owing to the inferior power of generating discussion, the information given to the american people has been imperfect in the extreme. and in consequence, after nearly ten years of painful experience, they do not now understand how much they have suffered from their inconvertible currency. but the mode in which the presidential government of america managed its taxation during the civil war, is even a more striking example of its defects. mr. wells tells us:-- "in the outset all direct or internal taxation was avoided, there having been apparently an apprehension on the part of congress, that inasmuch as the people had never been accustomed to it, and as all machinery for assessment and collection was wholly wanting, its adoption would create discontent, and thereby interfere with a vigorous prosecution of hostilities. congress, therefore, confined itself at first to the enactment of measures looking to an increase of revenue from the increase of indirect taxes upon imports; and it was not until four months after the actual outbreak of hostilities that a direct tax of $ , , per annum was apportioned among the states, and an income tax of per cent. on the excess of all incomes over $ was provided for; the first being made to take effect practically eight, and the second ten months after date of enactment. such laws of course took effect, and became immediately operative in the loyal states only, and produced but comparatively little revenue; and although the range of taxation was soon extended, the whole receipts from all sources by the government for the second year of the war, from excise, income, stamp, and all other internal taxes, were less than $ , , ; and that, too, at a time when the expenditures were in excess $ , , per month, or at the rate of over $ , , per annum. and as showing how novel was this whole subject of direct and internal taxation to the people, and how completely the government officials were lacking in all experience in respect to it, the following incident may be noted. the secretary of the treasury, in his report for , stated that, with a view of determining his resources, he employed a very competent person, with the aid of practical men, to estimate the probable amount of revenue to be derived from each department of internal taxation for the previous year. the estimate arrived at was $ , , , but the actual receipts were only $ , , ." now, no doubt, this might have happened under a parliamentary government. but, then, many members of parliament, the entire opposition in parliament, would have been active to unravel the matter. all the principles of finance would have been worked and propounded. the light would have come from above, not from below--it would have come from parliament to the nation instead of from the nation to parliament but exactly the reverse happened in america. mr. wells goes on to say:-- "the people of the loyal states were, however, more determined and in earnest in respect to this matter of taxation than were their rulers; and before long the popular discontent at the existing state of things was openly manifest. every where the opinion was expressed that taxation in all possible forms should immediately, and to the largest extent, be made effective and imperative; and congress spurred up, and right fully relying on public sentiment to sustain their action, at last took up the matter resolutely and in earnest, and devised and inaugurated a system of internal and direct taxation, which for its universality and peculiarities has probably no parallel in anything which has heretofore been recorded in civil history, or is likely to be experienced hereafter. the one necessity of the situation was revenue, and to obtain it speedily and in large amounts through taxation the only principle recognised--if it can be called a principle--was akin to that recommended to the traditionary irishman on his visit to donnybrook fair, 'wherever you see a head hit it'. wherever you find an article, a product, a trade, a profession, or a source of income, tax it! and so an edict went forth to this effect, and the people cheerfully submitted. incomes under $ , were taxed per cent., with an exemption of $ and house rent actually paid; these exemptions being allowed on this ground, that they represented an amount sufficient at the time to enable a small family to procure the bare necessaries of life, and thus take out from the operation of the law all those who were dependent upon each day's earnings to supply each day's needs. incomes in excess of $ , and not in excess of $ , were taxed / per cent. in addition; and incomes over $ , per cent. additional, without any abeyance or exemptions whatever." now this is all contrary to and worse than what would have happened under a parliamentary government. the delay to tax would not have occurred under it: the movement by the country to get taxation would never have been necessary under it. the excessive taxation accordingly imposed would not have been permitted under it. the last point i think i need not labour at length. the evils of a bad tax are quite sure to be pressed upon the ears of parliament in season and out of season; the few persons who have to pay it are thoroughly certain to make themselves heard. the sort of taxation tried in america, that of taxing everything, and seeing what every thing would yield, could not have been tried under a government delicately and quickly sensitive to public opinion. i do not apologise for dwelling at length upon these points, for the subject is one of transcendent importance. the practical choice of first-rate nations is between the presidential government and the parliamentary; no state can be first-rate which has not a government by discussion, and those are the only two existing species of that government. it is between them that a nation which has to choose its government must choose. and nothing therefore can be more important than to compare the two, and to decide upon the testimony of experience, and by facts, which of them is the better. the poplars, wimbledon: june , . no. ii. the cabinet. "on all great subjects," says mr. mill, "much remains to be said," and of none is this more true than of the english constitution. the literature which has accumulated upon it is huge. but an observer who looks at the living reality will wonder at the contrast to the paper description. he will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory. it was natural--perhaps inevitable--that such an under growth of irrelevant ideas should gather round the british constitution. language is the tradition of nations; each generation describes what it sees, but it uses words transmitted from the past. when a great entity like the british constitution has continued in connected outward sameness, but hidden inner change, for many ages, every generation inherits a series of inapt words--of maxims once true, but of which the truth is ceasing or has ceased. as a man's family go on muttering in his maturity incorrect phrases derived from a just observation of his early youth, so, in the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now true no longer. or, if i may say so, an ancient and ever-altering constitution is like an old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered. there are two descriptions of the english constitution which have exercised immense influence, but which are erroneous. first, it is laid down as a principle of the english polity, that in it the legislative, the executive, and the judicial powers are quite divided--that each is entrusted to a separate person or set of persons--that no one of these can at all interfere with the work of the other. there has been much eloquence expended in explaining how the rough genius of the english people, even in the middle ages, when it was especially rude, carried into life and practice that elaborate division of functions which philosophers had suggested on paper, but which they had hardly hoped to see except on paper. secondly, it is insisted that the peculiar excellence of the british constitution lies in a balanced union of three powers. it is said that the monarchical element, the aristocratic element, and the democratic element, have each a share in the supreme sovereignty, and that the assent of all three is necessary to the action of that sovereignty. kings, lords, and commons, by this theory, are alleged to be not only the outward form, but the inner moving essence, the vitality of the constitution. a great theory, called the theory of "checks and balances," pervades an immense part of political literature, and much of it is collected from or supported by english experience. monarchy, it is said, has some faults, some bad tendencies, aristocracy others, democracy, again, others; but england has shown that a government can be constructed in which these evil tendencies exactly check, balance, and destroy one another--in which a good whole is constructed not simply in spite of, but by means of, the counteracting defects of the constituent parts. accordingly, it is believed that the principal characteristics of the english constitution are inapplicable in countries where the materials for a monarchy or an aristocracy do not exist. that constitution is conceived to be the best imaginable use of the political elements which the great majority of states in modern europe inherited from the mediaeval period. it is believed that out of these materials nothing better can be made than the english constitution; but it is also believed that the essential parts of the english constitution cannot be made except from these materials. now these elements are the accidents of a period and a region; they belong only to one or two centuries in human history, and to a few countries. the united states could not have become monarchical, even if the constitutional convention had decreed it, even if the component states had ratified it. the mystic reverence, the religious allegiance, which are essential to a true monarchy, are imaginative sentiments that no legislature can manufacture in any people. these semi-filial feelings in government are inherited just as the true filial feelings in common life. you might as well adopt a father as make a monarchy: the special sentiment belonging to the one is as incapable of voluntary creation as the peculiar affection belonging to the other. if the practical part of the english constitution could only be made out of a curious accumulation of mediaeval materials, its interest would be half historical, and its imitability very confined. no one can approach to an understanding of the english institutions, or of others, which, being the growth of many centuries, exercise a wide sway over mixed populations, unless he divide them into two classes. in such constitutions there are two parts (not indeed separable with microscopic accuracy, for the genius of great affairs abhors nicety of division): first, those which excite and preserve the reverence of the population--the dignified parts, if i may so call them; and next, the efficient parts--those by which it, in fact, works and rules. there are two great objects which every constitution must attain to be successful, which every old and celebrated one must have wonderfully achieved: every constitution must first gain authority, and then use authority; it must first win the loyalty and confidence of mankind, and then employ that homage in the work of government. there are indeed practical men who reject the dignified parts of government. they say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless. and other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed. but both schools are in error. the dignified parts of government are those which bring it force--which attract its motive power. the efficient parts only employ that power. the comely parts of a government have need, for they are those upon which its vital strength depends. they may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. they raise the army, though they do not win the battle. doubtless, if all subjects of the same government only thought of what was useful to them, and if they all thought the same thing useful, and all thought that same thing could be attained in the same way, the efficient members of a constitution would suffice, and no impressive adjuncts would be needed. but the world in which we live is organised far otherwise. the most strange fact, though the most certain in nature, is the unequal development of the human race. if we look back to the early ages of mankind, such as we seem in the faint distance to see them--if we call up the image of those dismal tribes in lake villages, or on wretched beaches--scarcely equal to the commonest material needs, cutting down trees slowly and painfully with stone tools, hardly resisting the attacks of huge, fierce animals--without culture, without leisure, without poetry, almost without thought--destitute of morality, with only a sort of magic for religion; and if we compare that imagined life with the actual life of europe now, we are overwhelmed at the wide contrast--we can scarcely conceive ourselves to be of the same race as those in the far distance. there used to be a notion--not so much widely asserted as deeply implanted, rather pervadingly latent than commonly apparent in political philosophy--that in a little while, perhaps ten years or so, all human beings might, without extraordinary appliances, be brought to the same level. but now, when we see by the painful history of mankind at what point we began, by what slow toil, what favourable circumstances, what accumulated achievements, civilised man has become at all worthy in any degree so to call himself--when we realise the tedium of history and the painfulness of results--our perceptions are sharpened as to the relative steps of our long and gradual progress. we have in a great community like england crowds of people scarcely more civilised than the majority of two thousand years ago; we have others, even more numerous, such as the best people were a thousand years since. the lower orders, the middle orders, are still, when tried by what is the standard of the educated "ten thousand," narrow-minded, unintelligent, incurious. it is useless to pile up abstract words. those who doubt should go out into their kitchens. let an accomplished man try what seems to him most obvious, most certain, most palpable in intellectual matters, upon the housemaid and the footman, and he will find that what he says seems unintelligible, confused, and erroneous--that his audience think him mad and wild when he is speaking what is in his own sphere of thought the dullest platitude of cautious soberness. great communities are like great mountains--they have in them the primary, secondary, and tertiary strata of human progress; the characteristics of the lower regions resemble the life of old times rather than the present life of the higher regions. and a philosophy which does not ceaselessly remember, which does not continually obtrude, the palpable differences of the various parts, will be a theory radically false, because it has omitted a capital reality--will be a theory essentially misleading, because it will lead men to expect what does not exist, and not to anticipate that which they will find. every one knows these plain facts, but by no means every one has traced their political importance. when a state is constituted thus, it is not true that the lower classes will be wholly absorbed in the useful; on the contrary, they do not like anything so poor. no orator ever made an impression by appealing to men as to their plainest physical wants, except when he could allege that those wants were caused by some one's tyranny. but thousands have made the greatest impression by appealing to some vague dream of glory, or empire, or nationality. the ruder sort of men--that is, men at one stage of rudeness--will sacrifice all they hope for, all they have, themselves, for what is called an idea--for some attraction which seems to transcend reality, which aspires to elevate men by an interest higher, deeper, wider than that of ordinary life. but this order of men are uninterested in the plain, palpable ends of government; they do not prize them; they do not in the least comprehend how they should be attained. it is very natural, therefore, that the most useful parts of the structure of government should by no means be those which excite the most reverence. the elements which excite the most easy reverence will be the theatrical elements--those which appeal to the senses, which claim to be embodiments of the greatest human ideas, which boast in some cases of far more than human origin. that which is mystic in its claims; that which is occult in its mode of action; that which is brilliant to the eye; that which is seen vividly for a moment, and then is seen no more; that which is hidden and unhidden; that which is specious, and yet interesting, palpable in its seeming, and yet professing to be more than palpable in its results; this, howsoever its form may change, or however we may define it or describe it, is the sort of thing--the only sort--which yet comes home to the mass of men. so far from the dignified parts of a constitution being necessarily the most useful, they are likely, according to outside presumption, to be the least so; for they are likely to be adjusted to the lowest orders--those likely to care least and judge worst about what is useful. there is another reason which, in an old constitution like that of england, is hardly less important. the most intellectual of men are moved quite as much by the circumstances which they are used to as by their own will. the active voluntary part of a man is very small, and if it were not economised by a sleepy kind of habit, its results would be null. we could not do every day out of our own heads all we have to do. we should accomplish nothing, for all our energies would be frittered away in minor attempts at petty improvement. one man, too, would go off from the known track in one direction, and one in another; so that when a crisis came requiring massed combination, no two men would be near enough to act together. it is the dull traditional habit of mankind that guides most men's actions, and is the steady frame in which each new artist must set the picture that he paints. and all this traditional part of human nature is, ex vi termini, most easily impressed and acted on by that which is handed down. other things being equal, yesterday's institutions are by far the best for to-day; they are the most ready, the most influential, the most easy to get obeyed, the most likely to retain the reverence which they alone inherit, and which every other must win. the most imposing institutions of mankind are the oldest; and yet so changing is the world, so fluctuating are its needs, so apt to lose inward force, though retaining out ward strength, are its best instruments, that we must not expect the oldest institutions to be now the most efficient. we must expect what is venerable to acquire influence because of its inherent dignity; but we must not expect it to use that influence so well as new creations apt for the modern world, instinct with its spirit, and fitting closely to its life. the brief description of the characteristic merit of the english constitution is, that its dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part, at least when in great and critical action, is decidedly simple and rather modern. we have made, or rather stumbled on, a constitution which--though full of every species of incidental defect, though of the worst workmanship in all out-of-the-way matters of any constitution in the world--yet has two capital merits: it contains a simple efficient part which, on occasion, and when wanted, can work more simply and easily, and better, than any instrument of government that has yet been tried; and it contains likewise historical, complex, august, theatrical parts, which it has inherited from a long past--which take the multitude--which guide by an insensible but an omnipotent influence the associations of its subjects. its essence is strong with the strength of modern simplicity; its exterior is august with the gothic grandeur of a more imposing age. its simple essence may, mutatis mutandis, be transplanted to many very various countries, but its august outside--what most men think it is--is narrowly confined to nations with an analogous history and similar political materials. the efficient secret of the english constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers. no doubt by the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. the connecting link is the cabinet. by that new word we mean a committee of the legislative body selected to be the executive body. the legislature has many committees, but this is its greatest. it chooses for this, its main committee, the men in whom it has most confidence. it does not, it is true, choose them directly; but it is nearly omnipotent in choosing them indirectly. a century ago the crown had a real choice of ministers, though it had no longer a choice in policy. during the long reign of sir r. walpole he was obliged not only to manage parliament but to manage the palace. he was obliged to take care that some court intrigue did not expel him from his place. the nation then selected the english policy, but the crown chose the english ministers. they were not only in name, as now, but in fact, the queen's servants. remnants, important remnants, of this great prerogative still remain. the discriminating favour of william iv. made lord melbourne head of the whig party when he was only one of several rivals. at the death of lord palmerston it is very likely that the queen may have the opportunity of fairly choosing between two, if not three statesmen. but, as a rule, the nominal prime minister is chosen by the legislature, and the real prime minister for most purposes--the leader of the house of commons--almost without exception is so. there is nearly always some one man plainly selected by the voice of the predominant party in the predominant house of the legislature to head that party, and consequently to rule the nation. we have in england an elective first magistrate as truly as the americans have an elective first magistrate. the queen is only at the head of the dignified part of the constitution. the prime minister is at the head of the efficient part. the crown is, according to the saying, the "fountain of honour"; but the treasury is the spring of business. nevertheless, our first magistrate differs from the american. he is not elected directly by the people; he is elected by the representatives of the people. he is an example of "double election". the legislature chosen, in name, to make laws, in fact finds its principal business in making and in keeping an executive. the leading minister so selected has to choose his associates, but he only chooses among a charmed circle. the position of most men in parliament forbids their being invited to the cabinet; the position of a few men ensures their being invited. between the compulsory list whom he must take, and the impossible list whom he cannot take, a prime minister's independent choice in the formation of a cabinet is not very large; it extends rather to the division of the cabinet offices than to the choice of cabinet ministers. parliament and the nation have pretty well settled who shall have the first places; but they have not discriminated with the same accuracy which man shall have which place. the highest patronage of a prime minister is, of course, a considerable power, though it is exercised under close and imperative restrictions--though it is far less than it seems to be when stated in theory, or looked at from a distance. the cabinet, in a word, is a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation. the particular mode in which the english ministers are selected; the fiction that they are, in any political sense, the queen's servants; the rule which limits the choice of the cabinet to the members of the legislature--are accidents unessential to its definition--historical incidents separable from its nature. its characteristic is that it should be chosen by the legislature out of persons agreeable to and trusted by the legislature. naturally these are principally its own members--but they need not be exclusively so. a cabinet which included persons not members of the legislative assembly might still perform all useful duties. indeed the peers, who constitute a large element in modern cabinets, are members, now-a-days, only of a subordinate assembly. the house of lords still exercises several useful functions; but the ruling influence--the deciding faculty--has passed to what, using the language of old times, we still call the lower house--to an assembly which, though inferior as a dignified institution, is superior as an efficient institution. a principal advantage of the house of lords in the present age indeed consists in its thus acting as a reservoir of cabinet ministers. unless the composition of the house of commons were improved, or unless the rules requiring cabinet ministers to be members of the legislature were relaxed, it would undoubtedly be difficult to find, without the lords, a sufficient supply of chief ministers. but the detail of the composition of a cabinet, and the precise method of its choice, are not to the purpose now. the first and cardinal consideration is the definition of a cabinet. we must not bewilder ourselves with the inseparable accidents until we know the necessary essence. a cabinet is a combining committee--a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state. in its origin it belongs to the one, in its functions it belongs to the other. the most curious point about the cabinet is that so very little is known about it. the meetings are not only secret in theory, but secret in reality. by the present practice, no official minute in all ordinary cases is kept of them. even a private note is discouraged and disliked. the house of commons, even in its most inquisitive and turbulent moments, would scarcely permit a note of a cabinet meeting to be read. no minister who respected the fundamental usages of political practice would attempt to read such a note. the committee which unites the law-making power to the law-executing power--which, by virtue of that combination, is, while it lasts and holds together, the most powerful body in the state--is a committee wholly secret. no description of it, at once graphic and authentic, has ever been given. it is said to be sometimes like a rather disorderly board of directors, where many speak and few listen--though no one knows.[ ] but a cabinet, though it is a committee of the legislative assembly, is a committee with a power which no assembly would--unless for historical accidents, and after happy experience--have been persuaded to entrust to any committee. it is a committee which can dissolve the assembly which appointed it; it is a committee with a suspensive veto--a committee with a power of appeal. though appointed by one parliament, it can appeal if it chooses to the next. theoretically, indeed, the power to dissolve parliament is entrusted to the sovereign only; and there are vestiges of doubt whether in all cases a sovereign is bound to dissolve parliament when the cabinet asks him to do so. but neglecting such small and dubious exceptions, the cabinet which was chosen by one house of commons has an appeal to the next house of commons. the chief committee of the legislature has the power of dissolving the predominant part of that legislature--that which at a crisis is the supreme legislature. the english system, therefore, is not an absorption of the executive power by the legislative power; it is a fusion of the two. either the cabinet legislates and acts, or else it can dissolve. it is a creature, but it has the power of destroying its creators. it is an executive which can annihilate the legislature, as well as an executive which is the nominee of the legislature. it was made, but it can unmake; it was derivative in its origin, but it is destructive in its action. this fusion of the legislative and executive functions may, to those who have not much considered it, seem but a dry and small matter to be the latent essence and effectual secret of the english constitution; but we can only judge of its real importance by looking at a few of its principal effects, and contrasting it very shortly with its great competitor, which seems likely, unless care be taken, to outstrip it in the progress of the world. that competitor is the presidential system. the characteristic of it is that the president is elected from the people by one process, and the house of representatives by another. the independence of the legislative and executive powers is the specific quality of presidential government, just as their fusion and combination is the precise principle of cabinet government. [ ] it is said that at the end of the cabinet which agreed to propose a fixed duty on corn, lord melbourne put his back to the door and said, "now is it to lower the price of corn or isn't it? it is not much matter which we say, but mind, we must all say the same." this is the most graphic story of a cabinet i ever heard, but i cannot vouch for its truth. lord melbourne's is a character about which men make stories. first, compare the two in quiet times. the essence of a civilised age is, that administration requires the continued aid of legislation. one principal and necessary kind of legislation is taxation. the expense of civilised government is continually varying. it must vary if the government does its duty. the miscellaneous estimates of the english government contain an inevitable medley of changing items. education, prison discipline, art, science, civil contingencies of a hundred kinds, require more money one year and less another. the expense of defence--the naval and military estimates--vary still more as the danger of attack seems more or less imminent, as the means of retarding such danger become more or less costly. if the persons who have to do the work are not the same as those who have to make the laws, there will be a controversy between the two sets of persons. the tax-imposers are sure to quarrel with the tax-requirers. the executive is crippled by not getting the laws it needs, and the legislature is spoiled by having to act without responsibility: the executive becomes unfit for its name, since it cannot execute what it decides on; the legislature is demoralised by liberty, by taking decisions of which others (and not itself) will suffer the effects. in america so much has this difficulty been felt that a semi-connection has grown up between the legislature and the executive. when the secretary of the treasury of the federal government wants a tax he consults upon it with the chairman of the financial committee of congress. he cannot go down to congress himself and propose what he wants; he can only write a letter and send it. but he tries to get a chairman of the finance committee who likes his tax;--through that chairman he tries to persuade the committee to recommend such tax; by that committee he tries to induce the house to adopt that tax. but such a chain of communications is liable to continual interruptions; it may suffice for a single tax on a fortunate occasion, but will scarcely pass a complicated budget--we do not say in a war or a rebellion--we are now comparing the cabinet system and the presidential system in quiet times--but in times of financial difficulty. two clever men never exactly agreed about a budget. we have by present practice an indian chancellor of the exchequer talking english finance at calcutta, and an english one talking indian finance in england. but the figures are never the same, and the views of policy are rarely the same. one most angry controversy has amused the world, and probably others scarcely less interesting are hidden in the copious stores of our anglo-indian correspondence. but relations something like these must subsist between the head of a finance committee in the legislature, and a finance minister in the executive.[ ] they are sure to quarrel, and the result is sure to satisfy neither. and when the taxes do not yield as they were expected to yield, who is responsible? very likely the secretary of the treasury could not persuade the chairman--very likely the chairman could not persuade his committee--very likely the committee could not persuade the assembly. whom, then, can you punish--whom can you abolish--when your taxes run short? there is nobody save the legislature, a vast miscellaneous body difficult to punish, and the very persons to inflict the punishment. nor is the financial part of administration the only one which requires in a civilised age the constant support and accompaniment of facilitating legislation. all administration does so. in england, on a vital occasion, the cabinet can compel legislation by the threat of resignation, and the threat of dissolution; but neither of these can be used in a presidential state. there the legislature cannot be dissolved by the executive government; and it does not heed a resignation, for it has not to find the successor. accordingly, when a difference of opinion arises, the legislature is forced to fight the executive, and the executive is forced to fight the legislative; and so very likely they contend to the conclusion of their respective terms.[ ] there is, indeed, one condition of things in which this description, though still approximately true, is, nevertheless, not exactly true; and that is, when there is nothing to fight about. before the rebellion in america, owing to the vast distance of other states, and the favourable economic condition of the country, there were very few considerable objects of contention; but if that government had been tried by english legislation of the last thirty years, the discordant action of the two powers, whose constant cooperation is essential to the best government, would have shown itself much more distinctly. nor is this the worst. cabinet government educates the nation; the presidential does not educate it, and may corrupt it. it has been said that england invented the phrase, "her majesty's opposition"; that it was the first government which made a criticism of administration as much a part of the polity as administration itself. this critical opposition is the consequence of cabinet government. the great scene of debate, the great engine of popular instruction and political controversy, is the legislative assembly. a speech there by an eminent statesman, a party movement by a great political combination, are the best means yet known for arousing, enlivening, and teaching a people. the cabinet system ensures such debates, for it makes them the means by which statesmen advertise themselves for future and confirm themselves in present governments. it brings forward men eager to speak, and gives them occasions to speak. the deciding catastrophes of cabinet governments are critical divisions preceded by fine discussions. everything which is worth saying, everything which ought to be said, most certainly will be said. conscientious men think they ought to persuade others; selfish men think they would like to obtrude themselves. the nation is forced to hear two sides--all the sides, perhaps, of that which most concerns it. and it likes to hear--it is eager to know. human nature despises long arguments which come to nothing--heavy speeches which precede no motion--abstract disquisitions which leave visible things where they were. but all men heed great results, and a change of government is a great result. it has a hundred ramifications; it runs through society; it gives hope to many, and it takes away hope from many. it is one of those marked events which, by its magnitude and its melodrama, impress men even too much. and debates which have this catastrophe at the end of them--or may so have it--are sure to be listened to, and sure to sink deep into the national mind. travellers even in the northern states of america, the greatest and best of presidential countries, have noticed that the nation was "not specially addicted to politics"; that they have not a public opinion finished and chastened as that of the english has been finished and chastened. a great many hasty writers have charged this defect on the "yankee race," on the anglo-american character; but english people, if they had no motive to attend to politics, certainly would not attend to politics. at present there is business in their attention. they assist at the determining crisis; they arrest or help it. whether the government will go out or remain is determined by the debate, and by the division in parliament. and the opinion out of doors, the secret pervading disposition of society, has a great influence on that division. the nation feels that its judgment is important, and it strives to judge. it succeeds in deciding because the debates and the discussions give it the facts and the arguments. but under a presidential government, a nation has, except at the electing moment, no influence; it has not the ballot-box before it; its virtue is gone, and it must wait till its instant of despotism again returns. it is not incited to form an opinion like a nation under a cabinet government; nor is it instructed like such a nation. there are doubtless debates in the legislature, but they are prologues without a play. there is nothing of a catastrophe about them; you can not turn out the government. the prize of power is not in the gift of the legislature, and no one cares for the legislature. the executive, the great centre of power and place, sticks irremovable; you cannot change it in any event. the teaching apparatus which has educated our public mind, which prepares our resolutions, which shapes our opinions, does not exist. no presidential country needs to form daily delicate opinions, or is helped in forming them. it might be thought that the discussions in the press would supply the deficiencies in the constitution; that by a reading people especially, the conduct of their government would be as carefully watched, that their opinions about it would be as consistent, as accurate, as well considered, under a presidential as under a cabinet polity. but the same difficulty oppresses the press which oppresses the legislature. it can do nothing. it cannot change the administration; the executive was elected for such and such years, and for such and such years it must last. people wonder that so literary a people as the americans--a people who read more than any people who ever lived, who read so many newspapers--should have such bad newspapers. the papers are not so good as the english, because they have not the same motive to be good as the english papers. at a political "crisis," as we say--that is, when the fate of an administration is unfixed, when it depends on a few votes yet unsettled, upon a wavering and veering opinion--effective articles in great journals become of essential moment. the times has made many ministries. when, as of late, there has been a long continuance of divided parliaments, of governments which were without "brute voting power," and which depended on intellectual strength, the support of the most influential organ of english opinion has been of critical moment. if a washington newspaper could have turned out mr. lincoln, there would have been good writing and fine argument in the washington newspapers. but the washington newspapers can no more remove a president during his term of place than the times can remove a lord mayor during his year of office. nobody cares for a debate in congress which "comes to nothing," and no one reads long articles which have no influence on events. the americans glance at the heads of news, and through the paper. they do not enter upon a discussion. they do not think of entering upon a discussion which would be useless. [ ] it is worth observing that even during the short existence of the confederate government these evils distinctly showed themselves. almost the last incident at the richmond congress was an angry financial correspondence with jefferson davis. [ ] i leave this passage to stand as it was written, just after the assassination of mr. lincoln, and when every one said mr. johnson would be very hostile to the south. after saying that the division of the legislature and the executive in presidential governments weakens the legislative power, it may seem a contradiction to say that it also weakens the executive power. but it is not a contradiction. the division weakens the whole aggregate force of government--the entire imperial power; and therefore it weakens both its halves. the executive is weakened in a very plain way. in england a strong cabinet can obtain the concurrence of the legislature in all acts which facilitate its administration; it is itself, so to say, the legislature. but a president may be hampered by the parliament, and is likely to be hampered. the natural tendency of the members of every legislature is to make themselves conspicuous. they wish to gratify an ambition laudable or blamable; they wish to promote the measures they think best for the public welfare; they wish to make their will felt in great affairs. all these mixed motives urge them to oppose the executive. they are embodying the purposes of others if they aid; they are advancing their own opinions if they defeat: they are first if they vanquish; they are auxiliaries if they support. the weakness of the american executive used to be the great theme of all critics before the confederate rebellion. congress and committees of congress of course impeded the executive when there was no coercive public sentiment to check and rule them. but the presidential system not only gives the executive power an antagonist in the legislative power, and so makes it weaker; it also enfeebles it by impairing its intrinsic quality. a cabinet is elected by a legislature; and when that legislature is composed of fit persons, that mode of electing the executive is the very best. it is a case of secondary election, under the only conditions in which secondary election is preferable to primary. generally speaking, in an electioneering country (i mean in a country full of political life, and used to the manipulation of popular institutions), the election of candidates to elect candidates is a farce. the electoral college of america is so. it was intended that the deputies when assembled should exercise a real discretion, and by independent choice select the president. but the primary electors take too much interest. they only elect a deputy to vote for mr. lincoln or mr. breckenridge, and the deputy only takes a ticket, and drops that ticket in an urn. he never chooses or thinks of choosing. he is but a messenger--a transmitter; the real decision is in those who choose him--who chose him because they knew what he would do. it is true that the british house of commons is subject to the same influences. members are mostly, perhaps, elected because they will vote for a particular ministry, rather than for purely legislative reasons. but--and here is the capital distinction--the functions of the house of commons are important and continuous. it does not, like the electoral college in the united states, separate when it has elected its ruler; it watches, legislates, seats and unseats ministries, from day to day. accordingly it is a real electoral body. the parliament of , which, more than any other parliament of late years, was a parliament elected to support a particular premier--which was chosen, as americans might say, upon the "palmerston ticket"--before it had been in existence two years, dethroned lord palmerston. though selected in the interest of a particular ministry, it in fact destroyed that ministry. a good parliament, too, is a capital choosing body. if it is fit to make laws for a country, its majority ought to represent the general average intelligence of that country; its various members ought to represent the various special interests, special opinions, special prejudices, to be found in that community. there ought to be an advocate for every particular sect, and a vast neutral body of no sect--homogeneous and judicial, like the nation itself. such a body, when possible, is the best selector of executives that can be imagined. it is full of political activity; it is close to political life; it feels the responsibility of affairs which are brought as it were to its threshold; it has as much intelligence as the society in question chances to contain. it is, what washington and hamilton strove to create, an electoral college of the picked men of the nation. the best mode of appreciating its advantages is to look at the alternative. the competing constituency is the nation itself, and this is, according to theory and experience, in all but the rarest cases, a bad constituency. mr. lincoln, at his second election, being elected when all the federal states had set their united hearts on one single object, was voluntarily reelected by an actually choosing nation. he embodied the object in which every one was absorbed. but this is almost the only presidential election of which so much can be said. in almost all cases the president is chosen by a machinery of caucuses and combinations too complicated to be perfectly known, and too familiar to require description. he is not the choice of the nation, he is the choice of the wire-pullers. a very large constituency in quiet times is the necessary, almost the legitimate, subject of electioneering management: a man cannot know that he does not throw his vote away except he votes as part of some great organisation; and if he votes as a part, he abdicates his electoral function in favour of the managers of that association. the nation, even if it chose for itself, would, in some degree, be an unskilled body; but when it does not choose for itself, but only as latent agitators wish, it is like a large, lazy man, with a small vicious mind,--it moves slowly and heavily, but it moves at the bidding of a bad intention; it "means little, but it means that little ill." and, as the nation is less able to choose than a parliament, so it has worse people to choose out of. the american legislators of the last century have been much blamed for not permitting the ministers of the president to be members of the assembly; but, with reference to the specific end which they had in view, they saw clearly and decided wisely. they wished to keep "the legislative branch absolutely distinct from the executive branch"; they believed such a separation to be essential to a good constitution; they believed such a separation to exist in the english, which the wisest of them thought the best constitution. and, to the effectual maintenance of such a separation, the exclusion of the president's ministers from the legislature is essential. if they are not excluded they become the executive, they eclipse the president himself. a legislative chamber is greedy and covetous; it acquires as much, it concedes as little as possible. the passions of its members are its rulers; the law-making faculty, the most comprehensive of the imperial faculties, is its instrument; it will take the administration if it can take it. tried by their own aims, the founders of the united states were wise in excluding the ministers from congress. but though this exclusion is essential to the presidential system of government, it is not for that reason a small evil. it causes the degradation of public life. unless a member of the legislature be sure of something more than speech, unless he is incited by the hope of action, and chastened by the chance of responsibility, a first-rate man will not care to take the place, and will not do much if he does take it. to belong to a debating society adhering to an executive (and this is no inapt description of a congress under a presidential constitution) is not an object to stir a noble ambition, and is a position to encourage idleness. the members of a parliament excluded from office can never be comparable, much less equal, to those of a parliament not excluded from office. the presidential government, by its nature, divides political life into two halves, an executive half and a legislative half; and, by so dividing it, makes neither half worth a man's having--worth his making it a continuous career--worthy to absorb, as cabinet government absorbs, his whole soul. the statesmen from whom a nation chooses under a presidential system are much inferior to those from whom it chooses under a cabinet system, while the selecting apparatus is also far less discerning. all these differences are more important at critical periods, because government itself is more important. a formed public opinion, a respectable, able, and disciplined legislature, a well-chosen executive, a parliament and an administration not thwarting each other, but co-operating with each other, are of greater consequence when great affairs are in progress than when small affairs are in progress-when there is much to do than when there is little to do. but in addition to this, a parliamentary or cabinet constitution possesses an additional and special advantage in very dangerous times. it has what we may call a reserve of power fit for and needed by extreme exigencies. the principle of popular government is that the supreme power, the determining efficacy in matters political, resides in the people--not necessarily or commonly in the whole people, in the numerical majority, but in a chosen people, a picked and selected people. it is so in england; it is so in all free countries. under a cabinet constitution at a sudden emergency this people can choose a ruler for the occasion. it is quite possible and even likely that he would not be ruler before the occasion. the great qualities, the imperious will, the rapid energy, the eager nature fit for a great crisis are not required--are impediments--in common times; a lord liverpool is better in everyday politics than a chatham--a louis philippe far better than a napoleon. by the structure of the world we often want, at the sudden occurrence of a grave tempest, to change the helmsman--to replace the pilot of the calm by the pilot of the storm. in england we have had so few catastrophes since our constitution attained maturity, that we hardly appreciate this latent excellence. we have not needed a cavour to rule a revolution--a representative man above all men fit for a great occasion, and by a natural legal mode brought in to rule. but even in england, at what was the nearest to a great sudden crisis which we have had of late years--at the crimean difficulty--we used this inherent power. we abolished the aberdeen cabinet, the ablest we have had, perhaps, since the reform act--a cabinet not only adapted, but eminently adapted, for every sort of difficulty save the one it had to meet--which abounded in pacific discretion, and was wanting only in the "daemonic element"; we chose a statesman, who had the sort of merit then wanted, who, when he feels the steady power of england behind him, will advance without reluctance, and will strike without restraint. as was said at the time, "we turned out the quaker, and put in the pugilist". but under a presidential government you can do nothing of the kind. the american government calls itself a government of the supreme people; but at a quick crisis, the time when a sovereign power is most needed, you cannot find the supreme people. you have got a congress elected for one fixed period, going out perhaps by fixed instalments, which cannot be accelerated or retarded--you have a president chosen for a fixed period, and immovable during that period: all the arrangements are for stated times. there is no elastic element, everything is rigid, specified, dated. come what may, you can quicken nothing, and can retard nothing. you have bespoken your government in advance, and whether it suits you or not, whether it works well or works ill, whether it is what you want or not, by law you must keep it. in a country of complex foreign relations it would mostly happen that the first and most critical year of every war would be managed by a peace premier, and the first and most critical years of peace by a war premier. in each case the period of transition would be irrevocably governed by a man selected not for what he was to introduce, but what he was to change--for the policy he was to abandon, not for the policy he was to administer. the whole history of the american civil war--a history which has thrown an intense light on the working of a presidential government at the time when government is most important--is but a vast continuous commentary on these reflections. it would, indeed, be absurd to press against presidential government as such the singular defect by which vice-president johnson has become president--by which a man elected to a sinecure is fixed in what is for the moment the most important administrative part in the political world. this defect, though most characteristic of the expectations[ ] of the framers of the constitution and of its working, is but an accident of this particular case of presidential government, and no necessary ingredient in that government itself. but the first election of mr. lincoln is liable to no such objection. it was a characteristic instance of the natural working of such a government upon a great occasion. and what was that working? it may be summed up--it was government by an unknown quantity. hardly any one in america had any living idea what mr. lincoln was like, or any definite notion what he would do. the leading statesmen under the system of cabinet government are not only household words, but household ideas. a conception, not, perhaps, in all respects a true but a most vivid conception of what mr. gladstone is like, or what lord palmerston is like, runs through society. we have simply no notion what it would be to be left with the visible sovereignty in the hands of an unknown man. the notion of employing a man of unknown smallness at a crisis of unknown greatness is to our minds simply ludicrous. mr. lincoln, it is true, happened to be a man, if not of eminent ability, yet of eminent justness. there was an inner depth of puritan nature which came out under suffering, and was very attractive. but success in a lottery is no argument for lotteries. what were the chances against a person of lincoln's antecedents, elected as he was, proving to be what he was? such an incident is, however, natural to a presidential government. the president is elected by processes which forbid the election of known men, except at peculiar conjunctures, and in moments when public opinion is excited and despotic; and consequently if a crisis comes upon us soon after he is elected, inevitably we have government by an unknown quantity--the superintendence of that crisis by what our great satirist would have called "statesman x". even in quiet times, government by a president, is, for the several various reasons which have been stated, inferior to government by a cabinet; but the difficulty of quiet times is nothing as compared with the difficulty of unquiet times. the comparative deficiencies of the regular, common operation of a presidential government are far less than the comparative deficiencies in time of sudden trouble--the want of elasticity, the impossibility of a dictatorship, the total absence of a revolutionary reserve. this contrast explains why the characteristic quality of cabinet governments--the fusion of the executive power with the legislative power--is of such cardinal importance. i shall proceed to show under what form and with what adjuncts it exists in england. [ ] the framers of the constitution expected that the vice-president would be elected by the electoral college as the second wisest man in the country. the vice-presidentship being a sinecure, a second-rate man agreeable to the wire-pullers is always smuggled in. the chance of succession to the presidentship is too distant to be thought of. no. iii. the monarchy. i. the use of the queen, in a dignified capacity, is incalculable. without her in england, the present english government would fail and pass away. most people when they read that the queen walked on the slopes at windsor--that the prince of wales went to the derby--have imagined that too much thought and prominence were given to little things. but they have been in error; and it is nice to trace how the actions of a retired widow and an unemployed youth become of such importance. the best reason why monarchy is a strong government is, that it is an intelligible government. the mass of mankind understand it, and they hardly anywhere in the world understand any other. it is often said that men are ruled by their imaginations; but it would be truer to say they are governed by the weakness of their imaginations. the nature of a constitution, the action of an assembly, the play of parties, the unseen formation of a guiding opinion, are complex facts, difficult to know and easy to mistake. but the action of a single will, the fiat of a single mind, are easy ideas: anybody can make them out, and no one can ever forget them. when you put before the mass of mankind the question, "will you be governed by a king, or will you be governed by a constitution?" the inquiry comes out thus--"will you be governed in a way you understand, or will you be governed in a way you do not understand?" the issue was put to the french people; they were asked, "will you be governed by louis napoleon, or will you be governed by an assembly?" the french people said, "we will be governed by the one man we can imagine, and not by the many people we cannot imagine". the best mode of comprehending the nature of the two governments, is to look at a country in which the two have within a comparatively short space of years succeeded each other. "the political condition," says mr. grote, "which grecian legend everywhere presents to us, is in its principal features strikingly different from that which had become universally prevalent among the greeks in the time of the peloponnesian war. historical oligarchy, as well as democracy, agreed in requiring a certain established system of government, comprising the three elements of specialised functions, temporary functionaries, and ultimate responsibility (under some forms or other) to the mass of qualified citizens--either a senate or an ecclesia, or both. there were, of course, many and capital distinctions between one government and another, in respect to the qualification of the citizen, the attributes and efficiency of the general assembly, the admissibility to power, etc.; and men might often be dissatisfied with the way in which these questions were determined in their own city. but in the mind of every man, some determining rule or system--something like what in modern times is called a constitution--was indispensable to any government entitled to be called legitimate, or capable of creating in the mind of a greek a feeling of moral obligation to obey it. the functionaries who exercise authority under it might be more or less competent or popular; but his personal feelings towards them were commonly lost in his attachment or aversion to the general system. if any energetic man could by audacity or craft break down the constitution, and render himself permanent ruler according to his own will and pleasure, even though he might govern well, he could never inspire the people with any sentiment of duty towards him: his sceptre was illegitimate from the beginning, and even the taking of his life, far from being interdicted by that moral feeling which condemned the shedding of blood in other cases, was considered meritorious: he could not even be mentioned in the language except by a name (_tyrannos_, despot) which branded him as an object of mingled fear and dislike. "if we carry our eyes back from historical to legendary greece, we find a picture the reverse of what has been here sketched. we discern a government in which there is little or no scheme or system, still less any idea of responsibility to the governed, but in which the mainspring of obedience on the part of the people consists in their personal feeling and reverence towards the chief. we remark, first and foremost, the king; next, a limited number of subordinate kings or chiefs; afterwards, the mass of armed freemen, husbandmen, artisans, freebooters, &c.; lowest of all, the free labourers for hire and the bought slaves. the king is not distinguished by any broad, or impassable boundary from the other chiefs, to each of whom the title basileus is applicable as well as to himself: his supremacy has been inherited from his ancestors, and passes by inheritance, as a general rule, to his eldest son, having been conferred upon the family as a privilege by the favour of zeus. in war, he is the leader, foremost in personal prowess, and directing all military movements; in peace, he is the general protector of the injured and oppressed; he offers up moreover those public prayers and sacrifices which are intended to obtain for the whole people the favour of the gods. an ample domain is assigned to him as an appurtenance of his lofty position, and the produce of his fields and his cattle is consecrated in part to an abundant, though rude hospitality. moreover he receives frequent presents, to avert his enmity, to conciliate his favour, or to buy off his exactions; and when plunder is taken from the enemy, a large previous share, comprising probably the most alluring female captive, is reserved for him apart from the general distribution. "such is the position of the king in the heroic times of greece--the only person (if we except the herald, and priests, each both special and subordinate) who is then presented to us as clothed with any individual authority--the person by whom all the executive functions, then few in number, which the society requires, are either performed or directed. his personal ascendancy--derived from divine countenance bestowed both upon himself individually and upon his race, and probably from accredited divine descent--is the salient feature in the picture: the people hearken to his voice, embrace his propositions, and obey his orders: not merely resistance, but even criticism upon his acts, is generally exhibited in an odious point of view, and is indeed never heard of except from some one or more of the subordinate princes." the characteristic of the english monarchy is that it retains the feelings by which the heroic kings governed their rude age, and has added the feelings by which the constitutions of later greece ruled in more refined ages. we are a more mixed people than the athenians, or probably than any political greeks. we have progressed more unequally. the slaves in ancient times were a separate order; not ruled by the same laws, or thoughts, as other men. it was not necessary to think of them in making a constitution: it was not necessary to improve them in order to make a constitution possible. the greek legislator had not to combine in his polity men like the labourers of somersetshire, and men like mr. grote. he had not to deal with a community in which primitive barbarism lay as a recognised basis to acquired civilisation. we have. we have no slaves to keep down by special terrors and independent legislation. but we have whole classes unable to comprehend the idea of a constitution--unable to feel the least attachment to impersonal laws. most do indeed vaguely know that there are some other institutions besides the queen, and some rules by which she governs. but a vast number like their minds to dwell more upon her than upon anything else, and therefore she is inestimable. a republic has only difficult ideas in government; a constitutional monarchy has an easy idea too; it has a comprehensible element for the vacant many, as well as complex laws and notions for the inquiring few. a family on the throne is an interesting idea also. it brings down the pride of sovereignty to the level of petty life. no feeling could seem more childish than the enthusiasm of the english at the marriage of the prince of wales. they treated as a great political event, what, looked at as a matter of pure business, was very small indeed. but no feeling could be more like common human nature as it is, and as it is likely to be. the women--one half the human race at least--care fifty times more for a marriage than a ministry. all but a few cynics like to see a pretty novel touching for a moment the dry scenes of the grave world. a princely marriage is the brilliant edition of a universal fact, and, as such, it rivets mankind. we smile at the court circular; but remember how many people read the court circular! its use is not in what it says, but in those to whom it speaks. they say that the americans were more pleased at the queen's letter to mrs. lincoln, than at any act of the english government. it was a spontaneous act of intelligible feeling in the midst of confused and tiresome business. just so a royal family sweetens politics by the seasonable addition of nice and pretty events. it introduces irrelevant facts into the business of government, but they are facts which speak to "men's bosoms" and employ their thoughts. to state the matter shortly, royalty is a government in which the attention of the nation is concentrated on one person doing interesting actions. a republic is a government in which that attention is divided between many, who are all doing uninteresting actions. accordingly, so long as the human heart is strong and the human reason weak, royalty will be strong because it appeals to diffused feeling, and republics weak because they appeal to the understanding. secondly. the english monarchy strengthens our government with the strength of religion. it is not easy to say why it should be so. every instructed theologian would say that it was the duty of a person born under a republic as much to obey that republic as it is the duty of one born under a monarchy to obey the monarch. but the mass of the english people do not think so; they agree with the oath of allegiance; they say it is their duty to obey the "queen," and they have but hazy notions as to obeying laws without a queen. in former times, when our constitution was incomplete, this notion of local holiness in one part was mischievous. all parts were struggling, and it was necessary each should have its full growth. but superstition said one should grow where it would, and no other part should grow without its leave. the whole cavalier party said it was their duty to obey the king, whatever the king did. there was to be "passive obedience" to him, and there was no religious obedience due to any one else. he was the "lord's anointed," and no one else had been anointed at all. the parliament, the laws, the press were human institutions; but the monarchy was a divine institution. an undue advantage was given to a part of the constitution, and therefore the progress of the whole was stayed. after the revolution this mischievous sentiment was much weaker. the change of the line of sovereigns was at first conclusive, if there was a mystic right in any one, that right was plainly in james ii.; if it was an english duty to obey any one whatever he did, he was the person to be so obeyed; if there was an inherent inherited claim in any king, it was in the stuart king to whom the crown had come by descent, and not in the revolution king to whom it had come by vote of parliament. all through the reign of william iii. there was (in common speech) one king whom man had made, and another king whom god had made. the king who ruled had no consecrated loyalty to build upon; although he ruled in fact, according to sacred theory there was a king in france who ought to rule. but it was very hard for the english people, with their plain sense and slow imagination, to keep up a strong sentiment of veneration for a foreign adventurer. he lived under the protection of a french king; what he did was commonly stupid, and what he left undone was very often wise. as soon as queen anne began to reign there was a change of feeling; the old sacred sentiment began to cohere about her. there were indeed difficulties which would have baffled most people; but an englishman whose heart is in a matter is not easily baffled. queen anne had a brother living and a father living, and by every rule of descent, their right was better than hers. but many people evaded both claims. they said james ii. had "run away," and so abdicated, though he only ran away because he was in duresse and was frightened, and though he claimed the allegiance of his subjects day by day. the pretender, it was said, was not legitimate, though the birth was proved by evidence which any court of justice would have accepted. the english people were "out of" a sacred monarch, and so they tried very hard to make a new one. events, however, were too strong for them. they were ready and eager to take queen anne as the stock of a new dynasty; they were ready to ignore the claims of her father and the claims of her brother, but they could not ignore the fact that at the critical period she had no children. she had once had thirteen, but they all died in her lifetime, and it was necessary either to revert to the stuarts or to make a new king by act of parliament. according to the act of settlement passed by the whigs, the crown was settled on the descendants of the "princess sophia" of hanover, a younger daughter of a daughter of james i. there were before her james ii., his son, the descendants of a daughter of charles i., and elder children of her own mother. but the whigs passed these over because they were catholics, and selected the princess sophia, who, if she was anything, was a protestant. certainly this selection was statesmanlike, but it could not be very popular. it was quite impossible to say that it was the duty of the english people to obey the house of hanover upon any principles which do not concede the right of the people to choose their rulers, and which do not degrade monarchy from its solitary pinnacle of majestic reverence, and make it one only among many expedient institutions. if a king is a useful public functionary who may be changed, and in whose place you may make another, you cannot regard him with mystic awe and wonder; and if you are bound to worship him, of course you cannot change him. accordingly, during the whole reigns of george i. and george ii. the sentiment of religious loyalty altogether ceased to support the crown. the prerogative of the king had no strong party to support it; the tories, who naturally would support it, disliked the actual king; and the whigs, according to their creed, disliked the king's office. until the accession of george iii. the most vigorous opponents of the crown were the country gentlemen, its natural friends, and the representatives of quiet rural districts, where loyalty is mostly to be found, if anywhere. but after the accession of george iii. the common feeling came back to the same point as in queen anne's time. the english were ready to take the new young prince as the beginning of a sacred line of sovereigns, just as they had been willing to take an old lady, who was the second cousin of his great-great-grandmother. so it is now. if you ask the immense majority of the queen's subjects by what right she rules, they would never tell you that she rules by parliamentary right, by virtue of anne, c. . they will say she rules by "god's grace"; they believe that they have a mystic obligation to obey her. when her family came to the crown it was a sort of treason to maintain the inalienable right of lineal sovereignty, for it was equivalent to saying that the claim of another family was better than hers: but now, in the strange course of human events, that very sentiment has become her surest and best support. but it would be a great mistake to believe that at the accession of george iii. the instinctive sentiment of hereditary loyalty at once became as useful as now. it began to be powerful, but it hardly began to be useful. there was so much harm done by it as well as so much good, that it is quite capable of being argued whether on the whole it was beneficial or hurtful. throughout the greater part of his life george iii. was a kind of "consecrated obstruction". whatever he did had a sanctity different from what any one else did, and it perversely happened that he was commonly wrong. he had as good intentions as any one need have, and he attended to the business of his country, as a clerk with his bread to get attends to the business of his office. but his mind was small, his education limited, and he lived in a changing time. accordingly, he was always resisting what ought to be, and prolonging what ought not to be. he was the sinister but sacred assailant of half his ministries; and when the french revolution excited the horror of the world, and proved democracy to be "impious," the piety of england concentrated upon him, and gave him tenfold strength. the monarchy by its religious sanction now confirms all our political order; in george iii.'s time it confirmed little except itself. it gives now a vast strength to the entire constitution, by enlisting on its behalf the credulous obedience of enormous masses; then it lived aloof, absorbed all the holiness into itself, and turned over all the rest of the polity to the coarse justification of bare expediency. a principal reason why the monarchy so well consecrates our whole state is to be sought in the peculiarity many americans and many utilitarians smile at. they laugh at this "extra," as the yankee called it, at the solitary transcendent element. they quote napoleon's saying, "that he did not wish to be fatted in idleness," when he refused to be grand elector in sieyes' constitution, which was an office copied, and m. thiers says, well copied, from constitutional monarchy. but such objections are wholly wrong. no doubt it was absurd enough in the abbe sieyes to propose that a new institution, inheriting no reverence, and made holy by no religion, should be created to fill the sort of post occupied by a constitutional king in nations of monarchical history. such an institution, far from being so august as to spread reverence around it, is too novel and artificial to get reverence for itself; if, too, the absurdity could anyhow be augmented, it was so by offering an office of inactive uselessness and pretended sanctity to napoleon, the most active man in france, with the greatest genius for business, only not sacred, and exclusively fit for action. but the blunder of sieyes brings the excellence of real monarchy to the best light. when a monarch can bless, it is best that he should not be touched. it should be evident that he does no wrong. he should not be brought too closely to real measurement. he should be aloof and solitary. as the functions of english royalty are for the most part latent, it fulfils this condition. it seems to order, but it never seems to struggle. it is commonly hidden like a mystery, and sometimes paraded like a pageant, but in neither case is it contentious. the nation is divided into parties, but the crown is of no party. its apparent separation from business is that which removes it both from enmities and from desecration, which preserves its mystery, which enables it to combine the affection of conflicting parties--to be a visible symbol of unity to those still so imperfectly educated as to need a symbol. thirdly. the queen is the head of our society. if she did not exist the prime minister would be the first person in the country. he and his wife would have to receive foreign ministers, and occasionally foreign princes, to give the first parties in the country; he and she would be at the head of the pageant of life; they would represent england in the eyes of foreign nations; they would represent the government of england in the eyes of the english. it is very easy to imagine a world in which this change would not be a great evil. in a country where people did not care for the outward show of life, where the genius of the people was untheatrical, and they exclusively regarded the substance of things, this matter would be trifling. whether lord and lady derby received the foreign ministers, or lord and lady palmerston, would be a matter of indifference; whether they gave the nicest parties would be important only to the persons at those parties. a nation of unimpressible philosophers would not care at all how the externals of life were managed. who is the showman is not material unless you care about the show. but of all nations in the world the english are perhaps the least a nation of pure philosophers. it would be a very serious matter to us to change every four or five years the visible head of our world. we are not now remarkable for the highest sort of ambition; but we are remarkable for having a great deal of the lower sort of ambition and envy. the house of commons is thronged with people who get there merely for "social purposes," as the phrase goes; that is, that they and their families may go to parties else impossible. members of parliament are envied by thousands merely for this frivolous glory, as a thinker calls it. if the highest post in conspicuous life were thrown open to public competition, this low sort of ambition and envy would be fearfully increased. politics would offer a prize too dazzling for mankind; clever base people would strive for it, and stupid base people would envy it. even now a dangerous distinction is given by what is exclusively called public life. the newspapers describe daily and incessantly a certain conspicuous existence; they comment on its characters, recount its details, investigate its motives, anticipate its course. they give a precedent and a dignity to that world which they do not give to any other. the literary world, the scientific world, the philosophic world, not only are not comparable in dignity to the political world, but in comparison are hardly worlds at all. the newspaper makes no mention of them, and could not mention them. as are the papers, so are the readers; they, by irresistible sequence and association, believe that those people who constantly figure in the papers are cleverer, abler, or at any rate, somehow higher, than other people. "i wrote books," we heard of a man saying, "for twenty years, and i was nobody; i got into parliament, and before i had taken my seat i had become somebody." english politicians are the men who fill the thoughts of the english public: they are the actors on the scene, and it is hard for the admiring spectators not to believe that the admired actor is greater than themselves. in this present age and country it would be very dangerous to give the slightest addition to a force already perilously great. if the highest social rank was to be scrambled for in the house of commons, the number of social adventurers there would be incalculably more numerous, and indefinitely more eager. a very peculiar combination of causes has made this characteristic one of the most prominent in english society. the middle ages left all europe with a social system headed by courts. the government was made the head of all society, all intercourse, and all life; everything paid allegiance to the sovereign, and everything ranged itself round the sovereign--what was next to be greatest, and what was farthest least. the idea that the head of the government is the head of society is so fixed in the ideas of mankind that only a few philosophers regard it as historical and accidental, though when the matter is examined, that conclusion is certain and even obvious. in the first place, society as society does not naturally need a head at all. its constitution, if left to itself, is not monarchical, but aristocratical. society, in the sense we are now talking of, is the union of people for amusement and conversation. the making of marriages goes on in it, as it were, incidentally, but its common and main concern is talking and pleasure. there is nothing in this which needs a single supreme head; it is a pursuit in which a single person does not of necessity dominate. by nature it creates an "upper ten thousand"; a certain number of persons and families possessed of equal culture, and equal faculties, and equal spirit, get to be on a level--and that level a high level. by boldness, by cultivation, by "social science" they raise themselves above others; they become the "first families," and all the rest come to be below them. but they tend to be much about a level among one another; no one is recognised by all or by many others as superior to them all. this is society as it grew up in greece or italy, as it grows up now in any american or colonial town. so far from the notion of a "head of society" being a necessary notion, in many ages it would scarcely have been an intelligible notion. you could not have made socrates understand it. he would have said, "if you tell me that one of my fellows is chief magistrate, and that i am bound to obey him, i understand you, and you speak well; or that another is a priest, and that he ought to offer sacrifices to the gods which i or any one not a priest ought not to offer, again i understand and agree with you. but if you tell me that there is in some citizen a hidden charm by which his words become better than my words, and his house better than my house, i do not follow you, and should be pleased if you will explain yourself." and even if a head of society were a natural idea, it certainly would not follow that the head of the civil government should be that head. society as such has no more to do with civil polity than with ecclesiastical. the organisation of men and women for the purpose of amusement is not necessarily identical with their organisation for political purposes, any more than with their organisation for religious purposes; it has of itself no more to do with the state than it has with the church. the faculties which fit a man to be a great ruler are not those of society; some great rulers have been unintelligible like cromwell, or brusque like napoleon, or coarse and barbarous like sir robert walpole. the light nothings of the drawing-room and the grave things of office are as different from one another as two human occupations can be. there is no naturalness in uniting the two; the end of it always is, that you put a man at the head of society who very likely is remarkable for social defects, and is not eminent for social merits. the best possible commentary on these remarks is the history of english history. it has not been sufficiently remarked that a change has taken place in the structure of our society exactly analogous to the change in our polity. a republic has insinuated itself beneath the folds of a monarchy. charles ii. was really the head of society; whitehall, in his time, was the centre of the best talk, the best fashion, and the most curious love affairs of the age. he did not contribute good morality to society, but he set an example of infinite agreeableness. he concentrated around him all the light part of the high world of london, and london concentrated around it all the light part of the high world of england. the court was the focus where everything fascinating gathered, and where everything exciting centred. whitehall was an unequalled club, with female society of a very clever and sharp sort superadded. all this, as we know, is now altered. buckingham palace is as unlike a club as any place is likely to be. the court is a separate part, which stands aloof from the rest of the london world, and which has but slender relations with the more amusing part of it. the first two georges were men ignorant of english, and wholly unfit to guide and lead english society. they both preferred one or two german ladies of bad character to all else in london. george iii. had no social vices, but he had no social pleasures. he was a family man, and a man of business, and sincerely preferred a leg of mutton and turnips after a good day's work, to the best fashion and the most exciting talk. in consequence, society in london, though still in form under the domination of a court, assumed in fact its natural and oligarchical structure. it, too, has become an "upper ten thousand"; it is no more monarchical in fact than the society of new york. great ladies give the tone to it with little reference to the particular court world. the peculiarly masculine world of the clubs and their neighbourhood has no more to do in daily life with buckingham palace than with the tuileries. formal ceremonies of presentation and attendance are retained. the names of levee and drawing-room still sustain the memory of the time when the king's bed-chamber and the queen's "withdrawing room" were the centres of london life, but they no longer make a part of social enjoyment: they are a sort of ritual in which nowadays almost every decent person can if he likes take part. even court balls, where pleasure is at least supposed to be possible, are lost in a london july. careful observers have long perceived this, but it was made palpable to every one by the death of the prince consort. since then the court has been always in a state of suspended animation, and for a time it was quite annihilated. but everything went on as usual. a few people who had no daughters and little money made it an excuse to give fewer parties, and if very poor, stayed in the country, but upon the whole the difference was not perceptible. the queen bee was taken away, but the hive went on. refined and original observers have of late objected to english royalty that it is not splendid enough. they have compared it with the french court, which is better in show, which comes to the surface everywhere so that you cannot help seeing it, which is infinitely and beyond question the most splendid thing in france. they have said, "that in old times the english court took too much of the nation's money, and spent it ill; but now, when it could be trusted to spend well, it does not take enough of the nation's money. there are arguments for not having a court, and there are arguments for having a splendid court; but there are no arguments for having a mean court. it is better to spend a million in dazzling when you wish to dazzle, than three-quarters of a million in trying to dazzle and yet not dazzling." there may be something in this theory; it may be that the court of england is not quite as gorgeous as we might wish to see it. but no comparison must ever be made between it and the french court. the emperor represents a different idea from the queen. he is not the head of the state; he is the state. the theory of his government is that every one in france is equal, and that the emperor embodies the principle of equality. the greater you make him, the less, and therefore the more equal, you make all others. he is magnified that others may be dwarfed. the very contrary is the principle of english royalty. as in politics it would lose its principal use if it came forward into the public arena, so in society if it advertised itself it would be pernicious. we have voluntary show enough already in london; we do not wish to have it encouraged and intensified, but quieted and mitigated. our court is but the head of an unequal, competing, aristocratic society; its splendour would not keep others down, but incite others to come on. it is of use so long as it keeps others out of the first place, and is guarded and retired in that place. but it would do evil if it added a new example to our many examples of showy wealth--if it gave the sanction of its dignity to the race of expenditure. fourthly. we have come to regard the crown as the head of our morality. the virtues of queen victoria and the virtues of george iii. have sunk deep into the popular heart. we have come to believe that it is natural to have a virtuous sovereign, and that the domestic virtues are as likely to be found on thrones as they are eminent when there. but a little experience and less thought show that royalty cannot take credit for domestic excellence. neither george i., nor george ii., nor william iv. were patterns of family merit; george iv. was a model of family demerit. the plain fact is, that to the disposition of all others most likely to go wrong, to an excitable disposition, the place of a constitutional king has greater temptations than almost any other, and fewer suitable occupations than almost any other. all the world and all the glory of it, whatever is most attractive, whatever is most seductive, has always been offered to the prince of wales of the day, and always will be. it is not rational to expect the best virtue where temptation is applied in the most trying form at the frailest time of human life. the occupations of a constitutional monarch are grave, formal, important, but never exciting; they have nothing to stir eager blood, awaken high imagination, work off wild thoughts. on men like george iii., with a predominant taste for business occupations, the routine duties of constitutional royalty have doubtless a calm and chastening effect. the insanity with which he struggled, and in many cases struggled very successfully, during many years, would probably have burst out much oftener but for the sedative effect of sedulous employment. but how few princes have ever felt the anomalous impulse for real work; how uncommon is that impulse anywhere; how little are the circumstances of princes calculated to foster it; how little can it be relied on as an ordinary breakwater to their habitual temptations! grave and careful men may have domestic virtues on a constitutional throne, but even these fail sometimes, and to imagine that men of more eager temperaments will commonly produce them, is to expect grapes from thorns and figs from thistles. lastly, constitutional royalty has the function which i insisted on at length in my last essay, and which, though it is by far the greatest, i need not now enlarge upon again. it acts as a disguise. it enables our real rulers to change without heedless people knowing it. the masses of englishmen are not fit for an elective government; if they knew how near they were to it, they would be surprised, and almost tremble. of a like nature is the value of constitutional royalty in times of transition. the greatest of all helps to the substitution of a cabinet government for a preceding absolute monarchy is the accession of a king favourable to such a government, and pledged to it. cabinet government, when new, is weak in time of trouble. the prime minister--the chief on whom everything depends, who must take responsibility if any one is to take it, who must use force if any one is to use it--is not fixed in power. he holds his place, by the essence of the government, with some uncertainty. among a people well-accustomed to such a government, such a functionary may be bold: he may rely, if not on the parliament, on the nation which understands and values him. but when that government has only recently been introduced, it is difficult for such a minister to be as bold as he ought to be. his power rests too much on human reason, and too little on human instinct. the traditional strength of the hereditary monarch is at these times of incalculable use. it would have been impossible for england to get through the first years after but for the singular ability of william iii. it would have been impossible for italy to have attained and kept her freedom without the help of victor emmanuel: neither the work of cavour nor the work of garibaldi were more necessary than his. but the failure of louis philippe to use his reserve power as constitutional monarch is the most instructive proof how great that reserve power is. in february, , guizot was weak because his tenure of office was insecure. louis philippe should have made that tenure certain. parliamentary reform might afterwards have been conceded to instructed opinion, but nothing ought to have been conceded to the mob. the parisian populace ought to have been put down, as guizot wished. if louis philippe had been a fit king to introduce free government, he would have strengthened his ministers when they were the instruments of order, even if he afterwards discarded them when order was safe, and policy could be discussed. but he was one of the cautious men who are "noted" to fail in old age: though of the largest experience and of great ability, he failed and lost his crown for want of petty and momentary energy, which at such a crisis a plain man would have at once put forth. such are the principal modes in which the institution of royalty by its august aspect influences mankind, and in the english state of civilisation they are invaluable. of the actual business of the sovereign--the real work the queen does--i shall speak in my next paper. ii. the house of commons has inquired into most things, but has never had a committee on "the queen". there is no authentic blue-book to say what she does. such an investigation cannot take place; but if it could, it would probably save her much vexatious routine, and many toilsome and unnecessary hours. the popular theory of the english constitution involves two errors as to the sovereign. first, in its oldest form at least, it considers him as an "estate of the realm," a separate co-ordinate authority with the house of lords and the house of commons. this and much else the sovereign once was, but this he is no longer. that authority could only be exercised by a monarch with a legislative veto. he should be able to reject bills, if not as the house of commons rejects them, at least as the house of peers rejects them. but the queen has no such veto. she must sign her own death-warrant if the two houses unanimously send it up to her. it is a fiction of the past to ascribe to her legislative power. she has long ceased to have any. secondly, the ancient theory holds that the queen is the executive. the american constitution was made upon a most careful argument, and most of that argument assumes the king to be the administrator of the english constitution, and an unhereditary substitute for him--viz., a president--to be peremptorily necessary. living across the atlantic, and misled by accepted doctrines, the acute framers of the federal constitution, even after the keenest attention, did not perceive the prime minister to be the principal executive of the british constitution, and the sovereign a cog in the mechanism. there is, indeed, much excuse for the american legislators in the history of that time. they took their idea of our constitution from the time when they encountered it. but in the so-called government of lord north, george iii. was the government. lord north was not only his appointee, but his agent. the minister carried on a war which he disapproved and hated, because it was a war which his sovereign approved and liked. inevitably, therefore, the american convention believed the king, from whom they had suffered, to be the real executive, and not the minister, from whom they had not suffered. if we leave literary theory, and look to our actual old law, it is wonderful how much the sovereign can do. a few years ago the queen very wisely attempted to make life peers, and the house of lords very unwisely, and contrary to its own best interests, refused to admit her claim. they said her power had decayed into non-existence; she once had it, they allowed, but it had ceased by long disuse. if any one will run over the pages of comyn's digest or any other such book, title "prerogative," he will find the queen has a hundred such powers which waver between reality and desuetude, and which would cause a protracted and very interesting legal argument if she tried to exercise them. some good lawyer ought to write a careful book to say which of these powers are really usable, and which are obsolete. there is no authentic explicit information as to what the queen can do, any more than of what she does. in the bare superficial theory of free institutions this is undoubtedly a defect. every power in a popular government ought to be known. the whole notion of such a government is that the political people--the governing people--rules as it thinks fit. all the acts of every administration are to be canvassed by it; it is to watch if such acts seem good, and in some manner or other to interpose if they seem not good. but it cannot judge if it is to be kept in ignorance; it cannot interpose if it does not know. a secret prerogative is an anomaly--perhaps the greatest of anomalies. that secrecy is, however, essential to the utility of english royalty as it now is. above all things our royalty is to be reverenced, and if you begin to poke about it you cannot reverence it. when there is a select committee on the queen, the charm of royalty will be gone. its mystery is its life. we must not let in daylight upon magic. we must not bring the queen into the combat of politics, or she will cease to be reverenced by all combatants; she will become one combatant among many. the existence of this secret power is, according to abstract theory, a defect in our constitutional polity, but it is a defect incident to a civilisation such as ours, where august and therefore unknown powers are needed, as well as known and serviceable powers. if we attempt to estimate the working of this inner power by the evidence of those, whether dead or living, who have been brought in contact with it, we shall find a singular difference. both the courtiers of george iii. and the courtiers of queen victoria are agreed as to the magnitude of the royal influence. it is with both an accepted secret doctrine that the crown does more than it seems. but there is a wide discrepancy in opinion as to the quality of that action. mr. fox did not scruple to describe the hidden influence of george iii. as the undetected agency of "an infernal spirit". the action of the crown at that period was the dread and terror of liberal politicians. but now the best liberal politicians say, "we shall never know, but when history is written our children may know, what we owe to the queen and prince albert". the mystery of the constitution, which used to be hated by our calmest, most thoughtful, and instructed statesmen, is now loved and reverenced by them. before we try to account for this change, there is one part of the duties of the queen which should be struck out of the discussion. i mean the formal part. the queen has to assent to and sign countless formal documents, which contain no matter of policy, of which the purport is insignificant, which any clerk could sign as well. one great class of documents george iii. used to read before he signed them, till lord thurlow told him, "it was nonsense his looking at them, for he could not understand them". but the worst case is that of commissions in the army. till an act passed only three years since the queen used to sign all military commissions, and she still signs all fresh commissions. the inevitable and natural consequence is that such commissions were, and to some extent still are, in arrears by thousands. men have often been known to receive their commissions for the first time years after they have left the service. if the queen had been an ordinary officer she would long since have complained, and long since have been relieved of this slavish labour. a cynical statesman is said to have defended it on the ground "that you may have a fool for a sovereign, and then it would be desirable he should have plenty of occupation in which he can do no harm". but it is in truth childish to heap formal duties of business upon a person who has of necessity so many formal duties of society. it is a remnant of the old days when george iii. would know everything, however trivial, and assent to everything, however insignificant. these labours of routine may be dismissed from the discussions. it is not by them that the sovereign acquires his authority either for evil or for good. the best mode of testing what we owe to the queen is to make a vigorous effort of the imagination, and see how we should get on without her. let us strip cabinet government of all its accessories, let us reduce it to its two necessary constituents--a representative assembly (a house of commons) and a cabinet appointed by that assembly--and examine how we should manage with them only. we are so little accustomed to analyse the constitution; we are so used to ascribe the whole effect of the constitution to the whole constitution, that a great many people will imagine it to be impossible that a nation should thrive or even live with only these two simple elements. but it is upon that possibility that the general imitability of the english government depends. a monarch that can be truly reverenced, a house of peers that can be really respected, are historical accidents nearly peculiar to this one island, and entirely peculiar to europe. a new country, if it is to be capable of a cabinet government, if it is not to degrade itself to presidential government, must create that cabinet out of its native resources--must not rely on these old world debris. many modes might be suggested by which a parliament might do in appearance what our parliament does in reality, viz., appoint a premier. but i prefer to select the simplest of all modes. we shall then see the bare skeleton of this polity, perceive in what it differs from the royal form, and be quite free from the imputation of having selected an unduly charming and attractive substitute. let us suppose the house of commons--existing alone and by itself--to appoint the premier quite simply, just as the shareholders of a railway choose a director. at each vacancy, whether caused by death or resignation, let any member or members have the right of nominating a successor; after a proper interval, such as the time now commonly occupied by a ministerial crisis, ten days or a fortnight, let the members present vote for the candidate they prefer; then let the speaker count the votes, and the candidate with the greatest number be premier. this mode of election would throw the whole choice into the hands of party organisation, just as our present mode does, except in so far as the crown interferes with it; no outsider would ever be appointed, because the immense number of votes which every great party brings into the field would far outnumber every casual and petty minority. the premier should not be appointed for a fixed time, but during good behaviour or the pleasure of parliament. mutatis mutandis, subject to the differences now to be investigated, what goes on now would go on then. the premier then, as now, must resign upon a vote of want of confidence, but the volition of parliament would then be the overt and single force in the selection of a successor, whereas it is now the predominant though latent force. it will help the discussion very much if we divide it into three parts. the whole course of a representative government has three stages--first, when a ministry is appointed; next, during its continuance; last, when it ends. let us consider what is the exact use of the queen at each of these stages, and how our present form of government differs in each, whether for good or for evil from that simpler form of cabinet government which might exist without her. at the beginning of an administration there would not be much difference between the royal and unroyal species of cabinet governments when there were only two great parties in the state, and when the greater of those parties was thoroughly agreed within itself who should be its parliamentary leader, and who therefore should be its premier. the sovereign must now accept that recognised leader; and if the choice were directly made by the house of commons, the house must also choose him; its supreme section, acting compactly and harmoniously, would sway its decisions without substantial resistance, and perhaps without even apparent competition. a predominant party, rent by no intestine demarcation, would be despotic. in such a case cabinet government would go on without friction whether there was a queen or whether there was no queen. the best sovereign could then achieve no good, and the worst effect no harm. but the difficulties are far greater when the predominant party is not agreed who should be its leader. in the royal form of cabinet government the sovereign then has sometimes a substantial selection; in the unroyal, who would choose? there must be a meeting at "willis's rooms"; there must be that sort of interior despotism of the majority over the minority within the party, by which lord john russell in was made to resign his pretensions to the supreme government, and to be content to serve as a subordinate to lord palmerston. the tacit compression which a party anxious for office would exercise over leaders who divided its strength, would be used and must be used. whether such a party would always choose precisely the best man may well be doubted. in a party once divided it is very difficult to secure unanimity in favour of the very person whom a disinterested bystander would recommend. all manner of jealousies and enmities are immediately awakened, and it is always difficult, often impossible, to get them to sleep again. but though such a party might not select the very best leader, they have the strongest motives to select a very good leader. the maintenance of their rule depends on it under a presidential constitution the preliminary caucuses which choose the president need not care as to the ultimate fitness of the man they choose. they are solely concerned with his attractiveness as a candidate; they need not regard his efficiency as a ruler. if they elect a man of weak judgment, he will reign his stated term; even though he show the best judgment, at the end of that term there will be by constitutional destiny another election. but under a ministerial government there is no such fixed destiny. the government is a removable government, its tenure depends upon its conduct. if a party in power were so foolish as to choose a weak man for its head, it would cease to be in power. its judgment is its life. suppose in that the whig party had determined to set aside both earl russell and lord palmerston and to choose for its head an incapable nonentity, the whig party would probably have been exiled from office at the schleswig-holstein difficulty. the nation would have deserted them, and parliament would have deserted them, too; neither would have endured to see a secret negotiation, on which depended the portentous alternative of war or peace, in the hands of a person who was thought to be weak--who had been promoted because of his mediocrity--whom his own friends did not respect. a ministerial government, too, is carried on in the face of day. its life is in debate. a president may be a weak man; yet if he keep good ministers to the end of his administration, he may not be found out--it may still be a dubious controversy whether he is wise or foolish. but a prime minister must show what he is. he must meet the house of commons in debate; he must be able to guide that assembly in the management of its business, to gain its ear in every emergency, to rule it in its hours of excitement. he is conspicuously submitted to a searching test, and if he fails he must resign. nor would any party like to trust to a weak man the great power which a cabinet government commits to its premier. the premier, though elected by parliament can dissolve parliament. members would be naturally anxious that the power which might destroy their coveted dignity should be lodged in fit hands. they dare not place in unfit hands a power which, besides hurting the nation, might altogether ruin them. we may be sure, therefore, that whenever the predominant party is divided, the un-royal form of cabinet government would secure for us a fair and able parliamentary leader--that it would give us a good premier, if not the very best. can it be said that the royal form does more? in one case i think it may. if the constitutional monarch be a man of singular discernment, of unprejudiced disposition, and great political knowledge, he may pick out from the ranks of the divided party its very best leader, even at a time when the party, if left to itself, would not nominate him. if the sovereign be able to play the part of that thoroughly intelligent but perfectly disinterested spectator who is so prominent in the works of certain moralists, he may be able to choose better for his subjects than they would choose for themselves. but if the monarch be not so exempt from prejudice, and have not this nearly miraculous discernment, it is not likely that he will be able to make a wiser choice than the choice of the party itself. he certainly is not under the same motive to choose wisely. his place is fixed whatever happens, but the failure of an appointing party depends on the capacity of their appointee. there is great danger, too, that the judgment of the sovereign may be prejudiced. for more than forty years the personal antipathies of george iii. materially impaired successive administrations. almost at the beginning of his career he discarded lord chatham: almost at the end he would not permit mr. pitt to coalesce with mr. fox. he always preferred mediocrity; he generally disliked high ability; he always disliked great ideas. if constitutional monarchs be ordinary men of restricted experience and common capacity (and we have no right to suppose that by miracle they will be more), the judgment of the sovereign will often be worse than the judgment of the party, and he will be very subject to the chronic danger of preferring a respectful common-place man, such as addington, to an independent first-rate man, such as pitt. we shall arrive at the same sort of mixed conclusion if we examine the choice of a premier under both systems in the critical case of cabinet government--the case of three parties. this is the case in which that species of government is most sure to exhibit its defects, and least likely to exhibit its merits. the defining characteristic of that government is the choice of the executive ruler by the legislative assembly; but when there are three parties a satisfactory choice is impossible. a really good selection is a selection by a large majority which trusts those it chooses, but when there are three parties there is no such trust. the numerically weakest has the casting vote--it can determine which candidate shall be chosen. but it does so under a penalty. it forfeits the right of voting for its own candidate. it settles which of other people's favourites shall be chosen, on condition of abandoning its own favourite. a choice based on such self-denial can never be a firm choice--it is a choice at any moment liable to be revoked. the events of , though not a perfect illustration of what i mean, are a sufficient illustration. the radical party, acting apart from the moderate liberal party, kept lord derby in power. the ultra-movement party thought it expedient to combine with the non-movement party. as one of them coarsely but clearly put it, "we get more of our way under these men than under the other men"; he meant that, in his judgment, the tories would be more obedient to the radicals than the whigs. but it is obvious that a union of opposites so marked could not be durable. the radicals bought it by choosing the men whose principles were most adverse to them; the conservatives bought it by agreeing to measures whose scope was most adverse to them. after a short interval the radicals returned to their natural alliance and their natural discontent with the moderate whigs. they used their determining vote first for a government of one opinion and then for a government of the contrary opinion. i am not blaming this policy. i am using it merely as an illustration. i say that if we imagine this sort of action greatly exaggerated and greatly prolonged parliamentary government becomes impossible. if there are three parties, no two of which will steadily combine for mutual action, but of which the weakest gives a rapidly oscillating preference to the two others, the primary condition of a cabinet polity is not satisfied. we have not a parliament fit to choose; we cannot rely on the selection of a sufficiently permanent executive, because there is no fixity in the thoughts and feelings of the choosers. under every species of cabinet government, whether the royal or the unroyal, this defect can be cured in one way only. the moderate people of every party must combine to support the government which, on the whole, suits every party best. this is the mode in which lord palmerston's administration has been lately maintained; a ministry in many ways defective, but more beneficially vigorous abroad, and more beneficially active at home, than the vast majority of english ministries. the moderate conservatives and the moderate radicals have maintained a steady government by a sufficiently coherent union with the moderate whigs. whether there is a king or no king, this perservative self-denial is the main force on which we must rely for the satisfactory continuance of a parliamentary government at this its period of greatest trial. will that moderation be aided or impaired by the addition of a sovereign? will it be more effectual under the royal sort of ministerial government, or will it be less effectual? if the sovereign has a genius for discernment, the aid which he can give at such a crisis will be great. he will select for his minister, and if possible maintain as his minister, the statesman upon whom the moderate party will ultimately fix their choice, but for whom at the outset it is blindly searching; being a man of sense, experience, and tact, he will discern which is the combination of equilibrium, which is the section with whom the milder members of the other sections will at last ally themselves. amid the shifting transitions of confused parties, it is probable that he will have many opportunities of exercising a selection. it will rest with him to call either on a b to form an administration, or upon x y, and either may have a chance of trial. a disturbed state of parties is inconsistent with fixity, but it abounds in momentary tolerance. wanting something, but not knowing with precision what, parties will accept for a brief period anything, to see whether it may be that unknown something--to see what it will do. during the long succession of weak governments which begins with the resignation of the duke of newcastle in and ends with the accession of mr. pitt in , the vigorous will of george iii. was an agency of the first magnitude. if at a period of complex and protracted division of parties, such as are sure to occur often and last long in every enduring parliamentary government, the extrinsic force of royal selection were always exercised discreetly, it would be a political benefit of incalculable value. but will it be so exercised? a constitutional sovereign must in the common course of government be a man of but common ability. i am afraid, looking to the early acquired feebleness of hereditary dynasties, that we must expect him to be a man of inferior ability. theory and experience both teach that the education of a prince can be but a poor education, and that a royal family will generally have less ability than other families. what right have we then to expect the perpetual entail on any family of an exquisite discretion, which if it be not a sort of genius, is at least as rare as genius? probably in most cases the greatest wisdom of a constitutional king would show itself in well-considered inaction. in the confused interval between and the queen and prince albert were far too wise to obtrude any selection of their own. if they had chosen, perhaps they would not have chosen lord palmerston. but they saw, or may be believed to have seen, that the world was settling down without them, and that by interposing an extrinsic agency, they would but delay the beneficial crystallisation of intrinsic forces. there is, indeed, a permanent reason which would make the wisest king, and the king who feels most sure of his wisdom, very slow to use that wisdom. the responsibility of parliament should be felt by parliament. so long as parliament thinks it is the sovereign's business to find a government it will be sure not to find a government itself. the royal form of ministerial government is the worst of all forms if it erect the subsidiary apparatus into the principal force, if it induce the assembly which ought to perform paramount duties to expect some one else to perform them. it should be observed, too, in fairness to the unroyal species of cabinet government, that it is exempt from one of the greatest and most characteristic defects of the royal species. where there is no court there can be no evil influence from a court. what these influences are every one knows; though no one, hardly the best and closest observer, can say with confidence and precision how great their effect is. sir robert walpole, in language too coarse for our modern manners, declared after the death of queen caroline, that he would pay no attention to the king's daughters ("those girls," as he called them), but would rely exclusively on madame de walmoden, the king's mistress. "the king," says a writer in george iv.'s time, "is in our favour, and what is more to the purpose, the marchioness of conyngham is so too." everybody knows to what sort of influences several italian changes of government since the unity of italy have been attributed. these sinister agencies are likely to be most effective just when everything else is troubled, and when, therefore, they are particularly dangerous. the wildest and wickedest king's mistress would not plot against an invulnerable administration. but very many will intrigue when parliament is perplexed, when parties are divided, when alternatives are many, when many evil things are possible, when cabinet government must be difficult. it is very important to see that a good administration can be started without a sovereign, because some colonial statesmen have doubted it. "i can conceive," it has been said, "that a ministry would go on well enough without a governor when it was launched, but i do not see how to launch it." it has even been suggested that a colony which broke away from england, and had to form its own government, might not unwisely choose a governor for life, and solely trusted with selecting ministers, something like the abbe sieyes's grand elector. but the introduction of such an officer into such a colony would in fact be the voluntary erection of an artificial encumbrance to it. he would inevitably be a party man. the most dignified post in the state must be an object of contest to the great sections into which every active political community is divided. these parties mix in everything and meddle in everything; and they neither would nor could permit the most honoured and conspicuous of all stations to be filled, except at their pleasure. they know, too, that the grand elector, the great chooser of ministries, might be, at a sharp crisis, either a good friend or a bad enemy. the strongest party would select some one who would be on their side when he had to take a side, who would incline to them when he did incline, who should be a constant auxiliary to them and a constant impediment to their adversaries. it is absurd to choose by contested party election an impartial chooser of ministers. but it is during the continuance of a ministry, rather than at its creation, that the functions of the sovereign will mainly interest most persons, and that most people will think them to be of the gravest importance. i own i am myself of that opinion. i think it may be shown that the post of sovereign over an intelligent and political people under a constitutional monarchy is the post which a wise man would choose above any other--where he would find the intellectual impulses best stimulated and the worst intellectual impulses best controlled. on the duties of the queen during an administration we have an invaluable fragment from her own hand. in louis napoleon had his coup d'etat: in lord john russell had his--he expelled lord palmerston. by a most instructive breach of etiquette he read in the house a royal memorandum on the duties of his rival. it is as follows: "the queen requires, first, that lord palmerston will distinctly state what he proposes in a given case, in order that the queen may know as distinctly to what she is giving her royal sanction. secondly, having once given her sanction to such a measure that it be not arbitrarily altered or modified by the minister. such an act she must consider as failing in sincerity towards the crown, and justly to be visited by the exercise of her constitutional right of dismissing that minister. she expects to be kept informed of what passes between him and foreign ministers before important decisions are taken based upon that intercourse; to receive the foreign despatches in good time; and to have the drafts for her approval sent to her in sufficient time to make herself acquainted with their contents before they must be sent off." in addition to the control over particular ministers, and especially over the foreign minister, the queen has a certain control over the cabinet. the first minister, it is understood, transmits to her authentic information of all the most important decisions, together with, what the newspapers would do equally well, the more important votes in parliament. he is bound to take care that she knows everything which there is to know as to the passing politics of the nation. she has by rigid usage a right to complain if she does not know of every great act of her ministry, not only before it is done, but while there is yet time to consider it--while it is still possible that it may not be done. to state the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights--the right to be consulted, the right to encourage, the right to warn. and a king of great sense and sagacity would want no others. he would find that his having no others would enable him to use these with singular effect. he would say to his minister: "the responsibility of these measures is upon you. whatever you think best must be done. whatever you think best shall have my full and effectual support. but you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. i do not oppose, it is my duty not to oppose; but observe that i warn." supposing the king to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his minister. he might not always turn his course, but he would always trouble his mind. in the course of a long reign a sagacious king would acquire an experience with which few ministers could contend. the king could say: "have you referred to the transactions which happened during such and such an administration, i think about fourteen years ago? they afford an instructive example of the bad results which are sure to attend the policy which you propose. you did not at that time take so prominent a part in public life as you now do, and it is possible you do not fully remember all the events. i should recommend you to recur to them, and to discuss them with your older colleagues who took part in them. it is unwise to recommence a policy which so lately worked so ill." the king would indeed have the advantage which a permanent under-secretary has over his superior the parliamentary secretary--that of having shared in the proceedings of the previous parliamentary secretaries. these proceedings were part of his own life; occupied the best of his thoughts, gave him perhaps anxiety, perhaps pleasure, were commenced in spite of his dissuasion, or were sanctioned by his approval. the parliamentary secretary vaguely remembers that something was done in the time of some of his predecessors, when he very likely did not know the least or care the least about that sort of public business. he has to begin by learning painfully and imperfectly what the permanent secretary knows by clear and instant memory. no doubt a parliamentary secretary always can, and sometimes does, silence his subordinate by the tacit might of his superior dignity. he says: "i do not think there is much in all that. many errors were committed at the time you refer to which we need not now discuss." a pompous man easily sweeps away the suggestions of those beneath him. but though a minister may so deal with his subordinate, he cannot so deal with his king. the social force of admitted superiority by which he overturned his under-secretary is now not with him but against him. he has no longer to regard the deferential hints of an acknowledged inferior, but to answer the arguments of a superior to whom he has himself to be respectful. george iii. in fact knew the forms of public business as well or better than any statesman of his time. if, in addition to his capacity as a man of business and to his industry, he had possessed the higher faculties of a discerning states man, his influence would have been despotic. the old constitution of england undoubtedly gave a sort of power to the crown which our present constitution does not give. while a majority in parliament was principally purchased by royal patronage, the king was a party to the bargain either with his minister or without his minister. but even under our present constitution a monarch like george iii., with high abilities, would possess the greatest influence. it is known to all europe that in belgium king leopold has exercised immense power by the use of such means as i have described. it is known, too, to every one conversant with the real course of the recent history of england, that prince albert really did gain great power in precisely the same way. he had the rare gifts of a constitutional monarch. if his life had been prolonged twenty years, his name would have been known to europe as that of king leopold is known. while he lived he was at a disadvantage. the statesmen who had most power in england were men of far greater experience than himself. he might, and no doubt did, exercise a great, if not a commanding influence over lord malmesbury, but he could not rule lord palmerston. the old statesman who governed england, at an age when most men are unfit to govern their own families, remembered a whole generation of states men who were dead before prince albert was born. the two were of different ages and different natures. the elaborateness of the german prince--an elaborateness which has been justly and happily compared with that of goethe--was wholly alien to the half-irish, half-english, statesman. the somewhat boisterous courage in minor dangers, and the obtrusive use of an always effectual but not always refined, commonplace, which are lord palmerston's defects, doubtless grated on prince albert, who had a scholar's caution and a scholar's courage. the facts will be known to our children's children, though not to us. prince albert did much, but he died ere he could have made his influence felt on a generation of statesmen less experienced than he was, and anxious to learn from him. it would be childish to suppose that a conference between a minister and his sovereign can ever be a conference of pure argument. "the divinity which doth hedge a king" may have less sanctity than it had, but it still has much sanctity. no one, or scarcely any one, can argue with a cabinet minister in his own room as well as he would argue with another man in another room. he cannot make his own points as well; he cannot unmake as well the points presented to him. a monarch's room is worse. the best instance is lord chatham, the most dictatorial and imperious of english statesmen, and almost the first english statesman who was borne into power against the wishes of the king and against the wishes of the nobility--the first popular minister. we might have expected a proud tribune of the people to be dictatorial to his sovereign--to be to the king what he was to all others. on the contrary, he was the slave of his own imagination; there was a kind of mystic enchantment in vicinity to the monarch which divested him of his ordinary nature. "the least peep into the king's closet," said mr. burke, "intoxicates him, and will to the end of his life." a wit said that, even at the levee, he bowed so low that you could see the tip of his hooked nose between his legs. he was in the habit of kneeling at the bedside of george iii. while transacting business. now no man can argue on his knees. the same superstitious feeling which keeps him in that physical attitude will keep him in a corresponding mental attitude. he will not refute the bad arguments of the king as he will refute another man's bad arguments. he will not state his own best arguments effectively and incisively when he knows that the king would not like to hear them. in a nearly balanced argument the king must always have the better, and in politics many most important arguments are nearly balanced. whenever there was much to be said for the king's opinion it would have its full weight; whatever was said for the minister's opinion would only have a lessened and enfeebled weight. the king, too, possesses a power, according to theory, for extreme use on a critical occasion, but which he can in law use on any occasion. he can dissolve; he can say to his minister, in fact, if not in words, "this parliament sent you here, but i will see if i cannot get another parliament to send some one else here." george iii. well understood that it was best to take his stand at times and on points when it was perhaps likely, or at any rate not unlikely, the nation would support him. he always made a minister that he did not like tremble at the shadow of a possible successor. he had a cunning in such matters like the cunning of insanity. he had conflicts with the ablest men of his time, and he was hardly ever baffled. he understood how to help a feeble argument by a tacit threat, and how best to address it to an habitual deference. perhaps such powers as these are what a wise man would most seek to exercise and least fear to possess. to wish to be a despot, "to hunger after tyranny," as the greek phrase had it, marks in our day an uncultivated mind. a person who so wishes cannot have weighed what butler calls the "doubtfulness things are involved in". to be sure you are right to impose your will, or to wish to impose it, with violence upon others; to see your own ideas vividly and fixedly, and to be tormented till you can apply them in life and practice, not to like to hear the opinions of others, to be unable to sit down and weigh the truth they have, are but crude states of intellect in our present civilisation. we know, at least, that facts are many; that progress is complicated; that burning ideas (such as young men have) are mostly false and always incomplete. the notion of a far-seeing and despotic statesman, who can lay down plans for ages yet unborn, is a fancy generated by the pride of the human intellect to which facts give no support. the plans of charlemagne died with him; those of richelieu were mistaken; those of napoleon gigantesque and frantic. but a wise and great constitutional monarch attempts no such vanities. his career is not in the air; he labours in the world of sober fact; he deals with schemes which can be effected--schemes which are desirable--schemes which are worth the cost. he says to the ministry his people send to him, to ministry after ministry, "i think so and so; do you see if there is anything in it. i have put down my reasons in a certain memorandum, which i will give you. probably it does not exhaust the subject, but it will suggest materials for your consideration." by years of discussion with ministry after ministry, the best plans of the wisest king would certainly be adopted, and the inferior plans, the impracticable plans, rooted out and rejected. he could not be uselessly beyond his time, for he would have been obliged to convince the representatives, the characteristic men of his time. he would have the best means of proving that he was right on all new and strange matters, for he would have won to his side probably, after years of discussion, the chosen agents of the commonplace world--men who were where they were, because they had pleased the men of the existing age, who will never be much disposed to new conceptions or profound thoughts. a sagacious and original constitutional monarch might go to his grave in peace if any man could. he would know that his best laws were in harmony with his age; that they suited the people who were to work them, the people who were to be benefited by them. and he would have passed a happy life. he would have passed a life in which he could always get his arguments heard, in which he could always make those who have the responsibility of action think of them before they acted--in which he could know that the schemes which he had set at work in the world were not the casual accidents of an individual idiosyncrasy, which are mostly much wrong, but the likeliest of all things to be right--the ideas of one very intelligent man at last accepted and acted on by the ordinary intelligent many. but can we expect such a king, or, for that is the material point, can we expect a lineal series of such kings? every one has heard the reply of the emperor alexander to madame de stael, who favoured him with a declamation in praise of beneficent despotism. "yes, madame, but it is only a happy accident." he well knew that the great abilities and the good intentions necessary to make an efficient and good despot never were continuously combined in any line of rulers. he knew that they were far out of reach of hereditary human nature. can it be said that the characteristic qualities of a constitutional monarch are more within its reach? i am afraid it cannot. we found just now that the characteristic use of an hereditary constitutional monarch, at the outset of an administration, greatly surpassed the ordinary competence of hereditary faculties. i fear that an impartial investigation will establish the same conclusion as to his uses during the continuance of an administration. if we look at history, we shall find that it is only during the period of the present reign that in england the duties of a constitutional sovereign have ever been well performed. the first two georges were ignorant of english affairs, and wholly unable to guide them, whether well or ill; for many years in their time the prime minister had, over and above the labour of managing parliament, to manage the woman--sometimes the queen, sometimes the mistress--who managed the sovereign; george iii. interfered unceasingly, but he did harm unceasingly; george iv. and william iv. gave no steady continuing guidance, and were unfit to give it. on the continent, in first-class countries, constitutional royalty has never lasted out of one generation. louis philippe, victor emmanuel, and leopold are the founders of their dynasties; we must not reckon in constitutional monarchy any more than in despotic monarchy on the permanence in the descendants of the peculiar genius which founded the race. as far as experience goes, there is no reason to expect an hereditary series of useful limited monarchs. if we look to theory, there is even less reason to expect it. a monarch is useful when he gives an effectual and beneficial guidance to his ministers. but these ministers are sure to be among the ablest men of their time. they will have had to conduct the business of parliament so as to satisfy it; they will have to speak so as to satisfy it. the two together cannot be done save by a man of very great and varied ability. the exercise of the two gifts is sure to teach a man much of the world; and if it did not, a parliamentary leader has to pass through a magnificent training before he becomes a leader. he has to gain a seat in parliament; to gain the ear of parliament; to gain the confidence of parliament; to gain the confidence of his colleagues. no one can achieve these--no one, still more, can both achieve them and retain them--without a singular ability, nicely trained in the varied detail of life. what chance has an hereditary monarch such as nature forces him to be, such as history shows he is, against men so educated and so born? he can but be an average man to begin with; sometimes he will be clever, but sometimes he will be stupid; in the long run he will be neither clever nor stupid; he will be the simple, common man who plods the plain routine of life from the cradle to the grave. his education will be that of one who has never had to struggle; who has always felt that he has nothing to gain; who has had the first dignity given him; who has never seen common life as in truth it is. it is idle to expect an ordinary man born in the purple to have greater genius than an extraordinary man born out of the purple; to expect a man whose place has always been fixed to have a better judgment than one who has lived by his judgment; to expect a man whose career will be the same whether he is discreet or whether he is indiscreet to have the nice discretion of one who has risen by his wisdom, who will fall if he ceases to be wise. the characteristic advantage of a constitutional king is the permanence of his place. this gives him the opportunity of acquiring a consecutive knowledge of complex transactions, but it gives only an opportunity. the king must use it. there is no royal road to political affairs: their detail is vast, disagreeable, complicated, and miscellaneous. a king, to be the equal of his ministers in discussion, must work as they work; he must be a man of business as they are men of business. yet a constitutional prince is the man who is most tempted to pleasure, and the least forced to business. a despot must feel that he is the pivot of the state. the stress of his kingdom is upon him. as he is, so are his affairs. he may be seduced into pleasure; he may neglect all else; but the risk is evident. he will hurt himself; he may cause a revolution. if he becomes unfit to govern, some one else who is fit may conspire against him. but a constitutional king need fear nothing. he may neglect his duties, but he will not be injured. his place will be as fixed, his income as permanent, his opportunities of selfish enjoyment as full as ever. why should he work? it is true he will lose the quiet and secret influence which in the course of years industry would gain for him; but an eager young man, on whom the world is squandering its luxuries and its temptations, will not be much attracted by the distant prospect of a moderate influence over dull matters. he may form good intentions; he may say, "next year i will read these papers; i will try and ask more questions; i will not let these women talk to me so". but they will talk to him. the most hopeless idleness is that most smoothed with excellent plans. "the lord treasurer," says swift, "promised he will settle it to-night, and so he will say a hundred nights." we may depend upon it the ministry whose power will be lessened by the prince's attention will not be too eager to get him to attend. so it is if the prince come young to the throne; but the case is worse when he comes to it old or middle-aged. he is then unfit to work. he will then have spent the whole of youth and the first part of manhood in idleness, and it is unnatural to expect him to labour. a pleasure-loving lounger in middle life will not begin to work as george iii. worked, or as prince albert worked. the only fit material for a constitutional king is a prince who begins early to reign--who in his youth is superior to pleasure--who in his youth is willing to labour--who has by nature a genius for discretion. such kings are among god's greatest gifts, but they are also among his rarest. an ordinary idle king on a constitutional throne will leave no mark on his time: he will do little good and as little harm; the royal form of cabinet government will work in his time pretty much as the unroyal. the addition of a cypher will not matter though it take precedence of the significant figures. but corruptio optimi pessima. the most evil case of the royal form is far worse than the most evil case of the unroyal. it is easy to imagine, upon a constitutional throne, an active and meddling fool who always acts when he should not, who never acts when he should, who warns his ministers against their judicious measures, who encourages them in their injudicious measures. it is easy to imagine that such a king should be the tool of others; that favourites should guide him; that mistresses should corrupt him; that the atmosphere of a bad court should be used to degrade free government. we have had an awful instance of the dangers of constitutional royalty. we have had the case of a meddling maniac. during great part of his life george iii.'s reason was half upset by every crisis. throughout his life he had an obstinacy akin to that of insanity. he was an obstinate and an evil influence; he could not be turned from what was inexpedient; by the aid of his station he turned truer but weaker men from what was expedient. he gave an excellent moral example to his contemporaries, but he is an instance of those whose good dies with them, while their evil lives after them. he prolonged the american war, perhaps he caused the american war, so we inherit the vestiges of an american hatred; he forbade mr. pitt's wise plans, so we inherit an irish difficulty. he would not let us do right in time, so now our attempts at right are out of time and fruitless. constitutional royalty under an active and half-insane king is one of the worst of governments. there is in it a secret power which is always eager, which is generally obstinate, which is often wrong, which rules ministers more than they know themselves, which overpowers them much more than the public believe, which is irresponsible because it is inscrutable, which cannot be prevented because it cannot be seen. the benefits of a good monarch are almost invaluable, but the evils of a bad monarch are almost irreparable. we shall find these conclusions confirmed if we examine the powers and duties of an english monarch at the break-up of an administration. but the power of dissolution and the prerogative of creating peers, the cardinal powers of that moment are too important and involve too many complex matters to be sufficiently treated at the very end of a paper as long as this. no. iv. the house of lords. in my last essay i showed that it was possible for a constitutional monarch to be, when occasion served, of first-rate use both at the outset and during the continuance of an administration; but that in matter of fact it was not likely that he would be useful. the requisite ideas, habits, and faculties, far surpass the usual competence of an average man, educated in the common manner of sovereigns. the same arguments are entirely applicable at the close of an administration. but at that conjuncture the two most singular prerogatives of an english king--the power of creating new peers and the power of dissolving the commons--come into play; and we cannot duly criticise the use or misuse of these powers till we know what the peers are and what the house of commons is. the use of the house of lords or, rather, of the lords, in its dignified capacity--is very great. it does not attract so much reverence as the queen, but it attracts very much. the office of an order of nobility is to impose on the common people--not necessarily to impose on them what is untrue, yet less what is hurtful; but still to impose on their quiescent imaginations what would not otherwise be there. the fancy of the mass of men is incredibly weak; it can see nothing without a visible symbol, and there is much that it can scarcely make out with a symbol. nobility is the symbol of mind. it has the marks from which the mass of men always used to infer mind, and often still infer it. a common clever man who goes into a country place will get no reverence; but the "old squire" will get reverence. even after he is insolvent, when every one knows that his ruin is but a question of time, he will get five times as much respect from the common peasantry as the newly-made rich man who sits beside him. the common peasantry will listen to his nonsense more submissively than to the new man's sense. an old lord will get infinite respect. his very existence is so far useful that it awakens the sensation of obedience to a sort of mind in the coarse, dull, contracted multitude, who could neither appreciate nor perceive any other. the order of nobility is of great use, too, not only in what it creates, but in what it prevents. it prevents the rule of wealth--the religion of gold. this is the obvious and natural idol of the anglo-saxon. he is always trying to make money; he reckons everything in coin; he bows down before a great heap and sneers as he passes a little heap. he has a "natural instinctive admiration of wealth for its own sake". and within good limits the feeling is quite right. so long as we play the game of industry vigorously and eagerly (and i hope we shall long play it, for we must be very different from what we are if we do anything better), we shall of necessity respect and admire those who play successfully, and a little despise those who play unsuccessfully. whether this feeling be right or wrong, it is useless to discuss; to a certain degree, it is involuntary; it is not for mortals to settle whether we will have it or not; nature settles for us that, within moderate limits, we must have it. but the admiration of wealth in many countries goes far beyond this; it ceases to regard in any degree the skill of acquisition; it respects wealth in the hands of the inheritor just as much as in the hands of the maker; it is a simple envy and love of a heap of gold as a heap of gold. from this our aristocracy preserves us. there is no country where a "poor devil of a millionaire is so ill off as in england". the experiment is tried every day, and every day it is proved that money alone--money pur et simple--will not buy "london society". money is kept down, and, so to say, cowed by the predominant authority of a different power. but it may be said that this is no gain; that worship for worship, the worship of money is as good as the worship of rank. even granting that it were so, it is a great gain to society to have two idols: in the competition of idolatries the true worship gets a chance. but it is not true that the reverence for rank--at least, for hereditary rank--is as base as the reverence for money. as the world has gone, manner has been half-hereditary in certain castes, and manner is one of the fine arts. it is the style of society; it is in the daily-spoken intercourse of human beings what the art of literary expression is in their occasional written intercourse. in reverencing wealth we reverence not a man, but an appendix to a man; in reverencing inherited nobility, we reverence the probable possession of a great faculty--the faculty of bringing out what is in one. the unconscious grace of life may be in the middle classes: finely-mannered persons are born everywhere; but it ought to be in the aristocracy: and a man must be born with a hitch in his nerves if he has not some of it. it is a physiological possession of the race, though it is sometimes wanting in the individual. there is a third idolatry from which that of rank preserves us, and perhaps it is the worst of any--that of office. the basest deity is a subordinate employee, and yet just now in civilised governments it is the commonest. in france and all the best of the continent it rules like a superstition. it is to no purpose that you prove that the pay of petty officials is smaller than mercantile pay; that their work is more monotonous than mercantile work; that their mind is less useful and their life more tame. they are still thought to be greater and better. they are decords; they have a little red on the left breast of their coat, and no argument will answer that. in england, by the odd course of our society, what a theorist would desire has in fact turned up. the great offices, whether permanent or parliamentary, which require mind now give social prestige, and almost only those. an under-secretary of state with pounds a year is a much stronger man than the director of a finance company with pounds, and the country saves the difference. but except in a few offices like the treasury, which were once filled with aristocratic people, and have an odour of nobility at second-hand, minor place is of no social use. a big grocer despises the exciseman; and what in many countries would be thought impossible, the exciseman envies the grocer. solid wealth tells where there is no artificial dignity given to petty public functions. a clerk in the public service is "nobody"; and you could not make a common englishman see why he should be anybody. but it must be owned that this turning of society into a political expedient has half spoiled it. a great part of the "best" english people keep their mind in a state of decorous dulness. they maintain their dignity; they get obeyed; they are good and charitable to their dependants. but they have no notion of play of mind: no conception that the charm of society depends upon it. they think cleverness an antic, and have a constant though needless horror of being thought to have any of it. so much does this stiff dignity give the tone, that the few englishmen capable of social brilliancy mostly secrete it. they reserve it for persons whom they can trust, and whom they know to be capable of appreciating its nuances. but a good government is well worth a great deal of social dulness. the dignified torpor of english society is inevitable if we give precedence, not to the cleverest classes, but to the oldest classes, and we have seen how useful that is. the social prestige of the aristocracy is, as every one knows, immensely less than it was a hundred years or even fifty years since. two great movements--the two greatest of modern society--have been unfavourable to it. the rise of industrial wealth in countless forms has brought in a competitor which has generally more mind, and which would be supreme were it not for awkwardness and intellectual gene. every day our companies, our railways, our debentures, and our shares, tend more and more to multiply these surroundings of the aristocracy, and in time they will hide it. and while this undergrowth has come up, the aristocracy have come down. they have less means of standing out than they used to have. their power is in their theatrical exhibition, in their state. but society is every day becoming less stately. as our great satirist has observed, "the last duke of st. david's used to cover the north road with his carriages; landladies and waiters bowed before him. the present duke sneaks away from a railway station, smoking a cigar, in a brougham." the aristocracy cannot lead the old life if they would; they are ruled by a stronger power. they suffer from the tendency of all modern society to raise the average, and to lower--comparatively, and perhaps absolutely, to lower--the summit. as the picturesqueness, the featureliness, of society diminishes, aristocracy loses the single instrument of its peculiar power. if we remember the great reverence which used to be paid to nobility as such, we shall be surprised that the house of lords as an assembly, has always been inferior; that it was always just as now, not the first, but the second of our assemblies. i am not, of course, now speaking of the middle ages: i am not dealing with the embryo or the infant form of our constitution; i am only speaking of its adult form. take the times of sir r. walpole. he was prime minister because he managed the house of commons; he was turned out because he was beaten on an election petition in that house; he ruled england because he ruled that house. yet the nobility were then the governing power in england. in many districts the word of some lord was law. the "wicked lord lowther," as he was called, left a name of terror in westmoreland during the memory of men now living. a great part of the borough members and a great part of the county members were their nominees; an obedient, unquestioning deference was paid them. as individuals the peers were the greatest people; as a house the collected peers were but the second house. several causes contributed to create this anomaly, but the main cause was a natural one. the house of peers has never been a house where the most important peers were most important. it could not be so. the qualities which fit a man for marked eminence, in a deliberative assembly, are not hereditary, and are not coupled with great estates. in the nation, in the provinces, in his own province, a duke of devonshire, or a duke of bedford, was a much greater man than lord thurlow. they had great estates, many boroughs, innumerable retainers, followings like a court. lord thurlow had no boroughs, no retainers; he lived on his salary. till the house of lords met, the dukes were not only the greatest, but immeasurably the greatest. but as soon as the house met, lord thurlow became the greatest. he could speak, and the others could not speak. he could transact business in half an hour which they could not have transacted in a day, or could not have transacted at all. when some foolish peer, who disliked his domination, sneered at his birth, he had words to meet the case: he said it was better for any one to owe his place to his own exertions than to owe it to descent, to being the "accident of an accident". but such a house as this could not be pleasant to great noblemen. they could not like to be second in their own assembly (and yet that was their position from age to age) to a lawyer who was of yesterday,--whom everybody could remember without briefs, who had talked for "hire," who had "hungered after six-and-eightpence". great peers did not gain glory from the house; on the contrary, they lost glory when they were in the house. they devised two expedients to get out of this difficulty: they invented proxies which enabled them to vote without being present, without being offended by vigour and invective, without being vexed by ridicule, without leaving the rural mansion or the town palace where they were demigods. and what was more effectual still, they used their influence in the house of commons instead of the house of lords. in that indirect manner a rural potentate, who half returned two county members, and wholly returned two borough members, who perhaps gave seats to members of the government, who possibly seated the leader of the opposition, became a much greater man than by sitting on his own bench, in his own house, hearing a chancellor talk. the house of lords was a second-rate force, even when the peers were a first-rate force, because the greatest peers, those who had the greatest social importance, did not care for their own house, or like it, but gained great part of their political power by a hidden but potent influence in the competing house. when we cease to look at the house of lords under its dignified aspect, and come to regard it under its strictly useful aspect, we find the literary theory of the english constitution wholly wrong, as usual. this theory says that the house of lords is a co-ordinate estate of the realm, of equal rank with the house of commons; that it is the aristocratic branch, just as the commons is the popular branch; and that by the principle of our constitution the aristocratic branch has equal authority with the popular branch. so utterly false is this doctrine that it is a remarkable peculiarity, a capital excellence of the british constitution, that it contains a sort of upper house, which is not of equal authority to the lower house, yet still has some authority. the evil of two co-equal houses of distinct natures is obvious. each house can stop all legislation, and yet some legislation may be necessary. at this moment we have the best instance of this which could be conceived. the upper house of our victorian constitution, representing the rich wool-growers, has disagreed with the lower assembly, and most business is suspended. but for a most curious stratagem, the machine of government would stand still. most constitutions have committed this blunder. the two most remarkable republican institutions in the world commit it. in both the american and the swiss constitutions the upper house has as much authority as the second: it could produce the maximum of impediment--the dead-lock, if it liked; if it does not do so, it is owing not to the goodness of the legal constitution, but to the discreetness of the members of the chamber. in both these constitutions, this dangerous division is defended by a peculiar doctrine with which i have nothing to do now. it is said that there must be in a federal government some institution, some authority, some body possessing a veto in which the separate states composing the confederation are all equal. i confess this doctrine has to me no self-evidence, and it is assumed, but not proved. the state of delaware is not equal in power or influence to the state of new york, and you cannot make it so by giving it an equal veto in an upper chamber. the history of such an institution is indeed most natural. a little state will like, and must like, to see some token, some memorial mark of its old independence preserved in the constitution by which that independence is extinguished. but it is one thing for an institution to be natural, and another for it to be expedient. if indeed it be that a federal government compels the erection of an upper chamber of conclusive and co-ordinate authority, it is one more in addition to the many other inherent defects of that kind of government. it may be necessary to have the blemish, but it is a blemish just as much. there ought to be in every constitution an available authority somewhere. the sovereign power must be come-at-able. and the english have made it so. the house of lords, at the passing of the reform act of , was as unwilling to concur with the house of commons as the upper chamber at victoria to concur with the lower chamber. but it did concur. the crown has the authority to create new peers; and the king of the day had promised the ministry of the day to create them. the house of lords did not like the precedent, and they passed the bill. the power was not used, but its existence was as useful as its energy. just as the knowledge that his men can strike makes a master yield in order that they may not strike, so the knowledge that their house could be swamped at the will of the king--at the will of the people--made the lords yield to the people. from the reform act the function of the house of lords has been altered in english history. before that act it was, if not a directing chamber, at least a chamber of directors. the leading nobles, who had most influence in the commons, and swayed the commons, sat there. aristocratic influence was so powerful in the house of commons, that there never was any serious breach of unity. when the houses quarrelled, it was as in the great aylesbury case, about their respective privileges, and not about the national policy. the influence of the nobility was then so potent, that it was not necessary to exert it. the english constitution, though then on this point very different from what it now is, did not even then contain the blunder of the victorian or of the swiss constitution. it had not two houses of distinct origin; it had two houses of common origin--two houses in which the predominant element was the same. the danger of discordance was obviated by a latent unity. since the reform act the house of lords has become a revising and suspending house. it can alter bills; it can reject bills on which the house of commons is not yet thoroughly in earnest--upon which the nation is not yet determined. their veto is a sort of hypothetical veto. they say, we reject your bill for this once or these twice, or even these thrice: but if you keep on sending it up, at last we won't reject it. the house has ceased to be one of latent directors, and has become one of temporary rejectors and palpable alterers. it is the sole claim of the duke of wellington to the name of a statesman, that he presided over this change. he wished to guide the lords to their true position, and he did guide them. in , in the crisis of the corn-law struggle, and when it was a question whether the house of lords should resist or yield, he wrote a very curious letter to the late lord derby:-- "for many years, indeed from the year , when i retired from office, i have endeavoured to manage the house of lords upon the principle on which i conceive that the institution exists in the constitution of the country, that of conservatism. i have invariably objected to all violent and extreme measures, which is not exactly the mode of acquiring influence in a political party in england, particularly one in opposition to government. i have invariably supported government in parliament upon important occasions, and have always exercised my personal influence to prevent the mischief of anything like a difference or division between the two houses,--of which there are some remarkable instances, to which i will advert here, as they will tend to show you the nature of my management, and possibly, in some degree, account for the extraordinary power which i have for so many years exercised, without any apparent claim to it." upon finding the difficulties in which the late king william was involved by a promise made to create peers, the number, i believe, indefinite, i determined myself, and i prevailed upon others, the number very large, to be absent from the house in the discussion of the last stages of the reform bill, after the negotiations had failed for the formation of a new administration. this course gave at the time great dissatisfaction to the party; notwithstanding that i believe it saved the existence of the house of lords at the time, and the constitution of the country. "subsequently, throughout the period from to , i prevailed upon the house of lords to depart from many principles and systems which they as well as i had adopted and voted on irish tithes, irish corporations, and other measures, much to the vexation and annoyance of many. but i recollect one particular measure, the union of the provinces of upper and lower canada, in the early stages of which i had spoken in opposition to the measure, and had protested against it; and in the last stages of it i prevailed upon the house to agree to, and pass it, in order to avoid the injury to the public interests of a dispute between the houses upon a question of such importance. then i supported the measures of the government, and protected the servant of the government, captain elliot, in china. all of which tended to weaken my influence with some of the party; others, possibly a majority, might have approved of the course which i took. it was at the same time well known that from the commencement at least of lord melbourne's government, i was in constant communication with it, upon all military matters, whether occurring at home or abroad, at all events. but likewise upon many others." "all this tended of course to diminish my influence in the conservative party, while it tended essentially to the ease and satisfaction of the sovereign, and to the maintenance of good order. at length came the resignation of the government by sir robert peel, in the month of december last, and the queen desiring lord john russell to form an administration. on the th of december the queen wrote to me the letter of which i enclose the copy, and the copy of my answer of the same date; of which it appears that you have never seen copies, although i communicated them immediately to sir robert peel. it was impossible for me to act otherwise than is indicated in my letter to the queen. i am the servant of the crown and people. i have been paid and rewarded, and i consider myself retained; and that i can't do otherwise than serve as required, when i can do so without dishonour, that is to say, as long as i have health and strength to enable me to serve. but it is obvious that there is, and there must be, an end of all connection and counsel between party and me. i might with consistency, and some may think that i ought to have declined to belong to sir robert peel's cabinet on the night of the th of december. but my opinion is, that if i had, sir robert peel's government would not have been framed; that we should have had ---- and ---- in office next morning. "but, at all events, it is quite obvious that when that arrangement comes, which sooner or later must come, there will be an end to all influence on my part over the conservative party, if i should be so indiscreet as to attempt to exercise any. you will see, therefore, that the stage is quite clear for you, and that you need not apprehend the consequences of differing in opinion from me when you will enter upon it; as in truth i have, by my letter to the queen of the th of december, put an end to the connection between the party and me, when the party will be in opposition to her majesty's government." "my opinion is, that the great object of all is that you should assume the station, and exercise the influence, which i have so long exercised in the house of lords. the question is, how is that object to be attained? by guiding their opinion and decision, or by following it? you will see that i have endeavoured to guide their opinion, and have succeeded upon some most remarkable occasions. but it has been by a good deal of management. "upon the important occasion and question now before the house, i propose to endeavour to induce them to avoid to involve the country in the additional difficulties of a difference of opinion, possibly a dispute between the houses, on a question in the decision of which it has been frequently asserted that their lordships had a personal interest; which assertion, however false as affecting each of them personally, could not be denied as affecting the proprietors of land in general. i am aware of the difficulty, but i don't despair of carrying the bill through. you must be the best judge of the course which you ought to take, and of the course most likely to conciliate the confidence of the house of lords. my opinion is, that you should advise the house to vote that which would tend most to public order, and would be most beneficial to the immediate interests of the country." this is the mode in which the house of lords came to be what it now is, a chamber with (in most cases) a veto of delay with (in most cases) a power of revision, but with no other rights or powers. the question we have to answer is, "the house of lords being such, what is the use of the lords?" the common notion evidently fails, that it is a bulwark against imminent revolution. as the duke's letter in every line evinces, the wisest members, the guiding members of the house, know that the house must yield to the people if the people is determined. the two cases--that of the reform act and the corn laws--were decisive cases. the great majority of the lords thought reform revolution, free-trade confiscation, and the two together ruin. if they could ever have been trusted to resist the people, they would then have resisted it. but in truth it is idle to expect a second chamber--a chamber of notables--ever to resist a popular chamber, a nation's chamber, when that chamber is vehement and the nation vehement too. there is no strength in it for that purpose. every class chamber, every minority chamber, so to speak, feels weak and helpless when the nation is excited. in a time of revolution there are but two powers, the sword and the people. the executive commands the sword; the great lesson which the first napoleon taught the parisian populace--the contribution he made to the theory of revolutions at the th brumaire--is now well known. any strong soldier at the head of the army can use the army. but a second chamber cannot use it. it is a pacific assembly composed of timid peers, aged lawyers, or, as abroad, clever litterateurs. such a body has no force to put down the nation, and if the nation will have it do something it must do it. the very nature, too, as has been seen, of the lords in the english constitution, shows that it cannot stop revolution. the constitution contains an exceptional provision to prevent it stopping it. the executive, the appointee of the popular chamber and the nation, can make new peers, and so create a majority in the peers; it can say to the lords, "use the powers of your house as we like, or you shall not use them at all. we will find others to use them; your virtue shall go out of you if it is not used as we like, and stopped when we please." an assembly under such a threat cannot arrest, and could not be intended to arrest, a determined and insisting executive. in fact the house of lords, as a house, is not a bulwark that will keep out revolution, but an index that revolution is unlikely. resting as it does upon old deference, and inveterate homage, it shows that the spasm of new forces, the outbreak of new agencies, which we call revolution, is for the time simply impossible. so long as many old leaves linger on the november trees, you know that there has been little frost and no wind; just so while the house of lords retains much power, you may know that there is no desperate discontent in the country, no wild agency likely to cause a great demolition. there used to be a singular idea that two chambers--a revising chamber and a suggesting chamber--were essential to a free government. the first person who threw a hard stone--an effectually hitting stone--against the theory was one very little likely to be favourable to democratic influence, or to be blind to the use of aristocracy; it was the present lord grey. he had to look at the matter practically. he was the first great colonial minister of england who ever set himself to introduce representative institutions into all her capable colonies, and the difficulty stared him in the face that in those colonies there were hardly enough good people for one assembly, and not near enough good people for two assemblies. it happened--and most naturally happened--that a second assembly was mischievous. the second assembly was either the nominee of the crown, which in such places naturally allied itself with better instructed minds, or was elected by people with a higher property qualification--some peculiarly well-judging people. both these choosers choose the best men in the colony, and put them into the second assembly. but thus the popular assembly was left without those best men. the popular assembly was denuded of those guides and those leaders who would have led and guided it best. those superior men were put aside to talk to one another, and perhaps dispute with one another; they were a concentrated instance of high but neutralised forces. they wished to do good, but they could do nothing. the lower house, with all the best people in the colony extracted, did what it liked. the democracy was strengthened rather than weakened by the isolation of its best opponents in a weak position. as soon as experience had shown this, or seemed to show it, the theory that two chambers were essential to a good and free government vanished away. with a perfect lower house it is certain that an upper house would be scarcely of any value. if we had an ideal house of commons perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and steady forms necessary for good consideration, it is certain that we should not need a higher chamber. the work would be done so well that we should not want any one to look over or revise it. and whatever is unnecessary in government is pernicious. human life makes so much complexity necessary that an artificial addition is sure to do harm: you cannot tell where the needless bit of machinery will catch and clog the hundred needful wheels; but the chances are conclusive that it will impede them some where, so nice are they and so delicate. but though beside an ideal house of commons the lords would be unnecessary, and therefore pernicious, beside the actual house a revising and leisured legislature is extremely useful, if not quite necessary. at present the chance majorities on minor questions in the house of commons are subject to no effectual control. the nation never attends to any but the principal matters of policy and state. upon these it forms that rude, rough, ruling judgment which we call public opinion; but upon other things it does not think at all, and it would be useless for it to think. it has not the materials for forming a judgment: the detail of bills, the instrumental part of policy, the latent part of legislation, are wholly out of its way. it knows nothing about them, and could not find time or labour for the careful investigation by which alone they can be apprehended. a casual majority of the house of commons has therefore dominant power: it can legislate as it wishes. and though the whole house of commons upon great subjects very fairly represents public opinion, and though its judgment upon minor questions is, from some secret excellencies in its composition, remarkably sound and good; yet, like all similar assemblies, it is subject to the sudden action of selfish combinations. there are said to be "members for the railways" in the present parliament. if these choose to combine on a point which the public does not care for, and which they care for because it affects their purse, they are absolute. a formidable sinister interest may always obtain the complete command of a dominant assembly by some chance and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule. the most dangerous of all sinister interests is that of the executive government, because it is the most powerful. it is perfectly possible--it has happened and will happen again--that the cabinet, being very powerful in the commons, may inflict minor measures on the nation which the nation did not like, but which it did not understand enough to forbid. if, therefore, a tribunal of revision can be found in which the executive, though powerful, is less powerful, the government will be the better; the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or much impede revolution. every large assembly is, moreover, a fluctuating body; it is not one house, so to say, but a set of houses; it is one set of men to-night and another to-morrow night. a certain unity is doubtless preserved by the duty which the executive is supposed to undertake, and does undertake, of keeping a house; a constant element is so provided about which all sorts of variables accumulate and pass away. but even after due allowance for the full weight of this protective machinery, our house of commons is, as all such chambers must be, subject to sudden turns and bursts of feeling, because the members who compose it change from time to time. the pernicious result is perpetual in our legislation; many acts of parliament are medleys of different motives, because the majority which passed one set of its clauses is different from that which passed another set. but the greatest defect of the house of commons is that it has no leisure. the life of the house is the worst of all lives--a life of distracting routine. it has an amount of business brought before it such as no similar assembly ever has had. the british empire is a miscellaneous aggregate, and each bit of the aggregate brings its bit of business to the house of commons. it is india one day and jamaica the next; then again china, and then schleswig-holstein. our legislation touches on all subjects, because our country contains all ingredients. the mere questions which are asked of the ministers run over half human affairs; the private bill acts, the mere privilegia of our government--subordinate as they ought to be--probably give the house of commons more absolute work than the whole business, both national and private, of any other assembly which has ever sat. the whole scene is so encumbered with changing business, that it is hard to keep your head in it. whatever, too, may be the case hereafter, when a better system has been struck out, at present the house does all the work of legislation, all the detail, and all the clauses itself. one of the most helpless exhibitions of helpless ingenuity and wasted mind is a committee of the whole house on a bill of many clauses which eager enemies are trying to spoil, and various friends are trying to mend. an act of parliament is at least as complex as a marriage settlement; and it is made much as a settlement would be if it were left to the vote and settled by the major part of persons concerned, including the unborn children. there is an advocate for every interest, and every interest clamours for every advantage. the executive government by means of its disciplined forces, and the few invaluable members who sit and think, preserves some sort of unity. but the result is very imperfect. the best test of a machine is the work it turns out. let any one who knows what legal documents ought to be, read first a will he has just been making and then an act of parliament; he will certainly say, "i would have dismissed my attorney if he had done my business as the legislature has done the nation's business". while the house of commons is what it is, a good revising, regulating and retarding house would be a benefit of great magnitude. but is the house of lords such a chamber? does it do this work? this is almost an undiscussed question. the house of lords, for thirty years at least, has been in popular discussion an accepted matter. popular passion has not crossed the path, and no vivid imagination has been excited to clear the matter up. the house of lords has the greatest merit which such a chamber can have; it is possible. it is incredibly difficult to get a revising assembly, because it is difficult to find a class of respected revisers. a federal senate, a second house, which represents state unity, has this advantage; it embodies a feeling at the root of society--a feeling which is older than complicated politics, which is stronger a thousand times over than common political feelings--the local feeling. "my shirt," said the swiss state-right patriot, "is dearer to me than my coat." every state in the american union would feel that disrespect to the senate was disrespect to itself. accordingly, the senate is respected; whatever may be the merits or demerits of its action, it can act; it is real, independent, and efficient. but in common governments it is fatally difficult to make an unpopular entity powerful in a popular government. it is almost the same thing to say that the house of lords is independent. it would not be powerful, it would not be possible, unless it were known to be independent. the lords are in several respects more independent than the commons; their judgment may not be so good a judgment, but it is emphatically their own judgment. the house of lords, as a body, is accessible to no social bribe. and this, in our day, is no light matter. many members of the house of commons, who are to be influenced by no other manner of corruption, are much influenced by this its most insidious sort. the conductors of the press and the writers for it are worse--at least the more influential who come near the temptation; for "position," as they call it, for a certain intimacy with the aristocracy, some of them would do almost anything and say almost anything. but the lords are those who give social bribes, and not those who take them. they are above corruption because they are the corruptors. they have no constituency to fear or wheedle; they have the best means of forming a disinterested and cool judgment of any class in the country. they have, too, leisure to form it. they have no occupations to distract them which are worth the name. field sports are but playthings, though some lords put an englishman's seriousness into them. few englishmen can bury themselves in science or literature; and the aristocracy have less, perhaps, of that impetus than the middle classes. society is too correct and dull to be an occupation, as in other times and ages it has been. the aristocracy live in the fear of the middle classes--of the grocer and the merchant. they dare not frame a society of enjoyment as the french aristocracy once formed it. politics are the only occupation a peer has worth the name. he may pursue them undistractedly. the house of lords, besides independence to revise judicially and position to revise effectually, has leisure to revise intellectually. these are great merits: and, considering how difficult it is to get a good second chamber, and how much with our present first chamber we need a second, we may well be thankful for them. but we must not permit them to blind our eyes. those merits of the lords have faults close beside them which go far to make them useless. with its wealth, its place, and its leisure, the house of lords would, on the very surface of the matter, rule us far more than it does if it had not secret defects which hamper and weaken it. the first of these defects is hardly to be called secret, though, on the other hand, it is not well known. a severe though not unfriendly critic of our institutions said that "the cure for admiring the house of lords was to go and look at it"--to look at it not on a great party field-day, or at a time of parade, but in the ordinary transaction of business. there are perhaps ten peers in the house, possibly only six; three is the quorum for transacting business. a few more may dawdle in or not dawdle in: those are the principal speakers, the lawyers (a few years ago when lyndhurst, brougham, and campbell were in vigour, they were by far the predominant talkers) and a few statesmen whom every one knows. but the mass of the house is nothing. this is why orators trained in the commons detest to speak in the lords. lord chatham used to call it the "tapestry". the house of commons is a scene of life if ever there was a scene of life. every member in the throng, every atom in the medley, has his own objects (good or bad), his own purposes (great or petty); his own notions, such as they are, of what is; his own notions, such as they are, of what ought to be. there is a motley confluence of vigorous elements, but the result is one and good. there is a "feeling of the house," a "sense" of the house, and no one who knows anything of it can despise it. a very shrewd man of the world went so far as to say that "the house of commons has more sense than any one in it". but there is no such "sense" in the house of lords, because there is no life. the lower chamber is a chamber of eager politicians; the upper (to say the least) of not eager ones. this apathy is not, indeed, as great as the outside show would indicate. the committees of the lords (as is well known) do a great deal of work and do it very well. and such as it is, the apathy is very natural. a house composed of rich men who can vote by proxy without coming will not come very much.[ ] but after every abatement the real indifference to their duties of most peers is a great defect, and the apparent indifference is a dangerous defect. as far as politics go there is profound truth in lord chesterfield's axiom, that "the world must judge of you by what you seem, not by what you are". the world knows what you seem; it does not know what you are. an assembly--a revising assembly especially--which does not assemble, which looks as if it does not care how it revises, is defective in a main political ingredient. it may be of use, but it will hardly convince mankind that it is so. [ ] in accordance with a recent resolution of the house of lords proxies are now disused.--note to second edition. the next defect is even more serious: it affects not simply the apparent work of the house of lords but the real work. for a revising legislature, it is too uniformly made up. errors are of various kinds; but the constitution of the house of lords only guards against a single error--that of too quick change. the lords--leaving out a few lawyers and a few outcasts--are all landowners of more or less wealth. they all have more or less the opinions, the merits, the faults of that one class. they revise legislation, as far as they do revise it, exclusively according to the supposed interests, the predominant feelings, the inherited opinions, of that class. since the reform act, this uniformity of tendency has been very evident. the lords have felt--it would be harsh to say hostile, but still dubious, as to the new legislation. there was a spirit in it alien to their spirit, and which when they could they have tried to cast out. that spirit is what has been termed the "modern spirit". it is not easy to concentrate its essence in a phrase; it lives in our life, animates our actions, suggests our thoughts. we all know what it means, though it would take an essay to limit it and define it. to this the lords object; wherever it is concerned, they are not impartial revisers, but biassed revisers. this singleness of composition would be no fault; it would be, or might be, even a merit, if the criticism of the house of lords, though a suspicious criticism, were yet a criticism of great understanding. the characteristic legislation of every age must have characteristic defects; it is the outcome of a character, of necessity faulty and limited. it must mistake some kind of things; it must overlook some other. if we could get hold of a complemental critic, a critic who saw what the age did not see, and who saw rightly what the age mistook, we should have a critic of inestimable value. but is the house of lords that critic? can it be said that its unfriendliness to the legislation of the age is founded on a perception of what the age does not see, and a rectified perception of what the age does see? the most extreme partisan, the most warm admirer of the lords, if of fair and tempered mind, cannot say so. the evidence is too strong. on free trade, for example, no one can doubt that the lords--in opinion, in what they wished to do, and would have done, if they had acted on their own minds--were utterly wrong. this is the clearest test of the "modern spirit". it is easier here to be sure it is right than elsewhere. commerce is like war; its result is patent. do you make money or do you not make it? there is as little appeal from figures as from battle. now no one can doubt that england is a great deal better off because of free trade; that it has more money, and that its money is diffused more as we should wish it diffused. in the one case in which we can unanswerably test the modern spirit, it was right, and the dubious upper house--the house which would have rejected it, if possible--was wrong. there is another reason. the house of lords, being an hereditary chamber, cannot be of more than common ability. it may contain--it almost always has contained, it almost always will contain--extraordinary men. but its average born law-makers cannot be extraordinary. being a set of eldest sons picked out by chance and history, it cannot be very wise. it would be a standing miracle if such a chamber possessed a knowledge of its age superior to the other men of the age; if it possessed a superior and supplemental knowledge; if it descried what they did not discern, and saw truly that which they saw, indeed, but saw untruly. the difficulty goes deeper. the task of revising, of adequately revising the legislation of this age, is not only that which an aristocracy has no facility in doing, but one which it has a difficulty in doing. look at the statute book for --the statutes at large for the year. you will find, not pieces of literature, not nice and subtle matters, but coarse matters, crude heaps of heavy business. they deal with trade, with finance, with statute-law reform, with common-law reform; they deal with various sorts of business, but with business always. and there is no educated human being less likely to know business, worse placed for knowing business than a young lord. business is really more agreeable than pleasure; it interests the whole mind, the aggregate nature of man more continuously, and more deeply. but it does not look as if it did. it is difficult to convince a young man, who can have the best of pleasure, that it will. a young lord just come into , pounds a year will not, as a rule, care much for the law of patents, for the law of "passing tolls," or the law of prisons. like hercules, he may choose virtue, but hardly hercules could choose business. he has everything to allure him from it, and nothing to allure him to it. and even if he wish to give himself to business, he has indifferent means. pleasure is near him, but business is far from him. few things are more amusing than the ideas of a well-intentioned young man, who is born out of the business world, but who wishes to take to business, about business. he has hardly a notion in what it consists. it really is the adjustment of certain particular means to equally certain particular ends. but hardly any young man destitute of experience is able to separate end and means. it seems to him a kind of mystery; and it is lucky if he do not think that the forms are the main part, and that the end is but secondary. there are plenty of business men falsely so called, who will advise him so. the subject seems a kind of maze. "what would you recommend me to read?" the nice youth asks; and it is impossible to explain to him that reading has nothing to do with it, that he has not yet the original ideas in his mind to read about; that administration is an art as painting is an art; and that no book can teach the practice of either. formerly this defect in the aristocracy was hidden by their own advantages. being the only class at ease for money and cultivated in mind they were without competition; and though they might not be, as a rule, and extraordinary ability excepted, excellent in state business, they were the best that could be had. even in old times, however, they sheltered themselves from the greater pressure of coarse work. they appointed a manager--a peel or a walpole, anything but an aristocrat in manner or in nature--to act for them or manage for them. but now a class is coming up trained to thought, full of money, and yet trained to business. as i write, two members of this class have been appointed to stations considerable in themselves, and sure to lead (if anything is sure in politics) to the cabinet and power. this is the class of highly-cultivated men of business who, after a few years, are able to leave business and begin ambition. as yet these men are few in public life, because they do not know their own strength. it is like columbus and the egg once again; a few original men will show it can be done, and then a crowd of common men will follow. these men know business partly from tradition, and this is much. there are university families--families who talk of fellowships, and who invest their children's ability in latin verses, as soon as they discover it; there used to be indian families of the same sort, and probably will be again when the competitive system has had time to foster a new breed. just so there are business families to whom all that concerns money, all that concerns administration, is as familiar as the air they breathe. all americans, it has been said, know business; it is in the air of their country. just so certain classes know business here; and a lord can hardly know it. it is as great a difficulty to learn business in a palace as it is to learn agriculture in a park. to one kind of business, indeed, this doctrine does not apply. there is one kind of business in which our aristocracy have still, and are likely to retain long, a certain advantage. this is the business of diplomacy. napoleon, who knew men well, would never, if he could help it, employ men of the revolution in missions to the old courts; he said, "they spoke to no one and no one spoke to them"; and so they sent home no information. the reason is obvious. the old-world diplomacy of europe was largely carried on in drawing-rooms, and, to a great extent, of necessity still is so. nations touch at their summits. it is always the highest class which travels most, knows most of foreign nations, has the least of the territorial sectarianism which calls itself patriotism, and is often thought to be so. even here, indeed, in england the new trade-class is in real merit equal to the aristocracy. their knowledge of foreign things is as great, and their contact with them often more. but, notwithstanding, the new race is not as serviceable for diplomacy as the old race. an ambassador is not simply an agent; he is also a spectacle. he is sent abroad for show as well as for substance; he is to represent the queen among foreign courts and foreign sovereigns. an aristocracy is in its nature better suited to such work; it is trained to the theatrical part of life; it is fit for that if it is fit for anything. but, with this exception, an aristocracy is necessarily inferior in business to the classes nearer business; and it is not, therefore, a suitable class, if we had our choice of classes, out of which to frame a chamber for revising matters of business. it is indeed a singular example how natural business is to the english race, that the house of lords works as well as it does. the common appearance of the "whole house" is a jest--a dangerous anomaly, which mr. bright will sometimes use; but a great deal of substantial work is done in "committees," and often very well done. the great majority of the peers do none of their appointed work, and could do none of it; but a minority--a minority never so large and never so earnest as in this age--do it, and do it well. still no one, who examines the matter without prejudice, can say that the work is done perfectly. in a country so rich in mind as england, far more intellectual power can be, and ought to be, applied to the revision of our laws. and not only does the house of lords do its work imperfectly, but often, at least, it does it timidly. being only a section of the nation, it is afraid of the nation. having been used for years and years, on the greatest matters to act contrary to its own judgment, it hardly knows when to act on that judgment. the depressing languor with which it damps an earnest young peer is at times ridiculous. "when the corn laws are gone, and the rotten boroughs, why tease about clause ix. in the bill to regulate cotton factories?" is the latent thought of many peers. a word from the leaders, from "the duke," or lord derby, or lord lyndhurst, will rouse on any matters the sleeping energies; but most lords are feeble and forlorn. these grave defects would have been at once lessened, and in the course of years nearly effaced, if the house of lords had not resisted the proposal of lord palmerston's first government to create peers for life. the expedient was almost perfect. the difficulty of reforming an old institution like the house of lords is necessarily great; its possibility rests on continuous caste and ancient deference. and if you begin to agitate about it, to bawl at meetings about it, that deference is gone, its particular charm lost, its reserved sanctity gone. but, by an odd fatality, there was in the recesses of the constitution an old prerogative which would have rendered agitation needless--which would have effected, without agitation, all that agitation could have effected. lord palmerston was--now that he is dead, and his memory can be calmly viewed--as firm a friend to an aristocracy, as thorough an aristocrat, as any in england; yet he proposed to use that power. if the house of lords had still been under the rule of the duke of wellington, perhaps they would have acquiesced. the duke would not indeed have reflected on all the considerations which a philosophic statesman would have set out before him; but he would have been brought right by one of his peculiarities. he disliked, above all things, to oppose the crown. at a great crisis, at the crisis of the corn laws, what he considered was not what other people were thinking of, the economical issue under discussion, the welfare of the country hanging in the balance, but the queen's ease. he thought the crown so superior a part in the constitution, that, even on vital occasions, he looked solely--or said he looked solely--to the momentary comfort of the present sovereign. he never was comfortable in opposing a conspicuous act of the crown. it is very likely that, if the duke had still been the president of the house of lords, they would have permitted the crown to prevail in its well-chosen scheme. but the duke was dead, and his authority--or some of it--had fallen to a very different person. lord lyndhurst had many great qualities: he had a splendid intellect--as great a faculty of finding truth as any one in his generation; but he had no love of truth. with this great faculty of finding truth, he was a believer in error--in what his own party now admit to be error--all his life through. he could have found the truth as a statesman just as he found it when a judge; but he never did find it. he never looked for it. he was a great partisan, and he applied a capacity of argument, and a faculty of intellectual argument rarely equalled, to support the tenets of his party. the proposal to create life peers was proposed by the antagonistic party--was at the moment likely to injure his own party. to him this was a great opportunity. the speech he delivered on that occasion lives in the memory of those who heard it. his eyes did not at that time let him read, so he repeated by memory, and quite accurately, all the black-letter authorities, bearing on the question. so great an intellectual effort has rarely been seen in an english assembly. but the result was deplorable. not by means of his black-letter authorities, but by means of his recognised authority and his vivid impression, he induced the house of lords to reject the proposition of the government. lord lyndhurst said the crown could not now create life peers, and so there are no life peers. the house of lords rejected the inestimable, the unprecedented opportunity of being tacitly reformed. such a chance does not come twice. the life peers who would have been then introduced would have been among the first men in the country. lord macaulay was to have been among the first; lord wensleydale--the most learned and not the least logical of our lawyers--to be the very first. thirty or forty such men, added judiciously and sparingly as years went on, would have given to the house of lords the very element which, as a criticising chamber, it needs so much. it would have given it critics. the most accomplished men in each department might then, without irrelevant considerations of family and of fortune, have been added to the chamber of review. the very element which was wanted to the house of lords was, as it were, by a constitutional providence, offered to the house of lords, and they refused it. by what species of effort that error can be repaired i cannot tell; but, unless it is repaired, the intellectual capacity can never be what it would have been, will never be what it ought to be, will never be sufficient for its work. another reform ought to have accompanied the creation of life peers. proxies ought to have been abolished. some time or other the slack attendance of the house of lords will destroy the house of lords. there are occasions in which appearances are realities, and this is one of them. the house of lords on most days looks so unlike what it ought to be, that most people will not believe it is what it ought to be. the attendance of considerate peers will, for obvious reasons, be larger when it can no longer be overpowered by the non-attendance, by the commissioned votes of inconsiderate peers. the abolition of proxies would have made the house of lords a real house; the addition of life peers would have made it a good house. the greater of these changes would have most materially aided the house of lords in the performance of its subsidiary functions. it always perhaps happens in a great nation, that certain bodies of sensible men posted prominently in its constitution, acquire functions, and usefully exercise functions, which at the outset, no one expected from them, and which do not identify themselves with their original design. this has happened to the house of lords especially. the most obvious instance is the judicial function. this is a function which no theorist would assign to a second chamber in a new constitution, and which is matter of accident in ours. gradually, indeed, the unfitness of the second chamber for judicial functions has made itself felt. under our present arrangements this function is not entrusted to the house of lords, but to a committee of the house of lords. on one occasion only, the trial of o'connell, the whole house, or some few in the whole house, wished to vote, and they were told they could not, or they would destroy the judicial prerogative. no one, indeed, would venture really to place the judicial function in the chance majorities of a fluctuating assembly: it is so by a sleepy theory; it is not so in living fact. as a legal question, too, it is a matter of grave doubt whether there ought to be two supreme courts in this country--the judicial committee of the privy council, and (what is in fact though not in name) the judicial committee of the house of lords. up to a very recent time, one committee might decide that a man was sane as to money, and the other committee might decide that he was insane as to land. this absurdity has been cured; but the error from which it arose has not been cured--the error of having two supreme courts, to both of which as time goes on, the same question is sure often enough to be submitted, and each of which is sure every now and then to decide it differently. i do not reckon the judicial function of the house of lords as one of its true subsidiary functions, first because it does not in fact exercise it, next because i wish to see it in appearance deprived of it. the supreme court of the english people ought to be a great conspicuous tribunal, ought to rule all other courts, ought to have no competitor, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly. the real subsidiary functions of the house of lords are, unlike its judicial functions, very analogous to its substantial nature. the first is the faculty of criticising the executive. an assembly in which the mass of the members have nothing to lose, where most have nothing to gain, where every one has a social position firmly fixed, where no one has a constituency, where hardly any one cares for the minister of the day, is the very assembly in which to look for, from which to expect, independent criticism. and in matter of fact we find it. the criticism of the acts of late administrations by lord grey has been admirable. but such criticism, to have its full value, should be many-sided. every man of great ability puts his own mark on his own criticism; it will be full of thought and feeling, but then it is of idiosyncratic thought and feeling. we want many critics of ability and knowledge in the upper house--not equal to lord grey, for they would be hard to find--but like lord grey. they should resemble him in impartiality; they should resemble him in clearness; they should most of all resemble him in taking a supplemental view of a subject. there is an actor's view of a subject, which (i speak of mature and discussed action--of cabinet action) is nearly sure to include everything old and new--everything ascertained and determinate. but there is also a bystander's view which is likely to omit some one or more of these old and certain elements, but also to contain some new or distant matter, which the absorbed and occupied actor could not see. there ought to be many life peers in our secondary chamber capable of giving us this higher criticism. i am afraid we shall not soon see them, but as a first step we should learn to wish for them. the second subsidiary action of the house of lords is even more important. taking the house of commons, not after possible but most unlikely improvements, but in matter of fact and as it stands, it is overwhelmed with work. the task of managing it falls upon the cabinet, and that task is very hard. every member of the cabinet in the commons has to "attend the house"; to contribute by his votes, if not by his voice, to the management of the house. even in so small a matter as the education department, mr. lowe, a consummate observer, spoke of the desirability of finding a chief "not exposed to the prodigious labour of attending the house of commons". it is all but necessary that certain members of the cabinet should be exempt from its toil, and untouched by its excitement. but it is also necessary that they should have the power of explaining their views to the nation; of being heard as other people are heard. there are various plans for so doing, which i may discuss a little in speaking of the house of commons. but so much is evident: the house of lords, for its own members, attains this object; it gives them a voice, it gives them what no competing plan does give them--position. the leisured members of the cabinet speak in the lords with authority and power. they are not administrators with a right to speech--clerks (as is sometimes suggested) brought down to lecture a house, but not to vote in it; but they are the equals of those they speak to; they speak as they like, and reply as they choose; they address the house, not with the "bated breath" of subordinates, but with the force and dignity of sure rank. life peers would enable us to use this faculty of our constitution more freely and more variously. it would give us a larger command of able leisure; it would improve the lords as a political pulpit, for it would enlarge the list of its select preachers. the danger of the house of commons is, perhaps, that it will be reformed too rashly; the danger of the house of lords certainly is, that it may never be reformed. nobody asks that it should be so; it is quite safe against rough destruction, but it is not safe against inward decay. it may lose its veto as the crown has lost its veto. if most of its members neglect their duties, if all its members continue to be of one class, and that not quite the best; if its doors are shut against genius that cannot found a family, and ability which has not pounds a year, its power will be less year by year, and at last be gone, as so much kingly power is gone--no one knows how. its danger is not in assassination, but atrophy; not abolition, but decline. no. v. the house of commons. [footnote: i reprint this chapter substantially as it was first written. it is too soon, as i have explained in the introduction, to say what changes the late reform act will make in the house of commons.] the dignified aspect of the house of commons is altogether secondary to its efficient use. it is dignified: in a government in which the most prominent parts are good because they are very stately, any prominent part, to be good at all, must be somewhat stately. the human imagination exacts keeping in government as much as in art; it will not be at all influenced by institutions which do not match with those by which it is principally influenced. the house of commons needs to be impressive, and impressive it is: but its use resides not in its appearance, but in its reality. its office is not to win power by awing mankind, but to use power in governing mankind. the main function of the house of commons is one which we know quite well, though our common constitutional speech does not recognise it. the house of commons is an electoral chamber; it is the assembly which chooses our president. washington and his fellow-politicians contrived an electoral college, to be composed (as was hoped) of the wisest people in the nation, which, after due deliberation, was to choose for president the wisest man in the nation. but that college is a sham; it has no independence and no life. no one knows, or cares to know, who its members are. they never discuss, and never deliberate. they were chosen to vote that mr. lincoln be president, or that mr. breckenridge be president; they do so vote, and they go home. but our house of commons is a real choosing body; it elects the people it likes. and it dismisses whom it likes too. no matter that a few months since it was chosen to support lord aberdeen or lord palmerston; upon a sudden occasion it ousts the statesman to whom it at first adhered, and selects an opposite statesman whom it at first rejected. doubtless in such cases there is a tacit reference to probable public opinion; but certainly also there is much free will in the judgment of the commons. the house only goes where it thinks in the end the nation will follow; but it takes its chance of the nation following or not following; it assumes the initiative, and acts upon its discretion or its caprice. when the american nation has chosen its president, its virtue goes out of it, and out of the transmissive college through which it chooses. but because the house of commons has the power of dismissal in addition to the power of election, its relations to the premier are incessant. they guide him and he leads them. he is to them what they are to the nation. he only goes where he believes they will go after him. but he has to take the lead; he must choose his direction, and begin the journey. nor must he flinch. a good horse likes to feel the rider's bit; and a great deliberative assembly likes to feel that it is under worthy guidance. a minister who succumbs to the house,--who ostentatiously seeks its pleasure,--who does not try to regulate it,--who will not boldly point out plain errors to it, seldom thrives. the great leaders of parliament have varied much, but they have all had a certain firmness. a great assembly is as soon spoiled by over-indulgence as a little child. the whole life of english politics is the action and reaction between the ministry and the parliament. the appointees strive to guide, and the appointers surge under the guidance. the elective is now the most important function of the house of commons. it is most desirable to insist, and be tedious, on this, because our tradition ignores it. at the end of half the sessions of parliament, you will read in the newspapers, and you will hear even from those who have looked close at the matter and should know better, "parliament has done nothing this session. some things were promised in the queen's speech, but they were only little things; and most of them have not passed." lord lyndhurst used for years to recount the small outcomings of legislative achievement; and yet those were the days of the first whig governments, who had more to do in legislation, and did more, than any government. the true answer to such harangues as lord lyndhurst's by a minister should have been in the first person. he should have said firmly, "parliament has maintained me, and that was its greatest duty; parliament has carried on what, in the language of traditional respect, we call the queen's government; it has maintained what wisely or unwisely it deemed the best executive of the english nation". the second function of the house of commons is what i may call an expressive function. it is its office to express the mind of the english people on all matters which come before it. whether it does so well or ill i shall discuss presently. the third function of parliament is what i may call--preserving a sort of technicality even in familiar matters for the sake of distinctness--the teaching function. a great and open council of considerable men cannot be placed in the middle of a society without altering that society. it ought to alter it for the better. it ought to teach the nation what it does not know. how far the house of commons can so teach, and how far it does so teach, are matters for subsequent discussion. fourthly, the house of commons has what may be called an informing function--a function which though in its present form quite modern is singularly analogous to a mediaeval function. in old times one office of the house of commons was to inform the sovereign what was wrong. it laid before the crown the grievances and complaints of particular interests. since the publication of the parliamentary debates a corresponding office of parliament is to lay these same grievances, these same complaints, before the nation, which is the present sovereign. the nation needs it quite as much as the king ever needed it. a free people is indeed mostly fair, liberty practises men in a give-and-take, which is the rough essence of justice. the english people, possibly even above other free nations, is fair. but a free nation rarely can be--and the english nation is not--quick of apprehension. it only comprehends what is familiar to it--what comes into its own experience, what squares with its own thoughts. "i never heard of such a thing in my life," the middle-class englishman says, and he thinks he so refutes an argument. the common disputant cannot say in reply that his experience is but limited, and that the assertion may be true, though he had never met with anything at all like it. but a great debate in parliament does bring home something of this feeling. any notion, any creed, any feeling, any grievance which can get a decent number of english members to stand up for it, is felt by almost all englishmen to be perhaps a false and pernicious opinion, but at any rate possible--an opinion within the intellectual sphere, an opinion to be reckoned with. and it is an immense achievement. practical diplomatists say that a free government is harder to deal with than a despotic government; you may be able to get the despot to hear the other side; his ministers, men of trained intelligence, will be sure to know what makes against them; and they may tell him. but a free nation never hears any side save its own. the newspapers only repeat the side their purchasers like: the favourable arguments are set out, elaborated, illustrated; the adverse arguments maimed, misstated, confused. the worst judge, they say, is a deaf judge; the most dull government is a free government on matters its ruling classes will not hear. i am disposed to reckon it as the second function of parliament in point of importance, that to some extent it makes us hear what otherwise we should not. lastly, there is the function of legislation, of which of course it would be preposterous to deny the great importance, and which i only deny to be as important as the executive management of the whole state, or the political education given by parliament to the whole nation. there are, i allow, seasons when legislation is more important than either of these. the nation may be misfitted with its laws, and need to change them: some particular corn law may hurt all industry, and it may be worth a thousand administrative blunders to get rid of it. but generally the laws of a nation suit its life; special adaptations of them are but subordinate; the administration and conduct of that life is the matter which presses most. nevertheless, the statute-book of every great nation yearly contains many important new laws, and the english statute-book does so above any. an immense mass, indeed, of the legislation is not, in the proper language of jurisprudence, legislation at all. a law is a general command applicable to many cases. the "special acts" which crowd the statute-book and weary parliamentary committees are applicable to one case only. they do not lay down rules according to which railways shall be made, they enact that such a railway shall be made from this place to that place, and they have no bearing upon any other transaction. but after every deduction and abatement, the annual legislation of parliament is a result of singular importance; were it not so, it could not be, as it often is considered, the sole result of its annual assembling. some persons will perhaps think that i ought to enumerate a sixth function of the house of commons--a financial function. but i do not consider that, upon broad principle, and omitting legal technicalities, the house of commons has any special function with regard to financial different from its functions with respect to other legislation. it is to rule in both, and to rule in both through the cabinet. financial legislation is of necessity a yearly recurring legislation; but frequency of occurrence does not indicate a diversity of nature or compel an antagonism of treatment. in truth, the principal peculiarity of the house of commons in financial affairs is nowadays not a special privilege, but an exceptional disability. on common subjects any member can propose anything, but not on money--the minister only can propose to tax the people. this principle is commonly involved in mediaeval metaphysics as to the prerogative of the crown, but it is as useful in the nineteenth century as in the fourteenth, and rests on as sure a principle. the house of commons--now that it is the true sovereign, and appoints the real executive--has long ceased to be the checking, sparing, economical body it once was. it now is more apt to spend money than the minister of the day. i have heard a very experienced financier say, "if you want to raise a certain cheer in the house of commons make a general panegyric on economy; if you want to invite a sure defeat, propose a particular saving". the process is simple. every expenditure of public money has some apparent public object; those who wish to spend the money expatiate on that object; they say, "what is , pounds to this great country? is this a time for cheese-paring objection? our industry was never so productive; our resources never so immense. what is , pounds in comparison with this great national interest?" the members who are for the expenditure always come down; perhaps a constituent or a friend who will profit by the outlay, or is keen on the object, has asked them to attend; at any rate, there is a popular vote to be given, on which the newspapers--always philanthropic, and sometimes talked over--will be sure to make enconiums. the members against the expenditure rarely come down of themselves; why should they become unpopular without reason? the object seems decent; many of its advocates are certainly sincere: a hostile vote will make enemies, and be censured by the journals. if there were not some check, the "people's house" would soon outrun the people's money. that check is the responsibility of the cabinet for the national finance. if any one could propose a tax, they might let the house spend it as it would, and wash their hands of the matter; but now, for whatever expenditure is sanctioned--even when it is sanctioned against the ministry's wish--the ministry must find the money. accordingly, they have the strongest motive to oppose extra outlay. they will have to pay the bill for it; they will have to impose taxation, which is always disagreeable, or suggest loans, which, under ordinary circumstances, are shameful. the ministry is (so to speak) the bread-winner of the political family, and has to meet the cost of philanthropy and glory, just as the head of a family has to pay for the charities of his wife and the toilette of his daughters. in truth, when a cabinet is made the sole executive, it follows it must have the sole financial charge, for all action costs money, all policy depends on money, and it is in adjusting the relative goodness of action and policies that the executive is employed. from a consideration of these functions, it follows that we are ruled by the house of commons; we are, indeed, so used to be so ruled, that it does not seem to be at all strange. but of all odd forms of government, the oddest really is government by a public meeting. here are persons, collected from all parts of england, different in nature, different in interests, different in look, and language. if we think what an empire the english is, how various are its components, how incessant its concerns, how immersed in history its policy; if we think what a vast information, what a nice discretion, what a consistent will ought to mark the rulers of that empire, we shall be surprised when we see them. we see a changing body of miscellaneous persons, sometimes few, sometimes many, never the same for an hour; sometimes excited, but mostly dull and half weary--impatient of eloquence, catching at any joke as an alleviation. these are the persons who rule the british empire--who rule england, who rule scotland, who rule ireland, who rule a great deal of asia, who rule a great deal of polynesia, who rule a great deal of america, and scattered fragments everywhere. paley said many shrewd things, but he never said a better thing than that it was much harder to make men see a difficulty than comprehend the explanation of it. the key to the difficulties of most discussed and unsettled questions is commonly in their undiscussed parts: they are like the background of a picture, which looks obvious, easy, just what any one might have painted, but which, in fact, sets the figures in their right position, chastens them, and makes them what they are. nobody will understand parliament government who fancies it an easy thing, a natural thing, a thing not needing explanation. you have not a perception of the first elements in this matter till you know that government by a club is a standing wonder. there has been a capital illustration lately how helpless many english gentlemen are when called together on a sudden. the government, rightly or wrongly, thought fit to entrust the quarter-sessions of each county with the duty of combating its cattle-plague; but the scene in most "shire halls" was unsatisfactory. there was the greatest difficulty in getting, not only a right decision, but any decision, i saw one myself which went thus. the chairman proposed a very complex resolution, in which there was much which every one liked, and much which every one disliked, though, of course, the favourite parts of some were the objectionable parts to others. this resolution got, so to say, wedged in the meeting; everybody suggested amendments; one amendment was carried which none were satisfied with, and so the matter stood over. it is a saying in england, "a big meeting never does anything"; and yet we are governed by the house of commons--by "a big meeting". it may be said that the house of commons does not rule, it only elects the rulers. but there must be something special about it to enable it to do that. suppose the cabinet were elected by a london club, what confusion there would be, what writing and answering! "will you speak to so-and-so, and ask him to vote for my man?" would be heard on every side. how the wife of a. and the wife of b. would plot to confound the wife of c. whether the club elected under the dignified shadow of a queen, or without the shadow, would hardly matter at all; if the substantial choice was in them, the confusion and intrigue would be there too. i propose to begin this paper by asking, not why the house of commons governs well? but the fundamental--almost unasked question--how the house of commons comes to be able to govern at all? the house of commons can do work which the quarter-sessions or clubs cannot do, because it is an organised body, while quarter-sessions and clubs are unorganised. two of the greatest orators in england--lord brougham and lord bolingbroke--spent much eloquence in attacking party government. bolingbroke probably knew what he was doing; he was a consistent opponent of the power of the commons; he wished to attack them in a vital part. but lord brougham does not know; he proposes to amend parliamentary government by striking out the very elements which make parliamentary government possible. at present the majority of parliament obey certain leaders; what those leaders propose they support, what those leaders reject they reject. an old secretary of the treasury used to say, "this is a bad case, an indefensible case. we must apply our majority to this question." that secretary lived fifty years ago, before the reform bill, when majorities were very blind, and very "applicable". nowadays, the power of leaders over their followers is strictly and wisely limited: they can take their followers but a little way, and that only in certain directions. yet still there are leaders and followers. on the conservative side of the house there are vestiges of the despotic leadership even now. a cynical politician is said to have watched the long row of county members, so fresh and respectable-looking, and muttered, "by jove, they are the finest brute votes in europe!" but all satire apart, the principle of parliament is obedience to leaders. change your leader if you will, take another if you will, but obey no. while you serve no. , and obey no. when you have gone over to no. . the penalty of not doing so, is the penalty of impotence. it is not that you will not be able to do any good, but you will not be able to do anything at all. if everybody does what he thinks right, there will be amendments to every motion, and none of them will be carried or the motion either. the moment, indeed, that we distinctly conceive that the house of commons is mainly and above all things an elective assembly, we at once perceive that party is of its essence. there never was an election without a party. you cannot get a child into an asylum without a combination. at such places you may see "vote for orphan a." upon a placard, and "vote for orphan b. (also an idiot!!!)" upon a banner, and the party of each is busy about its placard and banner. what is true at such minor and momentary elections must be much more true in a great and constant election of rulers. the house of commons lives in a state of perpetual potential choice; at any moment it can choose a ruler and dismiss a ruler. and therefore party is inherent in it, is bone of its bone, and breath of its breath. secondly, though the leaders of party no longer have the vast patronage of the last century with which to bribe, they can coerce by a threat far more potent than any allurement--they can dissolve. this is the secret which keeps parties together. mr. cobden most justly said: "he had never been able to discover what was the proper moment, according to members of parliament, for a dissolution. he had heard them say they were ready to vote for everything else, but he had never heard them say they were ready to vote for that." efficiency in an assembly requires a solid mass of steady votes; and these are collected by a deferential attachment to particular men, or by a belief in the principles those men represent, and they are maintained by fear of those men--by the fear that if you vote against them, you may yourself soon not have a vote at all. thirdly, it may seem odd to say so, just after inculcating that party organisation is the vital principle of representative government, but that organisation is permanently efficient, because it is not composed of warm partisans. the body is eager, but the atoms are cool. if it were otherwise, parliamentary government would become the worst of governments--a sectarian government. the party in power would go all the lengths their orators proposed--all that their formulae enjoined, as far as they had ever said they would go. but the partisans of the english parliament are not of such a temper. they are whigs, or radicals, or tories, but they are much else too. they are common englishmen, and, as father newman complains, "hard to be worked up to the dogmatic level". they are not eager to press the tenets of their party to impossible conclusions. on the contrary, the way to lead them--the best and acknowledged way--is to affect a studied and illogical moderation. you may hear men say, "without committing myself to the tenet that + make , though i am free to admit that the honourable member for bradford has advanced very grave arguments in behalf of it, i think i may, with the permission of the committee, assume that + do not make , which will be a sufficient basis for the important propositions which i shall venture to submit on the present occasion." this language is very suitable to the greater part of the house of commons. most men of business love a sort of twilight. they have lived all their lives in an atmosphere of probabilities and of doubt, where nothing is very clear, where there are some chances for many events, where there is much to be said for several courses, where nevertheless one course must be determinedly chosen and fixedly adhered to. they like to hear arguments suited to this intellectual haze. so far from caution or hesitation in the statement of the argument striking them as an indication of imbecility, it seems to them a sign of practicality. they got rich themselves by transactions of which they could not have stated the argumentative ground--and all they ask for is a distinct though moderate conclusion, that they can repeat when asked; something which they feel not to be abstract argument, but abstract argument diluted and dissolved in real life. "there seem to me," an impatient young man once said, "to be no stay in peel's arguments." and that was why sir robert peel was the best leader of the commons in our time; we like to have the rigidity taken out of an argument, and the substance left. nor indeed, under our system of government, are the leaders themselves of the house of commons, for the most part, eager to carry party conclusions too far. they are in contact with reality. an opposition, on coming into power, is often like a speculative merchant whose bills become due. ministers have to make good their promises, and they find a difficulty in so doing. they have said the state of things is so and so, and if you give us the power we will do thus and thus. but when they come to handle the official documents, to converse with the permanent under-secretary--familiar with disagreeable facts, and though in manner most respectful, yet most imperturbable in opinion--very soon doubts intervene. of course, something must be done; the speculative merchant cannot forget his bills; the late opposition cannot, in office, forget those sentences which terrible admirers in the country still quote. but just as the merchant asks his debtor, "could you not take a bill at four months?" so the new minister says to the permanent under-secretary, "could you not suggest a middle course? i am of course not bound by mere sentences used in debate; i have never been accused of letting a false ambition of consistency warp my conduct; but," etc., etc. and the end always is that a middle course is devised which looks as much as possible like what was suggested in opposition, but which is as much as possible what patent facts--facts which seem to live in the office, so teasing and unceasing are they--prove ought to be done. of all modes of enforcing moderation on a party, the best is to contrive that the members of that party shall be intrinsically moderate, careful, and almost shrinking men; and the next best to contrive that the leaders of the party, who have protested most in its behalf, shall be placed in the closest contact with the actual world. our english system contains both contrivances; it makes party government permanent and possible in the sole way in which it can be so, by making it mild. but these expedients, though they sufficiently remove the defects which make a common club or quarter-sessions impotent, would not enable the house of commons to govern england. a representative public meeting is subject to a defect over and above those of other public meetings. it may not be independent. the constituencies may not let it alone. but if they do not, all the checks which have been enumerated upon the evils of a party organisation would be futile. the feeling of a constituency is the feeling of a dominant party, and that feeling is elicited, stimulated, sometimes even manufactured by the local political agent. such an opinion could not be moderate; could not be subject to effectual discussion; could not be in close contact with pressing facts; could not be framed under a chastening sense of near responsibility; could not be formed as those form their opinions who have to act upon them. constituency government is the precise opposite of parliamentary government. it is the government of immoderate persons far from the scene of action, instead of the government of moderate persons close to the scene of action; it is the judgment of persons judging in the last resort and without a penalty, in lieu of persons judging in fear of a dissolution, and ever conscious that they are subject to an appeal. most persons would admit these conditions of parliamentary government when they read them, but two at least of the most prominent ideas in the public mind are inconsistent with them. the scheme to which the arguments of our demagogues distinctly tend, and the scheme to which the predilections of some most eminent philosophers cleave, are both so. they would not only make parliamentary government work ill, but they would prevent its working at all; they would not render it bad, for they would make it impossible. the first of these is the ultra-democratic theory. this theory demands that every man of twenty-one years of age (if not every woman too) should have an equal vote in electing parliament. suppose that last year there were twelve million adult males in england. upon this theory each man is to have one twelve-millionth share in electing a parliament; the rich and wise are not to have, by explicit law, more votes than the poor and stupid; nor are any latent contrivances to give them an influence equivalent to more votes. the machinery for carrying out such a plan is very easy. at each census the country ought to be divided into electoral districts, in each of which the number of adult males should be the same; and these districts ought to be the only constituencies, and elect the whole parliament. but if the above prerequisites are needful for parliamentary government, that parliament would not work. such a parliament could not be composed of moderate men. the electoral districts would be, some of them, in purely agricultural places, and in these the parson and the squire would have almost unlimited power. they would be able to drive or send to the poll an entire labouring population. these districts would return an unmixed squirearchy. the scattered small towns which now send so many members to parliament, would be lost in the clownish mass; their votes would send to parliament no distinct members. the agricultural part of england would choose its representatives from quarter-sessions exclusively. on the other hand a large part of the constituencies would be town districts, and these would send up persons representing the beliefs or unbeliefs of the lowest classes in their towns. they would, perhaps, be divided between the genuine representatives of the artisans--not possibly of the best of the artisans, who are a select and intellectual class, but of the common order of workpeople--and the merely pretended members for that class whom i may call the members for the public-houses. in all big towns in which there is electioneering these houses are the centres of illicit corruption and illicit management. there are pretty good records of what that corruption and management are, but there is no need to describe them here. everybody will understand what sort of things i mean, and the kind of unprincipled members that are returned by them. our new parliament, therefore, would be made up of two sorts of representatives from the town lowest class, and one sort of representatives from the agricultural lowest class. the genuine representatives of the country would be men of one marked sort, and the genuine representatives for the county men of another marked sort, but very opposite: one would have the prejudices of town artisans, and the other the prejudices of county magistrates. each class would speak a language of its own; each would be unintelligible to the other; and the only thriving class would be the immoral representatives, who were chosen by corrupt machination, and who would probably get a good profit on the capital they laid out in that corruption. if it be true that a parliamentary government is possible only when the overwhelming majority of the representatives are men essentially moderate, of no marked varieties, free from class prejudices, this ultra-democratic parliament could not maintain that government, for its members would be remarkable for two sorts of moral violence and one sort of immoral. i do not for a moment rank the scheme of mr. hare with the scheme of the ultra-democrats. one can hardly help having a feeling of romance about it. the world seems growing young when grave old lawyers and mature philosophers propose a scheme promising so much. it is from these classes that young men suffer commonly the chilling demonstration that their fine plans are opposed to rooted obstacles, that they are repetitions of other plans which failed long ago, and that we must be content with the very moderate results of tried machinery. but mr. hare and mr. mill offer as the effect of their new scheme results as large and improvements as interesting as a young enthusiast ever promised to himself in his happiest mood. i do not give any weight to the supposed impracticability of mr. hare's scheme because it is new. of course it cannot be put in practice till it is old. a great change of this sort happily cannot be sudden; a free people cannot be confused by new institutions which they do not understand, for they will not adopt them till they understand them. but if mr. hare's plan would accomplish what its friends say, or half what they say, it would be worth working for, if it were not adopted till the year . we ought incessantly to popularise the principle by writing; and, what is better than writing, small preliminary bits of experiment. there is so much that is wearisome and detestable in all other election machineries, that i well understand, and wish i could share, the sense of relief with which the believers in this scheme throw aside all their trammels, and look to an almost ideal future when this captivating plan is carried. mr. hare's scheme cannot be satisfactorily discussed in the elaborate form in which he presents it. no common person readily apprehends all the details in which, with loving care, he has embodied it. he was so anxious to prove what could be done, that he has confused most people as to what it is. i have heard a man say, "he never could remember it two days running". but the difficulty which i feel is fundamental, and wholly independent of detail. there are two modes in which constituencies may be made. first, the law may make them, as in england and almost everywhere: the law may say such and such qualifications shall give a vote for constituency x; those who have that qualification shall be constituency x. these are what we may call compulsory constituencies, and we know all about them. or, secondly, the law may leave the electors themselves to make them. the law may say all the adult males of a country shall vote, or those males who can read and write, or those who have pounds a year, or any persons any way defined, and then leave those voters to group themselves as they like. suppose there were , voters to elect the house of commons; it is possible for the legislature to say, "we do not care how you combine. on a given day let each set of persons give notice in what group they mean to vote; if every voter gives notice, and every one looks to make the most of his vote, each group will have just . but the law shall not make this necessary--it shall take the most numerous groups, no matter whether they have , or , or , or votes--the most numerous groups, whatever their number may be; and these shall be the constituencies of the nation." these are voluntary constituencies, if i may so call them; the simplest kind of voluntary constituencies. mr. hare proposes a far more complex kind; but to show the merits and demerits of the voluntary principle the simplest form is much the best. the temptation to that principle is very plain. under the compulsory form of constituency the votes of the minorities are thrown away. in the city of london, now, there are many tories, but all the members are whigs; every london tory, therefore, is by law and principle misrepresented: his city sends to parliament not the member whom he wished to have, but the member he wished not to have. but upon the voluntary system the london tories, who are far more than in number, may combine; they may make a constituency, and return a member. in many existing constituencies the disfranchisement of minorities is hopeless and chronic. i have myself had a vote for an agricultural county for twenty years, and i am a liberal; but two tories have always been returned, and all my life will be returned. as matters now stand, my vote is of no use. but if i could combine with other liberals in that and other conservative counties, we might choose a liberal member. again, this plan gets rid of all our difficulties as to the size of constituencies. it is said to be unreasonable that liverpool should return only the same number of members as king's lynn or lyme regis; but upon the voluntary plan, liverpool could come down to king's lynn. the liberal minority in king's lynn could communicate with the liberal minority in liverpool, and make up ; and so everywhere. the numbers of popular places would gain what is called their legitimate advantage; they would, when constituencies are voluntarily made, be able to make, and be willing to make the greatest number of constituencies. again, the admirers of a great man could make a worthy constituency for him. as it is, mr. mill was returned by the electors of westminster; and they have never, since they had members, done themselves so great an honour. but what did the electors of westminster know of mr. mill? what fraction of his mind could be imagined by any percentage of their minds? a great deal of his genius most of them would not like. they meant to do homage to mental ability, but it was the worship of an unknown god--if ever there was such a thing in this world. but upon the voluntary plan, one thousand out of the many thousand students of mr. mill's book could have made an appreciating constituency for him. i could reckon other advantages, but i have to object to the scheme, not to recommend it. what are the counterweights which overpower these merits? i reply that the voluntary composition of constituencies appears to me inconsistent with the necessary prerequisites of parliamentary government as they have been just laid down. under the voluntary system, the crisis of politics is not the election of the member, but the making the constituency. president-making is already a trade in america, and constituency-making would, under the voluntary plan, be a trade here. every party would have a numerical problem to solve. the leaders would say, "we have , votes, we must take care to have members"; and the only way to obtain them is to organise. a man who wanted to compose part of a liberal constituency must not himself hunt for other liberals; if he did, after writing letters, he would probably find he was making part of a constituency of , all whose votes would be thrown away, the constituency being too small to be reckoned. such a liberal must write to the great registration association in parliament street; he must communicate with its able managers, and they would soon use his vote for him. they would say, "sir, you are late; mr. gladstone, sir, is full. he got his last year. most of the gentlemen you read of in the papers are full. as soon as a gentleman makes a nice speech, we get a heap of letters to say, 'make us into that gentleman's constituency'. but we cannot do that. here is our list. if you do not want to throw your vote away, you must be guided by us: here are three very satisfactory gentlemen (and one is an honourable): you may vote for either of these, and we will write your name down; but if you go voting wildly, you'll be thrown out altogether." the evident result of this organisation would be the return of party men mainly. the member-makers would look, not for independence, but for subservience--and they could hardly be blamed for so doing. they are agents for the liberal party; and, as such, they should be guided by what they take to be the wishes of their principal. the mass of the liberal party wishes measure a, measure b, measure c. the managers of the registration--the skilled manipulators--are busy men. they would say, "sir, here is our card; if you want to get into parliament on our side, you must go for that card; it was drawn up by mr. lloyd; he used to be engaged on railways, but since they passed this new voting plan, we get him to attend to us; it is a sound card; stick to that and you will be right". upon this (in theory) voluntary plan, you would get together a set of members bound hard and fast with party bands and fetters, infinitely tighter than any members now. whoever hopes anything from desultory popular action if matched against systematised popular action, should consider the way in which the american president is chosen. the plan was that the citizens at large should vote for the statesman they liked best. but no one does anything of the sort. they vote for the ticket made by "the caucus," and the caucus is a sort of representative meeting which sits voting and voting till they have cut out all the known men against whom much is to be said, and agreed on some unknown man against whom there is nothing known, and therefore nothing to be alleged. caucuses, or their equivalent, would be far worse here in constituency-making than there in president-making, because on great occasions the american nation can fix on some one great man whom it knows, but the english nation could not fix on great men and choose them. it does not know so many, and if it did, would go wrong in the difficulties of the manipulation. but though a common voter could only be ranged in an effectual constituency, and a common candidate only reach a constituency by obeying the orders of the political election-contrivers upon his side, certain voters and certain members would be quite independent of both. there are organisations in this country which would soon make a set of constituencies for themselves. every chapel would be an office for vote-transferring before the plan had been known three months. the church would be much slower in learning it and much less handy in using it; but would learn. at present the dissenters are a most energetic and valuable component of the liberal party; but under the voluntary plan they would not be a component--they would be a separate, independent element. we now propose to group boroughs; but then they would combine chapels. there would be a member for the baptist congregation of tavistock, cum totnes, cum, etc., etc. the full force of this cannot be appreciated except by referring to the former proof that the mass of a parliament ought to be men of moderate sentiments, or they will elect an immoderate ministry, and enact violent laws. but upon the plan suggested, the house would be made up of party politicians selected by a party committee, chained to that committee and pledged to party violence, and of characteristic, and therefore immoderate representatives, for every "ism" in all england. instead of a deliberate assembly of moderate and judicious men, we should have a various compound of all sorts of violence. i may seem to be drawing a caricature, but i have not reached the worst. bad as these members would be, if they were left to themselves--if, in a free parliament, they were confronted with the perils of government, close responsibility might improve them and make them tolerable. but they would not be left to themselves. a voluntary constituency will nearly always be a despotic constituency. even in the best case, where a set of earnest men choose a member to expound their earnestness, they will look after him to see that he does expound it. the members will be like the minister of a dissenting congregation. that congregation is collected by a unity of sentiment in doctrine a, and the preacher is to preach doctrine a; if he does not, he is dismissed. at present the member is free because the constituency is not in earnest; no constituency has an acute, accurate doctrinal creed in politics. the law made the constituencies by geographical divisions; and they are not bound together by close unity of belief. they have vague preferences for particular doctrines; and that is all. but a voluntary constituency would be a church with tenets; it would make its representative the messenger of its mandates, and the delegate of its determinations. as in the case of a dissenting congregation, one great minister sometimes rules it, while ninety-nine ministers in the hundred are ruled by it, so here one noted man would rule his electors, but the electors would rule all the others. thus, the members for a good voluntary constituency would be hopelessly enslaved, because of its goodness; but the members for a bad voluntary constituency would be yet more enslaved because of its badness. the makers of these constituencies would keep the despotism in their own hands. in america there is a division of politicians into wire-pullers and blowers; under the voluntary system the member of parliament would be the only momentary mouth-piece--the impotent blower; while the constituency-maker would be the latent wire-puller--the constant autocrat. he would write to gentlemen in parliament, and say, "you were elected upon 'the liberal ticket'; and if you deviate from that ticket you cannot be chosen again". and there would be no appeal for a common-minded man. he is no more likely to make a constituency for himself than a mole is likely to make a planet. it may indeed be said that against a septennial parliament such machinations would be powerless; that a member elected for seven years might defy the remonstrances of an earnest constituency, or the imprecations of the latent manipulators. but after the voluntary composition of constituencies, there would soon be but short-lived parliaments. earnest constituencies would exact frequent elections; they would not like to part with their virtue for a long period; it would anger them to see it used contrary to their wishes, amid circumstances which at the election no one thought of. a seven years' parliament is often chosen in one political period, lasts through a second, and is dissolved in a third. a constituency collected by law and on compulsion endures this change because it has no collective earnestness; it does not mind seeing the power it gave used in a manner that it could not have foreseen. but a self-formed constituency of eager opinions, a missionary constituency, so to speak, would object; it would think it its bounden duty to object; and the crafty manipulators, though they said nothing, in silence would object still more. the two together would enjoin annual elections, and would rule their members unflinchingly. the voluntary plan, therefore, when tried in this easy form is inconsistent with the extrinsic independence as well as with the inherent moderation of a parliament--two of the conditions which, as we have seen, are essential to the bare possibility of parliamentary government. the same objections, as is inevitable, adhere to that principle under its more complicated forms. it is in vain to pile detail on detail when the objection is one of first principle. if the above reasoning be sound, compulsory constituencies are necessary, voluntary constituencies destructive; the optional transferability of votes is not a salutary aid, but a ruinous innovation. i have dwelt upon the proposal of mr. hare and upon the ultra-democratic proposal, not only because of the high intellectual interest of the former and the possible practical interest of the latter, but because they tend to bring into relief two at least of the necessary conditions of parliamentary government. but besides these necessary qualities which are needful before a parliamentary government can work at all, there are some additional prerequisites before it can work well. that a house of commons may work well it must perform, as we saw, five functions well: it must elect a ministry well, legislate well, teach the nation well, express the nation's will well, bring matters to the nation's attention well. the discussion has a difficulty of its own. what is meant by "well"? who is to judge? is it to be some panel of philosophers, some fancied posterity, or some other outside authority? i answer, no philosophy, no posterity, no external authority, but the english nation here and now. free government is self-government--a government of the people by the people. the best government of this sort is that which the people think best. an imposed government, a government like that of the english in india, may very possibly be better; it may represent the views of a higher race than the governed race; but it is not therefore a free government. a free government is that which the people subject to it voluntarily choose. in a casual collection of loose people the only possible free government is a democratic government. where no one knows, or cares for, or respects any one else all must rank equal; no one's opinion can be more potent than that of another. but, as has been explained, a deferential nation has a structure of its own. certain persons are by common consent agreed to be wiser than others, and their opinion is, by consent, to rank for much more than its numerical value. we may in these happy nations weigh votes as well as count them, though in less favoured countries we can count only. but in free nations, the votes so weighed or so counted must decide. a perfect free government is one which decides perfectly according to those votes; an imperfect, one which so decides imperfectly; a bad, one which does not so decide at all. public opinion is the test of this polity; the best opinion which with its existing habits of deference, the nation will accept: if the free government goes by that opinion, it is a good government of its species; if it contravenes that opinion, it is a bad one. tried by this rule the house of commons does its appointing business well. it chooses rulers as we wish rulers to be chosen. if it did not, in a speaking and writing age we should soon know. i have heard a great liberal statesman say, "the time was coming when we must advertise for a grievance".[ ] what a good grievance it would be were the ministry appointed and retained by the parliament a ministry detested by the nation. an anti-present-government league would be instantly created, and it would be more instantly powerful and more instantly successful than the anti-corn-law league. [ ] this was said in . it has, indeed, been objected that the choosing business of parliament is done ill, because it does not choose strong governments. and it is certain that when public opinion does not definitely decide upon a marked policy, and when in consequence parties in the parliament are nearly even, individual cupidity and changeability may make parliament change its appointees too often; may induce them never enough to trust any of them; may make it keep all of them under a suspended sentence of coming dismissal. but the experience of lord palmerston's second government proves, i think, that these fears are exaggerated. when the choice of a nation is really fixed on a statesman, parliament will fix upon him too. the parties in the parliament of were as nearly divided as in any probable parliament; a great many liberals did not much like lord palmerston, and they would have gladly co-operated in an attempt to dethrone him. but the same influence acted on parliament within which acted on the nation without. the moderate men of both parties were satisfied that lord palmerston's was the best government, and they therefore preserved it though it was hated by the immoderate on both sides. we have then found by a critical instance that a government supported by what i may call "the common element"--by the like-minded men of unlike parties--will be retained in power, though parties are even, and though, as treasury counting reckons, the majority is imperceptible. if happily, by its intelligence and attractiveness, a cabinet can gain a hold upon the great middle part of parliament, it will continue to exist notwithstanding the hatching of small plots and the machinations of mean factions. on the whole, i think it indisputable that the selecting task of parliament is performed as well as public opinion wishes it to be performed; and if we want to improve that standard, we must first improve the english nation, which imposes that standard. of the substantial part of its legislative task, the same, too, may, i think, be said. the manner of our legislation is indeed detestable, and the machinery for settling that manner odious. a committee of the whole house, dealing, or attempting to deal with the elaborate clauses of a long bill, is a wretched specimen of severe but misplaced labour. it is sure to wedge some clause into the act, such as that which the judge said "seemed to have fallen by itself, perhaps, from heaven, into the mind of the legislature," so little had it to do with anything on either side or around it. at such times government by a public meeting displays its inherent defects, and is little restrained by its necessary checks. but the essence of our legislature may be separated from its accidents. subject to two considerable defects i think parliament passes laws as the nation wishes to have them passed. thirty years ago this was not so. the nation had outgrown its institutions, and was cramped by them. it was a man in the clothes of a boy; every limb wanted more room, and every garment to be fresh made. "d-mn me," said lord eldon in the dialect of his age, "if i had to begin life again i would begin as an agitator." the shrewd old man saw that the best life was that of a miscellaneous objector to the old world, though he loved that world, believed in it, could imagine no other. but he would not say so now. there is no worse trade than agitation at this time. a man can hardly get an audience if he wishes to complain of anything. nowadays, not only does the mind and policy of parliament (subject to the exceptions before named) possess the common sort of moderation essential to the possibility of parliamentary government, but also that exact gradation, that precise species of moderation, most agreeable to the nation at large. not only does the nation endure a parliamentary government, which it would not do if parliament were immoderate, but it likes parliamentary government. a sense of satisfaction permeates the country because most or the country feels it has got the precise thing that suits it. the exceptions are two. first. that parliament leans too much to the opinions of the landed interest. the cattle plague act is a conspicuous instance of this defect. the details of that bill may be good or bad, and its policy wise or foolish. but the manner in which it was hurried through the house savoured of despotism. the cotton trade or the wine trade could not, in their maximum of peril, have obtained such aid in such a manner. the house of commons would hear of no pause and would heed no arguments. the greatest number of them feared for their incomes. the land of england returns many members annually for the counties; these members the constitution gave them. but what is curious is that the landed interest gives no seats to other classes, but takes plenty of seats from other classes. half the boroughs in england are represented by considerable landowners, and when rent is in question, as in the cattle case, they think more of themselves than of those who sent them. in number the landed gentry in the house far surpass any other class. they have, too, a more intimate connection with one another; they were educated at the same schools; know one another's family name from boyhood; form a society; are the same kind of men; marry the same kind of women. the merchants and manufacturers in parliament are a motley race--one educated here, another there, a third not educated at all; some are of the second generation of traders, who consider self-made men intruders upon an hereditary place; others are self-made, and regard the men of inherited wealth, which they did not make and do not augment, as beings of neither mind nor place, inferior to themselves because they have no brains, and inferior to lords because they have no rank. traders have no bond of union, no habits of intercourse; their wives, if they care for society, want to see not the wives of other such men, but "better people," as they say--the wives of men certainly with land, and, if heaven help, with the titles. men who study the structure of parliament, not in abstract books, but in the concrete london world, wonder not that the landed interest is very powerful, but that it is not despotic. i believe it would be despotic if it were clever, or rather if its representatives were so, but it has a fixed device to make them stupid. the counties not only elect landowners, which is natural, and perhaps wise, but also elect only landowners of their own county, which is absurd. there is no free trade in the agricultural mind; each county prohibits the import of able men from other counties. this is why eloquent sceptics--bolingbroke and disraeli--have been so apt to lead the unsceptical tories. they will have people with a great piece of land in a particular spot, and of course these people generally cannot speak, and often cannot think. and so eloquent men who laugh at the party come to lead the party. the landed interest has much more influence than it should have; but it wastes that influence so much that the excess is, except on singular occurrences (like the cattle plague), of secondary moment. it is almost another side of the same matter to say that the structure of parliament gives too little weight to the growing districts of the country and too much to the stationary, in old times the south of england was not only the pleasantest but the greatest part of england. devonshire was a great maritime county when the foundations of our representation were fixed; somersetshire and wiltshire great manufacturing counties. the harsher climate of the northern counties was associated with a ruder, a stern, and a sparser people. the immense preponderance which our parliament gave before , and though pruned and mitigated, still gives to england south of the trent, then corresponded to a real preponderance in wealth and mind. how opposite the present contrast is we all know. and the case gets worse every day. the nature of modern trade is to give to those who have much and take from those who have little. manufacture goes where manufacture is, because there and there alone it finds attendant and auxiliary manufacture. every railway takes trade from the little town to the big town because it enables the customer to buy in the big town. year by year the north (as we may roughly call the new industrial world) gets more important, and the south (as we may call the pleasant remnant of old time) gets less important. it is a grave objection to our existing parliamentary constitution that it gives much power to regions of past greatness, and refuses equal power to regions of present greatness. i think (though it is not a popular notion) that by far the greater part of the cry for parliamentary reform is due to this inequality. the great capitalists, mr. bright and his friends, believe they are sincere in asking for more power for the working man, but, in fact, they very naturally and very properly want more power for themselves. they cannot endure--they ought not to endure--that a rich, able manufacturer should be a less man than a small stupid squire. the notions of political equality which mr. bright puts forward are as old as political speculation, and have been refuted by the first efforts of that speculation. but for all that they are likely to last as long as political society, because they are based upon indelible principles in human nature. edmund burke called the first east indians, "jacobins to a man," because they did not feel their "present importance equal to their real wealth". so long as there is an uneasy class, a class which has not its just power, it will rashly clutch and blindly believe the notion that all men should have the same power. i do not consider the exclusion of the working classes from effectual representation a defect in this aspect of our parliamentary representation. the working classes contribute almost nothing to our corporate public opinion, and therefore, the fact of their want of influence in parliament does not impair the coincidence of parliament with public opinion. they are left out in the representation, and also in the thing represented. nor do i think the number of persons of aristocratic descent in parliament impairs the accordance of parliament with public opinion. no doubt the direct descendants and collateral relatives of noble families supply members to parliament in far greater proportion than is warranted by the number of such families in comparison with the whole nation. but i do not believe that these families have the least corporate character, or any common opinions, different from others of the landed gentry. they have the opinions of the propertied rank in which they were born. the english aristocracy have never been a caste apart, and are not a caste apart now. they would keep up nothing that other landed gentlemen would not. and if any landed gentlemen are to be sent to the house of commons, it is desirable that many should be men of some rank. as long as we keep up a double set of institutions--one dignified and intended to impress the many, the other efficient and intended to govern the many--we should take care that the two match nicely, and hide where the one begins and where the other ends. this is in part effected by conceding some subordinate power to the august part of our polity, but it is equally aided by keeping an aristocratic element in the useful part of our polity. in truth, the deferential instinct secures both. aristocracy is a power in the "constituencies". a man who is an honourable or a baronet, or better yet, perhaps, a real earl, though irish, is coveted by half the electing bodies; and caeteris paribus, a manufacturer's son has no chance with him. the reality of the deferential feeling in the community is tested by the actual election of the class deferred to, where there is a large free choice betwixt it and others. subject therefore to the two minor, but still not inconsiderable, defects i have named, parliament conforms itself accurately enough, both as a chooser of executives and as a legislature, to the formed opinion of the country. similarly, and subject to the same exceptions, it expresses the nation's opinion in words well, when it happens that words, not laws, are wanted. on foreign matters, where we cannot legislate, whatever the english nation thinks, or thinks it thinks, as to the critical events of the world, whether in denmark, in italy, or america, and no matter whether it thinks wisely or unwisely, that same something, wise or unwise, will be thoroughly well said in parliament. the lyrical function of parliament, if i may use such a phrase, is well done; it pours out in characteristic words the characteristic heart of the nation. and it can do little more useful. now that free government is in europe so rare and in america so distant, the opinion, even the incomplete, erroneous, rapid opinion of the free english people is invaluable. it may be very wrong, but it is sure to be unique; and if it is right it is sure to contain matter of great magnitude, for it is only a first-class matter in distant things which a free people ever sees or learns. the english people must miss a thousand minutiae that continental bureaucracies know even too well; but if they see a cardinal truth which those bureaucracies miss, that cardinal truth may greatly help the world. but if in these ways, and subject to these exceptions, parliament by its policy and its speech well embodies and expresses public opinion, i own i think it must be conceded that it is not equally successful in elevating public opinion. the teaching task of parliament is the task it does worst. probably at this moment, it is natural to exaggerate this defect. the greatest teacher of all in parliament, the head-master of the nation, the great elevator of the country--so far as parliament elevates it--must be the prime minister: he has an influence, an authority, a facility in giving a great tone to discussion, or a mean tone, which no other man has. now lord palmerston for many years steadily applied his mind to giving, not indeed a mean tone, but a light tone, to the proceedings of parliament. one of his greatest admirers has since his death told a story of which he scarcely sees, or seems to see, the full effect. when lord palmerston was first made leader of the house, his jaunty manner was not at all popular, and some predicted failure. "no," said an old member, "he will soon educate us down to his level; the house will soon prefer this ha! ha! style to the wit of canning and the gravity of peel." i am afraid that we must own that the prophecy was accomplished. no prime minister, so popular and so influential, has ever left in the public memory so little noble teaching. twenty years hence, when men inquire as to the then fading memory of palmerston, we shall be able to point to no great truth which he taught, no great distinct policy which he embodied, no noble words which once fascinated his age, and which, in after years, men would not willingly let die. but we shall be able to say "he had a genial manner, a firm, sound sense; he had a kind of cant of insincerity, but we always knew what he meant; he had the brain of a ruler in the clothes of a man of fashion". posterity will hardly understand the words of the aged reminiscent, but we now feel their effect. the house of commons, since it caught its tone from such a statesman, has taught the nation worse, and elevated it less, than usual. i think, however, that a correct observer would decide that in general, and on principle, the house of commons does not teach the public as much as it might teach it, or as the public would wish to learn. i do not wish very abstract, very philosophical, very hard matters to be stated in parliament. the teaching there given must be popular, and to be popular it must be concrete, embodied, short. the problem is to know the highest truth which the people will bear, and to inculcate and preach that. certainly lord palmerston did not preach it. he a little degraded us by preaching a doctrine just below our own standard--a doctrine not enough below us to repel us much, but yet enough below to harm us by augmenting a worldliness which needed no addition, and by diminishing a love of principle and philosophy which did not want deduction. in comparison with the debates of any other assembly, it is true the debates by the english parliament are most instructive. the debates in the american congress have little teaching efficacy; it is the characteristic vice of presidential government to deprive them of that efficacy; in that government a debate in the legislature has little effect, for it cannot turn out the executive, and the executive can veto all it decides. the french chambers[ ] are suitable appendages to an empire which desires the power of despotism without its shame; they prevent the enemies of the empire being quite correct when they say there is no free speech; a few permitted objectors fill the air with eloquence, which every one knows to be often true, and always vain. the debates in an english parliament fill a space in the world which, in these auxiliary chambers, is not possible. but i think any one who compares the discussions on great questions in the higher part of the press, with the discussions in parliament, will feel that there is (of course amid much exaggeration and vagueness) a greater vigour and a higher meaning in the writing than in the speech: a vigour which the public appreciate--a meaning that they like to hear. [ ] this of course relates to the assemblies of the empire. the saturday review said, some years since, that the ability of parliament was a "protected ability": that there was at the door a differential duty of at least pounds a year. accordingly the house of commons, representing only mind coupled with property, is not equal in mind to a legislature chosen for mind only, and whether accompanied by wealth or not. but i do not for a moment wish to see a representation of pure mind; it would be contrary to the main thesis of this essay. i maintain that parliament ought to embody the public opinion of the english nation; and, certainly, that opinion is much more fixed by its property than by its mind. the "too clever by half" people who live in "bohemia," ought to have no more influence in parliament than they have in england, and they can scarcely have less. only, after every great abatement and deduction, i think the country would bear a little more mind; and that there is a profusion of opulent dulness in parliament which might a little--though only a little--be pruned away. the only function of parliament which remains to be considered is the informing function, as i just now called it; the function which belongs to it, or to members of it, to bring before the nation the ideas, grievances, and wishes of special classes. this must not be confounded with what i have called its teaching function. in life, no doubt, the two run one into another. but so do many things which it is very important in definition to separate. the facts of two things being often found together is rather a reason for, than an objection to, separating them, in idea. sometimes they are not found together, and then we may be puzzled if we have not trained ourselves to separate them. the teaching function brings true ideas before the nation, and is the function of its highest minds. the expressive function brings only special ideas, and is the function of but special minds. each class has its ideas, wants, and notions; and certain brains are ingrained with them. such sectarian conceptions are not those by which a determining nation should regulate its action, nor are orators, mainly animated by such conceptions, safe guides in policy. but those orators should be heard; those conceptions should be kept in sight. the great maxim of modern thought is not only the toleration of everything, but the examination of everything. it is by examining very bare, very dull, very unpromising things, that modern science has come to be what it is. there is a story of a great chemist who said he owed half his fame to his habit of examining after his experiments, what was going to be thrown away: everybody knew the result of the experiment itself, but in the refuse matter there were many little facts and unknown changes, which suggested the discoveries of a famous life to a person capable of looking for them. so with the special notions of neglected classes. they may contain elements of truth which, though small, are the very elements which we now require, because we already know all the rest. this doctrine was well known to our ancestors. they laboured to give a character to the various constituencies, or to many of them. they wished that the shipping trade, the wool trade, the linen trade, should each have their spokesman; that the unsectional parliament should know what each section in the nation thought before it gave the national decision. this is the true reason for admitting the working classes to a share in the representation, at least as far as the composition of parliament is to be improved by that admission. a great many ideas, a great many feelings have gathered among the town artisans--a peculiar intellectual life has sprung up among them. they believe that they have interests which are misconceived or neglected; that they know something which others do not know; that the thoughts of parliament are not as their thoughts. they ought to be allowed to try to convince parliament; their notions ought to be stated as those of other classes are stated; their advocates should be heard as other people's advocates are heard. before the reform bill, there was a recognised machinery for that purpose. the member for westminster, and other members, were elected by universal suffrage (or what was in substance such); those members did, in their day, state what were the grievances and ideas--or were thought to be the grievances and ideas--of the working classes. it was the single, unbending franchise introduced in that has caused this difficulty, as it has others. until such a change is made the house of commons will be defective, just as the house of lords was defective. it will not look right. as long as the lords do not come to their own house, we may prove on paper that it is a good revising chamber, but it will be difficult to make the literary argument felt. just so, as long as a great class, congregated in political localities, and known to have political thoughts and wishes, is without notorious and palpable advocates in parliament, we may prove on paper that our representation is adequate, but the world will not believe it. there is a saying in the eighteenth century, that in politics, "gross appearances are great realities". it is in vain to demonstrate that the working classes have no grievances; that the middle classes have done all that is possible for them, and so on with a crowd of arguments which i need not repeat, for the newspapers keep them in type, and we can say them by heart. but so long as the "gross appearance" is that there are no evident, incessant representatives to speak the wants of artisans, the "great reality" will be a diffused dissatisfaction. thirty years ago it was vain to prove that gatton and old sarum were valuable seats, and sent good members. everybody said, "why, there are no people there". just so everybody must say now, "our representative system must be imperfect, for an immense class has no members to speak for it". the only answer to the cry against constituencies without inhabitants was to transfer their power to constituencies with inhabitants. just so, the way to stop the complaint that artisans have no members is to give them members--to create a body of representatives, chosen by artisans, believing, as mr. carlyle would say, "that artisanism is the one thing needful". no. vi. on changes of ministry. there is one error as to the english constitution which crops up periodically. circumstances which often, though irregularly, occur naturally suggests that error, and as surely as they happen it revives. the relation of parliament, and especially of the house of commons, to the executive government is the specific peculiarity of our constitution, and an event which frequently happens much puzzles some people as to it. that event is a change of ministry. all our administrators go out together. the whole executive government changes--at least, all the heads of it change in a body, and at every such change some speculators are sure to exclaim that such a habit is foolish. they say: "no doubt mr. gladstone and lord russell may have been wrong about reform; no doubt mr. gladstone may have been cross in the house of commons; but why should either or both of these events change all the heads of all our practical departments? what could be more absurd than what happened in ? lord palmerston was for once in his life over-buoyant; he gave rude answers to stupid inquiries; he brought into the cabinet a nobleman concerned in an ugly trial about a woman; he, or his foreign secretary, did not answer a french despatch by a despatch, but told our ambassador to reply orally. and because of these trifles, or at any rate these isolated unadministrative mistakes, all our administration had fresh heads. the poor law board had a new chief, the home department a new chief, the public works a new chief. surely this was absurd." now, is this objection good or bad? speaking generally, is it wise so to change all our rulers? the practice produces three great evils. first, it brings in on a sudden new persons and untried persons to preside over our policy. a little while ago lord cranborne[ ] had no more idea that he would now be indian secretary than that he would be a bill broker. he had never given any attention to indian affairs; he can get them up, because he is an able educated man who can get up anything. but they are not "part and parcel" of his mind; not his subjects of familiar reflection, nor things of which he thinks by predilection, of which he cannot help thinking. but because lord russell and mr. gladstone did not please the house of commons about reform, there he is. a perfectly inexperienced man, so far as indian affairs go, rules all our indian empire. and if all our heads of offices change together, so very frequently it must be. if twenty offices are vacant at once, there are almost never twenty tried, competent, clever men ready to take them. the difficulty of making up a government is very much like the difficulty of putting together a chinese puzzle: the spaces do not suit what you have to put into them. and the difficulty of matching a ministry is more than that of fitting a puzzle, because the ministers to be put in can object, though the bits of a puzzle cannot. one objector can throw out the combination. in lord grey would not join lord john russell's projected government if lord palmerston was to be foreign secretary; lord palmerston would be foreign secretary, and so the government was not formed. the cases in which a single refusal prevents a government are rare, and there must be many concurrent circumstances to make it effectual. but the cases in which refusals impair or spoil a government are very common. it almost never happens that the ministry-maker can put into his offices exactly whom he would like; a number of placemen are always too proud, too eager, or too obstinate to go just where they should. [ ] now lord salisbury, who, when this was written, was indian secretary.--note to second edition. again, this system not only makes new ministers ignorant, but keeps present ministers indifferent. a man cannot feel the same interest that he might in his work if he knows that by events over which he has no control, by errors in which he had no share, by metamorphoses of opinion which belong to a different sequence of phenomena, he may have to leave that work in the middle, and may very likely never return to it. the new man put into a fresh office ought to have the best motive to learn his task thoroughly, but, in fact, in england, he has not at all the best motive. the last wave of party and politics brought him there, the next may take him away. young and eager men take, even at this disadvantage, a keen interest in office work, but most men, especially old men, hardly do so. many a battered minister may be seen to think much more of the vicissitudes which make him and unmake him, than of any office matter. lastly, a sudden change of ministers may easily cause a mischievous change of policy. in many matters of business, perhaps in most, a continuity of mediocrity is better than a hotch-potch of excellences. for example, now that progress in the scientific arts is revolutionising the instruments of war, rapid changes in our head-preparers for land and sea war are most costly and most hurtful. a single competent selector of new inventions would probably in the course of years, after some experience, arrive at something tolerable; it is in the nature of steady, regular, experimenting ability to diminish, if not vanquish, such difficulties. but a quick succession of chiefs has no similar facility. they do not learn from each other's experience;--you might as well expect the new head boy at a public school to learn from the experience of the last head boy. the most valuable result of many years is a nicely balanced mind instinctively heedful of various errors; but such a mind is the incommunicable gift of individual experience, and an outgoing minister can no more leave it to his successor, than an elder brother can pass it on to a younger. thus a desultory and incalculable policy may follow from a rapid change of ministers. these are formidable arguments, but four things may, i think, be said in reply to, or mitigation of them. a little examination will show that this change of ministers is essential to a parliamentary government; that something like it will happen in all elective governments, and that worse happens under presidential government; that it is not necessarily prejudicial to a good administration, but that, on the contrary, something like it is a prerequisite of good administration; that the evident evils of english administration are not the results of parliamentary government, but of grave deficiencies in other parts of our political and social state; that, in a word, they result not from what we have, but from what we have not. as to the first point, those who wish to remove the choice of ministers from parliament have not adequately considered what a parliament is. a parliament is nothing less than a big meeting of more or less idle people. in proportion as you give it power it will inquire into everything, settle everything, meddle in everything. in an ordinary despotism, the powers of a despot are limited by his bodily capacity, and by the calls of pleasure; he is but one man; there are but twelve hours in his day, and he is not disposed to employ more than a small part in dull business; he keeps the rest for the court, or the harem, or for society. he is at the top of the world, and all the pleasures of the world are set before him. mostly there is only a very small part of political business which he cares to understand, and much of it (with the shrewd sensual sense belonging to the race) he knows that he will never understand. but a parliament is composed of a great number of men by no means at the top of the world. when you establish a predominant parliament, you give over the rule of the country to a despot who has unlimited time--who has unlimited vanity--who has, or believes he has, unlimited comprehension, whose pleasure is in action, whose life is work. there is no limit to the curiosity of parliament. sir robert peel once suggested that a list should be taken down of the questions asked of him in a single evening; they touched more or less on fifty subjects, and there were a thousand other subjects which by parity of reason might have been added too. as soon as bore a ends, bore b begins. some inquire from genuine love of knowledge, or from a real wish to improve what they ask about; others to see their name in the papers; others to show a watchful constituency that they are alert; others to get on and to get a place in the government; others from an accumulation of little motives they could not themselves analyse, or because it is their habit to ask things. and a proper reply must be given. it was said that "darby griffith destroyed lord palmerston's first government," and undoubtedly the cheerful impertinence with which in the conceit of victory that minister answered grave men much hurt his parliamentary power. there is one thing which no one will permit to be treated lightly--himself. and so there is one too which a sovereign assembly will never permit to be lessened or ridiculed--its own power. the minister of the day will have to give an account in parliament of all branches of administration, to say why they act when they do, and why they do not when they don't. nor is chance inquiry all a public department has most to fear. fifty members of parliament may be zealous for a particular policy affecting the department, and fifty others for another policy, and between them they may divide its action, spoil its favourite aims, and prevent its consistently working out either of their own aims. the process is very simple. every department at times looks as if it was in a scrape; some apparent blunder, perhaps some real blunder, catches the public eye. at once the antagonist parliamentary sections, which want to act on the department, seize the opportunity. they make speeches, they move for documents, they amass statistics. they declare "that in no other country is such a policy possible as that which the department is pursuing; that it is mediaeval; that it costs money; that it wastes life; that america does the contrary; that prussia does the contrary". the newspapers follow according to their nature. these bits of administrative scandal amuse the public. articles on them are very easy to write, easy to read, easy to talk about. they please the vanity of mankind. we think as we read, "thank god, _i_ am not as that man; _i_ did not send green coffee to the crimea; _i_ did not send patent cartridge to the common guns, and common cartridge to the breech loaders. _i_ make money; that miserable public functionary only wastes money". as for the defence of the department, no one cares for it or reads it. naturally at first hearing it does not sound true. the opposition have the unrestricted selection of the point of attack, and they seldom choose a case in which the department, upon the surface of the matter, seems to be right. the case of first impression will always be that something shameful has happened; that such and such men did die; that this and that gun would not go off; that this or that ship will not sail. all the pretty reading is unfavourable, and all the praise is very dull. nothing is more helpless than such a department in parliament if it has no authorised official defender. the wasps of the house fasten on it; here they perceive is something easy to sting, and safe, for it cannot sting in return. the small grain of foundation for complaint germinates, till it becomes a whole crop. at once the minister of the day is appealed to; he is at the head of the administration, and he must put the errors right, if such they are. the opposition leader says: "i put it to the right honourable gentleman, the first lord of the treasury. he is a man of business. i do not agree with him in his choice of ends, but he is an almost perfect master of methods and means. what he wishes to do he does do. now i appeal to him whether such gratuitous errors, such fatuous incapacity, are to be permitted in the public service. perhaps the right honourable gentleman will grant me his attention while i show from the very documents of the departments," etc., etc. what is the minister to do? he never heard of this matter; he does not care about the matter. several of the supporters of the government are interested in the opposition to the department; a grave man, supposed to be wise, mutters, "this is too bad". the secretary of the treasury tells him, "the house is uneasy. a good many men are shaky. a. b. said yesterday he had been dragged through the dirt four nights following. indeed i am disposed to think myself that the department has been somewhat lax. perhaps an inquiry," etc., etc. and upon that the prime minister rises and says: "that her majesty's government having given very serious and grave consideration to this most important subject, are not prepared to say that in so complicated a matter the department has been perfectly exempt from error. he does not indeed concur in all the statements which have been made; it is obvious that several of the charges advanced are inconsistent with one another. if a. had really died from eating green coffee on the tuesday, it is plain he could not have suffered from insufficient medical attendance on the following thursday. however, on so complex a subject, and one so foreign to common experience, he will not give a judgment. and if the honourable member would be satisfied with having the matter inquired into by a committee of that house, he will be prepared to accede to the suggestion." possibly the outlying department, distrusting the ministry, crams a friend. but it is happy indeed if it chances on a judicious friend. the persons most ready to take up that sort of business are benevolent amateurs, very well intentioned, very grave, very respectable, but also rather dull. their words are good, but about the joints their arguments are weak. they speak very well, but while they are speaking, the decorum is so great that everybody goes away. such a man is no match for a couple of house of commons gladiators. they pull what he says to shreds. they show or say that he is wrong about his facts. then he rises in a fuss and must explain: but in his hurry he mistakes, and cannot find the right paper, and becomes first hot, then confused, next inaudible, and so sits down. probably he leaves the house with the notion that the defence of the department has broken down, and so the times announces to all the world as soon as it awakes. some thinkers have naturally suggested that the heads of departments should as such have the right of speech in the house. but the system when it has been tried has not answered. m. guizot tells us from his own experience that such a system is not effectual. a great popular assembly has a corporate character; it has its own privileges, prejudices, and notions. and one of these notions is that its own members--the persons it sees every day--whose qualities it knows, whose minds it can test, are those whom it can most trust. a clerk speaking from without would be an unfamiliar object. he would be an outsider. he would speak under suspicion; he would speak without dignity. very often he would speak as a victim. all the bores of the house would be upon him. he would be put upon examination. he would have to answer interrogatories. he would be put through the figures and cross-questioned in detail. the whole effect of what he said would be lost in quaestiunculae and hidden in a controversial detritus. again, such a person would rarely speak with great ability. he would speak as a scribe. his habits must have been formed in the quiet of an office: he is used to red tape, placidity, and the respect of subordinates. such a person will hardly ever be able to stand the hurly-burly of a public assembly. he will lose his head--he will say what he should not. he will get hot and red; he will feel he is a sort of culprit. after being used to the flattering deference of deferential subordinates, he will be pestered by fuss and confounded by invective. he will hate the house as naturally as the house does not like him. he will be an incompetent speaker addressing a hostile audience. and what is more, an outside administrator addressing parliament can move parliament only by the goodness of his arguments. he has no votes to back them up with. he is sure to be at chronic war with some active minority of assailants or others. the natural mode in which a department is improved on great points and new points is by external suggestion; the worse foes of a department are the plausible errors which the most visible facts suggest, and which only half visible facts confute. both the good ideas and the bad ideas are sure to find advocates first in the press and then in parliament. against these a permanent clerk would have to contend by argument alone. the minister, the head of the parliamentary government, will not care for him. the minister will say in some undress soliloquy, "these permanent 'fellows' must look after themselves. i cannot be bothered. i have only a majority of nine, and a very shaky majority, too. i cannot afford to make enemies for those whom i did not appoint. they did nothing for me, and i can do nothing for them." and if the permanent clerk come to ask his help, he will say in decorous language, "i am sure that if the department can evince to the satisfaction of parliament that its past management has been such as the public interests require, no one will be more gratified than myself. i am not aware if it will be in my power to attend in my place on monday; but if i can be so fortunate, i shall listen to your official statement with my very best attention." and so the permanent public servant will be teased by the wits, oppressed by the bores, and massacred by the innovators of parliament. the incessant tyranny of parliament over the public offices is prevented and can only be prevented by the appointment of a parliamentary head, connected by close ties with the present ministry and the ruling party in parliament the parliamentary head is a protecting machine. he and the friends he brings stand between the department and the busybodies and crotchet-makers of the house and the country. so long as at any moment the policy of an office could be altered by chance votes in either house of parliament, there is no security for any consistency. our guns and our ships are not, perhaps, very good now. but they would be much worse if any thirty or forty advocates for this gun or that gun could make a motion in parliament, beat the department, and get their ships or their guns adopted. the "black breech ordnance company" and the "adamantine ship company" would soon find representatives in parliament, if forty or fifty members would get the national custom for their rubbish. but this result is now prevented by the parliamentary head of the department. as soon as the opposition begins the attack, he looks up his means of defence. he studies the subject, compiles his arguments, and builds little piles of statistics, which he hopes will have some effect. he has his reputation at stake, and he wishes to show that he is worth his present place, and fit for future promotion. he is well known, perhaps liked, by the house--at any rate the house attends to him; he is one of the regular speakers whom they hear and heed. he is sure to be able to get himself heard, and he is sure to make the best defence he can. and after he has settled his speech he loiters up to the secretary of the treasury, and says quietly, "they have got a motion against me on tuesday, you know. i hope you will have your men here. a lot of fellows have crotchets, and though they do not agree a bit with one another, they are all against the department; they will all vote for the inquiry." and the secretary answers, "tuesday, you say; no (looking at a paper), i do not think it will come on tuesday. there is higgins on education. he is good for a long time. but anyhow it shall be all right." and then he glides about and speaks a word here and a word there, in consequence of which, when the anti-official motion is made, a considerable array of steady, grave faces sits behind the treasury bench--nay, possibly a rising man who sits in outlying independence below the gangway rises to defend the transaction; the department wins by thirty-three, and the management of that business pursues its steady way. this contrast is no fancy picture. the experiment of conducting the administration of a public department by an independent unsheltered authority has often been tried, and always failed. parliament always poked at it, till it made it impossible. the most remarkable is that of the poor law. the administration of that law is not now very good, but it is not too much to say that almost the whole of its goodness has been preserved by its having an official and party protector in the house of commons. without that contrivance we should have drifted back into the errors of the old poor law, and superadded to them the present meanness and incompetence in our large towns. all would have been given up to local management. parliament would have interfered with the central board till it made it impotent, and the local authorities would have been despotic. the first administration of the new poor law was by "commissioners"--the three kings of somerset house, as they were called. the system was certainly not tried in untrustworthy hands. at the crisis mr. chadwick, one of the most active and best administrators in england, was the secretary and the motive power: the principal commissioner was sir george lewis, perhaps the best selective administrator of our time. but the house of commons would not let the commission alone. for a long time it was defended because the whigs had made the commission, and felt bound as a party to protect it. the new law started upon a certain intellectual impetus, and till that was spent its administration was supported in a rickety existence by an abnormal strength. but afterwards the commissioners were left to their intrinsic weakness. there were members for all the localities, but there were none for them. there were members for every crotchet and corrupt interest, but there were none for them. the rural guardians would have liked to eke out wages by rates; the city guardians hated control, and hated to spend money. the commission had to be dissolved, and a parliamentary head was added; the result is not perfect, but it is an amazing improvement on what would have happened in the old system. the new system has not worked well because the central authority has too little power; but under the previous system the central authority was getting to have, and by this time would have had, no power at all. and if sir george lewis and mr. chadwick could not maintain an outlying department in the face of parliament, how unlikely that an inferior compound of discretion and activity will ever maintain it! these reasonings show why a changing parliamentary head, a head changing as the ministry changes, is a necessity of good parliamentary government, and there is happily a natural provision that there will be such heads. party organisation ensures it. in america, where on account of the fixedly recurring presidential election, and the perpetual minor elections, party organisation is much more effectually organised than anywhere else, the effect on the offices is tremendous. every office is filled anew at every presidential change, at least every change which brings in a new party. not only the greatest posts, as in england, but the minor posts change their occupants. the scale of the financial operations of the federal government is now so increased that most likely in that department, at least, there must in future remain a permanent element of great efficiency; a revenue of , , pounds sterling cannot be collected and expended with a trifling and changing staff. but till now the americans have tried to get on not only with changing heads to a bureaucracy, as the english, but without any stable bureaucracy at all. they have facilities for trying it which no one else has. all americans can administer, and the number of them really fit to be in succession lawyers, financiers, or military managers is wonderful; they need not be as afraid of a change of all their officials as european countries must, for the incoming substitutes are sure to be much better there than here; and they do not fear, as we english fear, that the outgoing officials will be left destitute in middle life, with no hope for the future and no recompense for the past, for in america (whatever may be the cause of it) opportunities are numberless, and a man who is ruined by being "off the rails" in england soon there gets on another line. the americans will probably to some extent modify their past system of total administrative cataclysms, but their very existence in the only competing form of free government should prepare us for and make us patient with the mild transitions of parliamentary government. these arguments will, i think, seem conclusive to almost every one; but, at this moment, many people will meet them thus: they will say, "you prove what we do not deny, that this system of periodical change is a necessary ingredient in parliamentary government, but you have not proved what we do deny, that this change is a good thing. parliamentary government may have that effect, among others, for anything we care: we maintain merely that it is a defect." in answer, i think it may be shown not, indeed, that this precise change is necessary to a permanently perfect administration, but that some analogous change, some change of the same species, is so. at this moment, in england, there is a sort of leaning towards bureaucracy--at least, among writers and talkers. there is a seizure of partiality to it. the english people do not easily change their rooted notions, but they have many unrooted notions. any great european event is sure for a moment to excite a sort of twinge of conversion to something or other. just now, the triumph of the prussians--the bureaucratic people, as is believed, par excellence--has excited a kind of admiration for bureaucracy, which a few years since we should have thought impossible. i do not presume to criticise the prussian bureaucracy of my own knowledge; it certainly is not a pleasant institution for foreigners to come across, though agreeableness to travellers is but of very second-rate importance. but it is quite certain that the prussian bureaucracy, though we, for a moment, half admire it at a distance, does not permanently please the most intelligent and liberal prussians at home. what are two among the principal aims of the fortschritt partei--the party of progress--as mr. grant duff, the most accurate and philosophical of our describers, delineates them? first, "a liberal system, conscientiously carried out in all the details of the administration, with a view to avoiding the scandals now of frequent occurrence, when an obstinate or bigoted official sets at defiance the liberal initiations of the government, trusting to backstairs influence". second, "an easy method of bringing to justice guilty officials, who are at present, as in france, in all conflicts with simple citizens, like men armed cap-a-pie fighting with defenceless". a system against which the most intelligent native liberals bring even with colour of reason such grave objections, is a dangerous model for foreign imitation. the defects of bureaucracy are, indeed, well known. it is a form of government which has been tried often enough in the world, and it is easy to show what, human nature being what it in the long run is, the defects of a bureaucracy must in the long run be. it is an inevitable defect, that bureaucrats will care more for routine than for results; or, as burke put it, "that they will think the substance of business not to be much more important than the forms of it". their whole education and all the habit of their lives make them do so. they are brought young into the particular part of the public service to which they are attached; they are occupied for years in learning its forms--afterwards, for years too, in applying these forms to trifling matters. they are, to use the phrase of an old writer, "but the tailors of business; they cut the clothes, but they do not find the body". men so trained must come to think the routine of business not a means, but an end--to imagine the elaborate machinery of which they form a part, and from which they derive their dignity, to be a grand and achieved result, not a working and changeable instrument. but in a miscellaneous world, there is now one evil and now another. the very means which best helped you yesterday, may very likely be those which most impede you to-morrow--you may want to do a different thing to-morrow, and all your accumulation of means for yesterday's work is but an obstacle to the new work. the prussian military system is the theme of popular wonder now, yet it sixty years pointed the moral against form. we have all heard the saying that "frederic the great lost the battle of jena". it was the system which he had established--a good system for his wants and his times--which, blindly adhered to, and continued into a different age, put to strive with new competitors, brought his country to ruin. the "dead and formal" prussian system was then contrasted with the "living" french system--the sudden outcome of the new explosive democracy. the system which now exists is the product of the reaction; and the history of its predecessor is a warning what its future history may be too. it is not more celebrated for its day than frederic's for his, and principle teaches that a bureaucracy, elated by sudden success, and marvelling at its own merit, is the most unimproving and shallow of governments. not only does a bureaucracy thus tend to under-government, in point of quality; it tends to over-government, in point of quantity. the trained official hates the rude, untrained public. he thinks that they are stupid, ignorant, reckless--that they cannot tell their own interest--that they should have the leave of the office before they do anything. protection is the natural inborn creed of every official body; free trade is an extrinsic idea alien to its notions, and hardly to be assimilated with life; and it is easy to see how an accomplished critic, used to a free and active life, could thus describe the official. "every imaginable and real social interest," says mr. laing, "religion, education, law, police, every branch of public or private business, personal liberty to move from place to place, even from parish to parish within the same jurisdiction; liberty to engage in any branch of trade or industry, on a small or large scale, all the objects, in short, in which body, mind, and capital can be employed in civilised society, were gradually laid hold of for the employment and support of functionaries, were centralised in bureaux, were superintended, licensed, inspected, reported upon, and interfered with by a host of officials scattered over the land, and maintained at the public expense, yet with no conceivable utility in their duties. they are not, however, gentlemen at large, enjoying salary without service. they are under a semi-military discipline. in bavaria, for instance, the superior civil functionary can place his inferior functionary under house-arrest, for neglect of duty, or other offence against civil functionary discipline. in wurtemberg, the functionary cannot marry without leave from his superior. voltaire says, somewhere, that, 'the art of government is to make two-thirds of a nation pay all it possibly can pay for the benefit of the other third'. this is realised in germany by the functionary system. the functionaries are not there for the benefit of the people, but the people for the benefit of the functionaries. all this machinery of functionarism, with its numerous ranks and gradations in every district, filled with a staff of clerks and expectants in every department looking for employment, appointments, or promotions, was intended to be a new support of the throne in the new social state of the continent; a third class, in connection with the people by their various official duties of interference in all public or private affairs, yet attached by their interests to the kingly power. the beamptenstand, or functionary class, was to be the equivalent to the class of nobility, gentry, capitalists, and men of larger landed property than the peasant-proprietors, and was to make up in numbers for the want of individual weight and influence. in france, at the expulsion of louis philippe, the civil functionaries were stated to amount to , individuals. this civil army was more than double of the military. in germany, this class is necessarily more numerous in proportion to the population, the landwehr system imposing many more restrictions than the conscription on the free action of the people, and requiring more officials to manage it, and the semi-feudal jurisdictions and forms of law requiring much more writing and intricate forms of procedure before the courts than the code napoleon." a bureaucracy is sure to think that its duty is to augment official power, official business, or official members, rather than to leave free the energies of mankind; it overdoes the quantity of government, as well as impairs its quality. the truth is, that a skilled bureaucracy--a bureaucracy trained from early life to its special avocation--is, though it boasts of an appearance of science, quite inconsistent with the true principles of the art of business. that art has not yet been condensed into precepts, but a great many experiments have been made, and a vast floating vapour of knowledge floats through society. one of the most sure principles is, that success depends on a due mixture of special and non-special minds--of minds which attend to the means, and of minds which attend to the end. the success of the great joint-stock banks of london--the most remarkable achievement of recent business--has been an example of the use of this mixture. these banks are managed by a board of persons mostly not trained to the business, supplemented by, and annexed to, a body of specially trained officers, who have been bred to banking all their lives. these mixed banks have quite beaten the old banks, composed exclusively of pure bankers; it is found that the board of directors has greater and more flexible knowledge--more insight into the wants of a commercial community--knows when to lend and when not to lend, better than the old bankers, who had never looked at life, except out of the bank windows. just so the most successful railways in europe have been conducted--not by engineers or traffic managers--but by capitalists; by men of a certain business culture, if of no other. these capitalists buy and use the services of skilled managers, as the unlearned attorney buys and uses the services of the skilled barrister, and manage far better than any of the different sorts of special men under them. they combine these different specialities--make it clear where the realm of one ends and that of the other begins, and add to it a wide knowledge of large affairs, which no special man can have, and which is only gained by diversified action. but this utility of leading minds used to generalise, and acting upon various materials, is entirely dependent upon their position. they must not be at the bottom--they must not even be half way up--they must be at the top. a merchant's clerk would be a child at a bank counter; but the merchant himself could, very likely, give good, clear, and useful advice in a bank court. the merchant's clerk would be equally at sea in a railway office, but the merchant himself could give good advice, very likely, at a board of directors. the summits (if i may so say) of the various kinds of business are, like the tops of mountains, much more alike than the parts below--the bare principles are much the same; it is only the rich variegated details of the lower strata that so contrast with one another. but it needs travelling to know that the summits are the same. those who live on one mountain believe that their mountain is wholly unlike all others. the application of this principle to parliamentary government is very plain; it shows at once that the intrusion from without upon an office of an exterior head of the office, is not an evil, but that, on the contrary, it is essential to the perfection of that office. if it is left to itself, the office will become technical, self-absorbed, self-multiplying. it will be likely to overlook the end in the means; it will fail from narrowness of mind; it will be eager in seeming to do; it will be idle in real doing. an extrinsic chief is the fit corrector of such errors. he can say to the permanent chief, skilled in the forms and pompous with the memories of his office, "will you, sir, explain to me how this regulation conduces to the end in view? according to the natural view of things, the applicant should state the whole of his wishes to one clerk on one paper; you make him say it to five clerks on five papers." or, again, "does it not appear to you, sir, that the reason of this formality is extinct? when we were building wood ships, it was quite right to have such precautions against fire; but now that we are building iron ships," etc., etc. if a junior clerk asked these questions, he would be "pooh-poohed!" it is only the head of an office that can get them answered. it is he, and he only, that brings the rubbish of office to the burning-glass of sense. the immense importance of such a fresh mind is greatest in a country where business changes most. a dead, inactive, agricultural country may be governed by an unalterable bureau for years and years, and no harm come of it. if a wise man arranged the bureau rightly in the beginning, it may run rightly a long time. but if the country be a progressive, eager, changing one, soon the bureau will either cramp improvement, or be destroyed itself. this conception of the use of a parliamentary head shows how wrong is the obvious notion which regards him as the principal administrator of his office. the late sir george lewis used to be fond of explaining this subject. he had every means of knowing. he was bred in the permanent civil service. he was a very successful chancellor of the exchequer, a very successful home secretary, and he died minister for war. he used to say, "it is not the business of a cabinet minister to work his department. his business is to see that it is properly worked. if he does much, he is probably doing harm. the permanent staff of the office can do what he chooses to do much better, or if they cannot, they ought to be removed. he is only a bird of passage, and cannot compete with those who are in the office all their lives round." sir george lewis was a perfect parliamentary head of an office, so far as that head is to be a keen critic and rational corrector of it. but sir george lewis was not perfect; he was not even an average good head in another respect. the use of a fresh mind applied to the official mind is not only a corrective use, it is also an animating use. a public department is very apt to be dead to what is wanting for a great occasion till the occasion is past. the vague public mind will appreciate some signal duty before the precise, occupied administration perceives it. the duke of newcastle was of this use at least in the crimean war. he roused up his department, though when roused it could not act. a perfect parliamentary minister would be one who should add the animating capacity of the duke of newcastle to the accumulated sense, the detective instinct, and the laissez faire habit of sir george lewis. as soon as we take the true view of parliamentary office we shall perceive that, fairly, frequent change in the official is an advantage, not a mistake. if his function is to bring a representative of outside sense and outside animation in contact with the inside world, he ought often to be changed. no man is a perfect representative of outside sense. "there is some one," says the true french saying, "who is more able than talleyrand, more able than napoleon. cest tout le monde." that many-sided sense finds no microcosm in any single individual. still less are the critical function and the animating function of a parliamentary minister likely to be perfectly exercised by one and the same man. impelling power and restraining wisdom are as opposite as any two things, and are rarely found together. and even if the natural mind of the parliamentary minister was perfect, long contact with the office would destroy his use. inevitably he would accept the ways of office, think its thoughts, live its life. the "dyer's hand would be subdued to what it works in". if the function of a parliamentary minister is to be an outsider to his office, we must not choose one who, by habit, thought, and life, is acclimatised to its ways. there is every reason to expect that a parliamentary statesman will be a man of quite sufficient intelligence, quite enough various knowledge, quite enough miscellaneous experience, to represent effectually general sense in opposition to bureaucratic sense. most cabinet ministers in charge of considerable departments are men of superior ability; i have heard an eminent living statesman of long experience say that in his time he only knew one instance to the contrary. and there is the best protection that it shall be so. a considerable cabinet minister has to defend his department in the face of mankind; and though distant observers and sharp writers may depreciate it, this is a very difficult thing. a fool, who has publicly to explain great affairs, who has publicly to answer detective questions, who has publicly to argue against able and quick opponents, must soon be shown to be a fool. the very nature of parliamentary government answers for the discovery of substantial incompetence. at any rate, none of the competing forms of government have nearly so effectual a procedure for putting a good untechnical minister to correct and impel the routine ones. there are but four important forms of government in the present state of the world--the parliamentary, the presidential, the hereditary, and the dictatorial, or revolutionary. of these i have shown that, as now worked in america, the presidential form of government is incompatible with a skilled bureaucracy. if the whole official class change when a new party goes out or comes in, a good official system is impossible. even if more officials should be permanent in america than now, still, vast numbers will always be changed. the whole issue is based on a single election--on the choice of president; by that internecine conflict all else is won or lost. the managers of the contest have that greatest possible facility in using what i may call patronage--bribery. everybody knows that, as a fact, the president can give what places he likes to what persons, and when his friends tell a. b., "if we win, c. d. shall be turned out of utica post-office, and you, a. b., shall have it," a. b. believes it, and is justified in doing so. but no individual member of parliament can promise place effectually. he may not be able to give the places. his party may come in, but he will be powerless. in the united states party intensity is aggravated by concentrating an overwhelming importance on a single contest, and the efficiency of promised offices as a means of corruption is augmented, because the victor can give what he likes to whom he likes. nor is this the only defect of a presidential government in reference to the choice of officers. the president has the principal anomaly of a parliamentary government without having its corrective. at each change of party the president distributes (as here) the principal offices to his principal supporters. but he has an opportunity for singular favouritism; the minister lurks in the office; he need do nothing in public; he need not show for years whether he is a fool or wise. the nation can tell what a parliamentary member is by the open test of parliament; but no one, save from actual contact, or by rare position, can tell anything certain of a presidential minister. the case of a minister under an hereditary form of government is yet worse. the hereditary king may be weak; may be under the government of women; may appoint a minister from childish motives; may remove one from absurd whims. there is no security that an hereditary king will be competent to choose a good chief minister, and thousands of such kings have chosen millions of bad ministers. by the dictatorial, or revolutionary, sort of government, i mean that very important sort in which the sovereign--the absolute sovereign--is selected by insurrection. in theory, one would certainly have hoped that by this time such a crude elective machinery would have been reduced to a secondary part. but, in fact, the greatest nation (or, perhaps, after the exploits of bismarck, i should say one of the two greatest nations of the continent) vacillates between the revolutionary and the parliamentary, and now is governed under the revolutionary form. france elects its ruler in the streets of paris. flatterers may suggest that the democratic empire will become hereditary, but close observers know that it cannot. the idea of the government is that the emperor represents the people in capacity, in judgment, in instinct. but no family through generations can have sufficient, or half sufficient, mind to do so. the representative despot must be chosen by fighting, as napoleon i. and napoleon iii. were chosen. and such a government is likely, whatever be its other defects, to have a far better and abler administration than any other government. the head of the government must be a man of the most consummate ability. he cannot keep his place, he can hardly keep his life, unless he is. he is sure to be active, because he knows that his power, and perhaps his head, may be lost if he be negligent. the whole frame of his state is strained to keep down revolution. the most difficult of all political problems is to be solved--the people are to be at once thoroughly restrained and thoroughly pleased. the executive must be like a steel shirt of the middle ages--extremely hard and extremely flexible. it must give way to attractive novelties which do not hurt; it must resist such as are dangerous; it must maintain old things which are good and fitting; it must alter such as cramp and give pain. the dictator dare not appoint a bad minister if he would. i admit that such a despot is a better selector of administrators than a parliament; that he will know how to mix fresh minds and used minds better; that he is under a stronger motive to combine them well; that here is to be seen the best of all choosers with the keenest motives to choose. but i need not prove in england that the revolutionary selection of rulers obtains administrative efficiency at a price altogether transcending its value; that it shocks credit by its catastrophes; that for intervals it does not protect property or life; that it maintains an undergrowth of fear through all prosperity; that it may take years to find the true capable despot; that the interregna of the incapable are full of all evil; that the fit despot may die as soon as found; that the good administration and all else hang by the thread of his life. but if, with the exception of this terrible revolutionary government, a parliamentary government upon principle surpasses all its competitors in administrative efficiency, why is it that our english government, which is beyond comparison the best of parliamentary governments, is not celebrated through the world for administrative efficiency? it is noted for many things, why is it not noted for that? why, according to popular belief is it rather characterised by the very contrary? one great reason of the diffused impression is, that the english government attempts so much. our military system is that which is most attacked. objectors say we spend much more on our army than the great military monarchies, and yet with an inferior result. but, then, what we attempt is incalculably more difficult. the continental monarchies have only to defend compact european territories by the many soldiers whom they force to fight; the english try to defend without any compulsion--only by such soldiers as they persuade to serve--territories far surpassing all europe in magnitude, and situated all over the habitable globe. our horse guards and war office may not be at all perfect--i believe they are not: but if they had sufficient recruits selected by force of law--if they had, as in prussia, the absolute command of each man's time for a few years, and the right to call him out afterwards when they liked, we should be much surprised at the sudden ease and quickness with which they did things. i have no doubt too that any accomplished soldier of the continent would reject as impossible what we after a fashion effect. he would not attempt to defend a vast scattered empire, with many islands, a long frontier line in every continent, and a very tempting bit of plunder at the centre, by mere volunteer recruits, who mostly come from the worst class of the people--whom the great duke called the "scum of the earth"--who come in uncertain numbers year by year--who by some political accident may not come in adequate numbers, or at all, in the year we need them most. our war office attempts what foreign war offices (perhaps rightly) would not try at; their officers have means of incalculable force denied to ours, though ours is set to harder tasks. again, the english navy undertakes to defend a line of coast and a set of dependencies far surpassing those of any continental power. and the extent of our operations is a singular difficulty just now. it requires us to keep a large stock of ships and arms. but on the other hand, there are most important reasons why we should not keep much. the naval art and the military art are both in a state of transition; the last discovery of to-day is out of date, and superseded by an antagonistic discovery to-morrow. any large accumulation of vessels or guns is sure to contain much that will be useless, unfitting, antediluvian, when it comes to be tried. there are two cries against the admiralty which go on side by side: one says, "we have not ships enough, no 'relief' ships, no navy, to tell the truth"; the other cry says, "we have all the wrong ships, all the wrong guns, and nothing but the wrong; in their foolish constructive mania the admiralty have been building when they ought to have been waiting; they have heaped a curious museum of exploded inventions, but they have given us nothing serviceable". the two cries for opposite policies go on together, and blacken our executive together, though each is a defence of the executive against the other. again, the home department in england struggles with difficulties of which abroad they have long got rid. we love independent "local authorities," little centres of outlying authority. when the metropolitan executive most wishes to act, it cannot act effectually because these lesser bodies hesitate, deliberate, or even disobey. but local independence has no necessary connection with parliamentary government. the degree of local freedom desirable in a country varies according to many circumstances, and a parliamentary government may consist with any degree of it. we certainly ought not to debit parliamentary government as a general and applicable polity with the particular vices of the guardians of the poor in england, though it is so debited every day. again, as our administration has in england this peculiar difficulty, so on the other hand foreign competing administrations have a peculiar advantage. abroad a man under government is a superior being: he is higher than the rest of the world; he is envied by almost all of it. this gives the government the easy pick of the elite of the nation. all clever people are eager to be under government, and are hardly to be satisfied elsewhere. but in england there is no such superiority, and the english have no such feeling. we do not respect a stamp-office clerk, or an exciseman's assistant. a pursy grocer considers he is much above either. our government cannot buy for minor clerks the best ability of the nation in the cheap currency of pure honour, and no government is rich enough to buy very much of it in money. our mercantile opportunities allure away the most ambitious minds. the foreign bureaux are filled with a selection from the ablest men of the nation, but only a very few of the best men approach the english offices. but these are neither the only nor even the principal reasons why our public administration is not so good as, according to principle and to the unimpeded effects of parliamentary government, it should be. there are two great causes at work, which in their consequences run out into many details, but which in their fundamental nature may be briefly described. the first of these causes is our ignorance. no polity can get out of a nation more than there is in the nation. a free government is essentially a government by persuasion; and as are the people to be persuaded, and as are the persuaders, so will that government be. on many parts of our administration the effect of our extreme ignorance is at once plain. the foreign policy of england has for many years been, according to the judgment now in vogue, inconsequent, fruitless, casual; aiming at no distinct pre-imagined end, based on no steadily pre-conceived principle. i have not room to discuss with how much or how little abatement this decisive censure should be accepted. however, i entirely concede that our recent foreign policy has been open to very grave and serious blame. but would it not have been a miracle if the english people, directing their own policy, and being what they are, had directed a good policy? are they not above all nations divided from the rest of the world, insular both in situation and in mind, both for good and for evil? are they not out of the current of common european causes and affairs? are they not a race contemptuous of others? are they not a race with no special education or culture as to the modern world, and too often despising such culture? who could expect such a people to comprehend the new and strange events of foreign places? so far from wondering that the english parliament has been inefficient in foreign policy, i think it is wonderful, and another sign of the rude, vague imagination that is at the bottom of our people, that we have done so well as we have. again, the very conception of the english constitution, as distinguished from a purely parliamentary constitution is, that it contains "dignified" parts--parts, that is, retained, not for intrinsic use, but from their imaginative attraction upon an uncultured and rude population. all such elements tend to diminish simple efficiency. they are like the additional and solely-ornamental wheels introduced into the clocks of the middle ages, which tell the then age of the moon or the supreme constellation; which make little men or birds come out and in theatrically. all such ornamental work is a source of friction and error; it prevents the time being marked accurately; each new wheel is a new source of imperfection. so if authority is given to a person, not on account of his working fitness, but on account of his imaginative efficiency, he will commonly impair good administration. he may do something better than good work of detail, but will spoil good work of detail. the english aristocracy is often of this sort. it has an influence over the people of vast value still, and of infinite value formerly. but no man would select the cadets of an aristocratic house as desirable administrators. they have peculiar disadvantages in the acquisition of business knowledge, business training, and business habits, and they have no peculiar advantages. our middle class, too, is very unfit to give us the administrators we ought to have. i cannot now discuss whether all that is said against our education is well grounded; it is called by an excellent judge "pretentious, insufficient, and unsound". but i will say that it does not fit men to be men of business as it ought to fit them. till lately the very simple attainments and habits necessary for a banker's clerk had a scarcity-value. the sort of education which fits a man for the higher posts of practical life is still very rare; there is not even a good agreement as to what it is. our public officers cannot be as good as the corresponding officers of some foreign nations till our business education is as good as theirs.[ ] [ ] i am happy to state that this evil is much diminishing. the improvement of school education of the middle class in the last twenty-five years is marvellous. but strong as is our ignorance in deteriorating our administration, another cause is stronger still. there are but two foreign administrations probably better than ours, and both these have had something which we have not had. theirs in both cases were arranged by a man of genius, after careful forethought, and upon a special design. napoleon built upon a clear stage which the french revolution bequeathed him. the originality once ascribed to his edifice was indeed untrue; tocqueville and lavergne have shown that he did but run up a conspicuous structure in imitation of a latent one before concealed by the mediaeval complexities of the old regime. but what we are concerned with now is, not napoleon's originality, but his work. he undoubtedly settled the administration of france upon an effective, consistent, and enduring system; the succeeding governments have but worked the mechanism they inherited from him. frederick the great did the same in the new monarchy of prussia. both the french system and the prussian are new machines, made in civilised times to do their appropriate work. the english offices have never, since they were made, been arranged with any reference to one another; or rather they were never made, but grew as each could. the sort of free trade which prevailed in public institutions in the english middle ages is very curious. our three courts of law--the queen's bench, the common pleas, and the exchequer--for the sake of the fees extended an originally contracted sphere into the entire sphere of litigation. boni judicis est ampliare jursdictionem, went the old saying; or, in english, "it is the mark of a good judge to augment the fees of his court," his own income, and the income of his subordinates. the central administration, the treasury, never asked any account of the moneys the courts thus received; so long as it was not asked to pay anything, it was satisfied. only last year one of the many remnants of this system cropped up, to the wonder of the public. a clerk in the patent office stole some fees, and naturally the men of the nineteenth century thought our principal finance minister, the chancellor of the exchequer, would be, as in france, responsible for it. but the english law was different somehow. the patent office was under the lord chancellor, and the court of chancery is one of the multitude of our institutions which owe their existence to free competition, and so it was the lord chancellor's business to look after the fees, which of course, as an occupied judge, he could not. a certain act of parliament did indeed require that the fees of the patent office should be paid into the "exchequer"; and, again, the "chancellor of the exchequer" was thought to be responsible in the matter, but only by those who did not know. according to our system the chancellor of the exchequer is the enemy of the exchequer; a whole series of enactments try to protect it from him. until a few months ago there was a very lucrative sinecure called the "comptrollership of the exchequer," designed to guard the exchequer against its chancellor; and the last holder, lord monteagle, used to say he was the pivot of the english constitution. i have not room to explain what he meant, and it is not needful; what is to the purpose is that, by an inherited series of historical complexities, a defaulting clerk in an office of no litigation was not under natural authority, the finance minister, but under a far-away judge who had never heard of him. the whole office of the lord chancellor is a heap of anomalies. he is a judge, and it is contrary to obvious principle that any part of administration should be entrusted to a judge; it is of very grave moment that the administration of justice should be kept clear of any sinister temptations. yet the lord chancellor, our chief judge, sits in the cabinet, and makes party speeches in the lords. lord lyndhurst was a principal tory politician, and yet he presided in the o'connell case. lord westbury was in chronic wrangle with the bishops, but he gave judgment upon "essays and reviews". in truth, the lord chancellor became a cabinet minister, because, being near the person of the sovereign, he was high in court precedence, and not upon a political theory wrong or right. a friend once told me that an intelligent italian asked him about the principal english officers, and that he was very puzzled to explain their duties, and especially to explain the relation of their duties to their titles. i do not remember all the cases, but i can recollect that the italian could not comprehend why the first "lord of the treasury" had as a rule nothing to do with the treasury, or why the "woods and forests" looked after the sewerage of towns. this conversation was years before the cattle plague, but i should like to have heard the reasons why the privy council office had charge of that malady. of course one could give an historical reason, but i mean an administrative reason a reason which would show, not how it came to have the duty, but why in future it should keep it. but the unsystematic and casual arrangement of our public offices is not more striking than their difference of arrangement for the one purpose they have in common. they all, being under the ultimate direction of a parliamentary official, ought to have the best means of bringing the whole of the higher concerns of the office before that official. when the fresh mind rules, the fresh mind requires to be informed. and most business being rather alike, the machinery for bringing it before the extrinsic chief ought, for the most part, to be similar: at any rate, where it is different, it ought to be different upon reason; and where it is similar, similar upon reason. yet there are almost no two offices which are exactly alike in the defined relations of the permanent official to the parliamentary chief. let us see. the army and navy are the most similar in nature, yet there is in the army a permanent outside office, called the horse guards, to which there is nothing else like. in the navy, there is a curious anomaly--a board of admiralty, also changing with every government, which is to instruct the first lord in what he does not know. the relations between the first lord and the board have not always been easily intelligible, and those between the war office and the horse guards are in extreme confusion. even now a parliamentary paper relating to them has just been presented to the house of commons, which says the fundamental and ruling document cannot be traced beyond the possession of sir george lewis, who was secretary for war three years since; and the confused details are endless, as they must be in a chronic contention of offices. at the board of trade there is only the hypothesis of a board; it has long ceased to exist. even the president and vice-president do not regularly meet for the transaction of affairs. the patent of the latter is only to transact business in the absence of the president, and if the two are not intimate, and the president chooses to act himself, the vice-president sees no papers, and does nothing. at the treasury the shadow of a board exists, but its members have no power, and are the very officials whom canning said existed to make a house, to keep a house, and to cheer the ministers. the india office has a fixed "council"; but the colonial office which rules over our other dependencies and colonies, has not, and never had, the vestige of a council. any of these varied constitutions may be right, but all of them can scarcely be right. in truth the real constitution of a permanent office to be ruled by a permanent chief has been discussed only once in england: that case was a peculiar and anomalous one, and the decision then taken was dubious. a new india office, when the east india company was abolished, had to be made. the late mr. james wilson, a consummate judge of administrative affairs, then maintained that no council ought to be appointed eo nomine, but that the true council of a cabinet minister was a certain number of highly paid, much occupied, responsible secretaries, whom the minister could consult either separately or together, as, and when, he chose. such secretaries, mr. wilson maintained, must be able, for no minister will sacrifice his own convenience, and endanger his own reputation by appointing a fool to a post so near himself, and where he can do much harm. a member of a board may easily be incompetent; if some other members and the chairmen are able, the addition of one or two stupid men will not be felt; they will receive their salaries and do nothing. but a permanent under-secretary, charged with a real control over much important business, must be able, or his superior will be blamed, and there will be "a scrape in parliament". i cannot here discuss, nor am i competent to discuss, the best mode of composing public offices, and of adjusting them to a parliamentary head. there ought to be on record skilled evidence on the subject before a person without any specific experience can to any purpose think about it. but i may observe that the plan which mr. wilson suggested is that followed in the most successful part of our administration, the "ways and means" part. when the chancellor of the exchequer prepares a budget, he requires from the responsible heads of the revenue department their estimates of the public revenue upon the preliminary hypothesis that no change is made, but that last year's taxes will continue; if, afterwards, he thinks of making an alteration, he requires a report on that too. if he has to renew exchequer bills, or operate anyhow in the city, he takes the opinion, oral or written, of the ablest and most responsible person at the national debt office, and the ablest and most responsible at the treasury. mr. gladstone, by far the greatest chancellor of the exchequer of this generation, one of the very greatest of any generation, has often gone out of his way to express his obligation to these responsible skilled advisers. the more a man knows himself, the more habituated he is to action in general, the more sure he is to take and to value responsible counsel emanating from ability and suggested by experience. that this principle brings good fruit is certain. we have, by unequivocal admission, the best budget in the world. why should not the rest of our administration be as good if we did but apply the same method to it? i leave this to stand as it was originally written since it does not profess to rest on my own knowledge, and only offers a suggestion on good authority. recent experience seems, however, to show that in all great administrative departments there ought to be some one permanent responsible head through whom the changing parliamentary chief always acts, from whom he learns everything, and to whom he communicates everything. the daily work of the exchequer is a trifle compared with that of the admiralty or the home office, and therefore a single principal head is not there so necessary. but the preponderance of evidence at present is that in all offices of very great work some one such head is essential. no. vii. its supposed checks and balances. in a former essay i devoted an elaborate discussion to the comparison of the royal and unroyal form of parliamentary government. i showed that at the formation of a ministry, and during the continuance of a ministry, a really sagacious monarch might be of rare use. i ascertained that it was a mistake to fancy that at such times a constitutional monarch had no rule and no duties. but i proved likewise that the temper, the disposition, and the faculties then needful to fit a constitutional monarch for usefulness were very rare, at least as rare as the faculties of a great absolute monarch, and that a common man in that place is apt to do at least as much harm as good--perhaps more harm. but in that essay i could not discuss fully the functions of a king at the conclusion of an administration, for then the most peculiar parts of the english government--the power to dissolve the house of commons, and the power to create new peers--come into play, and until the nature of the house of lords and the nature of the house of commons had been explained, i had no premises for an argument as to the characteristic action of the king upon them. we have since considered the functions of the two houses, and also the effects of changes of ministry on our administrative system; we are now, therefore, in a position to discuss the functions of a king at the end of an administration. i may seem over formal in this matter, but i am very formal on purpose. it appears to me that the functions of our executive in dissolving the commons and augmenting the peers are among the most important, and the least appreciated, parts of our whole government, and that hundreds of errors have been made in copying the english constitution from not comprehending them. hobbes told us long ago, and everybody now understands, that there must be a supreme authority, a conclusive power, in every state on every point somewhere. the idea of government involves it--when that idea is properly understood. but there are two classes of governments. in one the supreme determining power is upon all points the same: in the other, that ultimate power is different upon different points--now resides in one part of the constitution and now in another. the americans thought that they were imitating the english in making their constitution upon the last principle--in having one ultimate authority for one sort of matter, and another for another sort. but in truth the english constitution is the type of the opposite species; it has only one authority for all sorts of matters. to gain a living conception of the difference let us see what the americans did. first, they altogether retained what, in part, they could not help, the sovereignty of the separate states. a fundamental article of the federal constitution says that the powers not "delegated" to the central government are "reserved to the states respectively". and the whole recent history of the union--perhaps all its history--has been more determined by that enactment than by any other single cause. the sovereignty of the principal matters of state has rested not with the highest government, but with the subordinate government. the federal government could not touch slavery--the "domestic institution" which divided the union into two halves, unlike one another in morals, politics, and social condition, and at last set them to fight. this determining political fact was not in the jurisdiction of the highest government in the country, where you might expect its highest wisdom, nor in the central government, where you might look for impartiality, but in local governments, where petty interests were sure to be considered, and where only inferior abilities were likely to be employed. the capital fact was reserved for the minor jurisdictions. again, there has been only one matter comparable to slavery in the united states, and that has been vitally affected by the state governments also. their ultra-democracy is not a result of federal legislation, but of state legislation. the federal constitution deputed one of the main items of its structure to the subordinate governments. one of its clauses provides that the suffrages for the federal house of representatives shall be, in each state, the same as for the most numerous branch of the legislature of that state; and as each state fixes the suffrage for its own legislatures, the states altogether fix the suffrage for the federal lower chamber. by another clause of the federal constitution the states fix the electoral qualification for voting at a presidential election. the primary element in a free government--the determination how many people shall have a share in it--in america depends not on the government but on certain subordinate local, and sometimes, as in the south now, hostile bodies. doubtless the framers of the constitution had not much choice in the matter. the wisest of them were anxious to get as much power for the central government, and to leave as little to the local governments as they could. but a cry was got up that this wisdom would create a tyranny and impair freedom, and with that help, local jealousy triumphed easily. all federal government is, in truth, a case in which what i have called the dignified elements of government do not coincide with the serviceable elements. at the beginning of every league the separate states are the old governments which attract and keep the love and loyalty of the people; the federal government is a useful thing, but new and unattractive. it must concede much to the state governments, for it is indebted to them for motive power: they are the governments which the people voluntarily obey. when the state governments are not thus loved, they vanish as the little italian and the little german potentates vanished; no federation is needed; a single central government rules all. but the division of the sovereign authority in the american constitution is far more complex than this. the part of that authority left to the federal government is itself divided and subdivided. the greatest instance is the most obvious. the congress rules the law, but the president rules the administration. one means of unity the constitution does give: the president can veto laws he does not like. but when two-thirds of both houses are unanimous (as has lately happened), they can overrule the president and make the laws without him; so here there are three separate repositories of the legislative power in different cases: first, congress and the president when they agree; next, the president when he effectually exerts his power; then the requisite two-thirds of congress when they overrule the president. and the president need not be over-active in carrying out a law he does not approve of. he may indeed be impeached for gross neglect; but between criminal non-feasance and zealous activity there are infinite degrees. mr. johnson does not carry out the freedman's bureau bill as mr. lincoln, who approved of it, would have carried it out. the american constitution has a special contrivance for varying the supreme legislative authority in different cases, and dividing the administrative authority from it in all cases. but the administrative power itself is not left thus simple and undivided. one most important part of administration is international policy, and the supreme authority here is not in the president, still less in the house of representatives, but in the senate. the president can only make treaties, "provided two-thirds of senators present" concur. the sovereignty therefore for the greatest international questions is in a different part of the state altogether from any common administrative or legislative question. it is put in a place by itself. again, the congress declares war, but they would find it very difficult, according to the recent construction of their laws, to compel the president to make a peace. the authors of the constitution doubtless intended that congress should be able to control the american executive as our parliament controls ours. they placed the granting of supplies in the house of representatives exclusively. but they forgot to look after "paper money"; and now it has been held that the president has power to emit such money without consulting congress at all. the first part of the late war was so carried on by mr. lincoln; he relied not on the grants of congress, but on the prerogative of emission. it sounds a joke, but it is true nevertheless, that this power to issue greenbacks is decided to belong to the president as commander-in-chief of the army; it is part of what was called the "war power". in truth money was wanted in the late war, and the administration got it in the readiest way; and the nation, glad not to be more taxed, wholly approved of it. but the fact remains that the president has now, by precedent and decision, a mighty power to continue a war without the consent of congress, and perhaps against its wish. against the united will of the american people a president would of course be impotent; such is the genius of the place and nation that he would never think of it. but when the nation was (as of late) divided into two parties, one cleaving to the president, the other to the congress, the now unquestionable power of the president to issue paper-money may give him the power to continue the war though parliament (as we should speak) may enjoin the war to cease. and lastly, the whole region of the very highest questions is withdrawn from the ordinary authorities of the state, and reserved for special authorities. the "constitution" cannot be altered by any authorities within the constitution, but only by authorities without it. every alteration of it, however urgent or however trifling, must be sanctioned by a complicated proportion of states or legislatures. the consequence is that the most obvious evils cannot be quickly remedied; that the most absurd fictions must be framed to evade the plain sense of mischievous clauses; that a clumsy working and curious technicality mark the politics of a rough-and-ready people. the practical arguments and the legal disquisitions in america are often like those of trustees carrying out a misdrawn will--the sense of what they mean is good, but it can never be worked out fully or defended simply, so hampered is it by the old words of an old testament. these instances (and others might be added) prove, as history proves too, what was the principal thought of the american constitution-makers. they shrank from placing sovereign power anywhere. they feared that it would generate tyranny; george iii. had been a tyrant to them, and come what might, they would not make a george iii. accredited theories said that the english constitution divided the sovereign authority, and in imitation the americans split up theirs. the result is seen now. at the critical moment of their history there is no ready, deciding power. the south, after a great rebellion, lies at the feet of its conquerors: its conquerors have to settle what to do with it.[ ] they must decide the conditions upon which the secessionists shall again become fellow citizens, shall again vote, again be represented, again perhaps govern. the most difficult of problems is how to change late foes into free friends. the safety of their great public debt, and with that debt their future credit and their whole power in future wars, may depend on their not giving too much power to those who must see in the debt the cost of their own subjugation, and who must have an inclination towards the repudiation of it, now that their own debt--the cost of their defence--has been repudiated. a race, too, formerly enslaved, is now at the mercy of men who hate and despise it, and those who set it free are bound to give it a fair chance for new life. the slave was formerly protected by his chains; he was an article of value; but now he belongs to himself, no one but himself has an interest in his life; and he is at the mercy of the "mean whites," whose labour he depreciates, and who regard him with a loathing hatred. the greatest moral duty ever set before a government, and the most fearful political problem ever set before a government, are now set before the american. but there is no decision, and no possibility of a decision. the president wants one course, and has power to prevent any other; the congress wants another course, and has power to prevent any other. the splitting of sovereignty into many parts amounts to there being no sovereign. [ ] this was written just after the close of the civil war, but i do not know that the great problem stated in it has as yet been adequately solved. the americans of thought they were copying the english constitution, but they were contriving a contrast to it. just as the american is the type of composite governments, in which the supreme power is divided between many bodies and functionaries, so the english is the type of simple constitutions, in which the ultimate power upon all questions is in the hands of the same persons. the ultimate authority in the english constitution is a newly-elected house of commons. no matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential constitution or small matters of daily detail; no matter whether it be a question of making a war or continuing a war; no matter whether it be the imposing a tax or the issuing a paper currency; no matter whether it be a question relating to india, or ireland, or london--a new house of commons can despotically and finally resolve. the house of commons may, as was explained, assent in minor matters to the revision of the house of lords, and submit in matters about which it cares little to the suspensive veto of the house of lords; but when sure of the popular assent, and when freshly elected, it is absolute, it can rule as it likes and decide as it likes. and it can take the best security that it does not decide in vain. it can ensure that its decrees shall be executed, for it, and it alone, appoints the executive; it can inflict the most severe of all penalties on neglect, for it can remove the executive. it can choose, to effect its wishes, those who wish the same; and so its will is sure to be done. a stipulated majority of both houses of the american congress can overrule by stated enactment their executive; but the popular branch of our legislature can make and unmake ours. the english constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good; the american, upon the principle of having many sovereign authorities, and hoping that their multitude may atone for their inferiority. the americans now extol their institutions, and so defraud themselves of their due praise. but if they had not a genius for politics; if they had not a moderation in action singularly curious where superficial speech is so violent; if they had not a regard for law, such as no great people have yet evinced, and infinitely surpassing ours,--the multiplicity of authorities in the american constitution would long ago have brought it to a bad end. sensible shareholders, i have heard a shrewd attorney say, can work any deed of settlement; and so the men of massachusetts could, i believe, work any constitution.[ ] but political philosophy must analyse political history; it must distinguish what is due to the excellence of the people, and what to the excellence of the laws; it must carefully calculate the exact effect of each part of the constitution, though thus it may destroy many an idol of the multitude, and detect the secret of utility where but few imagined it to lie. [ ] of course i am not speaking here of the south and south-east, as they now are. how any free government is to exist in societies where so many bad elements are so much perturbed, i cannot imagine. how important singleness and unity are in political action no one, i imagine, can doubt. we may distinguish and define its parts; but policy is a unit and a whole. it acts by laws--by administrators; it requires now one, now the other; unless it can easily move both it will be impeded soon; unless it has an absolute command of both its work will be imperfect. the interlaced character of human affairs requires a single determining energy; a distinct force for each artificial compartment will make but a motley patchwork, if it live long enough to make anything. the excellence of the british constitution is that it has achieved this unity; that in it the sovereign power is single, possible, and good. the success is primarily due to the peculiar provision of the english constitution, which places the choice of the executive in the "people's house"; but it could not have been thoroughly achieved except for two parts, which i venture to call the "safety-valve" of the constitution, and the "regulator". the safety-valve is the peculiar provision of the constitution, of which i spoke at great length in my essay on the house of lords. the head of the executive can overcome the resistance of the second chamber by choosing new members of that chamber; if he do not find a majority, he can make a majority. this is a safety-valve of the truest kind. it enables the popular will--the will of which the executive is the exponent, the will of which it is the appointee--to carry out within the constitution desires and conceptions which one branch of the constitution dislikes and resists. it lets forth a dangerous accumulation of inhibited power, which might sweep this constitution before it, as like accumulations have often swept away like constitutions. the regulator, as i venture to call it, of our single sovereignty is the power of dissolving the otherwise sovereign chamber confided to the chief executive. the defects of the popular branch of a legislature as a sovereign have been expounded at length in a previous essay. briefly, they may be summed up in three accusations. first. caprice is the commonest and most formidable vice of a choosing chamber. wherever in our colonies parliamentary government is unsuccessful, or is alleged to be unsuccessful, this is the vice which first impairs it. the assembly cannot be induced to maintain any administration; it shifts its selection now from one minister to another minister, and in consequence there is no government at all. secondly. the very remedy for such caprice entails another evil. the only mode by which a cohesive majority and a lasting administration can be upheld in a parliamentary government, is party organisation; but that organisation itself tends to aggravate party violence and party animosity. it is, in substance, subjecting the whole nation to the rule of a section of the nation, selected because of its speciality. parliamentary government is, in its essence, a sectarian government, and is possible only when sects are cohesive. thirdly. a parliament, like every other sort of sovereign, has peculiar feelings, peculiar prejudices, peculiar interests; and it may pursue these in opposition to the desires, and even in opposition to the well-being of the nation. it has its selfishness as well as its caprice and its parties. the mode in which the regulating wheel of our constitution produces its effect is plain. it does not impair the authority of parliament as a species, but it impairs the power of the individual parliament. it enables a particular person outside parliament to say, "you members of parliament are not doing your duty. you are gratifying caprice at the cost of the nation. you are indulging party spirit at the cost of the nation. you are helping yourself at the cost of the nation. i will see whether the nation approves what you are doing or not; i will appeal from parliament no. to parliament no. ." by far the best way to appreciate this peculiar provision of our constitution is to trace it in action--to see, as we saw before of the other powers of english royalty, how far it is dependent on the existence of an hereditary king, and how far it can be exercised by a premier whom parliament elects. when we examine the nature of the particular person required to exercise the power, a vivid idea of that power is itself brought home to us. first. as to the caprice of parliament in the choice of a premier, who is the best person to check it? clearly the premier himself. he is the person most interested in maintaining his administration, and therefore the most likely person to use efficiently and dexterously the power by which it is to be maintained. the intervention of an extrinsic king occasions a difficulty. a capricious parliament may always hope that his caprice may coincide with theirs. in the days when george iii. assailed his governments, the premier was habitually deprived of his due authority. intrigues were encouraged because it was always dubious whether the king-hated minister would be permitted to appeal from the intriguers, and always a chance that the conspiring monarch might appoint one of the conspirators to be premier in his room. the caprice of parliament is better checked when the faculty of dissolution is entrusted to its appointee, than when it is set apart in an outlying and an alien authority. but, on the contrary, the party zeal and the self-seeking of parliament are best checked by an authority which has no connection with parliament or dependence upon it--supposing that such authority is morally and intellectually equal to the performance of the entrusted function. the prime minister obviously being the nominee of a party majority is likely to share its feeling, and is sure to be obliged to say that he shares it. the actual contact with affairs is indeed likely to purify him from many prejudices, to tame him of many fanaticisms, to beat out of him many errors. the present conservative government contains more than one member who regards his party as intellectually benighted; who either never speaks their peculiar dialect, or who speaks it condescendingly, and with an "aside"; who respects their accumulated prejudices as the "potential energies" on which he subsists, but who despises them while he lives by them. years ago mr. disraeli called sir robert peel's ministry--the last conservative ministry that had real power--"an organised hypocrisy," so much did the ideas of its "head" differ from the sensations of its "tail". probably he now comprehends--if he did not always--that the air of downing street brings certain ideas to those who live there, and that the hard, compact prejudices of opposition are soon melted and mitigated in the great gulf stream of affairs. lord palmerston, too, was a typical example of a leader lulling, rather than arousing, assuaging rather than acerbating the minds of his followers. but though the composing effect of close difficulties will commonly make a premier cease to be an immoderate partisan, yet a partisan to some extent he must be, and a violent one he may be; and in that case he is not a good person to check the party. when the leading sect (so to speak) in parliament is doing what the nation do not like, an instant appeal ought to be registered and parliament ought to be dissolved. but a zealot of a premier will not appeal; he will follow his formulae; he will believe he is doing good service when, perhaps, he is but pushing to unpopular consequences, the narrow maxims of an inchoate theory. at such a minute a constitutional king--such as leopold the first was, and as prince albert might have been--is invaluable; he can and will prevent parliament from hurting the nation. again, too, on the selfishness of parliament an extrinsic check is clearly more efficient than an intrinsic. a premier who is made by parliament may share the bad impulses of those who chose him; or, at any rate, he may have made "capital" out of them--he may have seemed to share them. the self-interests, the jobbing propensities of the assembly are sure indeed to be of very secondary interest to him. what he will care most for is the permanence, is the interest--whether corrupt or uncorrupt--of his own ministry. he will be disinclined to anything coarsely unpopular. in the order of nature, a new assembly must come before long, and he will be indisposed to shock the feelings of the electors from whom that assembly must emanate. but though the interest of the minister is inconsistent with appalling jobbery, he will be inclined to mitigated jobbery. he will temporise; he will try to give a seemly dress to unseemly matters: to do as much harm as will content the assembly, and yet not so much harm as will offend the nation. he will not shrink from becoming a particeps criminis; he will but endeavour to dilute the crime. the intervention of an extrinsic, impartial, and capable authority--if such can be found--will undoubtedly restrain the covetousness as well as the factiousness of a choosing assembly. but can such a head be found? in one case i think it has been found. our colonial governors are precisely dei ex machina. they are always intelligent, for they have to live by a different trade; they are nearly sure to be impartial, for they come from the ends of the earth; they are sure not to participate in the selfish desires of any colonial class or body, for long before those desires can have attained fruition they will have passed to the other side of the world, be busy with other faces and other minds, be almost out of hearing what happens in a region they have half forgotten. a colonial governor is a super-parliamentary authority, animated by a wisdom which is probably in quantity considerable, and is different from that of the local parliament, even if not above it. but even in this case the advantage of this extrinsic authority is purchased at a heavy price--a price which must not be made light of, because it is often worth paying. a colonial governor is a ruler who has no permanent interest in the colony he governs; who perhaps had to look for it in the map when he was sent thither; who takes years before he really understands its parties and its controversies; who, though without prejudice himself, is apt to be a slave to the prejudices of local people near him; who inevitably, and almost laudably, governs not in the interest of the colony, which he may mistake, but in his own interest, which he sees and is sure of. the first desire of a colonial governor is not to get into a "scrape," not to do anything which may give trouble to his superiors--the colonial office--at home, which may cause an untimely and dubious recall, which may hurt his after career. he is sure to leave upon the colony the feeling that they have a ruler who only half knows them, and does not so much as half care for them. we hardly appreciate this common feeling in our colonies, because we appoint their sovereign; but we should understand it in an instant if, by a political metamorphosis, the choice were turned the other way--if they appointed our sovereign. we should then say at once, "how is it possible a man from new zealand can understand england? how is it possible, that a man longing to get back to the antipodes can care for england? how can we trust one who lives by the fluctuating favour of a distant authority? how can we heartily obey one who is but a foreigner with the accident of an identical language?" i dwell on the evils which impair the advantage of colonial governorship because that is the most favoured case of super-parliamentary royalty, and because from looking at it we can bring freshly home to our minds what the real difficulties of that institution are. we are so familiar with it that we do not understand it. we are like people who have known a man all their lives, and yet are quite surprised when he displays some obvious characteristic which casual observers have detected at a glance. i have known a man who did not know what colour his sister's eyes were, though he had seen her every day for twenty years; or rather, he did not know because he had so seen her: so true is the philosophical maxim that we neglect the constant element in our thoughts, though it is probably the most important, and attend almost only to the varying elements--the differentiating elements (as men now speak)--though they are apt to be less potent. but when we perceive by the roundabout example of a colonial governor how difficult the task of a constitutional king is in the exercise of the function of dissolving parliament, we at once see how unlikely it is that an hereditary monarch will be possessed of the requisite faculties. an hereditary king is but an ordinary person, upon an average, at best; he is nearly sure to be badly educated for business; he is very little likely to have a taste for business; he is solicited from youth by every temptation to pleasure; he probably passed the whole of his youth in the vicious situation of the heir-apparent, who can do nothing because he has no appointed work, and who will be considered almost to outstep his function if he undertake optional work. for the most part, a constitutional king is a damaged common man; not forced to business by necessity as a despot often is, but yet spoiled for business by most of the temptations which spoil a despot. history, too, seems to show that hereditary royal families gather from the repeated influence of their corrupting situation some dark taint in the blood, some transmitted and growing poison which hurts their judgments, darkens all their sorrow, and is a cloud on half their pleasure. it has been said, not truly, but with a possible approximation to truth, "that in every hereditary monarch was insane". is it likely that this sort of monarchs will be able to catch the exact moment when, in opposition to the wishes of a triumphant ministry, they ought to dissolve parliament? to do so with efficiency they must be able to perceive that the parliament is wrong, and that the nation knows it is wrong. now to know that parliament is wrong, a man must be, if not a great statesman, yet a considerable statesman--a statesman of some sort. he must have great natural vigour, for no less will comprehend the hard principles of national policy. he must have incessant industry, for no less will keep him abreast with the involved detail to which those principles relate, and the miscellaneous occasions to which they must be applied. a man made common by nature, and made worse by life, is not likely to have either; he is nearly sure not to be both clever and industrious. and a monarch in the recesses of a palace, listening to a charmed flattery unbiassed by the miscellaneous world, who has always been hedged in by rank, is likely to be but a poor judge of public opinion. he may have an inborn tact for finding it out; but his life will never teach it him, and will probably enfeeble it in him. but there is a still worse case, a case which the life of george iii.--which is a sort of museum of the defects of a constitutional king--suggests at once. the parliament may be wiser than the people, and yet the king may be of the same mind with the people. during the last years of the american war, the premier, lord north, upon whom the first responsibility rested, was averse to continuing it, and knew it could not succeed. parliament was much of the same mind; if lord north had been able to come down to parliament with a peace in his hand, parliament would probably have rejoiced, and the nation under the guidance of parliament, though saddened by its losses, probably would have been satisfied. the opinion of that day was more like the american opinion of the present day than like our present opinion. it was much slower in its formation than our opinion now, and obeyed much more easily sudden impulses from the central administration. if lord north had been able to throw the undivided energy and the undistracted authority of the executive government into the excellent work of making a peace and carrying a peace, years of bloodshed might have been spared, and an entail of enmity cut off that has not yet run out. but there was a power behind the prime minister; george iii. was madly eager to continue the war, and the nation--not seeing how hopeless the strife was, not comprehending the lasting antipathy which their obstinacy was creating--ignorant, dull and helpless--was ready to go on too. even if lord north had wished to make peace, and had persuaded parliament accordingly, all his work would have been useless; a superior power could and would have appealed from a wise and pacific parliament to a sullen and warlike nation. the check which our constitution finds for the special vices of our parliament was misused to curb its wisdom. the more we study the nature of cabinet government, the more we shall shrink from exposing at a vital instant its delicate machinery to a blow from a casual, incompetent, and perhaps semi-insane outsider. the preponderant probability is that on a great occasion the premier and parliament will really be wiser than the king. the premier is sure to be able, and is sure to be most anxious to decide well; if he fail to decide, he loses his place, though through all blunders the king keeps his; the judgment of the man naturally very discerning is sharpened by a heavy penalty, from which the judgment of the man by nature much less intelligent is exempt. parliament, too, is for the most part a sound, careful and practical body of men. principle shows that the power of dismissing a government with which parliament is satisfied, and of dissolving that parliament upon an appeal to the people, is not a power which a common hereditary monarch will in the long run be able beneficially to exercise. accordingly this power has almost, if not quite, dropped out of the reality of our constitution. nothing, perhaps, would more surprise the english people than if the queen by a coup d'etat and on a sudden destroyed a ministry firm in the allegiance and secure of a majority in parliament. that power, indisputably, in theory, belongs to her; but it has passed so far away from the minds of men that it would terrify them, if she used it, like a volcanic eruption from primrose hill. the last analogy to it is not one to be coveted as a precedent. in william iv. dismissed an administration which, though disorganised by the loss of its leader in the commons, was an existing government, had a premier in the lords ready to go on, and a leader in the commons willing to begin. the king fancied that public opinion was leaving the whigs and going over to the tories, and he thought he should accelerate the transition by ejecting the former. but the event showed that he misjudged. his perception indeed was right; the english people were wavering in their allegiance to the whigs, who had no leader that touched the popular heart, none in whom liberalism could personify itself and become a passion--who besides were a body long used to opposition, and therefore making blunders in office--who were borne to power by a popular impulse which they only half comprehended, and perhaps less than half shared. but the king's policy was wrong; he impeded the reaction instead of aiding it. he forced on a premature tory government, which was as unsuccessful as all wise people perceived that it must be. the popular distaste to the whigs was as yet but incipient, inefficient; and the intervention of the crown was advantageous to them, because it looked inconsistent with the liberties of the people. and in so far as william iv. was right in detecting an incipient change of opinion, he did but detect an erroneous change. what was desirable was the prolongation of liberal rule. the commencing dissatisfaction did but relate to the personal demerits of the whig leaders, and other temporary adjuncts of free principles, and not to those principles intrinsically. so that the last precedent for a royal onslaught on a ministry ended thus:--in opposing the right principles, in aiding the wrong principles, in hurting the party it was meant to help. after such a warning, it is likely that our monarchs will pursue the policy which a long course of quiet precedent at present directs--they will leave a ministry trusted by parliament to the judgment of parliament. indeed, the dangers arising from a party spirit in parliament exceeding that of the nation, and of a selfishness in parliament contradicting the true interest of the nation, are not great dangers in a country where the mind of the nation is steadily political, and where its control over its representatives is constant. a steady opposition to a formed public opinion is hardly possible in our house of commons, so incessant is the national attention to politics, and so keen the fear in the mind of each member that he may lose his valued seat. these dangers belong to early and scattered communities, where there are no interesting political questions, where the distances are great, where no vigilant opinion passes judgment on parliamentary excesses, where few care to have seats in the chamber, and where many of those few are from their characters and their antecedents better not there than there. the one great vice of parliamentary government in an adult political nation, is the caprice of parliament in the choice of a ministry. a nation can hardly control it here; and it is not good that, except within wide limits, it should control it. the parliamentary judgment of the merits or demerits of an administration very generally depends on matters which the parliament, being close at hand, distinctly sees, and which the distant nation does not see. but where personality enters, capriciousness begins. it is easy to imagine a house of commons which is discontented with all statesmen, which is contented with none, which is made up of little parties, which votes in small knots, which will adhere steadily to no leader, which gives every leader a chance and a hope. such parliaments require the imminent check of possible dissolution; but that check is (as has been shown) better in the premier than in the sovereign; and by the late practice of our constitution, its use is yearly ebbing from the sovereign, and yearly centring in the premier. the queen can hardly now refuse a defeated minister the chance of a dissolution, any more than she can dissolve in the time of an undefeated one, and without his consent. we shall find the case much the same with the safety-valve, as i have called it, of our constitution. a good, capable, hereditary monarch would exercise it better than a premier, but a premier could manage it well enough; and a monarch capable of doing better will be born only once in a century, whereas monarchs likely to do worse will be born every day. there are two modes in which the power of our executive to create peers--to nominate, that is, additional members of our upper and revising chamber--now acts: one constant, habitual, though not adequately noticed by the popular mind as it goes on; and the other possible and terrific, scarcely ever really exercised, but always by its reserved magic maintaining a great and a restraining influence. the crown creates peers, a few year by year, and thus modifies continually the characteristic feeling of the house of lords. i have heard people say, who ought to know, that the english peerage (the only one upon which unhappily the power of new creation now acts) is now more whig than tory. thirty years ago the majority was indisputably the other way. owing to very curious circumstances english parties have not alternated in power, as a good deal of speculation predicts they would, and a good deal of current language assumes they have. the whig party were in office some seventy years (with very small breaks) from the death of queen anne to the coalition between lord north and mr. fox; then the tories (with only such breaks), were in power for nearly fifty years, till ; and since, the whig party has always, with very trifling intervals, been predominant. consequently, each continuously-governing party has had the means of modifying the upper house to suit its views. the profuse tory creations of half a century had made the house of lords bigotedly tory before the first reform act, but it is wonderfully mitigated now. the irish peers and scotch peers--being nominated by an almost unaltered constituency, and representing the feelings of the majority of that constituency only (no minority having any voice)--present an unchangeable tory element. but the element in which change is permitted has been changed. whether the english peerage be or be not predominantly now tory, it is certainly not tory after the fashion of the toryism of . the whig additions have indeed sprung from a class commonly rather adjoining upon toryism, than much inclining to radicalism. it is not from men of large wealth that a very great impetus to organic change should be expected. the additions to the peers have matched nicely enough with the old peers, and therefore they have effected more easily a greater and more permeating modification. the addition of a contrasting mass would have excited the old leaven, but the delicate infusion of ingredients similar in genus, though different in species, has modified the new compound without irritating the old original. this ordinary and common use of the peer-creating power is always in the hands of the premier, and depends for its characteristic use on being there. he, as the head of the predominant party, is the proper person to modify gradually the permanent chamber which, perhaps, was at starting hostile to him; and, at any rate, can be best harmonised with the public opinion he represents by the additions he makes. hardly any contrived constitution possesses a machinery for modifying its secondary house so delicate, so flexible, and so constant. if the power of creating life peers had been added, the mitigating influence of the responsible executive upon the house of lords would have been as good as such a thing can be. the catastrophic creation of peers for the purpose of swamping the upper house is utterly different. if an able and impartial exterior king is at hand, this power is best in that king. it is a power only to be used on great occasions, when the object is immense, and the party strife unmitigated. this is the conclusive, the swaying power of the moment, and of course, therefore, it had better be in the hands of a power both capable and impartial, than of a premier who must in some degree be a partisan. the value of a discreet, calm, wise monarch, if such should happen to be reigning at the acute crisis of a nation's destiny, is priceless. he may prevent years of tumult, save bloodshed and civil war, lay up a store of grateful fame to himself, prevent the accumulated intestine hatred of each party to its opposite. but the question comes back, will there be such a monarch just then? what is the chance of having him just then? what will be the use of the monarch whom the accidents of inheritance, such as we know them to be, must upon an average bring us just then? the answer to these questions is not satisfactory, if we take it from the little experience we have had in this rare matter. there have been but two cases at all approaching to a catastrophic creation of peers--to a creation which would suddenly change the majority of the lords--in english history. one was in queen anne's time. the majority of peers in queen anne's time were whig, and by profuse and quick creations harley's ministry changed it to a tory majority. so great was the popular effect, that in the next reign one of the most contested ministerial proposals was a proposal to take the power of indefinite peer creation from the crown, and to make the number of lords fixed, as that of the commons is fixed. but the sovereign had little to do with the matter. queen anne was one of the smallest people ever set in a great place. swift bitterly and justly said "she had not a store of amity by her for more than one friend at a time," and just then her affection was concentrated on a waiting-maid. her waiting-maid told her to make peers, and she made them. but of large thought and comprehensive statesmanship she was as destitute as mrs. masham. she supported a bad ministry by the most extreme of measures, and she did it on caprice. the case of william iv. is still more instructive. he was a very conscientious king, but at the same time an exceedingly weak king. his correspondence with lord grey on this subject fills more than half a large volume, or rather his secretary's correspondence, for he kept a very clever man to write what he thought, or at least what those about him thought. it is a strange instance of high-placed weakness and conscientious vacillation. after endless letters the king consents to make a reasonable number of peers if required to pass the second reading of the reform bill, but owing to desertion of the "waverers" from the tories, the second reading is carried without it by nine, and then the king refuses to make peers, or at least enough peers when a vital amendment is carried by lord lyndhurst, which would have destroyed, and was meant to destroy the bill. in consequence, there was a tremendous crisis and nearly a revolution. a more striking example of well-meaning imbecility is scarcely to be found in history. no one who reads it carefully will doubt that the discretionary power of making peers would have been far better in lord grey's hands than in the king's. it was the uncertainty whether the king would exercise it, and how far he would exercise it, that mainly animated the opposition. in fact, you may place power in weak hands at a revolution, but you cannot keep it in weak hands. it runs out of them into strong ones. an ordinary hereditary sovereign--a william iv., or a george iv.--is unfit to exercise the peer-creating power when most wanted. a half-insane king, like george iii., would be worse. he might use it by unaccountable impulse when not required, and refuse to use it out of sullen madness when required. the existence of a fancied check on the premier is in truth an evil, because it prevents the enforcement of a real check. it would be easy to provide by law that an extraordinary number of peers--say more than ten annually--should not be created except on a vote of some large majority, suppose three-fourths of the lower house. this would ensure that the premier should not use the reserve force of the constitution as if it were an ordinary force; that he should not use it except when the whole nation fixedly wished it; that it should be kept for a revolution, not expended on administration; and it would ensure that he should then have it to use. queen anne's case and william iv.'s case prove that neither object is certainly attained by entrusting this critical and extreme force to the chance idiosyncrasies and habitual mediocrity of an hereditary sovereign. it may be asked why i argue at such length a question in appearance so removed from practice, and in one point of view so irrelevant to my subject. no one proposes to remove queen victoria; if any one is in a safe place on earth, she is in a safe place. in these very essays it has been shown that the mass of our people would obey no one else, that the reverence she excites is the potential energy--as science now speaks--out of which all minor forces are made, and from which lesser functions take their efficiency. but looking not to the present hour, and this single country, but to the world at large and coming times, no question can be more practical. what grows upon the world is a certain matter-of-factness. the test of each century, more than of the century before, is the test of results. new countries are arising all over the world where there are no fixed sources of reverence; which have to make them; which have to create institutions which must generate loyalty by conspicuous utility. this matter-of-factness is the growth even in europe of the two greatest and newest intellectual agencies of our time. one of these is business. we see so much of the material fruits of commerce that we forget its mental fruits. it begets a mind desirous of things, careless of ideas, not acquainted with the niceties of words. in all labour there should be profit, is its motto. it is not only true that we have "left swords for ledgers," but war itself is made as much by the ledger as by the sword. the soldier--that is, the great soldier--of to-day is not a romantic animal, dashing at forlorn hopes, animated by frantic sentiment, full of fancies as to a lady-love or a sovereign; but a quiet, grave man, busied in charts, exact in sums, master of the art of tactics, occupied in trivial detail; thinking, as the duke of wellington was said to do, most of the shoes of his soldiers; despising all manner of eclat and eloquence; perhaps, like count moltke, "silent in seven languages". we have reached a "climate" of opinion where figures rule, where our very supporter of divine right, as we deemed him, our count bismarck, amputates kings right and left, applies the test of results to each, and lets none live who are not to do something. there has in truth been a great change during the last five hundred years in the predominant occupations of the ruling part of mankind; formerly they passed their time either in exciting action or inanimate repose. a feudal baron had nothing between war and the chase--keenly animating things both--and what was called "inglorious ease". modern life is scanty in excitements, but incessant in quiet action. its perpetual commerce is creating a "stock-taking" habit--the habit of asking each man, thing, and institution, "well, what have you done since i saw you last?" our physical science, which is becoming the dominant culture of thousands, and which is beginning to permeate our common literature to an extent which few watch enough, quite tends the same way. the two peculiarities are its homeliness and its inquisitiveness; its value for the most "stupid" facts, as one used to call them, and its incessant wish for verification--to be sure, by tiresome seeing and hearing, that they are facts. the old excitement of thought has half died out, or rather it is diffused in quiet pleasure over a life instead of being concentrated in intense and eager spasms. an old philosopher--a descartes, suppose--fancied that out of primitive truths, which he could by ardent excogitation know, he might by pure deduction evolve the entire universe. intense self-examination, and intense reason would, he thought, make out everything. the soul "itself by itself," could tell all it wanted if it would be true to its sublimer isolation. the greatest enjoyment possible to man was that which this philosophy promises its votaries--the pleasure of being always right, and always reasoning--without ever being bound to look at anything. but our most ambitious schemes of philosophy now start quite differently. mr. darwin begins:-- "when on board h.m.s. beagle, as naturalist, i was much struck with certain facts in the distribution of the organic beings inhabiting south america, and in the geological relations of the present to the past inhabitants of that continent. these facts, as will be seen in the latter chapters of this volume, seemed to throw some light on the origin of species--that mystery of mysteries, as it has been called by one of our greatest philosophers. on my return home, it occurred to me, in , that something might perhaps be made out on this question by patiently accumulating and reflecting on all sorts of facts which could possibly have any bearing on it. after five years' work i allowed myself to speculate on the subject, and drew up some short notes; these i enlarged in into a sketch of the conclusions which then seemed to me probable: from that period to the present day i have steadily pursued the same object. i hope that i may be excused for entering on these personal details, as i give them to show that i have not been hasty in coming to a decision." if he hopes finally to solve his great problem, it is by careful experiments in pigeon-fancying, and other sorts of artificial variety-making. his hero is not a self-enclosed, excited philosopher, but "that most skilful breeder, sir john sebright, who used to say, with respect to pigeons, that he would produce any given feathers in three years, but it would take him six years to obtain a head and a beak". i am not saying that the new thought is better than the old; it is no business of mine to say anything about that; i only wish to bring home to the mind, as nothing but instances can bring it home, how matter-of-fact, how petty, as it would at first sight look, even our most ambitious science has become. in the new communities which our emigrating habit now constantly creates, this prosaic turn of mind is intensified. in the american mind and in the colonial mind there is, as contrasted with the old english mind, a literalness, a tendency to say, "the facts are so-and-so, whatever may be thought or fancied about them". we used before the civil war to say that the americans worshipped the almighty dollar; we now know that they can scatter money almost recklessly when they will. but what we meant was half right--they worship visible value: obvious, undeniable, intrusive result. and in australia and new zealand the same turn comes uppermost. it grows from the struggle with the wilderness. physical difficulty is the enemy of early communities, and an incessant conflict with it for generations leaves a mark of reality on the mind--a painful mark almost to us, used to impalpable fears and the half-fanciful dangers of an old and complicated society. the "new englands" of all latitudes are bare-minded (if i may so say) as compared with the "old". when, therefore, the new communities of the colonised world have to choose a government, they must choose one in which all the institutions are of an obvious evident utility. we catch the americans smiling at our queen with her secret mystery, and our prince of wales with his happy inaction. it is impossible, in fact, to convince their prosaic minds that constitutional royalty is a rational government, that it is suited to a new age and an unbroken country, that those who start afresh can start with it. the princelings who run about the world with excellent intentions, but an entire ignorance of business, are to them a locomotive advertisement that this sort of government is european in its limitations and mediaeval in its origin; that though it has yet a great part to play in the old states, it has no place or part in new states. the realisme impitoyable which good critics find in a most characteristic part of the literature of the nineteenth century, is to be found also in its politics. an ostentatious utility must characterise its creations. the deepest interest, therefore, attaches to the problem of this essay. if hereditary royalty had been essential to parliamentary government, we might well have despaired of that government. but accurate investigation shows that this royalty is not essential; that, upon an average, it is not even in a high degree useful; that though a king with high courage and fine discretion--a king with a genius for the place--is always useful, and at rare moments priceless, yet that a common king, a king such as birth brings, is of no use at difficult crises, while in the common course of things his aid is neither likely nor required--he will do nothing, and he need do nothing. but we happily find that a new country need not fall back into the fatal division of powers incidental to a presidential government; it may, if other conditions serve, obtain the ready, well-placed, identical sort of sovereignty which belongs to the english constitution, under the unroyal form of parliamentary government. no. viii. the prerequisites of cabinet government, and the peculiar form which they have assumed in england. cabinet government is rare because its prerequisites are many. it requires the co-existence of several national characteristics which are not often found together in the world, and which should be perceived more distinctly than they often are. it is fancied that the possession of a certain intelligence, and a few simple virtues, are the sole requisites. the mental and moral qualities are necessary, but much else is necessary also. a cabinet government is the government of a committee selected by the legislature, and there are therefore a double set of conditions to it: first, those which are essential to all elective governments as such; and second, those which are requisite to this particular elective government. there are prerequisites for the genus, and additional ones for the species. the first prerequisite of elective government is the mutual confidence of the electors. we are so accustomed to submit to be ruled by elected ministers, that we are apt to fancy all mankind would readily be so too. knowledge and civilisation have at least made this progress, that we instinctively, without argument, almost without consciousness, allow a certain number of specified persons to choose our rulers for us. it seems to us the simplest thing in the world. but it is one of the gravest things. the peculiar marks of semi-barbarous people are diffused distrust and indiscriminate suspicion. people, in all but the most favoured times and places, are rooted to the places where they were born, think the thoughts of those places, can endure no other thoughts. the next parish even is suspected. its inhabitants have different usages, almost imperceptibly different, but yet different; they speak a varying accent; they use a few peculiar words; tradition says that their faith is dubious. and if the next parish is a little suspected, the next county is much more suspected. here is a definite beginning of new maxims, new thoughts, new ways: the immemorial boundary mark begins in feeling a strange world. and if the next county is dubious, a remote county is untrustworthy. "vagrants come from thence," men know, and they know nothing else. the inhabitants of the north speak a dialect different from the dialect of the south: they have other laws, another aristocracy, another life. in ages when distant territories are blanks in the mind, when neighbourhood is a sentiment, when locality is a passion, concerted co-operation between remote regions is impossible even on trivial matters. neither would rely enough upon the good faith, good sense, and good judgment of the other. neither could enough calculate on the other. and if such co-operation is not to be expected in trivial matters, it is not to be thought of in the most vital matter of government--the choice of the executive ruler. to fancy that northumberland in the thirteenth century would have consented to ally itself with somersetshire for the choice of a chief magistrate is absurd; it would scarcely have allied itself to choose a hangman. even now, if it were palpably explained, neither district would like it. but no one says at a county election, "the object of this present meeting is to choose our delegate to what the americans call the 'electoral college,' to the assembly which names our first magistrate--our substitute for their president. representatives from this county will meet representatives from other counties, from cities and boroughs, and proceed to choose our rulers." such bald exposition would have been impossible in old times; it would be considered queer, eccentric, if it were used now. happily, the process of election is so indirect and hidden, and the introduction of that process was so gradual and latent, that we scarcely perceive the immense political trust we repose in each other. the best mercantile credit seems to those who give it, natural, simple, obvious; they do not argue about it, or think about it. the best political credit is analogous; we trust our countrymen without remembering that we trust them. a second and very rare condition of an elective government is a calm national mind--a tone of mind sufficiently staple to bear the necessary excitement of conspicuous revolutions. no barbarous, no semi-civilised nation has ever possessed this. the mass of uneducated men could not now in england be told "go to, choose your rulers;" they would go wild; their imaginations would fancy unreal dangers, and the attempt at election would issue in some forcible usurpation. the incalculable advantage of august institutions in a free state is, that they prevent this collapse. the excitement of choosing our rulers is prevented by the apparent existence of an unchosen ruler. the poorer and more ignorant classes--those who would most feel excitement, who would most be misled by excitement--really believe that the queen governs. you could not explain to them the recondite difference between "reigning" and "governing"; the words necessary to express it do not exist in their dialect; the ideas necessary to comprehend it do not exist in their minds. the separation of principal power from principal station is a refinement which they could not even conceive. they fancy they are governed by an hereditary queen, a queen by the grace of god, when they are really governed by a cabinet and a parliament--men like themselves, chosen by themselves. the conspicuous dignity awakens the sentiment of reverence, and men, often very undignified, seize the occasion to govern by means of it. lastly. the third condition of all elective government is what i may call rationality, by which i mean a power involving intelligence, but yet distinct from it. a whole people electing its rulers must be able to form a distinct conception of distant objects. mostly, the "divinity" that surrounds a king altogether prevents anything like a steady conception of him. you fancy that the object of your loyalty is as much elevated above you by intrinsic nature as he is by extrinsic position; you deify him in sentiment, as once men deified him in doctrine. this illusion has been and still is of incalculable benefit to the human race. it prevents, indeed, men from choosing their rulers; you cannot invest with that loyal illusion a man who was yesterday what you are, who to-morrow may be so again, whom you chose to be what he is. but though this superstition prevents the election of rulers, it renders possible the existence of unelected rulers. untaught people fancy that their king, crowned with the holy crown, anointed with the oil of rheims, descended of the house of plantagenet, is a different sort of being from any one not descended of the royal house--not crowned--not anointed. they believe that there is one man whom by mystic right they should obey; and therefore they do obey him. it is only in later times, when the world is wider, its experience larger, and its thought colder, that the plain rule of a palpably chosen ruler is even possible. these conditions narrowly restrict elective government. but the prerequisites of a cabinet government are rarer still; it demands not only the conditions i have mentioned, but the possibility likewise of a good legislature--a legislature competent to elect a sufficient administration. now a competent legislature is very rare. any permanent legislature at all, any constantly acting mechanism for enacting and repealing laws, is, though it seems to us so natural, quite contrary to the inveterate conceptions of mankind. the great majority of nations conceive of their law, either as something divinely given, and therefore unalterable, or as a fundamental habit, inherited from the past to be transmitted to the future. the english parliament, of which the prominent functions are now legislative, was not all so once. it was rather a preservative body. the custom of the realm--the aboriginal transmitted law--the law which was in the breast of the judges, could not be altered without the consent of parliament, and therefore everybody felt sure it would not be altered except in grave, peculiar, and anomalous cases. the valued use of parliament was not half so much to alter the law, as to prevent the laws being altered. and such too was its real use. in early societies it matters much more that the law should be fixed than that it should be good. any law which the people of ignorant times enact is sure to involve many misconceptions, and to cause many evils. perfection in legislation is not to be looked for, and is not, indeed, much wanted in a rude, painful, confined life. but such an age covets fixity. that men should enjoy the fruits of their labour, that the law of property should be known, that the law of marriage should be known, that the whole course of life should be kept in a calculable track is the summum bonum of early ages, the first desire of semi-civilised mankind. in that age men do not want to have their laws adapted, but to have their laws steady. the passions are so powerful, force so eager, the social bond so weak, that the august spectacle of an all but unalterable law is necessary to preserve society. in the early stages of human society all change is thought an evil. and most change is an evil. the conditions of life are so simple and so unvarying that any decent sort of rules suffice so long as men know what they are. custom is the first check on tyranny; that fixed routine of social life at which modern innovations chafe, and by which modern improvement is impeded, is the primitive check on base power. the perception of political expediency has then hardly begun; the sense of abstract justice is weak and vague; and a rigid adherence to the fixed mould of transmitted usage is essential to an unmarred, unspoiled, unbroken life. in such an age a legislature continuously sitting, always making laws, always repealing laws, would have been both an anomaly and a nuisance. but in the present state of the civilised part of the world such difficulties are obsolete. there is a diffused desire in civilised communities for an adjusting legislation; for a legislation which should adapt the inherited laws to the new wants of a world which now changes every day. it has ceased to be necessary to maintain bad laws because it is necessary to have some laws. civilisation is robust enough to bear the incision of legal improvements. but taking history at large, the rarity of cabinets is mostly due to the greater rarity of continuous legislatures. other conditions, however, limit even at the present day the area of a cabinet government. it must be possible to have not only a legislature, but to have a competent legislature--a legislature willing to elect and willing to maintain an efficient executive. and this is no easy matter. it is indeed true that we need not trouble ourselves to look for that elaborate and complicated organisation which partially exists in the house of commons, and which is more fully and freely expanded in plans for improving the house of commons. we are not now concerned with perfection or excellence; we seek only for simple fitness and bare competency. the conditions of fitness are two. first, you must get a good legislature; and next, you must keep it good. and these are by no means so nearly connected as might be thought at first sight. to keep a legislature efficient, it must have a sufficient supply of substantial business. if you employ the best set of men to do nearly nothing, they will quarrel with each other about that nothing. where great questions end, little parties begin. and a very happy community, with few new laws to make, few old bad laws to repeal, and but simple foreign relations to adjust, has great difficulty in employing a legislature. there is nothing for it to enact, and nothing for it to settle. accordingly, there is great danger that the legislature, being debarred from all other kind of business, may take to quarrelling about its elective business; that controversies as to ministries may occupy all its time, and yet that time be perniciously employed; that a constant succession of feeble administrations, unable to govern and unfit to govern, may be substituted for the proper result of cabinet government--a sufficient body of men long enough in power to evince their sufficiency. the exact amount of non-elective business necessary for a parliament which is to elect the executive cannot, of course, be formally stated. there are no numbers and no statistics in the theory of constitutions. all we can say is, that a parliament with little business, which is to be as efficient as a parliament with much business, must be in all other respects much better. an indifferent parliament may be much improved by the steadying effect of grave affairs; but a parliament which has no such affairs must be intrinsically excellent, or it will fail utterly. but the difficulty of keeping a good legislature, is evidently secondary to the difficulty of first getting it. there are two kinds of nations which can elect a good parliament. the first is a nation in which the mass of the people are intelligent, and in which they are comfortable. where there is no honest poverty, where education is diffused, and political intelligence is common, it is easy for the mass of the people to elect a fair legislature. the idea is roughly realised in the north american colonies of england, and in the whole free states of the union. in these countries there is no such thing as honest poverty; physical comfort, such as the poor cannot imagine here, is there easily attainable by healthy industry. education is diffused much, and is fast spreading, ignorant emigrants from the old world often prize the intellectual advantages of which they are themselves destitute, and are annoyed at their inferiority in a place where rudimentary culture is so common. the greatest difficulty of such new communities is commonly geographical. the population is mostly scattered; and where population is sparse, discussion is difficult. but in a country very large, as we reckon in europe, a people really intelligent, really educated, really comfortable, would soon form a good opinion. no one can doubt that the new england states, if they were a separate community, would have an education, a political capacity, and an intelligence such as the numerical majority of no people, equally numerous, has ever possessed. in a state of this sort, where all the community is fit to choose a sufficient legislature, it is possible, it is almost easy, to create that legislature. if the new england states possessed a cabinet government as a separate nation, they would be as renowned in the world for political sagacity as they now are for diffused happiness. the structure of these communities is indeed based on the principle of equality, and it is impossible that any such community can wholly satisfy the severe requirements of a political theorist. in every old community its primitive and guiding assumption is at war with truth. by its theory all people are entitled to the same political power, and they can only be so entitled on the ground that in politics they are equally wise. but at the outset of an agricultural colony this postulate is as near the truth as politics want. there are in such communities no large properties, no great capitals, no refined classes--every one is comfortable and homely, and no one is at all more. equality is not artificially established in a new colony; it establishes itself. there is a story that among the first settlers in western australia, some, who were rich, took out labourers at their own expense, and also carriages to ride in. but soon they had to try if they could live in the carriages. before the masters' houses were built, the labourers had gone off--they were building houses and cultivating land for themselves, and the masters were left to sit in their carriages. whether this exact thing happened i do not know, but this sort of thing has happened a thousand times. there has been a whole series of attempts to transplant to the colonies a graduated english society. but they have always failed at the first step. the rude classes at the bottom felt that they were equal to or better than the delicate classes at the top; they shifted for themselves, and left the "gentle-folks" to shift for themselves; the base of the elaborate pyramid spread abroad, and the apex tumbled in and perished. in the early ages of an agricultural colony, whether you have political democracy or not, social democracy you must have, for nature makes it, and not you. but in time, wealth grows and inequality begins. a and his children are industrious, and prosper; b and his children are idle, and fail. if manufactures on a considerable scale are established--and most young communities strive even by protection to establish them--the tendency to inequality is intensified. the capitalist becomes a unit with much, and his labourers a crowd with little. after generations of education, too, there arise varieties of culture--there will be an upper thousand, or ten thousand, of highly cultivated people in the midst of a great nation of moderately educated people. in theory it is desirable that this highest class of wealth and leisure should have an influence far out of proportion to its mere number: a perfect constitution would find for it a delicate expedient to make its fine thought tell upon the surrounding cruder thought. but as the world goes, when the whole of the population is as instructed and as intelligent as in the case i am supposing, we need not care much about this. great communities have scarcely ever--never save for transient moments--been ruled by their highest thought. and if we can get them ruled by a decent capable thought, we may be well enough contented with our work. we have done more than could be expected, though not all which could be desired. at any rate, an isocratic polity--a polity where every one votes, and where every one votes alike--is, in a community of sound education and diffused intelligence, a conceivable case of cabinet government. it satisfies the essential condition; there is a people able to elect, a parliament able to choose. but suppose the mass of the people are not able to elect--and this is the case with the numerical majority of all but the rarest nations--how is a cabinet government to be then possible? it is only possible in what i may venture to call deferential nations. it has been thought strange, but there are nations in which the numerous unwiser part wishes to be ruled by the less numerous wiser part. the numerical majority--whether by custom or by choice, is immaterial--is ready, is eager to delegate its power of choosing its ruler to a certain select minority. it abdicates in favour of its elite, and consents to obey whoever that elite may confide in. it acknowledges as its secondary electors--as the choosers of its government--an educated minority, at once competent and unresisted; it has a kind of loyalty to some superior persons who are fit to choose a good government, and whom no other class opposes. a nation in such a happy state as this has obvious advantages for constructing a cabinet government. it has the best people to elect a legislature, and therefore it may fairly be expected to choose a good legislature--a legislature competent to select a good administration. england is the type of deferential countries, and the manner in which it is so, and has become so, is extremely curious. the middle classes--the ordinary majority of educated men--are in the present day the despotic power in england. "public opinion," nowadays, "is the opinion of the bald-headed man at the back of the omnibus." it is not the opinion of the aristocratical classes as such; or of the most educated or refined classes as such; it is simply the opinion of the ordinary mass of educated, but still commonplace mankind. if you look at the mass of the constituencies, you will see that they are not very interesting people; and perhaps if you look behind the scenes and see the people who manipulate and work the constituencies, you will find that these are yet more uninteresting. the english constitution in its palpable form is this--the mass of the people yield obedience to a select few; and when you see this select few, you perceive that though not of the lowest class, nor of an unrespectable class, they are yet of a heavy sensible class--the last people in the world to whom, if they were drawn up in a row, an immense nation would ever give an exclusive preference. in fact, the mass of the english people yield a deference rather to something else that to their rulers. they defer to what we may call the theatrical show of society. a certain state passes before them; a certain pomp of great men; a certain spectacle of beautiful women; a wonderful scene of wealth and enjoyment is displayed, and they are coerced by it. their imagination is bowed down; they feel they are not equal to the life which is revealed to them. courts and aristocracies have the great quality which rules the multitude, though philosophers can see nothing in it--visibility. courtiers can do what others cannot. a common man may as well try to rival the actors on the stage in their acting, as the aristocracy in their acting. the higher world, as it looks from without, is a stage on which the actors walk their parts much better than the spectators can. this play is played in every district. every rustic feels that his house is not like my lord's house; his life like my lord's life; his wife like my lady. the climax of the play is the queen: nobody supposes that their house is like the court; their life like her life; her orders like their orders. there is in england a certain charmed spectacle which imposes on the many, and guides their fancies as it will. as a rustic on coming to london finds himself in presence of a great show and vast exhibition of inconceivable mechanical things, so by the structure of our society, he finds himself face to face with a great exhibition of political things which he could not have imagined, which he could not make--to which he feels in himself scarcely anything analogous. philosophers may deride this superstition, but its results are inestimable. by the spectacle of this august society, countless ignorant men and women are induced to obey the few nominal electors--the ll borough renters, and the l county renters--who have nothing imposing about them, nothing which would attract the eye or fascinate the fancy. what impresses men is not mind, but the result of mind. and the greatest of these results is this wonderful spectacle of society, which is ever new, and yet ever the same; in which accidents pass and essence remains; in which one generation dies and another succeeds, as if they were birds in a cage, or animals in a menagerie; of which it seems almost more than a metaphor to treat the parts as limbs of a perpetual living thing, so silently do they seem to change, so wonderfully and so perfectly does the conspicuous life of the new year take the place of the conspicuous life of last year. the apparent rulers of the english nation are like the most imposing personages of a splendid procession: it is by them the mob are influenced; it is they whom the spectators cheer. the real rulers are secreted in second-rate carriages; no one cares for them or asks about them, but they are obeyed implicitly and unconsciously by reason of the splendour of those who eclipsed and preceded them. it is quite true that this imaginative sentiment is supported by a sensation of political satisfaction. it cannot be said that the mass of the english people are well off. there are whole classes who have not a conception of what the higher orders call comfort; who have not the prerequisites of moral existence; who cannot lead the life that becomes a man. but the most miserable of these classes do not impute their misery to politics. if a political agitator were to lecture to the peasants of dorsetshire, and try to excite political dissatisfaction, it is much more likely that he would be pelted than that he would succeed. of parliament these miserable creatures know scarcely anything; of the cabinet they never heard. but they would say that, "for all they have heard, the queen is very good"; and rebelling against the structure of society is to their minds rebelling against the queen, who rules that society, in whom all its most impressive part--the part that they know--culminates. the mass of the english people are politically contented as well as politically deferential. a deferential community, even though its lowest classes are not intelligent, is far more suited to a cabinet government than any kind of democratic country, because it is more suited to political excellence. the highest classes can rule in it; and the highest classes must, as such, have more political ability than the lower classes. a life of labour, an incomplete education, a monotonous occupation, a career in which the hands are used much and the judgment is used little, cannot create as much flexible thought, as much applicable intelligence, as a life of leisure, a long culture, a varied experience, an existence by which the judgment is incessantly exercised, and by which it may be incessantly improved. a country of respectful poor, though far less happy than where there are no poor to be respectful, is nevertheless far more fitted for the best government. you can use the best classes of the respectful country; you can only use the worst where every man thinks he is as good as every other. it is evident that no difficulty can be greater than that of founding a deferential nation. respect is traditional; it is given not to what is proved to be good, but to what is known to be old. certain classes in certain nations retain by common acceptance a marked political preference, because they have always possessed it, and because they inherit a sort of pomp which seems to make them worthy of it. but in a new colony, in a community where merit may be equal, and where there cannot be traditional marks of merit and fitness, it is obvious that a political deference can be yielded to higher culture only upon proof, first of its existence, and next of its political value. but it is nearly impossible to give such a proof so as to satisfy persons of less culture. in a future and better age of the world it may be effected; but in this age the requisite premises scarcely exist; if the discussion be effectually open, if the debate be fairly begun, it is hardly possible to obtain a rational, an argumentative acquiescence in the rule of the cultivated few. as yet the few rule by their hold, not over the reason of the multitude, but over their imaginations, and their habits; over their fancies as to distant things they do not know at all, over their customs as to near things which they know very well. a deferential community in which the bulk of the people are ignorant, is therefore in a state of what is called in mechanics unstable equilibrium. if the equilibrium is once disturbed there is no tendency to return to it, but rather to depart from it. a cone balanced on its point is in unstable equilibrium, for if you push it ever so little it will depart farther and farther from its position and fall to the earth. so in communities where the masses are ignorant but respectful, if you once permit the ignorant class to begin to rule you may bid farewell to deference for ever. their demagogues will inculcate, their newspapers will recount, that the rule of the existing dynasty (the people) is better than the rule of the fallen dynasty (the aristocracy). a people very rarely hears two sides of a subject in which it is much interested; the popular organs take up the side which is acceptable, and none but the popular organs in fact reach the people. a people never hears censure of itself. no one will tell it that the educated minority whom it dethroned governed better or more wisely than it governs. a democracy will never, save after an awful catastrophe, return what has once been conceded to it, for to do so would be to admit an inferiority in itself, of which, except by some almost unbearable misfortune, it could never be convinced. no. ix. its history, and the effects of that history.--conclusion. a volume might seem wanted to say anything worth saying[ ] on the history of the english constitution, and a great and new volume might still be written on it, if a competent writer took it in hand. the subject has never been treated by any one combining the lights of the newest research and the lights of the most matured philosophy. since the masterly book of hallam was written, both political thought and historical knowledge have gained much, and we might have a treatise applying our strengthened calculus to our augmented facts. i do not pretend that i could write such a book, but there are a few salient particulars which may be fitly brought together, both because of their past interest and of their present importance. [ ] since the first edition of this book was published several valuable works have appeared, which, on many points, throw much light on our early constitutional history, especially mr. stubbs' select charters and other illustrations of english constitutional history, from the earliest times to the reign of edward the first, mr. freeman's lecture on "the growth of the english constitution," and the chapter on the anglo-saxon constitution in his history of the norman conquest: but we have not yet a great and authoritative work on the whole subject such as i wished for when i wrote the passage in the text, and as it is most desirable that we should have. there is a certain common polity, or germ of polity, which we find in all the rude nations that have attained civilisation. these nations seem to begin in what i may call a consultative and tentative absolutism. the king of early days, in vigorous nations, was not absolute as despots now are; there was then no standing army to repress rebellion, no organised espionage to spy out discontent, no skilled bureaucracy to smooth the ruts of obedient life. the early king was indeed consecrated by a religious sanction; he was essentially a man apart, a man above others, divinely anointed or even god-begotten. but in nations capable of freedom this religious domination was never despotic. there was indeed no legal limit; the very words could not be translated into the dialect of those times. the notion of law as we have it--of a rule imposed by human authority, capable of being altered by that authority, when it likes, and in fact, so altered habitually--could not be conveyed to early nations, who regarded law half as an invincible prescription, and half as a divine revelation. law "came out of the king's mouth"; he gave it as solomon gave judgment--embedded in the particular case, and upon the authority of heaven as well as his own. a divine limit to the divine revealer was impossible, and there was no other source of law. but though there was no legal limit, there was a practical limit to subjection in (what may be called) the pagan part of human nature--the inseparable obstinacy of freemen. they never would do exactly what they were told. to early royalty, as homer describes it in greece and as we may well imagine it elsewhere, there were always two adjuncts: one the "old men," the men of weight, the council, the _boulé_, of which the king asked advice, from the debates in which the king tried to learn what he could do and what he ought to do. besides this there was the _agorá_, the purely listening assembly, as some have called it, but the tentative assembly, as i think it might best be called. the king came down to his assembled people in form to announce his will, but in reality, speaking in very modern words, to "feel his way". he was sacred, no doubt; and popular, very likely; still he was half like a popular premier speaking to a high-spirited chamber; there were limits to his authority and power--limits which he would discover by trying whether eager cheers received his mandate, or only hollow murmurs and a thinking silence. this polity is a good one for its era and its place, but there is a fatal defect in it. the reverential associations upon which the government is built are transmitted according to one law, and the capacity needful to work the government is transmitted according to another law. the popular homage clings to the line of god-descended kings; it is transmitted by inheritance. but very soon that line comes to a child or an idiot, or one by some defect or other incapable. then we find everywhere the truth of the old saying, that liberty thrives under weak princes; then the listening assembly begins not only to murmur, but to speak; then the grave council begins not so much to suggest as to inculcate, not so much to advise as to enjoin. mr. grote has told at length how out of these appendages of the original kingdom the free states of greece derived their origin, and how they gradually grew--the oligarchical states expanding the council, and the democratical expanding the assembly. the history has as many varieties in detail as there were greek cities, but the essence is the same everywhere. the political characteristic of the early greeks, and of the early romans, too, is that out of the tentacula of a monarchy they developed the organs of a republic. english history has been in substance the same, though its form is different, and its growth far slower and longer. the scale was larger, and the elements more various. a greek city soon got rid of its kings, for the political sacredness of the monarch would not bear the daily inspection and constant criticism of an eager and talking multitude. everywhere in greece the slave population--the most ignorant, and therefore the most unsusceptible of intellectual influences--was struck out of the account. but england began as a kingdom of considerable size, inhabited by distinct races, none of them fit for prosaic criticism, and all subject to the superstition of royalty. in early england, too, royalty was much more than a superstition. a very strong executive was needed to keep down a divided, an armed, and an impatient country; and therefore the problem of political development was delicate. a formed free government in a homogeneous nation may have a strong executive; but during the transition state, while the republic is in course of development and the monarchy in course of decay, the executive is of necessity weak. the polity is divided, and its action feeble and failing. the different orders of english people have progressed, too, at different rates. the change in the state of the higher classes since the middle ages is enormous, and it is all improvement; but the lower have varied little, and many argue that in some important respects they have got worse, even if in others they have got better. the development of the english constitution was of necessity slow, because a quick one would have destroyed the executive and killed the state, and because the most numerous classes, who changed very little, were not prepared for any catastrophic change in our institutions. i cannot presume to speak of the time before the conquest, and the exact nature even of all anglo-norman institutions is perhaps dubious: at least, in nearly all cases there have been many controversies. political zeal, whether whig or tory, has wanted to find a model in the past; and the whole state of society being confused, the precedents altering with the caprice of men and the chance of events, ingenious advocacy has had a happy field. but all that i need speak of is quite plain. there was a great "council" of the realm, to which the king summoned the most considerable persons in england, the persons he most wanted to advise him, and the persons whose tempers he was most anxious to ascertain. exactly who came to it at first is obscure and unimportant. i need not distinguish between the "magnum concilium in parliament" and the "magnum concilium out of parliament". gradually the principal assemblies summoned by the english sovereign took the precise and definite form of lords and commons, as in their outside we now see them. but their real nature was very different. the parliament of to-day is a ruling body; the mediaeval parliament was, if i may so say, an expressive body. its function was to tell the executive--the king--what the nation wished he should do; to some extent, to guide him by new wisdom, and, to a very great extent, to guide him by new facts. these facts were their own feelings, which were the feelings of the people, because they were part and parcel of the people. from thence the king learned, or had the means to learn, what the nation would endure, and what it would not endure;--what he might do, and what he might not do. if he much mistook this, there was a rebellion. there are, as is well known, three great periods in the english constitution. the first of these is the ante-tudor period. the english parliament then seemed to be gaining extraordinary strength and power. the title to the crown was uncertain; some monarchs were imbecile. many ambitious men wanted to "take the people into partnership". certain precedents of that time were cited with grave authority centuries after, when the time of freedom had really arrived. but the causes of this rapid growth soon produced an even more sudden decline. confusion fostered it, and confusion destroyed it. the structure of society then was feudal; the towns were only an adjunct and a make-weight. the principal popular force was an aristocratic force, acting with the co-operation of the gentry and yeomanry, and resting on the loyal fealty of sworn retainers. the head of this force, on whom its efficiency depended, was the high nobility. but the high nobility killed itself out. the great barons who adhered to the "red rose" or the "white rose," or who fluctuated from one to the other, became poorer, fewer, and less potent every year. when the great struggle ended at bosworth, a large part of the greatest combatants were gone. the restless, aspiring, rich barons, who made the civil war, were broken by it. henry vii. attained a kingdom in which there was a parliament to advise, but scarcely a parliament to control. the consultative government of the ante-tudor period had little resemblance to some of the modern governments which french philosophers call by that name. the french empire, i believe, calls itself so. but its assemblies are symmetrical "shams". they are elected by a universal suffrage, by the ballot, and in districts once marked out with an eye to equality, and still retaining a look of equality. but our english parliaments were unsymmetrical realities. they were elected anyhow; the sheriff had a considerable licence in sending writs to boroughs, that is, he could in part pick its constituencies; and in each borough there was a rush and scramble for the franchise, so that the strongest local party got it, whether few or many. but in england at that time there was a great and distinct desire to know the opinion of the nation, because there was a real and close necessity. the nation was wanted to do something--to assist the sovereign in some war, to pay some old debt, to contribute its force and aid in the critical conjuncture of the time. it would not have suited the ante-tudor kings to have had a fictitious assembly; they would have lost their sole feeler, their only instrument for discovering national opinion. nor could they have manufactured such an assembly if they wished. the instrument in that behalf is the centralised executive, and there was then no 'prefet' by whom the opinion of a rural locality could be made to order, and adjusted to suit the wishes of the capital. looking at the mode of election a theorist would say that these parliaments were but "chance" collections of influential englishmen. there would be many corrections and limitations to add to that statement if it were wanted to make it accurate, but the statement itself hits exactly the principal excellence of those parliaments. if not "chance" collections of englishmen, they were "undesigned" collections; no administrations made them or could make them. they were bona-fide counsellors, whose opinion might be wise or unwise, but was anyhow of paramount importance, because their co-operation was wanted for what was in hand. legislation as a positive power was very secondary in those old parliaments. i believe no statute at all, as far as we know, was passed in the reign of richard i., and all the ante-tudor acts together would look meagre enough to a modern parliamentary agent who had to live by them. but the negative action of parliament upon the law was essential to its whole idea, and ran through every part of its use. that the king could not change what was then the almost sacred datum of the common law, without seeing whether his nation liked it or not, was an essential part of the "tentative" system. the king had to feel his way in this exceptional, singular act, as those ages deemed original legislation, as well as in lesser acts. the legislation was his at last; he enacted after consulting his lords and commons; his was the sacred mouth which gave holy firmness to the enactment; but he only dared alter the rule regulating the common life of his people after consulting those people; he would not have been obeyed if he had not, by a rude age which did not fear civil war as we fear it now. many most important enactments of that period (and the fact is most characteristic) are declaratory acts. they do not profess to enjoin by inherent authority what the law shall in future be, but to state and mark what the law is; they are declarations of immemorial custom, not precepts of new duties. even in the "great charter" the notion of new enactments was secondary, it was a great mixture of old and new; it was a sort of compact defining what was doubtful in floating custom, and was re-enacted over and over again, as boundaries are perambulated once a year, and rights and claims tending to desuetude thereby made patent and cleared of new obstructions. in truth, such great "charters" were rather treaties between different orders and factions, confirming ancient rights, or what claimed to be such, than laws in our ordinary sense. they were the "deeds of arrangement" of mediaeval society affirmed and re-affirmed from time to time, and the principal controversy was, of course, between the king and nation--the king trying to see how far the nation would let him go, and the nation murmuring and recalcitrating, and seeing how many acts of administration they could prevent, and how many of its claims they could resist. sir james mackintosh says that magna charta "converted the right of taxation into the shield of liberty," but it did nothing of the sort. the liberty existed before, and the right to be taxed was an efflorescence and instance of it, not a sub-stratum or a cause. the necessity of consulting the great council of the realm before taxation, the principle that the declaration of grievances by the parliament was to precede the grant of supplies to the sovereign, are but conspicuous instances of the primitive doctrine of the ante-tudor period, that the king must consult the great council of the realm, before he did anything, since he always wanted help. the right of self-taxation was justly inserted in the "great treaty"; but it would have been a dead letter, save for the armed force and aristocratic organisation which compelled the king to make a treaty; it was a result, not a basis--an example, not a cause. the civil wars of many years killed out the old councils (if i might so say): that is, destroyed three parts of the greater nobility, who were its most potent members, tired the small nobility and the gentry, and overthrew the aristocratic organisation on which all previous effectual resistance to the sovereign had been based. the second period of the british constitution begins with the accession of the house of tudor, and goes down to ; it is in substance the history of the growth, development, and gradually acquired supremacy of the new great council. i have no room and no occasion to narrate again the familiar history of the many steps by which the slavish parliament of henry viii. grew into the murmuring parliament of queen elizabeth, the mutinous parliament of james i., and the rebellious parliament of charles i. the steps were many, but the energy was one--the growth of the english middle-class, using that word in its most inclusive sense, and its animation under the influence of protestantism. no one, i think, can doubt that lord macaulay is right in saying that political causes would not alone have then provoked such a resistance to the sovereign unless propelled by religious theory. of course the english people went to and fro from catholicism to protestantism, and from protestantism to catholicism (not to mention that the protestantism was of several shades and sects), just as the first tudor kings and queens wished. but that was in the pre-puritan era. the mass of englishmen were in an undecided state, just as hooper tells us his father was--"not believing in protestantism, yet not disinclined to it". gradually, however, a strong evangelic spirit (as we should now speak) and a still stronger anti-papal spirit entered into the middle sort of englishmen, and added to that force, fibre, and substance which they have never wanted, an ideal warmth and fervour which they have almost always wanted. hence the saying that cromwell founded the english constitution. of course, in seeming, cromwell's work died with him; his dynasty was rejected, his republic cast aside; but the spirit which culminated in him never sank again, never ceased to be a potent, though often a latent and volcanic force in the country. charles ii. said that he would never go again on his travels for anything or anybody; and he well knew that though the men whom he met at worcester might be dead, still the spirit which warmed them was alive and young in others. but the cromwellian republic and the strict puritan creed were utterly hateful to most englishmen. they were, if i may venture on saying so, like the "rouge" element in france and elsewhere--the sole revolutionary force in the entire state, and were hated as such. that force could do little of itself; indeed, its bare appearance tended to frighten and alienate the moderate and dull as well as the refined and reasoning classes. alone it was impotent against the solid clay of the english apathetic nature. but give this fiery element a body of decent-looking earth; give it an excuse for breaking out on an occasion, when the decent, the cultivated, and aristocratic classes could join with it, and they would conquer by means of it, and it could be disguised in their covering. such an excuse was found in . james ii., by incredible and pertinacious folly, irritated not only the classes which had fought against his father, but also those who had fought for his father. he offended the anglican classes as well as the puritan classes; all the whig nobles, and half the tory nobles, as well as the dissenting bourgeois. the rule of parliament was established by the concurrence of the usual supporters of royalty with the usual opponents of it. but the result was long weak. our revolution has been called the minimum of a revolution, because in law, at least, it only changed the dynasty, but exactly on that account it was the greatest shock to the common multitude, who see the dynasty but see nothing else. the support of the main aristocracy held together the bulk of the deferential classes, but it held them together imperfectly, uneasily, and unwillingly. huge masses of crude prejudice swayed hither and thither for many years. if an able stuart had with credible sincerity professed protestantism probably he might have overturned the house of hanover. so strong was inbred reverence for hereditary right, that until the accession of george iii. the english government was always subject to the unceasing attrition of a competitive sovereign. this was the result of what i insist on tediously, but what is most necessary to insist on, for it is a cardinal particular in the whole topic. many of the english people--the higher and more educated portion--had come to comprehend the nature of constitutional government, but the mass did not comprehend it. they looked to the sovereign as the government, and to the sovereign only. these were carried forward by the magic of the aristocracy and principally by the influence of the great whig families with their adjuncts. without that aid reason or liberty would never have held them. though the rule of parliament was definitely established in , yet the mode of exercising that rule has since changed. at first parliament did not know how to exercise it; the organisation of parties and the appointment of cabinets by parties grew up in the manner macaulay has described so well. up to the latest period the sovereign was supposed, to a most mischievous extent, to interfere in the choice of the persons to be ministers. when george iii. finally became insane, in , every one believed that george iv., on assuming power as prince regent, would turn out mr. perceval's government and empower lord grey or lord grenville, the whig leaders, to form another. the tory ministry was carrying on a successful war--a war of existence--against napoleon; but in the people's minds, the necessity at such an occasion for an unchanged government did not outweigh the fancy that george iv. was a whig. and a whig it is true he had been before the french revolution, when he lived an indescribable life in st. james's street with mr. fox. but lord grey and lord grenville were rigid men, and had no immoral sort of influence. what liberalism of opinion the regent ever had was frightened out of him (as of other people) by the reign of terror. he felt, according to the saying of another monarch, that "he lived by being a royalist". it soon appeared that he was most anxious to retain mr. perceval, and that he was most eager to quarrel with the whig lords. as we all know, he kept the ministry whom he found in office; but that it should have been thought he could then change them, is a significant example how exceedingly modern our notions of the despotic action of parliament in fact are. by the steps of the struggle thus rudely mentioned (and by others which i have no room to speak of, nor need i), the change which in the greek cities was effected both in appearance and in fact, has been effected in england, though in reality only, and not in outside. here, too, the appendages of a monarchy have been converted into the essence of a republic; only here, because of a more numerous heterogeneous political population, it is needful to keep the ancient show while we secretly interpolate the new reality. this long and curious history has left its trace on almost every part of our present political condition; its effects lie at the root of many of our most important controversies; and because these effects are not rightly perceived, many of these controversies are misconceived. one of the most curious peculiarities of the english people is its dislike of the executive government. we are not in this respect "un vrai peuple moderne," like the americans. the americans conceive of the executive as one of their appointed agents; when it intervenes in common life, it does so, they consider, in virtue of the mandate of the sovereign people, and there is no invasion or dereliction of freedom in that people interfering with itself. the french, the swiss, and all nations who breathe the full atmosphere of the nineteenth century, think so too. the material necessities of this age require a strong executive; a nation destitute of it cannot be clean, or healthy, or vigorous, like a nation possessing it. by definition, a nation calling itself free should have no jealousy of the executive, for freedom means that the nation, the political part of the nation, wields the executive. but our history has reversed the english feeling: our freedom is the result of centuries of resistance, more or less legal, or more or less illegal, more or less audacious, or more or less timid, to the executive government. we have, accordingly, inherited the traditions of conflict, and preserve them in the fulness of victory. we look on state action, not as our own action, but as alien action; as an imposed tyranny from without, not as the consummated result of our own organised wishes. i remember at the census of hearing a very sensible old lady say that the "liberties of england were at an end"; if government might be thus inquisitorial, if they might ask who slept in your house, or what your age was, what, she argued, might they not ask and what might they not do? the natural impulse of the english people is to resist authority. the introduction of effectual policemen was not liked; i know people, old people, i admit, who to this day consider them an infringement of freedom, and an imitation of the gendarmes of france. if the original policemen had been started with the present helmets, the result might have been dubious; there might have been a cry of military tyranny, and the inbred insubordination of the english people might have prevailed over the very modern love of perfect peace and order. the old notion that the government is an extrinsic agency still rules our imaginations, though it is no longer true, and though in calm and intellectual moments we well know it is not. nor is it merely our history which produces this effect; we might get over that; but the results of that history co-operate. our double government so acts: when we want to point the antipathy to the executive, we refer to the jealousy of the crown, so deeply embedded in the very substance of constitutional authority; so many people are loth to admit the queen, in spite of law and fact, to be the people's appointee and agent, that it is a good rhetorical emphasis to speak of her prerogative as something non-popular, and therefore to be distrusted. by the very nature of our government our executive cannot be liked and trusted as the swiss or the american is liked and trusted. out of the same history and the same results proceed our tolerance of those "local authorities" which so puzzle many foreigners. in the struggle with the crown these local centres served as props and fulcrums. in the early parliaments it was the local bodies who sent members to parliament, the counties, and the boroughs; and in that way, and because of their free life, the parliament was free too. if active real bodies had not sent the representatives, they would have been powerless. this is very much the reason why our old rights of suffrage were so various; the government let whatever people happened to be the strongest in each town choose the members. they applied to the electing bodies the test of "natural selection"; whatever set of people were locally strong enough to elect, did so. afterwards in the civil war, many of the corporations, like that of london, were important bases of resistance. the case of london is typical and remarkable. probably, if there is any body more than another which an educated englishman nowadays regards with little favour, it is the corporation of london. he connects it with hereditary abuses perfectly preserved, with large revenues imperfectly accounted for, with a system which stops the principal city government at an old archway, with the perpetuation of a hundred detestable parishes, with the maintenance of a horde of luxurious and useless bodies. for the want of all which makes paris nice and splendid we justly reproach the corporation of london; for the existence of much of what makes london mean and squalid we justly reproach it too. yet the corporation of london was for centuries a bulwark of english liberty. the conscious support of the near and organised capital gave the long parliament a vigour and vitality which they could have found nowhere else. their leading patriots took refuge in the city, and the nearest approach to an english "sitting in permanence" is the committee at guildhall, where all members "that came were to have voices". down to george iii.'s time the city was a useful centre of popular judgment. here, as elsewhere, we have built into our polity pieces of the scaffolding by which it was erected. de tocqueville indeed used to maintain that in this matter the english were not merely historically excusable but likewise politically judicious. he founded what may be called the culte of corporations. and it was natural, that in france, where there is scarcely any power of self-organisation in the people, where the prefet must be asked upon every subject, and take the initiative in every movement, a solitary thinker should be repelled from the exaggerations of which he knew the evil, to the contrary exaggeration of which he did not. but in a country like england where business is in the air, where we can organise a vigilance committee on every abuse and an executive committee for every remedy--as a matter of political instruction, which was de tocqueville's point--we need not care how much power is delegated to outlying bodies, and how much is kept for the central body. we have had the instruction municipalities could give us: we have been through all that. now we are quite grown up, and can put away childish things. the same causes account for the innumerable anomalies of our polity. i own that i do not entirely sympathise with the horror of these anomalies which haunts some of our best critics. it is natural that those who by special and admirable culture have come to look at all things upon the artistic side, should start back from these queer peculiarities. but it is natural also that persons used to analyse political institutions should look at these anomalies with a little tenderness and a little interest. they may have something to teach us. political philosophy is still more imperfect; it has been framed from observations taken upon regular specimens of politics and states; as to these its teaching is most valuable. but we must ever remember that its data are imperfect. the lessons are good where its primitive assumptions hold, but may be false where those assumptions fail. a philosophical politician regards a political anomaly as a scientific physician regards a rare disease--it is to him an "interesting case". there may still be instruction here, though we have worked out the lessons of common cases. i cannot, therefore, join in the full cry against anomalies; in my judgment it may quickly overrun the scent, and so miss what we should be glad to find. subject to this saving remark, however, i not only admit, but maintain, that our constitution is full of curious oddities, which are impeding and mischievous, and ought to be struck out. our law very often reminds one of those outskirts of cities where you cannot for a long time tell how the streets come to wind about in so capricious and serpent-like a manner. at last it strikes you that they grew up, house by house, on the devious tracks of the old green lanes; and if you follow on to the existing fields, you may often find the change half complete. just so the lines of our constitution were framed in old eras of sparse population, few wants, and simple habits; and we adhere in seeming to their shape, though civilisation has come with its dangers, complications, and enjoyments. these anomalies, in a hundred instances, mark the old boundaries of a constitutional struggle. the casual line was traced according to the strength of deceased combatants; succeeding generations fought elsewhere; and the hesitating line of a half-drawn battle was left to stand for a perpetual limit. i do not count as an anomaly the existence of our double government, with all its infinite accidents, though half the superficial peculiarities that are often complained of arise out of it. the co-existence of a queen's seeming prerogative and a downing street's real government is just suited to such a country as this, in such an age as ours.[ ] [ ] so well is our real government concealed, that if you tell a cabman to drive to "downing street," he most likely will never have heard of it, and will not in the least know where to take you. it is only a "disguised republic". [the end] constitution of the empire of japan, imperial oath sworn in the sanctuary in the imperial palace (tsuge-bumi) we, the successor to the prosperous throne of our predecessors, do humbly and solemnly swear to the imperial founder of our house and to our other imperial ancestors that, in pursuance of a great policy co-extensive with the heavens and with the earth, we shall maintain and secure from decline the ancient form of government. in consideration of the progressive tendency of the course of human affairs and in parallel with the advance of civilization, we deem it expedient, in order to give clearness and distinctness to the instructions bequeathed by the imperial founder of our house and by our other imperial ancestors, to establish fundamental laws formulated into express provisions of law, so that, on the one hand, our imperial posterity may possess an express guide for the course they are to follow, and that, on the other, our subjects shall thereby be enabled to enjoy a wider range of action in giving us their support, and that the observance of our laws shall continue to the remotest ages of time. we will thereby to give greater firmness to the stability of our country and to promote the welfare of all the people within the boundaries of our dominions; and we now establish the imperial house law and the constitution. these laws come to only an exposition of grand precepts for the conduct of the government, bequeathed by the imperial founder of our house and by our other imperial ancestors. that we have been so fortunate in our reign, in keeping with the tendency of the times, as to accomplish this work, we owe to the glorious spirits of the imperial founder of our house and of our other imperial ancestors. we now reverently make our prayer to them and to our illustrious father, and implore the help of their sacred spirits, and make to them solemn oath never at this time nor in the future to fail to be an example to our subjects in the observance of the laws hereby established. may the heavenly spirits witness this our solemn oath. imperial rescript on the promulgation of the constitution whereas we make it the joy and glory of our heart to behold the prosperity of our country, and the welfare of our subjects, we do hereby, in virtue of the supreme power we inherit from our imperial ancestors, promulgate the present immutable fundamental law, for the sake of our present subjects and their descendants. the imperial founder of our house and our other imperial ancestors, by the help and support of the forefathers of our subjects, laid the foundation of our empire upon a basis, which is to last forever. that this brilliant achievement embellishes the annals of our country, is due to the glorious virtues of our sacred imperial ancestors, and to the loyalty and bravery of our subjects, their love of their country and their public spirit. considering that our subjects are the descendants of the loyal and good subjects of our imperial ancestors, we doubt not but that our subjects will be guided by our views, and will sympathize with all our endeavors, and that, harmoniously cooperating together, they will share with us our hope of making manifest the glory of our country, both at home and abroad, and of securing forever the stability of the work bequeathed to us by our imperial ancestors. preamble [or edict] (joyu) having, by virtue of the glories of our ancestors, ascended the throne of a lineal succession unbroken for ages eternal; desiring to promote the welfare of, and to give development to the moral and intellectual faculties of our beloved subjects, the very same that have been favored with the benevolent care and affectionate vigilance of our ancestors; and hoping to maintain the prosperity of the state, in concert with our people and with their support, we hereby promulgate, in pursuance of our imperial rescript of the th day of the th month of the th year of meiji, a fundamental law of the state, to exhibit the principles, by which we are guided in our conduct, and to point out to what our descendants and our subjects and their descendants are forever to conform. the right of sovereignty of the state, we have inherited from our ancestors, and we shall bequeath them to our descendants. neither we nor they shall in the future fail to wield them, in accordance with the provisions of the constitution hereby granted. we now declare to respect and protect the security of the rights and of the property of our people, and to secure to them the complete enjoyment of the same, within the extent of the provisions of the present constitution and of the law. the imperial diet shall first be convoked for the rd year of meiji and the time of its opening shall be the date, when the present constitution comes into force. when in the future it may become necessary to amend any of the provisions of the present constitution, we or our successors shall assume the initiative right, and submit a project for the same to the imperial diet. the imperial diet shall pass its vote upon it, according to the conditions imposed by the present constitution, and in no otherwise shall our descendants or our subjects be permitted to attempt any alteration thereof. our ministers of state, on our behalf, shall be held responsible for the carrying out of the present constitution, and our present and future subjects shall forever assume the duty of allegiance to the present constitution. chapter i. the emperor article . the empire of japan shall be reigned over and governed by a line of emperors unbroken for ages eternal. article . the imperial throne shall be succeeded to by imperial male descendants, according to the provisions of the imperial house law. article . the emperor is sacred and inviolable. article . the emperor is the head of the empire, combining in himself the rights of sovereignty, and exercises them, according to the provisions of the present constitution. article . the emperor exercises the legislative power with the consent of the imperial diet. article . the emperor gives sanction to laws, and orders them to be promulgated and executed. article . the emperor convokes the imperial diet, opens, closes, and prorogues it, and dissolves the house of representatives. article . the emperor, in consequence of an urgent necessity to maintain public safety or to avert public calamities, issues, when the imperial diet is not sitting, imperial ordinances in the place of law. ( ) such imperial ordinances are to be laid before the imperial diet at its next session, and when the diet does not approve the said ordinances, the government shall declare them to be invalid for the future. article . the emperor issues or causes to be issued, the ordinances necessary for the carrying out of the laws, or for the maintenance of the public peace and order, and for the promotion of the welfare of the subjects. but no ordinance shall in any way alter any of the existing laws. article . the emperor determines the organization of the different branches of the administration, and salaries of all civil and military officers, and appoints and dismisses the same. exceptions especially provided for in the present constitution or in other laws, shall be in accordance with the respective provisions (bearing thereon). article . the emperor has the supreme command of the army and navy. article . the emperor determines the organization and peace standing of the army and navy. article . the emperor declares war, makes peace, and concludes treaties. article . the emperor declares a state of siege. ( ) the conditions and effects of a state of siege shall be determined by law. article . the emperor confers titles of nobility, rank, orders and other marks of honor. article . the emperor orders amnesty, pardon, commutation of punishments and rehabilitation. article . a regency shall be instituted in conformity with the provisions of the imperial house law. ( ) the regent shall exercise the powers appertaining to the emperor in his name. chapter ii. rights and duties of subjects article . the conditions necessary for being a japanese subject shall be determined by law. article . japanese subjects may, according to qualifications determined in laws or ordinances, be appointed to civil or military or any other public offices equally. article . japanese subjects are amenable to service in the army or navy, according to the provisions of law. article . japanese subjects are amenable to the duty of paying taxes, according to the provisions of law. article . japanese subjects shall have the liberty of abode and of changing the same within the limits of the law. article . no japanese subject shall be arrested, detained, tried or punished, unless according to law. article . no japanese subject shall be deprived of his right of being tried by the judges determined by law. article . except in the cases provided for in the law, the house of no japanese subject shall be entered or searched without his consent. article . except in the cases mentioned in the law, the secrecy of the letters of every japanese subject shall remain inviolate. article . the right of property of every japanese subject shall remain inviolate. ( ) measures necessary to be taken for the public benefit shall be any provided for by law. article . japanese subjects shall, within limits not prejudicial to peace and order, and not antagonistic to their duties as subjects, enjoy freedom of religious belief. article . japanese subjects shall, within the limits of law, enjoy the liberty of speech, writing, publication, public meetings and associations. article . japanese subjects may present petitions, by observing the proper forms of respect, and by complying with the rules specially provided for the same. article . the provisions contained in the present chapter shall not affect the exercises of the powers appertaining to the emperor, in times of war or in cases of a national emergency. article . each and every one of the provisions contained in the preceding articles of the present chapter, that are not in conflict with the laws or the rules and discipline of the army and navy, shall apply to the officers and men of the army and of the navy. chapter iii. the imperial diet article . the imperial diet shall consist of two houses, a house of peers and a house of representatives. article . the house of peers shall, in accordance with the ordinance concerning the house of peers, be composed of the members of the imperial family, of the orders of nobility, and of those who have been nominated thereto by the emperor. article . the house of representatives shall be composed of members elected by the people, according to the provisions of the law of election. article . no one can at one and the same time be a member of both houses. article . every law requires the consent of the imperial diet. article . both houses shall vote upon projects of law submitted to it by the government, and may respectively initiate projects of law. article . a bill, which has been rejected by either the one or the other of the two houses, shall not be brought in again during the same session. article . both houses can make representations to the government, as to laws or upon any other subject. when, however, such representations are not accepted, they cannot be made a second time during the same session. article . the imperial diet shall be convoked every year. article . a session of the imperial diet shall last during three months. in case of necessity, the duration of a session may be prolonged by the imperial order. article . when urgent necessity arises, an extraordinary session may be convoked in addition to the ordinary one. ( ) the duration of an extraordinary session shall be determined by imperial order. article . the opening, closing, prolongation of session and prorogation of the imperial diet, shall be effected simultaneously for both houses. ( ) in case the house of representatives has been ordered to dissolve, the house of peers shall at the same time be prorogued. article . when the house of representatives has been ordered to dissolve, members shall be caused by imperial order to be newly elected, and the new house shall be convoked within five months from the day of dissolution. article . no debate can be opened and no vote can be taken in either house of the imperial diet, unless not less than one-third of the whole number of members thereof is present. article . votes shall be taken in both houses by absolute majority. in the case of a tie vote, the president shall have the casting vote. article . the deliberations of both houses shall be held in public. the deliberations may, however, upon demand of the government or by resolution of the house, be held in secret sitting. article . both houses of the imperial diet may respectively present addresses to the emperor. article . both houses may receive petitions presented by subjects. article . both houses may enact, besides what is provided for in the present constitution and in the law of the houses, rules necessary for the management of their internal affairs. article . no member of either house shall be held responsible outside the respective houses, for any opinion uttered or for any vote given in the house. when, however, a member himself has given publicity to his opinions by public speech, by documents in print or in writing, or by any other similar means, he shall, in the matter, be amenable to the general law. article . the members of both houses shall, during the session, be free from arrest, unless with the consent of the house, except in cases of flagrant delicts, or of offenses connected with a state of internal commotion or with a foreign trouble. article . the ministers of state and the delegates of the government may, at any time, take seats and speak in either house. chapter iv. the ministers of state and the privy council article . the respective ministers of state shall give their advice to the emperor, and be responsible for it. ( ) all laws, imperial ordinances, and imperial rescripts of whatever kind, that relate to the affairs of the state, require the countersignature of a minister of state. article . the privy councillors shall, in accordance with the provisions for the organization of the privy council, deliberate upon important matters of state when they have been consulted by the emperor. chapter v. the judicature article . the judicature shall be exercised by the courts of law according to law, in the name of the emperor. ( ) the organization of the courts of law shall be determined by law. article . the judges shall be appointed from among those, who possess proper qualifications according to law. ( ) no judge shall be deprived of his position, unless by way of criminal sentence or disciplinary punishment. ( ) rules for disciplinary punishment shall be determined by law. article . trials and judgments of a court shall be conducted publicly. when, however, there exists any fear, that such publicity may be prejudicial to peace and order, or to the maintenance of public morality, the public trial may be suspended by provisions of law or by the decision of the court of law. article . all matters that fall within the competency of a special court, shall be specially provided for by law. article . no suit at law, which relates to rights alleged to have been infringed by the illegal measures of the administrative authorities, and which shall come within the competency of the court of administrative litigation specially established by law, shall be taken cognizance of by court of law. chapter vi. finance article . the imposition of a new tax or the modification of the rates (of an existing one) shall be determined by law. ( ) however, all such administrative fees or other revenue having the nature of compensation shall not fall within the category of the above clause. ( ) the raising of national loans and the contracting of other liabilities to the charge of the national treasury, except those that are provided in the budget, shall require the consent of the imperial diet. article . the taxes levied at present shall, in so far as they are not remodelled by a new law, be collected according to the old system. article . the expenditure and revenue of the state require the consent of the imperial diet by means of an annual budget. ( ) any and all expenditures overpassing the appropriations set forth in the titles and paragraphs of the budget, or that are not provided for in the budget, shall subsequently require the approbation of the imperial diet. article . the budget shall be first laid before the house of representatives. article . the expenditures of the imperial house shall be defrayed every year out of the national treasury, according to the present fixed amount for the same, and shall not require the consent thereto of the imperial diet, except in case an increase thereof is found necessary. article . those already fixed expenditures based by the constitution upon the powers appertaining to the emperor, and such expenditures as may have arisen by the effect of law, or that appertain to the legal obligations of the government, shall be neither rejected nor reduced by the imperial diet, without the concurrence of the government. article . in order to meet special requirements, the government may ask the consent of the imperial diet to a certain amount as a continuing expenditure fund, for a previously fixed number of years. article . in order to supply deficiencies, which are unavoidable, in the budget, and to meet requirements unprovided for in the same, a reserve fund shall be provided in the budget. article . when the imperial diet cannot be convoked, owing to the external or internal condition of the country, in case of urgent need for the maintenance of public safety, the government may take all necessary financial measures, by means of an imperial ordinance. ( ) in the case mentioned in the preceding clause, the matter shall be submitted to the imperial diet at its next session, and its approbation shall be obtained thereto. article . when the imperial diet has not voted on the budget, or when the budget has not been brought into actual existence, the government shall carry out the budget of the preceding year. article . the final account of the expenditures and revenues of the state shall be verified and confirmed by the board of audit, and it shall be submitted by the government to the imperial diet, together with the report of verification of the said board. ( ) the organization and competency of the board of audit shall of determined by law separately. chapter vii. supplementary rules article . when it has become necessary in future to amend the provisions of the present constitution, a project to the effect shall be submitted to the imperial diet by imperial order. ( ) in the above case, neither house can open the debate, unless not less than two-thirds of the whole number of members are present, and no amendment can be passed, unless a majority of not less than two-thirds of the members present is obtained. article . no modification of the imperial house law shall be required to be submitted to the deliberation of the imperial diet. ( ) no provision of the present constitution can be modified by the imperial house law. article . no modification can be introduced into the constitution, or into the imperial house law, during the time of a regency. article . existing legal enactments, such as laws, regulations, ordinances, or by whatever names they may be called, shall, so far as they do not conflict with the present constitution, continue in force. ( ) all existing contracts or orders, that entail obligations upon the government, and that are connected with expenditure, shall come within the scope of article . (the above is the semi-official translation, which appeared in h. ito, commentaries on the constitution of the empire of japan, trans. m. ito, .) the constitution of japan, promulgated on november , ; put into effect on may , . we, the japanese people, acting through our duly elected representatives in the national diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this constitution. government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. this is a universal principle of mankind upon which this constitution is founded. we reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith. we, the japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. we desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. we recognize that all peoples of the world have the right to live in peace, free from fear and want. we believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations. we, the japanese people, pledge our national honor to accomplish these high ideals and purposes with all our resources. chapter i. the emperor article . the emperor shall be the symbol of the state and of the unity of the people, deriving his position from the will of the people with whom resides sovereign power. article . the imperial throne shall be dynastic and succeeded to in accordance with the imperial house law passed by the diet. article . the advice and approval of the cabinet shall be required for all acts of the emperor in matters of state, and the cabinet shall be responsible therefor. article . the emperor shall perform only such acts in matters of state as are provided for in this constitution and he shall not have powers related to government ( ) the emperor may delegate the performance of his acts in matters of state as may be provided by law. article . when, in accordance with the imperial house law, a regency is established, the regent shall perform his acts in matter of state in the emperor's name. in this case, paragraph one of the article will be applicable. article . the emperor shall appoint the prime minister as designated by the diet. ( ) the emperor shall appoint the chief judge of the supreme court as designated by the cabinet. article . the emperor, with the advice and approval of the cabinet, shall perform the following acts in makers of state on behalf of the people: (i) promulgation of amendments of the constitution, laws, cabinet orders and treaties; (ii) convocation of the diet; (iii) dissolution of the house of representatives; (iv) proclamation of general election of members of the diet; (v) attestation of the appointment and dismissal of ministers of state and other officials as provided for by law, and of full powers and credentials of ambassadors and ministers; (vi) attestation of general and special amnesty, commutation of punishment, reprieve, and restoration of rights; (vii) awarding of honors; (viii) attestation of instruments of ratification and other diplomatic documents as provided for by law; (ix) receiving foreign ambassadors and ministers; (x) performance of ceremonial functions. article . no property can be given to, or received by, the imperial house, nor can any gifts be made therefrom, without the authorization of the diet. chapter ii. renunciation of war article . aspiring sincerely to an international peace based on justice and order, the japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a mean of settling international disputes. ( ) in order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. the right of belligerency of the state will not be recognized. chapter iii. rights and duties of the people article . the conditions necessary for being a japanese national shall be determined by law. article . the people shall not be prevented from enjoying any of the fundamental human rights. these fundamental human rights guaranteed to the people by this constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights. article . the freedoms and rights guaranteed to the people by this constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare. article . all of the people shall be respected as individuals. their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs. article . all of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin. ( ) peers and peerage shall not be recognized. ( ) no privilege shall accompany any award of honor, decoration or any distinction, nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it. article . the people have the inalienable right to choose their public officials and to dismiss them. ( ) all public officials are servants of the whole community and not of any group thereof. ( ) universal adult suffrage is guaranteed with regard to the election of public officials. ( ) in all elections, secrecy of the ballot shall not be violated. a voter shall not be answerable, publicly or privately, for the choice he has made. article . every person shall have the right of peaceful petition for the redress of damage, for the removal of public officials, for the enactment, repeal or amendment of law, ordinances or regulations and for other matters, nor shall any person be in any way discriminated against sponsoring such a petition. article . every person may sue for redress as provided by law from the state or a public entity, in case he has suffered damage through illegal act of any public official. article . no person shall be held in bondage of any kind. involuntary servitude, except as punishment for crime, is prohibited. article . freedom of thought and conscience shall not be violated. article . freedom of religion is guaranteed to all. no religious organization shall receive any privileges from the state nor exercise any political authority. ( ) no person shall be compelled to take part in any religious acts, celebration, rite or practice. ( ) the state and its organs shall refrain from religious education or any other religious activity. article . freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. ( ) no censorship shall be maintained, nor shall the secrecy of any means of communication be violated. article . every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare. ( ) freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate. article . academic freedom is guaranteed. article . marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis. ( ) with regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes. article . all people shall have the right to maintain the minimum standards of wholesome and cultured living. ( ) in all spheres of life, the state shall use its endeavors for the promotion and extension of social welfare and security, and of public health. article . all people shall have the right to receive an equal education correspondent to their ability, as provided by law. ( ) all people shall be obligated to have all boys and girls under their protection receive ordinary educations as provided for by law. such compulsory education shall be free. article . all people shall have the right and the obligation to work. ( ) standards for wages, hours, rest and other working conditions shall be fixed by law. ( ) children shall not be exploited. article . the right of workers to organize and to bargain and act collectively is guaranteed. article . the right to own or to hold property is inviolable. ( ) property rights shall be defined by law, in conformity with the public welfare. ( ) private property may be taken for public use upon just compensation therefor. article . the people shall be liable to taxations as provided by law. article . no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law. article . no person shall be denied the right of access to the courts. article . no person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended, the offense being committed. article . no person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel; nor shall he be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel. article . the right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized, or except as provided by article . ( ) each search or seizure shall be made upon separate warrant issued by a competent judicial officer. article . the infliction of torture by any public officer and cruel punishments are absolutely forbidden. article . in all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal. ( ) he shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense. ( ) at all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the state. article . no person shall be compelled to testify against himself. ( ) confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence. ( ) no person shall be convicted or punished in cases where the only proof against him is his own confession. article . no person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy. article . any person, in case he is acquitted after he has been arrested or detained, may sue the state for redress as provided by law. chapter iv. the diet article . the diet shall be the highest organ of state power, and shall be the sole law-making organ of the state. article . the diet shall consist of two houses, namely the house of representatives and the house of councillors. article . both houses shall consist of elected members, representative of all the people. ( ) the number of the members of each house shall be fixed by law. article . the qualifications of members of both houses and their electors shall be fixed by law. however, there shall be no discrimination because of race, creed, sex, social status, family origin, education, property or income. article . the term of office of members of the house of representatives shall be four years. however, the term shall be terminated before the full term is up in case the house of representatives is dissolved. article . the term of office of members of the house of councillors shall be six years, and election for half the members shall take place every three years. article . electoral districts, method of voting and other matters pertaining to the method of election of members of both houses shall be fixed by law. article . no person shall be permitted to be a member of both houses simultaneously. article . members of both houses shall receive appropriate annual payment from the national treasury in accordance with law. article . except in cases provided by law, members of both houses shall be exempt from apprehension while the diet is in session, and any members apprehended before the opening of the session shall be freed during the term of the session upon demand of the house. article . members of both houses shall not be held liable outside the house for speeches, debates or votes cast inside the house. article . an ordinary session of the diet shall be convoked once per year. article . the cabinet may determine to convoke extraordinary sessions of the diet. when a quarter or more of the total members of either house makes the demand, the cabinet must determine on such convocation. article . when the house of representatives is dissolved, there must be a general election of members of the house of representatives within forty ( ) days from the date of dissolution, and the diet must be convoked within thirty ( ) days from the date of the election. ( ) when the house of representatives is dissolved, the house of councillors is closed at the same time. however, the cabinet may in time of national emergency convoke the house of councillors in emergency session. ( ) measures taken at such session as mentioned in the proviso of the preceding paragraph shall be provisional and shall become null and void unless agreed to by the house of representatives within a period of ten ( ) days after the opening of the next session of the diet. article . each house shall judge disputes related to qualifications of its members. however, in order to deny a seat to any member, it is necessary to pass a resolution by a majority of two-thirds or more of the members present. article . business cannot be transacted in either house unless one third or more of total membership is present. ( ) all matters shall be decided, in each house, by a majority of those present, except as elsewhere provided in the constitution, and in case of a tie, the presiding officer shall decide the issue. article . deliberation in each house shall be public. however, a secret meeting may be held where a majority of two-thirds or more of those members present passes a resolution therefor. ( ) each house shall keep a record of proceedings. this record shall be published and given general circulation, excepting such parts of proceedings of secret session as may be deemed to require secrecy. ( ) upon demand of one-fifth or more of the members present, votes of the members on any matter shall be recorded in the minutes. article . each house shall select its own president and other officials. ( ) each house shall establish its rules pertaining to meetings, proceedings and internal discipline, and may punish members for disorderly conduct. however, in order to expel a member, a majority of two-thirds or more of those members present must pass a resolution thereon. article . a bill becomes a law on passage by both houses, except as otherwise provided by the constitution. ( ) a bill which is passed by the house of representatives, and upon which the house of councillors makes a decision different from that of the house of representatives, becomes a law when passed a second time by the house of representatives by a majority of two-thirds or more of the members present. ( ) the provision of the preceding paragraph does not preclude the house of representatives from calling for the meeting of a joint committee of both houses, provided for by law. ( ) failure by the house of councillors to take final action within sixty ( ) days after receipt of a bill passed by the house of representatives, time in recess excepted, may be determined by the house of representatives to constitute a rejection of the said bill by the house of councillors. article . the budget must first be submitted to the house of representatives. ( ) upon consideration of the budget, when the house of councillors makes a decision different from that of the house of representatives, and when no agreement can be reached even through a joint committee of both houses, provided for by law, or in the case of failure by the house of councillors to take final action within thirty ( ) days, the period of recess excluded, after the receipt of the budget passed by the house of representatives, the decision of the house of representatives shall be the decision of the diet. article . the second paragraph of the preceding article applies also to the diet approval required for the conclusion of treaties. article . each house may conduct investigations in relation to government, and may demand the presence and testimony of witnesses, and the production of records. article . the prime minister and other ministers of state may, at any time, appear in either house for the purpose of speaking on bills, regardless of whether they are members of the house or not. they must appear when their presence is required in order to give answers or explanations. article . the diet shall set up an impeachment court from among the members of both houses for the purpose of trying judges against whom removal proceedings have been instituted. ( ) matters relating to impeachment shall be provided by law. chapter v. the cabinet article . executive power shall be vested in the cabinet. article . the cabinet shall consist of the prime minister, who shall be its head, and other ministers of state, as provided for by law. ( ) the prime minister and other minister of state must be civilians. ( ) the cabinet, in the exercise of executive power, shall be collectively responsible to the diet. article . the prime minister shall be designated from among the members of the diet by a resolution of the diet. this designation shall precede all other business. ( ) if the house of representatives and the house of councillors disagrees and if no agreement can be reached even through a joint committee of both houses, provided for by law, or the house of councillors fails to make designation within ten ( ) days, exclusive of the period of recess, after the house of representatives has made designation, the decision of the house of representatives shall be the decision of the diet. article . the prime minister shall appoint the ministers of state. however, a majority of their number must be chosen from among the members of the diet. ( ) the prime minister may remove the ministers of state as he chooses. article . if the house of representatives passes a non-confidence resolution, or rejects a confidence resolution, the cabinet shall resign en masse, unless the house of representatives is dissolved with ten ( ) days. article . when there is a vacancy in the post of prime minister, or upon the first convocation of the diet after a general election of members of the house of representatives, the cabinet shall resign en masse. article . in the cases mentioned in the two preceding articles, the cabinet shall continue its functions until the time when a new prime minister is appointed. article . the prime minister, representing the cabinet, submits bills, reports on general national affairs and foreign relations to the diet and exercises control and supervision over various administrative branches. article . the cabinet, in addition to other general administrative functions, shall perform the following functions: (i) administer the law faithfully; conduct affairs of state; (ii) manage foreign affairs; (iii) conclude treaties. however, it shall obtain prior or, depending on circumstances, subsequent approval of the diet; (iv) administer the civil service, in accordance with standards established by law; (v) prepare the budget, and present it to the diet; (vi) enact cabinet orders in order to execute the provisions of this constitution and of the law. however, it cannot include penal provisions in such cabinet orders unless authorized by such law. (vii) decide on general amnesty, special amnesty, commutation of punishment, reprieve, and restoration of rights. article . all laws and cabinet orders shall be signed by the competent minister of state and countersigned by the prime minister. article . the ministers of state, during their tenure of office, shall not be subject to legal action without the consent of the prime minister. however, the right to take that action is not impaired hereby. chapter vi. judiciary article . the whole judicial power is vested in a supreme court and in such inferior courts as are established by law. ( ) no extraordinary tribunal shall be established, nor shall any organ or agency of the executive be given final judicial power. ( ) all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the laws. article . the supreme court is vested with the rule-making power under which it determines the rules of procedure and of practice, and of matters relating to attorneys, the internal discipline of the courts and the administration of judicial affairs. ( ) public procurators shall be subject to the rule-making power of the supreme court. ( ) the supreme court may delegate the power to make rules for inferior courts to such courts. article . judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent to perform official duties. no disciplinary action against judges shall be administered by any executive organ or agency. article . the supreme court shall consist of a chief judge and such number of judges as may be determined by law; all such judges excepting the chief judge shall be appointed by the cabinet. ( ) the appointment of the judges of the supreme court shall be reviewed by the people at the first general election of members of the house of representatives following their appointment, and shall be reviewed again at the first general election of members of the house of representatives after a lapse of ten ( ) years, and in the same manner thereafter. ( ) in cases mentioned in the foregoing paragraph, when the majority of the voters favors the dismissal of a judge, he shall be dismissed. ( ) matters pertaining to review shall be prescribed by law. ( ) the judges of the supreme court shall of retired upon the attainment of the age as fixed by law. ( ) all such judges shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office. article . the judges of the inferior courts shall be appointed by the cabinet from a list of persons nominated by the supreme court. all such judges shall hold office for a term of ten ( ) years with privilege of reappointment, provided that they shall be retired upon the attainment of the age as fixed by law. ( ) the judges of the inferior courts shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office. article . the supreme court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act. article . trials shall be conducted and judgment declared publicly. ( ) where a court unanimously determines publicity to be dangerous to public order or morals, a trial may be conducted privately, but trials of political offenses, offenses involving the press or cases wherein the rights of people as guaranteed in chapter iii of this constitution are in question shall always be conducted publicly. chapter vii. finance article . the power to administer national finances shall be exercised as the diet shall determine. article . no new taxes shall be imposed or existing ones modified except by law or under such conditions as law may prescribe. article . no money shall be expended, nor shall the state obligate itself, except as authorized by the diet. article . cabinet shall prepare and submit to the diet for its consideration and decision a budget for each fiscal year. article . in order to provide for unforeseen deficiencies in the budget, a reserve fund may be authorized by the diet to be expended upon the responsibility of the cabinet. ( ) the cabinet must get subsequent approval of the diet for all payments from the reserve fund. article . all property of the imperial household shall belong to the state. all expenses of the imperial household shall be appropriated by the diet in the budget. article . no public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association or for any charitable, educational benevolent enterprises not under the control of public authority. article . final accounts of the expenditures and revenues of state shall be audited annually by a board of audit and submitted by the cabinet to the diet, together with the statement of audit, during the fiscal year immediately following the period covered. ( ) the organization and competency of the board of audit shall determined by law. article . at regular intervals and at least annually the cabinet shall report to the diet and the people on the state of national finances. chapter viii. local self-government article . regulations concerning organization and operations of local public entities shall be fixed by law in accordance with the principle of local autonomy. article . the local public entities shall establish assemblies as their deliberative organs, in accordance with law. ( ) the chief executive officers of all local public entities, the members of their assemblies, and such other local officials as may be determined by law shall be elected by direct popular vote within their several communities' article . local entities shall have the right to manage their property, affairs and administration and to enact their own regulations within law. article . a special law, applicable to one local public entity, cannot be enacted by the diet without the consent of the majority of the voters of the local public entity concerned, obtained in accordance with law. chapter ix. amendments article . amendment to this constitution shall be initiated by the diet, through a concurring vote of two-thirds or more of all the members of each house and shall thereupon be submitted to the people for ratification which shall require the affirmative vote of a majority of all votes cast thereon, at special referendum or at such election as the diet shall specify. ( ) amendments when so ratified shall immediately be promulgated by the emperor in the name of the people, as an integral part of this constitution. chapter x. supreme law article . the fundamental human rights by this constitution guaranteed to the people of japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate. article . this constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity. ( ) the treaties concluded by japan and established laws of nations shall be faithfully observed. article . the emperor or the regent as well as ministers of state, members of the diet, judges, and all other public officials have the obligation to respect and uphold this constitution. chapter xi. supplementary provisions article . this constitution shall be enforced as from the day when the period of six months will have elapsed counting from the day of its promulgation. ( ) the enactment of laws necessary for the enforcement of this constitution the election of members of the house of councillors and the procedure for the convocation of the diet and other preparatory procedures for the enforcement of this constitution may be executed before the day prescribed in the preceding paragraph. article . if the house of councilors is not constituted before the effective date of this constitution, the house of representatives shall function as the diet until such time as the house of councilors shall be constituted. article . the term of office for half the members of the house of councillors serving in the first term under this constitution shall be three years. members falling under this category shall be determined in accordance with law. article . the ministers of state, members of the house of representatives, and judges in office on the effective date of this constitution, and all other public officials, who occupy positions corresponding to such positions as are recognized by this constitution shall not forfeit their positions automatically on account of the enforcement of this constitution unless otherwise specified by law. when, however, successors are elected or appointed under the provisions of this constitution, they shall forfeit their positions as a matter of course. [illustration: _photo henry dixon & son_ _from the portrait painted by harrington mann for gray's inn_] james m. beck honorary bencher of gray's inn _the constitution of the united states_ _a brief study of the genesis, formulation and political philosophy of the constitution of the united states_ _by james m. beck, ll.d_. _solicitor-general of the united states, honorary bencher of gray's inn_ _with a preface by the earl of balfour_ "_where there is no vision, the people perish; but he that keepeth the law, happy is he."--proverbs xxix_. "_remove not the ancient landmark, which thy fathers have set."--proverbs xxii_. to the hon. harry m. daugherty attorney-general of the united states a true and loyal friend, a fair and chivalrous foe with whom it is the author's great privilege to collaborate as solicitor-general in defending and vindicating in the supreme court of the united states the principles and mandates of its constitution _chamonix_, _july_ _preface by the earl of balfour_[ ] i have been greatly honoured by your invitation to take the chair on this interesting occasion. it gives me special pleasure to be able to introduce to this distinguished audience my friend, mr. beck, solicitor-general of the united states. it is a great and responsible office; but long before he held it he was known to the english public and to english readers as the author who, perhaps more than any other writer in our language, contributed a statement of the allied case in the great war which produced effects far beyond the country in which it was written or the public to which it was first addressed. mr. beck approached that great theme in the spirit of a great judge; he marshalled his arguments with the skill of a great advocate, and the combination of these qualities--qualities, highly appreciated everywhere, but nowhere more than in this hall and among a gray's inn audience--has given an epoch-making character to his work. to-day he comes before us in a different character. he is neither judge nor advocate, but historian: and he offers to guide us through one of the most interesting and important enterprises in which our common race has ever been engaged. the framers of the american constitution were faced with an entirely new problem, so far, at all events, as the english-speaking world was concerned; and though they founded their doctrines upon the english traditions of law and liberty, they had to deal with circumstances which none of their british progenitors had to face, and they showed a masterly spirit in adapting the ideas of which they were the heirs to a new country and new conditions. the result is one of the greatest pieces of constructive statesmanship ever accomplished. we, who belong to the british empire, are at this moment engaged, under very different circumstances, in welding slowly and gradually the scattered fragments of the british empire into an organic whole, which must, from the very nature of its geographical situation, have a constitution as different from that of the british isles, as the constitution of the british isles is different from that of the american states. but all three spring from one root; all three are carried out by men of like political ideals; all three are destined to promote the cause of ordered liberty throughout the world. in the meanwhile we on this side of the atlantic cannot do better than study, under the most favourable and fortunate conditions, the story of the great constitutional adventure which has given us the united states of america. a.j.b. [footnote : [address of the earl of balfour as chairman on the occasion of the delivery on june , , in gray's inn of the first of the lectures herein reprinted.]] _introduction by sir john simon, k.c._[ ] i have the privilege and the honour of adding a few words to express our thanks to the solicitor-general of the united states for this memorable course of lectures. they are memorable alike for their subject and their form; alike for the place in which we are met and for the man who has so generously given of his time and learning for our instruction. mr. beck is always a welcome visitor to our shores, and nowhere is he more welcome than in these ancient inns of court which are the home and source of law for americans and englishmen alike. in contemplating the edifice reared by the fathers of the american constitution we take pride in remembering that it was built upon british foundations by men, many of whom were trained in the english courts; and when mr. beck lectures on this subject to us, our interest and our sympathy are redoubled by the thought that whatever differences there may be between the old world and the new, citizens of the united states and ourselves are the sons of a common mother and jointly inherit the treasure of the common law. and we cannot part with mr. beck on this occasion without a personal word. plato records a saying of socrates that the dog is a true philosopher because philosophy is love of knowledge, and a dog, while growling at strangers, always welcomes the friends that he knows. and the british public often greets its visitors with a touch of this canine philosophy. we regard mr. beck, not as a casual visitor, but as a firm friend to whom we owe much; he has been here again and again and we hope will often repeat his visits, and englishmen will never forget how, at a crisis in our fate, mr. james beck profoundly influenced the judgment of the neutral world and vindicated, by his masterly and sympathetic argument, the justice of our cause. [footnote : address of sir john simon on the conclusion, on june , , of the three lectures herein printed.] _author's introduction_ this book is a result of three lectures, which were delivered in the hall of gray's inn, london, on june , , and , , respectively, under the auspices and on the invitation of the university of london. the invitation originated with the university of manchester, which, through its then vice-chancellor, dr. ramsay muir, two years ago graciously invited me to visit manchester and explain american political institutions to the undergraduates. subsequently i was greatly honoured when the universities of cambridge, edinburgh and london joined in the invitation. unfortunately for me--for i greatly valued the privilege of explaining the institutions of my country to the undergraduates of these great universities--my political duties made it impossible for me to visit england prior to june , about which time the supreme court of the united states, in which my official duties largely preoccupy my time, adjourns for the summer. any dates after june were inconvenient to the first three universities, but it was my good fortune that the university of london was able to carry out the plan, and that it had the cordial co-operation of that venerable inn of court, gray's inn, one of the "noblest nurseries of legal training." thus i was privileged to address at once an academic and a professional audience. i came to england for this purpose as a labour of love. i had no anticipation of success, for i feared that the interest in the subject-matter of my lectures would be very slight. my surprise and gratification increased on the occasion of each lecture, as the audiences grew in numbers and distinction. many leading jurists and statesmen took more than a mere complimentary interest, and some of them, although pressed with social and public duties, honoured me with their attendance at all three lectures. how can i adequately express my appreciation of the great honour thus done me by the earl of balfour, the lord chancellor, lord justice atkin, the vice-chancellor of the university of london, and many other leaders in academic and legal circles--not to forget the chief justice of the united states, who paid me the great compliment of attending the last lecture. to one and nil of my auditors, my heartfelt thanks! i also must not fail to acknowledge the generous space given in the british press to these lectures, and the even more generous allusions to them in the editorial columns. an especial acknowledgment is due to viscount burnham and _the daily telegraph_ for their generous interest in this book. the good cause of anglo-american friendship has no better friend than lord burnham. this experience has convinced me that now, more than ever before, there is in england a deep interest in american institutions and their history. this is as it should be, for--for better or worse--england and america will play together a great part in the future history of the world. in double harness they are destined to pull the heavy load of the world's problems. therefore these "yoke-fellows in equity" must know each other better, and, what is more, _pull together_. as i was revising the proofs of these lectures in beautiful chamonix, the prospectus of the scottish-american association reached me, in which its honorary secretary and my good friend, dr. charles sarolea, took occasion to make the following suggestion to his british compatriots: "to remove those causes of estrangement, to avoid a fateful catastrophe, in other words, to bring about a cordial understanding _with_ america, the first condition must be an understanding _of_ america. such an understanding, or even the atmosphere in which such an understanding may grow, has still to be created. it is indeed passing strange that in these days of cheap books and free education, america should be almost a '_terra incognita_,' that we should know next to nothing of american history, of the american constitution, of american practical politics, of the american mentality. we scarcely read american newspapers or american books. even such masters of classical prose as francis parkman, perhaps the greatest historian who has used the english language as his vehicle, are almost unknown to the average reader. our students do not visit american universities as they used before the war to visit german universities. the consequence is that again and again we are running the risk of perpetrating the most grotesque errors of judgment, of committing the most serious political blunders, in defiance of american public opinion." the success of my gray's inn lectures convinces me that dr. sarolea underestimates the interest in america and its history in england. however, the episode, which is treated in these lectures, is, as he says, "_terra incognita_" not only in england, but even in the united states. it is amazing how little is known in america of the facts given in my second lecture. the american student, after rejoicing in the victory at yorktown and the end of the war of independence, generally skips about eight years to , mid his interest in the history of his own country recommences with the inauguration of president washington. students of history in both countries thus miss one of the most interesting and instructive chapters of american history, and indeed of any history. i have ventured to add to my gray's inn lectures another address, which i delivered as the "annual address" at the session of the american bar association in cincinnati, ohio, on august , . i do so, because it has a direct bearing on the decay of the spirit of constitutionalism both in america and elsewhere. it discusses a great _malaise_ of our age, for which, i fear, no written constitution, however wise, is an adequate remedy. it was published in condensed form in the issue of the _fortnightly_ for october, , and an acknowledgment is due to its courteous editor for permission to republish it. i have forborne in these lectures to make more than a passing reference to the league of nations and the great conference which framed it, tempting as the obvious analogy was. the reader who studies the appendices will see that the covenant of the league more nearly resembles the articles of confederation than the constitution of . i only mention the subject to suggest that the reader of these lectures will better understand why the american people take the written obligations of the league so seriously and literally. we have been trained for nearly a century and a half to measure the validity and obligations of laws and executive acts in courts of justice and to apply the plain import of the constitution. our constant inquiry is, "is it so nominated" in that compact? in europe, and especially england, constitutionalism is largely a spirit of great objectives and ideals. therefore, while in these nations the literal obligations of articles x, xi, xv, and xvi of the covenant of the league are not taken rigidly, we in america, pursuant to our life-long habit of constitutionalism, interpret these clauses as we do those of our constitution, and we ask ourselves, are we ready to promise to do, that which these articles literally import, join, for example, in a commercial, social and even military war against any nation that is deemed an aggressor, however remote the cause of the war may be to us? are we prepared to say that in the event of a war or threatened danger of war, the supreme council of the league may take any action it deems wise and effectual to maintain peace? this is a very serious committal. other nations may not take it so literally, but with our life-long adherence to a written constitution as a solemn contractual obligation, we do. this is said in no spirit of hostility to the league, but only to explain the american point of view. since i delivered these lectures, i took a short trip to the continent, and while sojourning in geneva, made a visit to the offices of the league. all i there saw greatly interested me, and i could have nothing but a feeling of admiration for the effective and useful administrative work which the league is doing. the men who framed the covenant of the league tried to do, under more difficult, but not dissimilar, conditions, what the framers of the american constitution did in . in both cases the aim was high, the great purpose meritorious. those americans who, for the reasons stated, are not in sympathy with the structural form and political objectives of the league, are not lacking in sympathy for its admirable administrative work in co-ordinating the activities of civilized nations for the common good. in any study of a world constitution, the example of those who framed the american constitution can be studied with profit. james m. beck. _chamonix_, july , . _contents_ preface by the earl of balfour introduction by sir john simon author's introduction first lecture: the genesis of the constitution second lecture: the formulation of the constitution third lecture: the political philosophy of the constitution the revolt against authority _i. the genesis of the constitution of the united states_ i trust i need not offer this audience, gathered in the noble hall of this historic inn--of "old purpulei, britain's ornament"--any apology for challenging its attention in this and two succeeding addresses to the genesis, formulation, and the fundamental political philosophy of the constitution of the united states. the occasion gives me peculiar satisfaction, not only in the opportunity to thank my fellow benchers of the inn for their graciousness in granting the use of this noble hall for this purpose, but also because the delivery of these addresses now enables me to be, for the moment, in fact as in honorary title a bencher, or reader, of this time-honoured society. if i needed any justification for addresses, which i was graciously invited to deliver under the auspices of the university of london, an honour which i also gratefully acknowledge, it would lie in the fact that we are to consider one of the supremely great achievements of the english-speaking race. it is in that aspect that i shall treat my theme; for, as a philosophical or juristic discussion of the american constitution, my addresses will be neither as "deep as a well, nor as wide as a church door." my auditors will bear in mind that i must limit each address to the duration of an hour, and that i cannot go deeply or exhaustively into a subject that has challenged the admiring comment and profound consideration of the intellectual world for nearly a century and a half. if england and america are to act together in the coming time--and the destinies of the world are, to a very large extent, in their keeping, then they must know each other better, and, to this end, they must take a greater interest in each other's history and political institutions. my principal purpose in these lectures is to deepen the interest of this great nation in one of the very greatest and far-reaching achievements of our common race. americans have never lacked interest in english history; for however broad the stream of our national life, how could we ignore its chief source? but is there in england an equal interest in the history of america, whose origin and development constitute one of the most dramatic and significant dramas ever played upon the stage of this "wide and universal theatre of man"? it is true that thackeray, in his _virginians_, gave us in fiction the finest picture of our colonial life, and the late and deeply lamented lord bryce wrote one of the best commentaries upon our institutions in _the american commonwealth_. in more recent years two of the most moving portraits of our hamilton and lincoln are due to your mr. oliver and lord charnwood. we gratefully recognize this; and yet, how many educated englishmen have studied that little known chapter of our history, which gave to the progress of mankind a contribution to political science which your gladstone praised as the greatest "ever struck off at a given time by the brain and purpose of man"? if "peace hath her victories no less renown'd than war," this achievement may well justify your study and awaken your admiration; for, as i have already said and cannot too strongly emphasize, it was the work of the english-speaking race, of men who, shortly before they entered upon this great work of constructive statecraft, were citizens of your empire. the conditions of colonial development had profoundly stimulated in these english pioneers the sense and genius for constitutionalism. in his speech on conciliation with america of march , , edmund burke showed his characteristically philosophic comprehension of this powerful constitutional conscience of the then american subjects of the empire. after stating that in no other country in the world was law so generally studied, and referring to the fact that as many copies of blackstone's commentaries had been sold in america as in england, he added: "this study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. in other countries the people, more simple and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle." moreover, these hardy pioneers were the privileged heirs of the great political traditions of england. while the constitution of the united states was very much more than an adaptation of the british constitution, yet its underlying spirit was that of the english speaking race and the common law. behind the framers of the constitution, as they entered upon their momentous task, were the mighty shades of simon de montfort, coke, sandys, bacon, eliot, hampden, lilburne, milton, shaftesbury and locke. could there be a better illustration of sir frederick pollock's noble tribute to the genius of the common law: "remember that our lady, the common law, is not a task-mistress, but a bountiful sovereign, whose service is freedom. the destinies of the english-speaking world are bound up with her fortunes and migrations and its conquests are justified by her works"? another reason makes the consideration of the subject not only interesting but opportune. "these are the times that try men's souls." it is a time of sifting, when men of all nations in civilization in these critical days are again testing the value even of those political institutions which have the sanction of the past. society is in a state of flux. everywhere the foundations of governmental structures seem to be settling--let us hope and pray upon a _surer_ foundation--and when the seismic convulsion of the world war is taken into account, it is not surprising that this is so. while the storm is not yet past and the waves have not wholly subsided, it is natural that everywhere thoughtful men as true mariners are taking their reckonings to know where they are and whether the frail bark of human institutions is still sufficiently seaworthy to keep afloat. moreover, the patent evidences of weakness in the international organization that we call civilization, the imperative need of ending the spirit of moral anarchy, and the urgent necessity of rebuilding the shattered ruins of the social edifice on surer foundations by the integration of the nations, if possible, into some new form of world organization, gives peculiar interest in these terrible days to the manner in which the american people solved a similar problem more than a century ago. then, as now, a world war had ended. then, as now, half the world was prostrated by the wounds of fratricidal strife. as washington said: "the whole world was in an uproar," and he added that the task "was to steer safely between scylla and charybdis." the problem, then as now, was not only to make "the world safe for democracy," but to make democracy, for which there is no alternative, safe for the world. the thirteen colonies in , while small and relatively unimportant, were, however, a little world in themselves, and, relatively to their numbers and resources, this problem, which they confronted and solved, differed in degree but not in kind from that which now confronts civilization. impoverished in resources, exhausted by the loss of the flower of their youth, demoralized by the reaction from feverish strife, the forces of disintegration had set in in the united states between and . law and order had almost perished and the provisional government had been reduced to impotence. a few wise and noble spirits, true faithfuls and great hearts, led a despondent people out of the slough of despond till their feet were again on firm ground and their faces turned towards the delectable mountains of peace, justice, and liberty. let it be emphasized that they did this, not by seeking more power, but by imposing restraints upon themselves. that spirit of self-restraint is the essence of the american constitution. so enduring was their achievement that to-day the constitution of the united states is the oldest comprehensive written form of government now existing in the world. few, if any, forms of government have better withstood the mad spirit of innovation, or more effectively proved their merit by the "arduous greatness of things done." for this reason, as the nations of the world are now trying in a cosmic form and under similar conditions to do that which the founders of the american republic in did in a microcosmic form, a short narration of that earlier achievement may not be unprofitable in this day and generation, when we are blindly groping towards some common basis for international co-ordination. one of england's greatest prime ministers, william pitt, shortly after the adoption of the constitution, prophetically said that it would be the admiration of the future ages and the pattern for future constitution building. time has verified his prediction, for constitution making has been, since the american constitution was adopted, a continuous industry. the american constitution has been the classic model for the federated state. lieber estimated that three hundred and fifty constitutions were made in the first sixty years of the nineteenth century, and, in the constituent states of the american union, one hundred and three new constitutions were promulgated in the first century of the united states. "have you a copy of the french constitution?" was asked of a bookseller during the second french empire, and the characteristically witty gallic reply was: "we do not deal in periodical literature." constitutions, as governmental panaceas, have come and gone; but it can be said of the american constitution, paraphrasing the noble tribute of dr. johnson to the immortal fame of shakespeare, that the stream of time, which has washed away the dissoluble fabric of many other paper constitutions has left almost untouched its adamantine strength. excepting the first ten amendments, which were virtually a part of the original charter, only nine others have been adopted in more than one hundred and thirty years. a constitution, while primarily for the distribution of governmental powers, is, in its last analysis, a formal expression of adherence to that which in modern times has been called the higher law, and which in ancient times was called natural law. the jurisprudence of every nation has, with more or less clearness, recognized the existence of certain primal and fundamental laws which are superior to the laws, statutes, or conventions of living generations. the original use of the term was to import the superiority of the imperial edict to the laws of the comitia. all nations have recognized this higher law to a greater or less extent. if we turn to the writings of the most intellectual race in ancient time and possibly in recorded history--the greeks--we shall see the higher law vindicated with incomparable power in the moral philosophy of its three greatest dramatists, aeschylus, sophocles, and euripides. how was it better expressed than by antigone when she was asked whether she had transgressed the laws of the state and replied: "yes, for that law was not from zeus, nor did justice, dweller with the gods below, establish it among men; nor deemed i that thy decree--mere mortal that thou art--could override those unwritten and unfailing mandates, which are not of to-day or yesterday, but ever live and no one knows their birthtide." five centuries later the greatest of the roman lawyers and orators, cicero, spoke in the same terms of a higher law, "which was never written and which we are never taught, which we never team by reading, but which was drawn by nature herself." the roman jurists gave it express recognition. they always recognized the distinction between _jus civile_, or the law of the state, and the _jus naturale_, or the law of nature. they nobly conceived that human society was a single unit and that it was governed by a law that was both antecedent and paramount to the law of rome. thus, the idea of a higher law transcending the power of a living generation, and therefore eternal as justice itself--became lodged in our system of jurisprudence. nor was the common law wanting in a recognition of a higher law that would curb the power of king or parliament, for its earlier masters, including four chief justices (coke, hobart, holt, and popham), supported the doctrine, as laid down by coke, that the judiciary had the power to nullify a law if it were "against common right and reason."--(_bonham's case_, coke reports, .) this view as to the limitation of government and the denial of its omnipotence was powerfully accentuated in america by the very conditions of its colonization. the good yeomen of england who journeyed to america went in the spirit of the noble and intrepid kent, when, turning his back upon king lear's temporary injustice, he said that he would "shape his old course in a country new." was it strange that the early colonists, as they braved the hardships and perils of a dangerous voyage, only to be confronted in the wilderness by disease, famine and massacre, should fall back for their own government upon these primal verities of human society, and claim not only their inherited rights as englishmen, but also the peculiar privileges of pioneers in an unconquered wilderness? this spirit of constitutionalism in america, which culminated in the constitution of the united states, had its institutional origin in the spacious days of queen elizabeth. that wonderful age, which gave to the world not only shakespeare, spenser and jonson, but also drake, frobisher and raleigh, was the anglo-saxon reaction to the renaissance. the spirit of man had a new birth and was breaking away from the too rigid bonds of ancient custom and authority. among the notable, but little known, leaders of that time was sir edwin sandys, the leading spirit of the london (or virginia) company. he was a liberal when to be such was an "extra hazardous risk." he was the son of a liberal, for his father, a great prelate, had been sent to the tower for preaching in defence of lady jane grey. the son, sir edwin, was the foe of monopolies, and in the same parliament that impeached the great genius of this inn, francis bacon, sandys advocated the then novel proposition that accused prisoners should have the right to be represented by counsel, to which the strange objection was made that it would subvert the administration of justice. as early as , he had boldly declared in parliament that even the king's authority rested upon the clear understanding that there were reciprocal conditions which neither ruler nor subject could violate with impunity. he might not too fancifully be called the "father of american constitutionalism," for he caused a constitution--possibly the first time that that word was ever applied to a comprehensive scheme of government--to be drafted for the little colony of virginia in and amplified in . speaking in this venerable hall, whose very walls eloquently remind us of the mighty genius of francis bacon, it is interesting to recall that these two charters of government, which were the beginning of constitutionalism in america and therefore the germ of the constitution of the united states, were put in legal form for royal approval by lord bacon himself. thus the immortal treasurer of this inn is directly linked with the development of constitutional freedom in america. bacon became a member of the council for the virginia company in . his deep interest in it is attested in the dedication to him by william strachey in of the latter's _historie of travaile into virginia brittania_. in his speech in the house of commons on january , , bacon saw a vision of the future and predicted the growth of america, when he said: "this kingdom now first in his majesty's times hath gotten a lot or portion in the new world by the plantation of virginia and the summer islands. and certainly it is with the kingdoms on earth as it is in the kingdom of heaven, sometimes a grain of mustard seed proves a great tree." truly the mustard seed of virginia did become a great tree in the american commonwealth. one of bacon's nephews, also of the inns of court, nathaniel bacon, became the first liberal leader in the colonies, and led the first revolt against colonial misrule. he was probably of gray's inn, for it is difficult to imagine a bacon studying in any inn than the one to which the great bacon had given so much loving care. due to these charters, on july , , the little remnant of colonists whom disease and famine had left untouched were summoned to meet in the church at jamestown to form the first parliamentary assembly in america, the first-born of the fruitful mother of parliaments. it was due to sandys not only that the first permanent english settlement in the western world was planted at jamestown in , but that a later group of "adventurers"--for such they called themselves--destined to be more famous, were driven by chance of wind and wave to land on the coast of massachusetts. thus was established, not only the beginning of england's colonial empire--still one of the most beneficent forces in the world--but also the principle of local self-government, which, in the western world, was destined to develop the american commonwealth. the compact, signed in the cabin of the _mayflower_, while not in strictness a constitution, like the virginia charter, was yet destined to be a landmark of history. sandys suffered for his convictions, for the party of reaction convinced king james that virginia was a nest of sedition, and the arbitrary ruler, in the reorganization of the london company, gave a pointed admonition by saying: "choose the devil, if you will, but not sir edwin sandys." in he was committed to the tower and only released after the house of commons had made a vigorous protest against his incarceration. his successor as treasurer of the london company was shakespeare's patron, the earl of southampton, and it is not a fanciful conjecture to assume that, when the news of the disaster which befell one of the fleets of the london company on the island of bermuda reached england, it inspired shakespeare to write his incomparable sea idyl, _the tempest_. if so, this lovely drama was shakespeare's unconscious apostrophe to america, for in ariel--seeking to be free--can be symbolized her awakening spirit, while prospero, with his thaumaturgic achievements, suggests a constructive genius, which in a little more than a century has made one of the least of the nations to-day one of the greatest. bacon, sandys, southampton and the liberal leaders of the house of commons had implanted in the ideas of the colonists the spirit of constitutionalism, which was destined to influence profoundly the whole development of the american colonies, and finally to culminate in the constitution of the united states. the later struggle in the long parliament, the fall of charles i, and more especially the deposition of james ii, the accession of william of orange, and the substitution for the stuart claim of divine right that of the supremacy of the people in parliament, naturally had their reaction in the western world in intensifying the spirit of constitutionalism in the growing american commonwealth. the colonial history was therefore increasingly marked by a spirit of individualism, a natural partiality for local rule, and a tenacious adherence to their special privileges, whether granted to crown colonies, like new hampshire, new york, new jersey, virginia, the two carolinas, and georgia, or proprietary governments, like maryland, delaware, and pennsylvania, or charter governments, such as massachusetts, rhode island, and connecticut. in the three colonies last named formal corporate charters were granted by the crown, which in themselves were constitutions in embryo, and the colonists thus acquired written rights as to the government of their internal affairs, upon the maintenance of which they jealously insisted. thus arose the spirit in america, which treated constitutional rights, not so much as special privileges granted by plenary sovereignty, but as contractual obligations which could be enforced in the courts against the sovereign. all this developed in the colonists a powerful sense of constitutional morality, and its pertinency to my present theme lies in the fact that when each of the thirteen colonies became, at the conclusion of the war of independence, a separate and independent nation, they were more concerned, in establishing a central government, to limit its authority and to maintain local self-government than they were to give to the new-born nation the powers which it needed. they carried their constitutionalism to extremes, which nearly made a strong and efficient central government an impossibility. nothing was less desired by them than a unified government. it was destined to be wrung from their hard necessities. the constitution was the reflex action of two opposing tendencies, the one the imperative need of an efficient central government, and the other the passionate attachment to local self-rule. co-operation between the colonies had been a matter of long discussion and earnest debate, and primarily resulted from the necessity of defence against a common foe the french in canada, and the indians of the forest. in four of the new england colonies united in a league to defend themselves. in william penn made the first suggestion for a union of all the colonies. in a council was held at albany at the instance of the crown to provide the means for the defence against france in canada, and it was then that franklin submitted the first concrete form for a union of the colonies into a permanent alliance. it was in advance of the times, for, conservative as it was, it was unfortunately opposed both by the crown and the colonies themselves. the time was not ripe for any such union, and the reason was apparent. the colonies differed very much in the character of their populations, in the nature of their economic interests, and in their political antecedents. they were not wholly of the english race. many nations in europe had already contributed to the population. for example, new york was partly dutch, and in pennsylvania there was a considerable element of the swedes, germans, and swiss. moreover, the colonists were as widely separated from each other, measured by the facilities of locomotion, as are the most remote nations of the world to-day. only a few men ever found occasion to leave their colony to journey to another, and most men never left, from birth to death, the community in which they lived. outside of the few scattered communities in the different colonies there was an almost unbroken wilderness, with few wagon roads and in places only a bridle path. the only methods of communication were the letters and still fewer newspapers, which were carried by post riders often through an almost trackless wilderness. obviously, a working government could not easily be constituted between peoples of different religions, races, and economic interests, who, for the most part, never met each other face to face and with whom frequent communication was impossible. the differences between the colonies and the mother-country with respect to internal taxation slowly developed into an issue of constitutionalism rather than of legislative policy. as in england, the immediate question affected the power of the crown to give to the customs inspectors the power to make general searches and seizures, to enforce the navigation laws. in james otis, of massachusetts, made a fateful speech before the colonial legislature, in which, asserting the illegality of the search warrants on the ground that they violated the constitutional rights of englishmen to protection in their own homes, he asserted that acts of parliament which violated the sanctity of the home were void and that, more specifically, they violated the charter granted to massachusetts. asserting the doctrine which at that time was the doctrine of the english common law, as stated by coke and three other chief justices, he said: "to say the parliament is absolute and arbitrary is a contradiction. the parliament cannot make two and two five. omnipotency cannot do it.... parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: there must be in every instance a higher authority, viz., god. should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void; and so it would be adjudged by the parliament itself, when convinced of their mistake." it is a curious fact that in the reaction from the tyranny of the stuarts your country abandoned this principle of the common law by substituting for the omnipotence of the crown the omnipotence of parliament, while in my country the somewhat vague and unworkable principle of the common law, which gave the judiciary the power to invalidate an act of the legislature, when against natural reason and justice, was developed into the great principle, without which institutions in an heterogeneous and widely scattered democracy would be unworkable, namely that the powers of government are strictly defined, and that neither the executive, the legislative, nor the judicial departments of the government can go beyond the precise limits established by the fundamental law. like the common law, the constitution was thus the result of a slow evolution. mr. gladstone, in his oft-quoted remark, gave an erroneous impression when he said: "as the british constitution is the most subtle organism which has proceeded from progressive history, so the american constitution is the most wonderful work ever struck off, at a given time by the brain and purpose of man." this assumes that the constitution sprang, like minerva, armed _cap-à-pie,_ from the brain of the american people, whereas it was as much the result of a slow, laborious, and painful evolution as was the british constitution. probably gladstone so understood the development of the american constitution and recognized that its framing was only the culmination of an evolution of many years. when the constitutional struggle between the colonies and the parliament became acute, the necessity of a union for a common defence became imperative. as early as july, , franklin recommended the "convening of a general congress" so that the colonies would act together. his suggestion was introduced in the virginia house of burgesses in may, , and as a result there met in philadelphia on september of that year the first continental congress, styled by themselves: "the delegates appointed by the good people of these colonies." nothing was further from their purpose than to form a central government or to separate from england. this congress only met as a conference of representatives of the colonies to defend what they conceived to be their constitutional rights. before the second continental congress met in the following year, the accidental clash at lexington and concord had taken place, and as the congress again re-convened a momentous change had taken place, which was, in fact, the beginning of the american commonwealth. the congress became by force of circumstances a provisional government, and as such it might well have claimed plenary powers to meet an immediate exigency. so indisposed were they to separate from england or to substitute for its rule that of a new government, that the continental congress, when it then involuntarily took over the government of america, failed to exercise any adequate power. it remained simply a conference without real power. each colony had one vote and the rule of unanimity prevailed. even its decisions were largely advisory, for they amounted to little more than recommendations to the constituent states as to what measures should be taken. each colony complied with the recommendation in its discretion and in its own way. notwithstanding this fatal lack of authority, the continental congress, then actually engaged in civil war, created an army, and, through its committees, entered into negotiations with foreign nations. to support the former, it issued paper money, with the disastrous result that could be readily anticipated. while it had a presiding officer, it had no executive, and the new nation, which was hardly conscious of its own birth, had no judiciary. had this _de facto_ government assumed the plenary powers which provisional governments must, under similar circumstances, necessarily assume, it would have been better for the cause of the colonists. for want of an efficient central government, the civil administration of the infant nation was marked by a weakness and incapacity that defeated washington's plans and nearly broke his spirit. washington's little army was the victim of the gross incapacity of an impotent government. the soldiers came and went, not as the general commanded, but as the various colonies permitted. the tragedy of valley forge, when the little army nearly starved to death, and literally the soldiers could be tracked over the snows by their bleeding, unshod feet, was not due to lack of clothing and provisions, but to the gross incapacity of a headless government that if it had had the wisdom to act lacked the authority. the situation was one of chaos. the colonies recruited their own contingents, paid such taxes as they pleased, which grew increasingly less, and the congress had no coercive power to enforce its policies, either with reference to internal or external affairs. this situation was so clearly recognized that immediately after the declaration of independence on july , , the draft of a constitution was proposed to give the central government more effective power; but, although the necessity was manifest and most urgent, the so-called articles of confederation, which were then drafted in , were never finally adopted by the requisite number of states until march, , when the war was nearly over. as the result proved, they marked only a very small advance over the existing _de facto_ government, for the constituent states were still too jealous of each other and too hostile to the creation of a central government to form a truly effective government. the founders of the republic could only learn from their errors, but it is their great merit that they had the ability to profit in the stern school of experience, of which franklin has said that it is a "dear school, but fools will learn in no other." the founders of the republic were not fools, and while they did not, as gladstone seems to intimate, have the inspired wisdom to develop a wonderful constitution by sheer intuition unaided by experience, they did have the ability to make of their very errors the stepping-stones to a higher destiny. by the articles of confederation, which, as stated, became effective in , the conduct of foreign affairs was vested in the new government, which was also given the power to create admiralty courts, regulate coinage, maintain an army and navy, borrow money, and emit bills of credit, but the great limitation was that in all other respects the constituent states retained absolute power, especially with reference to commerce and taxation. all that the central government could do was to requisition the states to furnish food supplies, and the states were then left to impose the taxes and, if necessary, to enforce their payment in their own way, with the inevitable result that they vied with each other in the struggle to evade them. the confederation had no direct power over the citizens of the several states. moreover, the congress could not levy any taxes, or indeed pass any measure unless nine out of the thirteen states agreed, and the constitution could not be amended except by unanimous vote. while the congress could select a presiding officer to serve for one year, yet he had no real executive authority. during the recess of the congress, a committee of thirteen, consisting of one delegate from each state, had _ad interim_ powers, but not greater than the congress, which they represented. such a government would have been fatal to any people, and so it nearly proved to be to the infant nation. two circumstances saved them from the consequences of such incapacity: one was the invaluable aid of france, and the other the personality of george washington. of this great leader, one of the noblest that ever "lived in the tide of time," it is only necessary to quote the fine tribute paid to him by the greatest of the victorian novelists in his _virginians_: "what a constancy, what a magnanimity, what a surprising persistence against fortune!... washington, the chief of a nation in arms, doing battle with distracted parties; calm in the midst of conspiracy; serene against the open foe before him and the darker enemies at his back; washington, inspiring order and spirit into troops hungry and in rags; stung by ingratitude, but betraying no anger, and every ready to forgive; in defeat invincible, magnanimous in conquest and never so sublime as on that day when he laid down his victorious sword and sought his noble retirement--here, indeed, is a character to admire and revere; a life without a stain, a fame without a flaw." a year after the articles of confederation had been adopted, the war came to an end by a preliminary treaty on november , . now follows the least known chapter in american history. it was a period of travail, of which the constitution of the united states and the present american nation were born. the government slowly succumbed from its own weakness to its inevitable death. only the shreds and patches of authority were left. gradually the union fell apart. of the continental congress only fifteen members, representing seven colonies, remained to transact the affairs of the new nation. the army, which previously to the termination of the war had dissolved by the hundreds, was now unpaid and in a stale of revolt. measure after measure was proposed in congress to raise money to pay the interest on the bonded indebtedness, which was in arrears, and to provide funds for the most necessary expenses, but these failed, in congress for the want of the necessary nine votes or, if enacted, the states treated the requisitions with indifference. the currency of the united states had fallen almost as low as the austrian kronen, and men derisively plastered the walls of their houses with the worthless paper of the continental congress. adequate authority no longer remained to carry out the terms of the treaties with england and france, and they were nullified by the failure of the infant nation to comply with its own obligations and the consequent refusal of the other contracting parties to comply with theirs. the government made a call upon the states to raise $ , , for the most vital needs, but only $ , was actually received. then congress asked the states to vest in it the power to levy a tax of five per cent, on imports for a limited period, but, after waiting two years for the action of the states, less than nine concurred. the states were then asked to pledge their own internal revenue for twenty-five years to meet the national indebtedness, but this could only be done by unanimous consent, and while twelve states concurred, rhode island refused and the measure was defeated. it was again the infinite folly of the _liberum veto_ which, prior to the great partition, condemned poland to chronic anarchy. the impotence of the new government, which was still sitting in philadelphia, can be measured by the fact that on june , , word came that eighty soldiers were on their way to philadelphia to demand relief. they stacked their arms in front of the state house, where the congress was then sitting, and refused to disband, when requested by col. alexander hamilton, as the representative of the congress, to do so. when congress appealed to the government of pennsylvania for protection, it was advised that the pennsylvania militia was likewise insubordinate. the congress then hastily fled by night and became a fugitive. the impotence of the confederation can be measured by the fact that in the last fourteen months of its existence its receipts were less than $ , , while the interest on the foreign debt alone was over $ , , , and the interest on the internal debt was five-fold greater. in the absence of any government and in the period of general prostration it was not unnatural that the spirit of bolshevism grew with alarming rapidity. it even permeated the officers of the army. in march, , an anonymous communication was sent to washington's officers to meet in secret conference to take some action, possibly to overthrow the government. a copy fell into washington's hands and, while he forbade the assemblage of the officers under the anonymous call, he himself directed the officers to assemble. he unexpectedly appeared at the meeting and, being no speaker, he had reduced his appeal to writing. as he adjusted his spectacles to read it, he pathetically said: "i have not only grown gray but blind in your service." he then made a touching appeal to them not to increase by example the spreading spirit of revolt. the very sight of their old commander turned the hearts of the revolting element and the officers remained loyal to their noble leader. where the spirit of disaffection was thus found in high places it naturally prevailed more widely among the masses who had been driven to frenzy by their sufferings. this culminated in a revolt in massachusetts under the leadership of an old soldier named shays, and it spread with such rapidity that not only did one-fifth of the people join in attempting to overthrow the remnant of established authority in massachusetts, but it rapidly spread to other states. the offices of government and the courthouses were seized, the collection of debts was forbidden, and private property was forcibly appropriated to meet the common needs. chaos had come again. it filled washington's heart with disgust and despair. after surrendering his commission to the pitiful remnant of the government he had retired to mount vernon, and for a time declined to act further as the leader of his people. thus, in october, , he wrote james warren, of massachusetts: "the war, as you have very justly observed, has terminated most advantageously for america, and a fair field is presented to our view; but i confess to you freely, my dear sir, that i do not think we possess wisdom or justice enough to cultivate it properly. illiberality, jealousy, and local policy mix too much in all our public councils for good government of the union. in a word, the confederation appears to me to be little more than a shadow without the substance, and congress a nugatory body, their ordinances being little attended to.... by such policy as this the wheels of government are clogged, and our brightest prospects, and that high expectation which was entertained of us by the wondering world, are turned into astonishment; and, from the high ground on which we stood, we are descending into the vale of confusion and darkness." again he wrote to george mason: "i have seen without despondency, even for a moment, the hours which america has styled its gloomy ones, but i have beheld no day since the commencement of hostilities that i thought our liberties in such imminent danger as at present. indeed, we are verging so fast to destruction that i am feeling that sense to which i have been a stranger until within these three months." again in he writes: "i think often of our situation, and view it with concern. from the high ground we stood upon, from the plain path which invited our footsteps, to be so fallen, so lost, is mortifying; but everything of virtue has, in a degree, taken its departure from our land.... what, gracious god, is man that there should be such inconsistency, and perfidiousness in his conduct! it was but the other day that we were shedding our blood to obtain the constitutions under which we now live, and now we are unsheathing our swords to overturn them. the thing is so unaccountable that i hardly know how to realize it or to persuade myself that i am not under an illusion of a dream." it was, however, the darkest hour before the dawn, and again it was washington who became his country's saviour. in , some commissioners from the states of virginia and maryland visited mount vernon to pay their respects to the well-loved commander. after conferring with him upon the chaos of the times, they decided to issue a call for a general conference of the representatives of the states to be held on september , , at annapolis, maryland, to discuss how far the states themselves could agree on common regulations of commerce. at the appointed time the delegates assembled from virginia, pennsylvania, delaware, new york and new jersey, and finding themselves too few in number to achieve the great objective, the convention contented itself by issuing another call, drafted by alexander hamilton, then under thirty years of age, to all the states to send delegates to a convention to be held in philadelphia on the second monday in may, , "to take into consideration the situation of the united states, to devise such further provisions as should appear to them necessary to render the constitution of the federal government adequate to the exigencies of the union." the dying congress tardily approved of this suggestion, but finally, on january , , grudgingly adopted a resolution that-- "it is expedient that on the second monday in may next a convention of delegates, who shall have been appointed by the several states, be held at philadelphia _for the sole and express purpose of revising the articles of confederation_ and reporting to congress and the several legislatures such alterations and provisions therein as shall, _when agreed to in congress_ and conformed to by the states, render the federal constitution adequate to the exigency of the government and the preservation of the union." it will be noted by the italicized portions of the resolution that this impotent body thus vainly attempted to cling to the shadow of its vanished authority by stating that the proposed constitutional convention should merely revise the worthless articles of confederation and that such amendments should not have validity until adopted by congress as well as by the people of the several states. how this mandate was disregarded and how the convention was formed, and proceeded to create a new government with a new constitution, and how it achieved its mighty work, will be the subject of the next lecture. anticipating the masterly ability with which a seemingly impotent and dying nation plucked from the nettle of danger the flower of safety, let me conclude this first address by quoting the words of de tocqueville, in his remarkable work _democracy in america_, where he says: "the federal government, condemned to impotence by its constitution and no longer sustained by the presence of common danger ... was already on the verge of destruction when it officially proclaimed its inability to conduct the government and appealed to the constituent authority of the nation.... it is a novelty in the history of a society to see a calm and scrutinizing eye turned upon itself, when apprised by the legislature that the wheels of government are stopped; to see it carefully examine the extent of the field and patiently wait for two years until a remedy was discovered, which it voluntarily adopted, without having ever wrung a tear or a drop of blood from mankind." _ii. the great convention_ now follows a notable and yet little known scene in the drama of history. it reveals a people who, without shedding a drop of blood, calmly and deliberately abolished one government, substituted another, and erected it upon foundations which have hitherto proved enduring. even the superstructure slowly erected upon these foundations has suffered little change in the most changing period of the world's history, and until recently its additions, few in number, have varied little from the plans of the original architects. the constitution is to-day, not a ruined parthenon, but rather as one of those gothic masterpieces, against which the storms of passionate strife have beaten in vain. the foundations were laid at a time when disorder was rampant and anarchy widely prevalent. as i have already shown in my first lecture, credit was gone, business paralysed, lawlessness triumphant, and not only between class and class, but between state and state, there were acute controversies and an alarming disunity of spirit. to weld thirteen jealous and discordant states, demoralized by an exhausting war, into a unified and efficient nation against their wills, was a seemingly impossible task. frederick the so-called great had said that a federal union of widely scattered communities was impossible. its final accomplishment has blinded the world to the essential difficulty of the problem. the time was may , ; the place, the state house in philadelphia, a little town of not more than , people, and, at that time, as remote, measured by the facilities of communication, to the centres of civilization as is now vladivostok. the _dramatis personae_ in this drama, though few in numbers, were, however, worthy of the task. seventy-two had originally been offered or given credentials, for each state was permitted to send as many delegates as it pleased, inasmuch as the states were to vote in the convention as units. of these, the greatest actual attendance was fifty-five, and at the end of the convention a saving remnant of only thirty-nine remained to finish a work which was to immortalize its participants. while this notable group of men contained a few merchants, financiers, farmers, doctors, educators, and soldiers, of the remainder, at least thirty-one were lawyers, and of these many had been justices of the local courts and executive officers of the commonwealths. four had studied in the inner temple, at least five in the middle temple, one at oxford under the tuition of blackstone and two in scottish universities. few of them were inexperienced in public affairs, for of the original fifty-five members, thirty-nine had been members of the first or second continental congresses, and eight had already helped to frame the constitutions of their respective states. at least twenty-two were college graduates, of whom nine were graduates of princeton, three of yale, two of harvard, four of william and mary, and one each from the universities of oxford, columbia, glasgow, and edinburgh. a few already enjoyed world-wide fame, notably doctor franklin, possibly the most versatile genius of the eighteenth century and universally known and honoured as a scientist, philosopher, and diplomat, and george washington, whose fame, even at that day, had filled the world with the noble purity of his character. it was a convention of comparatively young men, the average age being little above forty. franklin was the oldest member, being then eighty-one; dayton, the youngest, being twenty-seven. with the exception of franklin and washington, most of the potential personalities in the convention were under forty. thus, james madison, who contributed so largely to the plan that he is sometimes called "the father of the constitution," was thirty-six. charles pinckney, who, unaided, submitted the first concrete draft of the constitution, was only twenty-nine, and alexander hamilton, who was destined to take a leading part in securing its ratification by his powerful oratory and his very able commentaries in the federalist papers, was only thirty. above all they were a group of gentlemen of substance and honour, who could debate for four months during the depressing weather of a hot summer without losing their tempers, except momentarily--and this despite vital differences--and who showed that genius for toleration and reconciliation of conflicting views inspired by a common fidelity to a great objective that is the highest mark of statesmanship. they represented the spirit of representative government at its best in avoiding the cowardice of time-servers and the low cunning of demagogues. all apparently were inspired by a fine spirit of self-effacement. selfish ambition was conspicuously absent. they differed, at times heatedly, but always as gentlemen of candour and honour. the very secrecy of their deliberations, of which i shall presently speak, is ample proof how indifferent they were to popular applause and the _civium ardor prava jubentium_. the convention had been slow in assembling. ample notice had been given that it would convene on may , , but when that day arrived a mere handful of the delegates, less than a quorum, had assembled. the virginia delegation, six in number, and forming probably the ablest delegation from any state, arriving in time, and failing to find a quorum then assembled, employed the period of waiting in submitting to the pennsylvania delegation the outlines of a plan for the new constitution. the plan was largely the work of james madison, and how long it had been in preparation cannot be definitely stated. it is clear that four years before a philadelphia merchant, one peletiah webster, had published a brochure proposing a scheme of dual sovereignty, under which the citizens would owe a double allegiance--one to the constituent states within the sphere of their reserved powers, and one to a federated government within the sphere of its delegated powers. leagues of states had often existed, but a league which, within a prescribed sphere, would have direct authority over the citizens of the constituent states, without, however, abolishing the authority of such states as to their reserved sphere of power, was a novel theory. how far the virginia project had been influenced by webster's suggestion is not clear, but it is certain that before the convention met pennsylvania and virginia, two of the most powerful states, were committed to it. the suggestion was a radical one, for the states, with few exceptions, were chiefly insistent upon the preservation of their sovereignty, and while they were willing to amend the articles of confederation by giving fuller authority to the central government, such as it was, the suggestion of subordinating the states to a new sovereign power, whose authority within circumscribed limits was to be supreme, was opposed to all their conventions and traditions. washington, however, had warmly welcomed the creation of a strong central government, and his correspondence with the leading men of the colonies for some years previously had been burdened with arguments to convince them that a mere league of states would not suffice to create a stable nation. to george washington, soldier and statesman, is due above all men the ideal of a federated union, for without his influence--that of a noble and unselfish leader--the great result would probably never have been secured. while still waiting for the convention, to meet, and while discussing what was expedient and practicable when they did meet, washington one day said to a group of delegates, who were considering the acute nature of the crisis: "it is too probable that no plan that we propose will be adopted. perhaps another dreadful conflict is to be sustained. if, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? let us raise a standard to which the wise and just can repair. the event is in the hand of god." noble words, fit to be written in letters of gold over the portal of every legislature of the world, and it was in this spirit that the convention finally convened on may th, . when the delegates from nine states had assembled, washington was unanimously elected the presiding officer of the convention. it began by adopting rules of order, and the most significant of these was the provision for secrecy. no copy should be taken of any entry on the journal, or even permission given to inspect it, without leave of the convention, and "nothing spoken in the house be printed or otherwise published or communicated without leave." the yeas and nays should not be recorded. the rule of secrecy was enlarged by an unwritten understanding that, even when the convention had adjourned, no disclosure should be made of its proceedings during the life of its members. when after nearly four months, the convention adjourned, the secret had been kept, and no one knew even the concrete result of its deliberations until the constitution itself, and nothing else, was offered to the approval of the people. the high-way, upon which the state house fronted, was covered with earth, to deaden the noise of traffic, and sentries were posted at every means of ingress and egress, to prevent any intrusion upon the privacy of the convention. the members were not photographed daily for the pictorial press, nor did any cinema register their entrance into the simple colonial hall where they were to meet. notwithstanding this limitation--for no present-day conference or assembly can proceed with its labours until its members are photographed for the curiosity of the public--these simple-minded gentlemen--less intent upon their appearance than their task--were to accomplish a work of enduring importance. the extreme care which was taken to preserve this secrecy inviolate, and its purpose, were indicated in an incident handed down by tradition. one of the members dropped a copy of a proposition then before the convention for consideration, and it was found by another of the delegates and handed to general washington. at the conclusion of the session, washington arose and sternly reprimanded the member for his carelessness by saying: "i must entreat gentlemen to be more careful, lest our transactions get into the newspapers and disturb the public repose by premature speculations. i know not whose paper it is, but there it is [_throwing it down on the table_]. let him who owns it, take it." he then bowed, picked up his hat and left the room with such evidences of annoyance that, like school-children, no delegate was willing to admit the ownership of the paper. the thought suggests itself: how different the result at versailles and genoa might have been had there been the same reasonable provisions for discussion and action uninfluenced by too premature public comment of the day! in these days, when representative government has degenerated into government by a fleeting public opinion, the price we pay for such government by, for and of the press, is too often the inability of representatives to do what they deem wise and just. at the close of the convention its records were committed into the keeping of washington, with instructions to "retain the journal and other papers, subject to order of congress, if ever formed under the constitution." even the journal consisted of little more than daily memoranda, from which the minutes ought to have been, but never were, made; and these fragmentary records of the proceedings of a convention which had been in continuous session for nearly four months were never published until the year , or thirty-two years after the close of the convention. thus, the american people knew nothing of their greatest convention until a generation later, and then only a few bones of the mastodon were exhibited to their curious gaze. the members of the convention kept its secrets inviolate for many years. with few exceptions, the great secrets of the convention died with them. only one, james madison, left a comprehensive statement of the more formal proceedings. with this notable exception, only a few anecdotes, handed down by tradition, escaped oblivion. the first of the number to break the pledge of secrecy was robert yates, chief justice of new york, who, in , published his recollections; but, as he had left the convention a few months after it began, his notes ceased with the th of july. the world would thus have been for ever ignorant of the details of one of the most remarkable conventions in the annals of mankind had it not been that one of the ablest of their number, james madison, regularly attended the sessions and kept notes from day to day of the debates. while he was not a stenographer, he had a gift for condensing a speech and fairly representing its substance. he jealously guarded his journal of the convention until his death. its very existence was known to few. he died in , and four years later the government purchased the manuscript from his widow. then, for the first time, the curtain was measurably raised upon the proceedings of a convention which had created, as we now know, one of the greatest nations in history. fifty-three years after the close of the convention, and when nearly every one of its participants were dead, madison's journal was first published. when was a great secret better kept? grateful as posterity must be for this inestimable gift of great human enterprise, yet even madison's careful journal fills one with the deepest regret that this wonderful debate, which lasted for nearly four months between men of no ordinary ability, could not have been preserved to the world. two or three of the speeches which madison gives in his journal are complete, for when doctor franklin spoke he reduced his remarks to writing and gave a copy to madison, but of the other speeches only a fragrant remains. thus, that "admirable crichton," alexander hamilton, addressed the convention in a speech that lasted five hours, in which he stated his philosophy of government, but of that only a short condensation, and possibly not even an accurate fragment, remains. without this extraordinary provision for secrecy, which is so opposed to modern democratic conventions, and which so little resembles the famous point as to "open covenants openly arrived at," the convention could not have accomplished its great work, for these wise men realized that a statesman cannot act wisely under the observation of a gallery, and especially when the gallery compels him by the pressure of public opinion to work as it directs. i recognize that public opinion--often temporarily uninformed but in the end generally right--does often save the democracies of the world from the selfish ends of self-seeking and misguided leadership; but, given noble and wise representatives, they work best when least influenced by the fleeting passions of the day. it is evident that if the framers of the constitution had met, as similar conventions have within recent years met at versailles and genoa, with the world as their gallery and with the representatives of the press as an integral part of the conference, they would have accomplished nothing. the probability is that the convention would not have lasted a month if their immediate purpose had been to placate current opinion. it may be doubted whether such a convention, if called to-day, either in your country or mine, could achieve like results, for in this day of unlimited publicity, when men divide not as individuals but in powerful and organized groups, a constitutional convention would, i fear, prove a witches' cauldron of class legislation and demagoguery. is it not possible that modern democracy is in danger of strangulation by its present-day methods and ideals? again the words of washington suggest themselves: "if, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? let us raise a standard to which the wise and just can repair." working with a sad sincerity and with despair in their hearts, this little band of men wrought a work of surpassing importance, and if they did not receive the immediate plaudits of the living generation, their shades can at least solace themselves with the reflection that posterity has acclaimed their work as one of the greatest political achievements of man. the rules of order and the nature of the proceedings thus determined, the convention opened by an address by mr. randolph of virginia, in which he submitted, in the form of fifteen points--nearly the number of the fatal fourteen--the outlines for a new government. he himself in his opening speech summarized the propositions by candidly confessing "that they were not intended for a federal government" (thereby meaning a mere league of states) but "a strong consolidated union." upon this radical change the convention was to argue earnestly and at times bitterly for many a weary day. the plan provided for a national legislature of which the lower branch should be elected by the people and the upper branch by the lower branch upon the nomination of the legislatures of the states. this legislature should enjoy all the legislative rights given to the federation, and there followed the sweeping grant that it "could legislate in all cases to which the separate states are incompetent or in which the harmony of the united states may be interrupted by the exercise of individual legislation," with power "to negative all laws passed by the several states contravening in the opinion of the national legislature the articles of the union." a national executive was proposed, together with a national judiciary, and these two bodies were given authority "to examine every act of the national legislature before it shall operate and every act of a particular legislature before a negative thereon shall be final." this marked an immense advance over the articles of confederation, under which there was no national executive or judiciary, and under which the legislature had no direct power over the citizens of the states, and could only impose duties upon the states themselves by the concurrence of nine of the thirteen. hardly had mr. randolph submitted the so-called virginia plan when charles pinckney, of south carolina, a young man of twenty-nine years of age, with the courage of youth submitted to the house a draft of the future federal government. curiously enough, it did not differ in principle from the virginia plan, but was more specific and concrete in stating the powers which the federal government should exercise, and many of its provisions were embodied in the final draft. indeed, pinckney's plan was the future constitution of the united states in embryo; and when it is read and contrasted with the document which has so justly won the acclaim of men throughout the world, it is amazing that so young a man should have anticipated and reduced to a concrete and effective form many of the most novel features of the federal government. as the only copy of pinckney's plan was furnished years afterwards to madison for his journal, it is possible that some of its wisdom was of the _post factum_ variety. having received the two plans, the convention then went, on may , into a committee of the whole to consider the fifteen propositions in the virginia plan _seriatim_. they wisely concluded to determine abstract ideas first and concrete forms later. apparently for the time being little attention was paid to pinckney's plan, and this may have been due to the hostile attitude of the older members of the convention to the presumption of his youth. then ensued a very remarkable debate on the immediate propositions and the principles of government which underlay them, which lasted for two weeks. on june the committee rose. even the fragments of this debate, which may well have been one of the most notable in history, indicate the care with which the members had studied governments of ancient and modern times. there were many points of difference, but chief of them, which nearly resulted in the collapse of the convention, was the inevitable difficulty which always arises in the formation of a league of states or an association of nations between the great and the little states. the five larger states had a population that was nearly twice as great as the remaining eight states. thus virginia's population was nearly ten-fold as great as georgia. moreover, the states differed greatly in their material wealth and power. nevertheless, all of them entered the convention as independent sovereign nations, and the smaller nations contended that the equality in suffrage and political power which prevailed in the convention (in which each state, large or small, voted as a unit), should and must be preserved in the future government. to this the larger states were quite unwilling to yield, and when the committee rose they reported, in substance, the virginia plan, with the proviso that representation in the proposed double-chambered congress should be "according to some equitable ratio of representation." on june the small states presented their draft, which was afterwards known as the new jersey plan, because it was introduced by mr. patterson of that state. it only contemplated an amendment to the existing constitution and an amplification of the powers of the impotent confederation. its chief advance over the existing government was that it provided for a federal executive and a federal judiciary, but otherwise the government remained a mere league of states, in which the central government could generally act only by the vote of nine states, and in which their power was exhausted when they requested the states to enforce the decrees. its chief advance over the articles of confederation, in addition to the creation of an executive, was an assertion that the acts of congress "shall be the supreme law of the respective states ... and that the judiciary of the several states shall be bound thereby in their decisions," and that "if any state or any body of men in any state shall oppose or prevent the carrying into execution of such acts or treaties the federal executive shall be authorized to call forth the power of the confederated states ... to enforce and compel obedience to such acts or an observance of such treaties." while this was some advance toward a truly national government, it yet left the national executive dependent upon the constituent states, for if they failed to respond to the call above stated the national government had no direct power over their citizens. the new jersey plan precipitated a crisis, and thereafter, and for many days, the argument proceeded, only to increase in bitterness. on june alexander hamilton, who agreed with no one else, addressed the convention for the first time. he spoke for five hours and reviewed exhaustively the virginia and new jersey plans, and possibly the pinckney draft. even the fragment of the speech, as taken in long-hand by madison, shows that it was a masterly argument. he stated his belief "that the british government was the best in the world and that he doubted much whether anything short of it would do in america." he praised the british constitution, quoting monsieur necker as saying that "it was the only government in the world which unites government strength with individual security." he analysed and explained your constitution as it then was and advocated an elective monarchy in form though not in name. it is true that he called the executive a "governor" and not a king, but the governor, so-called, was to serve for life and was given not only "a negative on all laws about to be passed," but even the execution of all duly enacted laws was in his discretion. the governor, with the consent of the senate, was to make war, conclude all treaties, make all appointments, pardon all offences, with the full power through his negative of saying what laws should be passed and which enforced. hamilton's governor would have been not dissimilar to louis xiv, and could have said with him, "_l'état, c'est moi_!" the senate also served for life, and the only concession which hamilton made to democracy was an elective house of representatives. thinly veiled, his plan contemplated an elective king with greater powers than those of george iii, an imitation house of lords and a popular house of commons with a limited tenure. hamilton's plan was never taken seriously and, so far as the records show, was never afterwards considered. his admirers have given great praise to his work in the federal convention. his real contribution lay in the fact that when the constitution was finally drafted and offered to the people, while he regarded it as a "wretched makeshift," to use his own expression, yet he was broad and patriotic enough to surrender his own views and advocate the adoption of the constitution. in so doing, he fought a valorous fight, secured the acquiescence of the state of new york, and without its ratification the constitution would never have been adopted. hamilton later thought better of the constitution, and its successful beginning is due in large measure to his genius for constructive administration. as the debate proceeded, the crisis precipitated by the seemingly insoluble differences between the great and little states became more acute. the smaller states contended that the convention was transgressing its powers, and they demanded that the credentials of the various members be read. in this there was technical accuracy, for the delegates had been appointed to revise the articles of confederation and not to adopt a new constitution. a majority of the convention, however, insisted upon the convention proceeding with the consideration of a new constitution, and their views prevailed. it speaks well for the honour of the delegates that although their differences became so acute as to lead at times to bitter expressions, neither side divulged them to the outside public. the smaller states could easily have ended the convention by an appeal to public opinion, which was not then prepared for a "consolidated union," but they were loyal enough to fight out their quarrels within the walls of the convention hall. at times the debate became bitter in the extreme. james wilson, a delegate of pennsylvania and a scotchman by birth and education, turning to the representatives of the little states, passionately said: "will you abandon a country to which you are bound by so many strong and enduring ties? should the event happen, it will neither stagger my sentiments nor duty. if the minority of the people refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds." he referred to the demand of the larger states that representation should be proportioned to the population. to this bedford, of delaware, as heatedly replied; "we have been told with a dictatorial air that this is the last moment for a fair trial in favour of good government. it will be the last, indeed, if the propositions reported by the committee go forth to the people. the large states dare not dissolve the convention. if they do, the small ones will find some foreign ally of more honour and good faith, who will take them by the hand and do them justice." finally, the smaller states gave their ultimatum to the larger states that unless representation in both branches of the proposed legislature should be on the basis of equality--each state, whether large or small, having one vote--they would forthwith leave the convention. an eye-witness says that, at that moment, washington, who was in the chair, gave old doctor franklin a significant look. franklin arose and moved an adjournment for forty-eight hours, with the understanding that the delegates should confer with those with whom they disagreed rather than with those with whom they agreed. a recess was taken, and when the convention re-convened on july , a vote was taken as to equality of representation in the senate and resulted in a tie vote. it was then decided to appoint a committee of eleven, one from each state, to consider the question, and this committee reported three days later, on july , in favour of proportionate representation in the house and equal representation in the senate. this suggestion, which finally saved the situation, was due to that wise old utilitarian philosopher, franklin. again, a vehement and passionate debate followed. vague references were made to the sword as the only method of solving the difference. on july the committee again reported, maintaining the principle of their recommendation, while modifying its details, and the debate then turned upon the question to what extent the negro slaves should count in estimating population for the purposes of proportionate representation in the lower house. various suggestions were made to base representation upon wealth or taxation and not upon population. for several days the debate lasted during very heated weather, but on the night of july the temperature dropped and with it the emotional temperature of the delegates. some days previous, namely, june , when the debates were becoming so bitter that it seemed unlikely that the convention could continue, doctor franklin, erroneously supposed by many to be an atheist, made the following solemn and beautiful appeal to their better natures. he said: "the small progress we have made after four or five weeks' close attendance and continual reasonings with each other--our different sentiments on almost every question, several of the last producing as many noes as ayes, is, methinks, a melancholy proof of the imperfection of the human understanding. we indeed seem to feel our own want of political wisdom, since we have been running about in search of it. we have gone back to ancient history for models of government, and examined the different forms of those republics which, having been formed with the seeds of their own dissolution, now no longer exist. and we have viewed modern states all around europe, but find none of their constitutions suitable to our circumstances. "in this situation of this assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the father of lights to illuminate our understandings?... and have we now forgotten that powerful friend or do we imagine that we no longer need his assistance? i have lived, sir, a long time, and the longer i live, the more convincing proofs i see of this truth: that _god governs in the affairs of men_. and if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? we have been assured, sir, in the sacred writings, that 'except the lord build the house they labour in vain that build it.' i firmly believe this; and i also believe that without his concurring aid we shall succeed in this political building no better than the builders of babel. we shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and byword down to future ages. and what is worse, mankind may hereafter from this unfortunate instance, despair of establishing governments by human wisdom and leave it to chance, war, and conquest. "i therefore beg leave to move that henceforth prayers imploring the assistance of heaven, and its blessings on our deliberations, be held in this assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service." it may surprise my audience to know the sequel. the resolution was voted down, partly on the ground that if it became known to the public that the convention had finally resorted to prayers it might cause undue alarm, but also because the convention was by that time so low in funds that, as one of the members said, it did not have enough money to pay a clergyman his fees for the service. i suspect that their controlling reason was their indisposition to break their self-imposed rule of secrecy by contact with the outer world until their work was completed. perhaps they thought that "god helps those who help themselves." on july the compromise was finally adopted of recognizing the claims of the larger states to proportionate representation in the house of representatives, and recognizing the claims of the smaller states by according to them equal representation in the senate. this great result was not effected without the first break in the convention, for the delegates from new york left in disgust and never returned, with the exception of hamilton, who occasionally attended subsequent sessions. such was the great concession that was made to secure the constitution; and the only respect in which the constitution to-day cannot be amended is that by express provision the equality of representation in the senate shall never be disturbed. thus it is that to-day some states, which have less population than some of the wards in the city of new york, have as many votes in the senate as the great state of new york. it is unquestionably a palpable negation of majority rule, for as no measure can become a law without the concurrence of the senate--now numbering ninety-six senators--a combination of the little states, whoso aggregate population is not a fifth of the american people, can defeat the will of the remaining four-fifths. pennsylvania and new york, with nearly one-sixth of the entire population of the united states, have only four votes in ninety-six votes in the senate. fortunately, political alignments have rarely been between the greater and the smaller states exclusively. their equality in the senate was a big price to pay for the union, but, as the event has shown, not too great. the convention next turned its attention to the executive and the manner of its selection, and upon this point there was the widest contrariety of view, but, fortunately, without the acute feeling that the relative power of the states had occasioned. then the judiciary article was taken up, and there was much earnest discussion as to whether the new constitution should embody the french idea of giving to the judiciary, in conjunction with the executive, a revisory power over legislation. three times the convention voted upon this dangerous proposition, and on one occasion it was only defeated by a single vote. fortunately, the good sense of the convention rejected a proposition, that had caused in france constant conflicts between the executive and the judiciary, by substituting the right of the president to veto congressional legislation, with the right of congress, by a two-thirds vote of each house, to override the veto, and secondly by an implied power in the judiciary to annul congressional or state legislation, not on the grounds of policy, but on the sole ground of inconsistency with the paramount law of the constitution. in this adjustment, the influence of montesquieu was evident. these and many practical details had resulted in an expansion of the fifteen proposals of the virginia plan to twenty-three. having thus determined the general principles that should guide them in their labours, the convention, on july appointed a committee on detail to embody these propositions in the formal draft of a constitution and adjourned until august to await its report. that report, when finally completed, covered seven folio pages, and was found to consist of a preamble and twenty-three articles, embodying forty-three sections. the draft did not slavishly follow the virginia propositions, for the committee embodied some valuable suggestions which had occurred to them in their deliberations. nevertheless, it substantially put the virginia plan into a workable plan which proved to be the constitution of the united states in embryo. when the committee on detail had made its report on august , the convention proceeded for over a month to debate it with the most minute care. every day for five weeks, for five hours each day, the members studied and debated with meticulous care every sentence of the proposed constitution. time does not suffice even for the barest statement of the many interesting questions which were thus discussed, but they nearly ran the whole gamut of constitutional government. many fanciful ideas were suggested but with unvarying good sense they were rejected. some of the results were, under the circumstances, curious. for example, although it was a convention of comparatively young men, and although the convention could have taken into account the many successful young men in public life in europe--as, for example, william pitt--they put a disqualification upon age by providing that a representative must be twenty-five years of age, a senator thirty years of age, and a president thirty-five years of age. when it was suggested that young men could learn by admission to public life, the sententious reply was made that, while they could, they ought not to have their education at the public expense. the debates proceeded, however, in better temper, and almost the only question that again gave rise to passionate argument was that of slavery. the extreme southern states declared that they would never accept the new plan "except the right to import slaves be untouched." this question was finally compromised by agreeing that the importation of slaves should end after the year . it however left the slave population then existing in a state of bondage, and for this necessary compromise the nation seventy-five years later was to pay dearly by one of the most destructive civil wars in the annals of mankind. august was now drawing to a close. the convention had been in session for more than three months. of its work the public knew nothing, and this notwithstanding the acute interest which the american people, not merely facing the peril of anarchy, but actually suffering from it, must have taken in the convention. its vital importance was not under-estimated. while its builders, like all master builders, did "build better than they knew," yet it cannot be said that they under-estimated the importance of their labours. as one of their number, gouveneur morris said: "the whole human race will be affected by the proceedings of this convention." after it adjourned one of its greatest participants, james wilson, of pennsylvania, said: "after the lapse of six thousand years since the creation of the world, america now presents the first instance of a people assembled to say deliberately and calmly and to decide leisurely and peaceably on the form of government by which they will bind themselves and their posterity." in the absence of any authentic information, the rumour spread through the colonies that the convention was about to reconstitute a monarchy by inviting the second son of george iii, the bishop of osnaburg, to be king of the united states; and these rumours became so persistent as to evoke from the silent convention a semi-official denial. there is some reason to believe that a minority of the convention did see in the restoration of a constitutional monarchy the only solution of the problem. on september the committee had finally considered and, after modifications, approved the draft of the committee on detail, and a new committee was thereupon appointed "to revise the style of and arrange the articles that had been agreed to by the house." this committee was one of exceptional strength. there were dr. william samuel johnson, a graduate of oxford and a friend of his great namesake, samuel johnson; alexander hamilton, gouveneur morris, a brilliant mind with an unusual gift for lucid expression; james madison, a true scholar in politics, and rufus king, an orator who, in the inflated language of the day, "was ranked among the luminaries of the present age." the convention then adjourned to await the final revision of the draft by the committee on style. on september the committee reported. while it is not certain, it is believed that its work was largely that of gouveneur morris. september the printed copies of the report of the committee on style were ready, and three more days were spent by the convention in carefully comparing each article and section of this final draft. on september the work of drafting the constitution was regarded as ended, and it was adopted and ordered to be engrossed for signing. it may be interesting at this point to give the result of their labours as measured in words, and if the framers of the constitution deserve the plaudits of posterity in no other respect they do in the remarkable self-restraint which those results revealed. the convention had been in session for continuous days. probably they had consumed over hours in debate. if their debates had been fully reported, they would probably have filled at least fifty volumes, and yet the net result of their labours consisted of about , words, sentences, and about distinct provisions. as the late lord bryce, speaking in this age of unbridled expression, both oral and printed, so well has said: "the constitution of the united states, including the amendments, may be read aloud in twenty-three minutes. it is about half as long as saint paul's epistle to the corinthians, and one-fourth as long as the irish land act of . history knows few instruments which in so few words lay down equally momentous rules on a vast range of matters of the highest importance and complexity." even including the nineteen amendments, the constitution, after one hundred and thirty-five years of development, does not exceed , words. what admirable self-restraint! possibly single opinions of the supreme court could be cited which are as long as the whole document of which they are interpreting a single phrase. this does not argue that the constitution is an obscure document, for it would be difficult to cite any political document in the annals of mankind that was so simple and lucid in expression. there is nothing johnsonese about its style. every word is a word of plain speech, the ordinary meaning of which even the man in the street knows. no tautology is to be found and no attempt at ornate expression. it is a model of simplicity, and as it flows through the reaches of history it will always excite the admiration of those who love clarity and not rhetorical excesses. one can say of it as horace said of his favourite spring: _o, fons bandusiae, splendidior vitro. dulce digne mero, non sine floribus_. if i be asked why, if this be true, it has required many lengthy opinions of the supreme court in the volumes of its reports to interpret its meaning, the answer is that, as with the simple sayings of the great galilean, whose words have likewise been the subject of unending commentary, the question is not one of clarity but of adaptation of the meaning to the ever-changing conditions of human life. moreover, as with the sayings of the master or the unequalled verse of shakespeare, questions of construction are more due to the commentators than to the text itself. on september the convention met for the last time. the document was engrossed and laid before the members for signature. of the fifty-five members who had attended, only thirty-nine remained. of those, a number were unwilling to sign as individuals. while the members had not been unconscious of the magnitude of their labours, they were quite insensible of the magnitude of their achievement. few there were of the convention who were enthusiastic about this result. indeed, as the document was ready for signature, it became a grave question whether the remnant which remained had sufficient faith in their own work to subscribe their names, and if they failed to do so its adoption by the people would have been impossible. it was then that doctor franklin rendered one of the last and greatest services of his life. with ingratiating wit and with all the impressiveness that his distinguished career inspired, franklin thus spoke: "i confess that there are several parts of this constitution which i do not at present approve, but i am not sure i shall never approve them. for having lived long i have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which i once thought right, but found to be otherwise. it is therefore that the older i grow, the more apt i am to doubt my own judgment and to pay more respect to the judgment of others. most men indeed as well as most sects in religion think themselves in possession of all truth, and that wherever others differ from them it is so far error. steele, a protestant, in a dedication tells the pope that the only difference between our churches in their opinions of the certainty of their doctrines is, the church of rome is infallible and the church of england is never in the wrong. but though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said: 'i don't know how it happens, sister, but i meet with nobody but myself that's always in the right.'--_il n'y a que moi qui a toujours raison_. "in these sentiments, sir, i agree to this constitution with all its faults, if they are such; because i think a general government necessary for us, and there is no form of government but what may be a blessing to the people, if well administered, and i believe further that this is likely to be well administered for a course of years, and can only end in despotism as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. i doubt, too, whether any other convention we can obtain may be able to make a better constitution. for when you assemble a number of men to have the advantage of their joint wisdom you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. from such an assembly can a perfect production be expected? it therefore astonishes me, sir, to find this system approaching so near to perfection as it does.... thus, i consent, sir, to this constitution because i expect no better, and because i am not sure that it is not the best. the opinions i have had of its errors i sacrifice to the public good, i have never whispered a syllable of them abroad. within these walls they were born and here they shall die. if every one of us in returning to our constituents were to report the objections he has had to it and endeavour to gain partisans in support of them, we might prevent its being generally received, and thereby lost all the salutary effects and great advantages resulting naturally in our favour among foreign nations as well as among ourselves from our real or apparent unanimity. "on the whole, sir, i cannot help expressing a wish that every member of the convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility--and to make manifest our unanimity, put his name to this instrument." truly this spirit of doctor franklin could be profitably invoked in this day and generation, when nations are so intolerant of the ideas of other nations. as the members, moved by franklin's humorous and yet moving appeal, came forward to subscribe their names, franklin drew the attention of some of the members to the fact that on the back of the president's chair was the half disk of a sun, and, with his love of metaphor, he said that painters had often found it difficult to distinguish in their art a rising from a setting sun. he then prophetically added: "i have often and often in the course of the sessions and the vicissitudes of my hopes and fears in its issues, looked at that behind the president without being able to tell whether it was rising or setting. but now at length i have the happiness to know that it is a rising and not a setting sun." time has verified the genial doctor's prediction. the career of the new nation thus formed has hitherto been a rising and not a setting sun. he had in his sixty years of conspicuously useful citizenship--and perhaps no nation ever had a more untiring and unselfish servant--done more than any american to develop the american commonwealth, but like moses, he was destined to see the promised land only from afar, for the new government had hardly been inaugurated, before franklin died, as full of years as honours. prophetic as was his vision, he could never have anticipated the reality of to-day, for this nation, thus deliberately formed in the light of reason and without blood or passion, is to-day, by common consent, one of the greatest and, i trust i may add, one of the noblest republics of all time. _iii. the political philosophy of the constitution_ in my last address i left doctor franklin predicting to the discouraged remnant of the constitutional convention that the nation then formed would be a "rising sun" in the constellation of the nations. the sun, however, was destined to rise through a bank of dark and murky clouds, for the constitution could not take effect until it was ratified by nine of the thirteen states; and when it was submitted to the people, who selected state conventions for the purpose of ratifying or rejecting the proposed plan of government, a bitter controversy at once ensued between two political parties, then in process of formation, one called the constitution ratified without controversy. in the remaining ten the struggle was long and arduous, and nearly a year passed before the requisite nine states gave their assent. two of the states refused to become parts of the new nation, even after it began, and three years passed before the thirteen states were re-united under the constitution. it could not have been ratified had there not been an assurance that there would be immediate amendments to provide a bill of rights to safeguard the individual. thus came into existence the first ten amendments to the constitution, with their perpetual guaranty of the fundamental rights of religion, freedom of speech and of the press, the right of assemblage, the immunity from unreasonable searches and seizures, the right of trial by jury, and similar guarantees of fundamental individual rights. distrustful as the american people were of the new constitution, they yet had the political sagacity to prefer its imperfections, whatever they imagined them to be, to the mad spirit of innovation; and in order that the great instrument should not, through the excesses of party passion or the temporary caprices of fleeting generations, speedily become a mere "scrap of paper" they very wisely provided that no amendment should, in the future, be made unless it was proposed by at least two-thirds of the senate and the house of representatives and ratified by three-fourths of the states through their legislatures or through special conventions. this was only one of many striking negations of the principle of majority rule. as a result of this provision, if we count the first ten amendments as virtually part of the original document, only nine amendments have been adopted in years, and of these, excepting the amendments which ended slavery as the result of the civil war, only the last three, passed in recent years partly through the relaxing influence of the world war, mark a serious departure from the basic principles of the constitution. this stability is the more remarkable when we recall the profound and revolutionary change that has taken place in the social life of man since the constitution was adopted. it was framed at the very end of the pastoral-agricultural age of humanity. the industrial revolution, which has more profoundly affected man in the last century and a half than all the changes which had theretofore taken place in the life of man since the cave-dweller, was only then beginning. measured in terms of mechanical power, men when the constitution was formed were lilliputians as compared with the brobdingnagians of our day, when man outflies the eagle, outswims the fish, and by his conquest and utilization of the invisible forces of nature has become the superman; and yet the constitution of is, in most of its essential principles, still the constitution of . this surely marks it as a marvel in statecraft and can only be explained by the fact that the constitution was developed by a people who, as "children brave and free of the great mother-tongue," had a real genius for self-government and its essential element, the spirit of self-restraint. while it is true that the _text_ of the instrument has suffered almost as little change as the nicene creed, yet it would be manifest error to suggest that in its development by practical application the constitution has not undergone great changes. the first and greatest of all its expounders, chief justice marshall, said, in one of his greatest opinions, that the constitution was-- "intended to endure for ages to come, and consequently to be _adapted_ to the various crises of human affairs. to have prescribed the means by which government should in all future times execute its powers would have been to change entirely the character of the instrument and to give it the properties of a legal code. it would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been foreseen dimly, and can best be provided for as they occur." in this great purpose of enumerating rather than defining the powers of government its framers were supremely wise. while it was marvellously sagacious in what it provided, it was wise to the point of inspiration in what it left unprovided. nothing is more admirable than the self-restraint of men who, venturing upon an untried experiment, and after debating for four months upon the principles of government, were content to embody their conclusions in not more than four thousand words. to this we owe the elasticity of the instrument. its vitality is due to the fact that, by usage, judicial interpretation, and, when necessary, formal amendment, it can be thus adapted to the ever-accelerating changes of the most progressive age in history, and that a people have administered the constitution who, in the process of such adaptation, have generally shown the same spirit of conservative self-restraint as did the men who framed it. the constitution is neither, on the one hand, a gibraltar rock, which wholly resists the ceaseless washing of time or circumstance, nor is it, on the other hand, a sandy beach, which is slowly destroyed by the erosion of the waves. it is rather to be likened to a floating dock, which, while firmly attached to its moorings, and not therefore the caprice of the waves, yet rises and falls with the tide of time and circumstance. while in its practical adaptation to this complex age the men who framed it, if they could "revisit the glimpses of the moon," would as little recognize their own handiwork as their own nation, yet they would still be able to find in successful operation the essential principles which they embodied in the document more than a century ago. its success is also due to the fact that its framers were little influenced by the spirit of doctrinarianism. they were not empiricists, but very practical men. this is the more remarkable because they worked in a period of an emotional fermentation of human thought. the long-repressed intellect of man had broken into a violent eruption like that of a seemingly extinct volcano. from the middle of the eighteenth century until the end of the french revolution the masses everywhere were influenced by the emotional, and at times hysterical, abstractions of the french encyclopedists; and that these had influenced thought in the american colonies is readily shown in the preamble of the declaration of independence, with its unqualified assertion of the equality of men and the absolute right of self-determination. the declaration sought in its noble idealism to make the "world safe for democracy," but the constitution attempted the greater task of making democracy safe for the world by inducing a people to impose upon themselves salutary restraints upon majority rule. fortunately, the framers of the constitution had learned a rude and terrible lesson in the anarchy that had followed the war of independence. they were not so much concerned about the rights of man as about his duties, and their great purpose was to substitute for the visionary idealism of a rampant individualism the authority of law. of the hysteria of that time, which was about to culminate in the french revolution, there is no trace in the constitution. they were less concerned about rousseau's social contract than to restore law and order. hard realities and not generous and impossible abstractions interested them. they had suffered grievously for more than ten years from misrule and had a distaste for mere phrase-making, of which they had had a satiety, for the constitution, in which there is not a wasted word, is as cold and dry a document as a problem in mathematics or a manual of parliamentary law. its mandates have the simplicity and directness of the ten commandments, and, like the decalogue, it consists more of what shall not be done than what shall be done. in this freedom from empiricism and sturdy adherence to the realities of life, it can be profitably commended to all nations which may attempt a similar task. while the constitution apparently only deals with the practical and essential details of government, yet underlying these simply but wonderfully phrased delegations of power is a broad and accurate political philosophy, which goes far to state the "law and the prophets" of free government. these essential principles of the constitution may be briefly summarized as follows: . _the first is representative government_. nothing is more striking in the debates of the convention than the distrust of its members, with few exceptions, of what they called "democracy." by this term they meant the power of the people to legislate directly and without the intervention of chosen representatives. they believed that the utmost concession that could be safely made to democracy was the power to select suitable men to legislate for the common good, and nothing is more striking in the constitution than the care with which they sought to remove the powers of legislation from the _direct_ action of the people. nowhere in the instrument is there a suggestion of the initiative or referendum. even an amendment to the constitution could not be directly proposed by the people in the exercise of their residual power or adopted by them. as previously said, it could only be proposed by two-thirds of the house and the senate, and then could only become effective, if ratified by three-fourths of the states, acting, not by a popular vote, but through their chosen representatives either in their legislatures or special conventions. thus they denied the power of a majority to alter even the form of government. moreover, they gave to the president the power to nullify laws passed by a majority of the house and senate by his simple veto, and yet, fearful of an unqualified power of the president in this respect, they provided that the veto itself should be vetoed, if two-thirds of the senate and house concurred in such action. moreover, the great limitations of the constitution, which forbid the majority, or even the whole body of the house and senate, to pass laws either for want of authority or because they impair fundamental rights of individuals, are as emphatic a negation of an absolute democracy as can be found in any form of government. measured by present-day conventions of democracy, the constitution is an undemocratic document. the framers believed in representative government, to which they gave the name "republicanism" as the antithesis to "democracy." the members of the senate were to be selected by state legislatures, and the president himself was, as originally planned, to be selected by an electoral college similar to the college of cardinals. the debates are full of utterances which explain this attitude of mind. mr. gerry said: "the evils we experience flow from the excesses of democracy. the people are the dupes of pretended patriots." mr. randolph, the author of the virginia plan, observed that the general object of the constitution was to provide a cure for the evils under which the united states laboured; that in tracing these evils to their origin every man had found it in the tribulation and follies of democracy; that some check, therefore, was to be sought for against this tendency of our government. alexander hamilton remarked, on june , that-- "the members most tenacious of republicanism were as loud as any in declaiming against the evils of democracy." he added: "give all the power to the many and they will oppress the few. give all the power to the few and they will oppress the many. both ought, therefore, to have the power that each may defend itself against the other." perhaps the attitude of the members is thus best expressed by james madison, in the th of the federalist papers: "a pure democracy, by which i mean a state consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. such democracies have ever been spectacles of turbulence and contention, and have often been found incompatible with the personal security and rights of property, and have generally been as short in their lives as they have been violent in their deaths." undoubtedly, the framers of the constitution in thus limiting popular rule did not take sufficient account of the genius of an english-speaking people. a few of their number recognized this. franklin, a self-made man, believed in democracy and doubted the efficacy of the constitution unless it was, like a pyramid, broad-based upon the will of the people. colonel mason, of virginia, who was also of the jeffersonian school of political philosophy, said: "notwithstanding the oppression and injustice experienced among us from democracy, the genius of the people is in favour of it, and the genius of the people must be consulted." in this they were true prophets, for the american people have refused to limit democracy as narrowly and rigidly as the framers of the constitution clearly intended. the most notable illustration of this is the selection of the president. it was never contemplated that the people should directly select the president, but that a chosen body of electors should, with careful deliberation, make this momentous choice. while, in form, the system persists to this day, from the very beginning the electors simply vote as the people who select them desire. it should here be noted that thomas jefferson, the great democrat and draftsman of the declaration of independence, was not a member of the convention. during its sessions he was in france. he was instrumental in securing the first ten amendments and the subsequent adaptation of the constitution to meet the democratic instincts of the american people is largely due to his great leadership. moreover, the spirit of representative government has greatly changed since the constitution was adopted. the ideal of the earlier time was that so nobly expressed by edmund burke in his address to the electors of bristol, for the framers believed that a representative held a judicial position of the most sacred character, and that he should vote as his judgment and conscience dictated without respect to the wishes of his constituents. to-day, and notably in the last half century, the contrary belief, due largely to jefferson's political ideals, has so influenced american politics that the representatives of the people, either in the legislature or the executive departments of the government, are considered by the masses as only the mouthpieces of the people who select them, and to ignore their wishes is regarded as virtually a betrayal of a trust and the negation of democracy. for this change in attitude there has been much justification, for in my country, as elsewhere, the people do not always select their best men as representatives, and, with the imperfections of human nature, there has been so much of ignorance and, at times, venality, that the instinct of the people is to take the conduct of affairs into their own hands. on the other hand, this change of attitude has led, in many instances, to government by organized minorities, for, with the division of the masses into political parties, it is easy for an organized minority to hold the balance of power, and thus impress its will upon majorities. time may yet vindicate the theory of the framers that the limit of democracy is the selection of true and tried representatives. . _the second and most novel principle of the constitution is its dual form of government._ this did constitute a unique contribution to the science of politics. this was early recognized by de tocqueville, one of the most acute students of the constitution, who said that it was based "upon a wholly, novel theory, which may be considered a great discovery in modern political science." previous to the constitution it had not been thought possible to divide sovereignty, or at least to have two different sovereignties moving as planets in the same orbit. therefore, all previous federated governments had been based upon the plan that a league could only effect its will through the constituent states and that the citizens in these states owed no direct allegiance to the league, but only to the states of which they were members. the constitution, however, developed the idea of a dual citizenship. while the people remained citizens of their respective states in the sphere of government which was reserved to the states, yet they directly became citizens of the central government, and, as such, ceased to be citizens of the several states in the sphere of government delegated to the central power; and this allegiance was enforced by the direct action of the central government on the citizens as individuals. thus has been developed one of the most intricately complex governmental systems in the world. at the time of the adoption of the constitution this division of jurisdiction was quite feasible, for, geographically, the various states were widely separated, and the lack of economic contact made it easy for each government to function without serious conflict. the framers, however, did not sufficiently reckon with the mechanical changes in society that were then beginning. they did not anticipate, and could not have anticipated, the centripetal influences of steam and electricity which have woven the american people into an indissoluble unit for commercial and many other purposes. as a result many laws of the federal government, in their incidences in this complex age, directly impinge upon rights of the state governments, and _vice versa_, and the practical application of the constitution has required a very subtle adaptation of a form of government which was enacted in a primitive age to a form of government of a complex age. take, for example, the power over commerce. according to the constitution, the federal government had plenary power over foreign commerce and commerce _between_ the states, but the power over commerce _within_ a state was reserved to state governments. this presupposed the power of government to divide commerce into two water-tight compartments, or, at least, to regard the two spheres of power as parallel lines that would never meet; whereas with the coming of the railroad, steamship and the telegraph commerce has become so unified that the parallel lines have become lines of interlacing zigzags. to adapt the commerce clause of the constitution to these changed conditions has required, in the highest degree, the constructive genius of the supreme court of the united states, and, in a series of very remarkable decisions, which are contained in volumes of the official reports, that great tribunal has tried to draw a line between inter-state and domestic commerce as nearly to the original plans of the framers as it was possible; but obviously there has been so much adaptation to make this possible that if washington, franklin, madison and hamilton could revisit the nation they created they would not recognize their own handiwork. for the same reason, the dual system of government has been profoundly modified by the great elemental forces of our mechanical age, so that the scales, which try to hold in nice equipoise the federal government on the one hand and the states on the other, have been greatly disturbed. originally, the states were the powerful political entities, and the central government a mere agent for certain specific purposes; but, in the development of the constitution, the nation has naturally become of overshadowing importance, while the states have relatively steadily diminished in power and prestige. these inevitable tendencies in american politics are called "centralization," and while for nearly a century a great political party bitterly contested its steady progress, due to the centripetal influences above indicated, yet the contest was long since abandoned as a hopeless one, and the struggle to-day is rather to keep, so far as possible, the inevitable tendency measurably in check. nevertheless, it would be erroneous to suggest that the dual system of government is a failure. it still endures in providing a large measure of authority to the states in their purely domestic concerns, and, in a country that extends from the atlantic to the pacific, and from the lakes to the gulf, whose northern border is not very far from the arctic circle, and whose southern border is not many degrees from the equator, there are such differences in the habits, conventions, and ideals of the people that without this dual form of government the constitution would long since have broken down. it is not too much to say that the success with which the framers of the constitution reconciled national supremacy and efficiency with local self-government is one of the great achievements in the history of mankind. . _the third principle was the guaranty of individual liberty through constitutional limitations._ this marked another great contribution of america to the science of government. in all previous government building, the state was regarded as a sovereign, which could grant to individuals or classes, out of its plenary power, certain privileges or exemptions, which were called "liberties." thus the liberties which the barons wrung from king john at runnymede were virtually exemptions from the power of government. our fathers did not believe in the sovereignty of the state in the sense of absolute power, nor did they believe in the sovereignty of the people in that sense. the word "sovereignty" will not be found in the constitution or the declaration of independence. they believed that each individual, as a responsible moral being, had certain "inalienable rights" which neither the state nor the people could rightfully take from him. this conception of individualism, enforced in courts of law against executives and legislatures, was wholly new and is the distinguishing characteristic of american constitutionalism. as to such reserved rights, guaranteed by constitutional limitations, and largely by the first ten amendments to the constitution, a man, by virtue of his inherent and god-given dignity as a human soul, has rights, such as freedom of the press, liberty of speech, property rights, and religious freedom, which even one hundred millions of people cannot rightfully take from him, without amending the constitution. the framers did not believe that the oil of anointing that was supposed to sanctify the monarch and give him infallibility had fallen upon the "multitudinous tongue" of the people to give it either infallibility or omnipotence. they believed in individualism. they were animated by a sleepless jealousy of governmental power. they believed that the greater such power, the greater the danger of its abuse. they felt that the individual could generally best work out his own salvation, and that his constant prayer to government was that of diogenes to alexander: "keep out of my sunlight." the worth and dignity of the human soul, the free competition of man and man, the nobility of labour, the right to work, free from the tyranny of state or class, this was their gospel. socialism was to them abhorrent. this theory of government gave a new dignity to manhood. it said to the state: "there is a limit to your power. thus far and no further, and here shall thy proud waves be stayed." . _closely allied to this doctrine of limited governmental powers, even by a majority, is the fourth principle of an independent judiciary_. it is the balance wheel of the constitution, and to function it must be beyond the possibility of attack and destruction. my country was founded upon the rock of property rights and the sanctity of contracts. both the nation and the several states are forbidden to impair the obligation of contracts, or take away life, liberty, or property "without due process of law." the guarantee is as old as magna charta; for "due process of law" is but a paraphrase of "the law of the land," without which no freeman could be deprived of his liberties or possessions. "due process of law" means that there are certain fundamental principles of liberty, not defined or even enumerated in the constitution, but having their sanction in the free and enlightened conscience of just men, and that no man can be deprived of life, liberty, or property, except in conformity with these fundamental decencies of liberty. to protect these even against the will of a majority, however large, the judiciary was given unprecedented powers. it threw about the individual the solemn circle of the law. it made the judiciary the final conscience of the nation. your nation cherishes the same primal verities of liberty, but with you, the people in parliament, is the final judge. we, however, are not content that a majority of the legislature shall override inviolable individual rights, about which the judiciary is empowered to throw the solemn circle of the law. this august power has won the admiration of the world, and by many is regarded as a novel contribution to the science of government. the idea, however, was not wholly novel. as previously shown, four chief justices of england had declared that an act of parliament, if against common right and reason, could be treated as null and void; while in france the power of the judiciary to refuse efficacy to a law, unless sanctioned by the judiciary, had been the cause of a long struggle for at least three centuries between the french monarch and the courts of france. however, in england the doctrine of the common law yielded to the later doctrine of the omnipotence of parliament, while in france the revisory power of the judiciary was terminated by the french revolution. the united states, however, embodied it in its form of government and thus made the judiciary, and especially the supreme court, the balance wheel of the constitution. without such power the constitution could never have lasted, for neither executive officers nor legislatures are good judges of the extent of their own powers. nothing more strikingly shows the spirit of unity which the constitution brought into being than the unbroken success with which the supreme court has discharged this difficult and most delicate duty. the president is the commander-in-chief of the army and the navy and can call them to his aid. the legislature has almost unlimited power through its control of the public purse. the states have their power reinforced by armed forces, and some of them are as great in population and resources as many of the nations of europe. the supreme court, however, has only one officer to execute its decrees, called the united states marshal; and yet, without sword or purse, and with only a high sheriff to enforce its mandates, when the supreme court says to a president or to a congress or to the authorities of a great--and, in some respects, sovereign--state that they must do this or must refrain from doing that, the mandate is at once obeyed. here, indeed, is the american ideal of "a government of laws and not of men" most strikingly realized; and if the american constitution, as formulated and developed, had done nothing else than to establish in this manner the supremacy of law, even as against the overwhelming sentiment of the people, it would have justified the well-known encomium of mr. gladstone. it must be added, however, that in one respect this function of the judiciary has had an unfortunate effect in lessening rather than developing in the people the sense of constitutional morality. in your country the power of parliament is omnipotent, and yet in its legislation it voluntarily observes these great fundamental decencies of liberty which in the american constitution are protected by formal guarantees. this can only be true because either your representatives in parliament have a deep sense of constitutional morality, or that the constituencies which select them have so much sense of constitutional justice that their representatives dare not disregard these fundamental decencies of liberty. in the united states, however, the confidence that the supreme court will itself protect these guaranties of liberty has led to a diminution of the sense of constitutional morality, both in the people and their representatives. it abates the vigilance which is said to be ever the price of liberty. laws are passed which transgress the limitations of the constitution without adequate discussion as to their unconstitutional character, for the reason that the determination of this fact is erroneously supposed to be the exclusive function of the judiciary. the judiciary, contrary to the common supposition, has no plenary power to nullify unconstitutional laws. it can only do so when there is an irreconcilable and indubitable repugnancy between a law and the constitution; but obviously laws can be passed from motives that are anti-constitutional, and there is a wide sphere of political discretion in which many acts can be done which, while politically anti-constitutional, are not juridically unconstitutional. for this reason, the undue dependence upon the judiciary to nullify every law which either in form, necessary operation, or motive transgresses the constitution has so far lessened the vigilance of the people to protect their own constitution as to lead to its serious impairment. . _the fifth fundamental principle was a system of governmental checks and balances_. the founders of the republic were not enamoured of power. as they viewed human history, the worst evils of government were due to excessive concentration of power, which like othello's jealousy "makes the meat it feeds on." this system of checks and balances again illustrates that the constitution is the great negation of unrestrained democracy. the framers believed that a people was best governed that was least governed. therefore, their purpose was not so much to promote efficiency in legislation as to put a brake upon precipitate action. time does not suffice to state the intricate system of checks and balances whereby the legislature acts as a check upon the executive and the executive upon the legislature, and the supreme court upon both. when the republic was small, and its public affairs were few, this system of checks and balances worked admirably, but to-day, when the nation is one of the greatest in the world, and its public affairs are of the most important and complicated character, and often require speedy action, it may be questioned whether the system is not now an undue brake upon governmental efficiency, and does _not_ require some modification to ensure efficiency. indeed, it is a serious question with many thoughtful americans whether the growth of the united states has not put an excessive strain upon its governmental machinery. this system was in part due to the confident belief of the framers of the constitution in the montesquieu doctrine of the division of government into three independent departments--legislative, executive and judicial; but experience has shown how difficult it is to apply this doctrine in its literal rigidity. one result of the doctrine was the mistaken attempt to keep the legislative and the executive as far apart as possible. the cabinet system of parliamentary government was not adopted. while the president can appear before congress and express his views, his cabinet is without such right. in practice, the gulf is bridged by constant contact between the cabinet and the committees of congress, but this does not wholly secure speedy and efficient co-operation between the two departments. as i speak, a movement is in progress, with the sanction of president harding, to permit members of his cabinet to appear in congress and thus defend directly and in person the policies of the executive. this separation of the two departments, which causes so much friction, has been emphasized by one feature of the constitution which again marks its distrust of democracy, namely the fixed tenure of office. the constitution did not intend that public officials should rise or fall with the fleeting caprices of a constituency. it preferred to give the president and the members of congress a fixed term of office, and, however unpopular they might become temporarily, they should have the right and the opportunity to proceed even with unpopular policies, and thus challenge the final verdict of the people. if a parliamentary form of government, immediately responsive to current opinion as registered in elections, is the great desideratum, then the fixed tenure of offices is the vulnerable achilles-heel of our form of government. in other countries the executive cannot survive a vote of want of confidence by the legislature. in america, the president, who is merely the executive of the legislative will, continues for his prescribed term, though he may have wholly lost the confidence of the representatives of the people in congress. while this makes for stability in administration and keeps the ship of state on an even keel, yet it also leads to the fatalism of our democracy, and often the "native hue" of its resolution is thus "sicklied o'er with the pale cast of thought." take a striking instance. i am confident that after the sinking of the _lusitania_, the united states would have entered the world war, if president wilson's tenure of power had then depended upon a vote of confidence. . _the sixth fundamental principle is the joint power of the senate and the executive over the foreign relations of the government_. i need not dwell at length upon this unique feature of our constitutional system, for since the versailles treaty, the world has become well acquainted with our peculiar system under which treaties are made and war is declared or terminated. nothing, excepting the principle of local rule, was of deeper concern to the framers of the constitution. when it was framed, it was the accepted principle of all other nations that the control of the foreign relations of the government was the exclusive prerogative of the executive. in your country the only limitation upon that power was the control of parliament over the purse of the nation, and some of the great struggles in your history related to the attempt of the crown to exact money to carry on the wars without a parliament grant. the framers were unwilling to lodge any such power in the executive, however great his powers in other respects. this was primarily due to the conception of the states that then prevailed. while they had created a central government for certain specified purposes, they yet regarded themselves as sovereign nations, and their representatives in the senate were, in a sense, their ambassadors. they were as little inclined to permit the president of the united states to make treaties or declare war at will in their behalf as the european nations would be to-day to vest a similar authority in the league of nations. it was, therefore, first proposed that the power to make treaties and appoint diplomatic representatives should be vested exclusively in the senate, but as that body was not always in session, this plan was so far modified as to give the president, who is always acting, the power to _negotiate_ treaties "with the advice and consent of the senate." as to making war, the framers were not willing to entrust the power even to the president and the senators, and it was therefore expressly provided that only congress could take this momentous step. here, again, the theory of the constitution was necessarily somewhat modified in practical administration, for under the power of nominating diplomatic representatives, negotiating treaties, and in general, of executing the laws of the nation, the principle was soon evolved that the conduct of foreign affairs was primarily the function of the president, with the limitation that the senate must concur in diplomatic appointments and in the validity of treaties, and that only both houses of congress could jointly declare war. this cumbrous system necessarily required that the president in conducting the foreign relations of the government should keep in touch with the senate, and such was the accepted procedure throughout the history of the nation until president wilson saw fit to ignore the senate, even when the senate had indicated its dissent in advance to some of his policies at the versailles conference. i suppose that since that conference no part of our constitutional system has caused more adverse comment in europe than this system. it often handicaps the united states from taking a speedy and effectual part in international negotiations, although if the president and the senate be in harmony and collaborate in this joint responsibility, there is no necessary reason why this should be so. i share the view of many americans that this provision of the constitution was wise and salutary, especially at this time, when the united states has taken such an important position in the councils of civilization. the president is a very powerful executive, and his tenure, while short, is fixed. generally he is elected by little more than a majority of the people, and sometimes through the curious workings of the electoral college system, he has been only the choice of a minority of the electorate. for these reasons, the framers of the constitution were unwilling to vest in the president exclusively the immeasurable power of pledging the faith, man-power, and resources of the nation and of declaring war. the heterogeneous character of our population especially emphasizes the wisdom of this course, for it would be difficult, if not impossible, for an american president to make an offensive and defensive alliance with any nation or declare war against another nation without running counter to the racial interests and passions of a substantial part of the american nation. for better or worse, the united states has limited, but not destroyed, as the world war showed, its freedom to antagonize powerful nations from whose people it has drawn large numbers of its own citizenship. the domestic harmony of the nation requires that before the united states assumes treaty obligations or makes war such policy shall represent the largely preponderating sentiment of its people, and nothing could more effectually secure this end than to require the president, before making a treaty, to secure the assent of two-thirds of the senate and a majority of both houses of congress before making war. while this may lead, as it has in recent years, to temporary and regrettable embarrassments, yet in the long run, it is not only better for the united states, but it is even to the best interests of other nations, for in this way they are safeguarded against the possible action of an executive with whom racial instincts might still be very influential. in your country, where the government of the day is subject to immediate dismissal for want of confidence, such power over foreign relations can be safely entrusted to a few men, but in the united states, with its fixed tenures of office, a president could pledge the faith and involve his nation in war against the interests and will of the people. suppose the president had unlimited power over our foreign relations and that within the next ten years an american, whose parents were born in any european nation, was elected on purely domestic issues, he could, with his assured four years of power, bring about a new alignment of nations and shake the political equilibrium of the world. the constitution wisely refused to grant such a power. hence the provision for the concurrence of the legislative representatives of the nation. at all events, it constitutes a system which, as the last presidential election showed, the american people will not willingly forgo. it is true that this system makes it difficult for the united states to participate effectively in the main purpose of the league of nations to enforce peace by joint action at geneva, but to ask the united states to surrender a vital part of its constitutional system, upon which its domestic peace so largely depends, in order to promote the league, seems to me as unreasonable as it would be to ask your country to abolish the crown, to which it is sincerely attached as a vital part of its system, as a contribution towards international co-operation. you would not surrender such an integral part of your system, and therefore it is not reasonable to expect a similar sacrifice on our part, even though the meritorious purposes of the league be freely recognized. i have thus summarized briefly and most inadequately some of the essential principles of the constitution. i have only been able to suggest very impressionistically what they are and the lessons to be drawn from them. if i were able to deliver a dozen addresses on the subject in this historic hall and with this indulgent audience i would not scratch even the surface. to understand the constitution of the united states you must not only read the text but the thousands of opinions rendered in the last years by the supreme court in its great task of interpreting this wonderful document. few documents have been the subject of more extended commentaries. the four thousand words have been meticulously examined through intellectual microscopes in judicial opinions, textbooks, and other commentaries which are as "thick as autumnal leaves that strow the brooks in vallombrosa." one can say of this document as dr. furness, in his variorum edition of _hamlet_, says of the words of that character: "no words by him let fall, no syllable by him uttered, but has been caught up and pondered, as no words except those of holy writ." but what of its future and how long will the constitution wholly resist the washing of time and circumstance? lord macaulay once ventured the prediction that the constitution would prove unworkable as soon as there were no longer large areas of undeveloped land and when the united states became a nation of great cities. that period of development has arrived. in only per cent. of the american population lived in the cities and the remainder were still on the farms. to-day over per cent, are crowded in one hundred great cities. lord macaulay added: "i believe america's fate is only deferred by physical causes. institutions purely democratic will sooner or later destroy liberty or civilization, or both.... the american constitution is all sail and no anchor." in this last commentary lord macaulay was clearly mistaken. as i have shown, the constitution is not "purely democratic." it is amazing that so great a mind should have so little understood that more than any other constitution, that of america imposes powerful restraints on democracy. the experience of a century and a quarter has shown that while the anchor may at times drag, yet it measurably holds the ship of state to its ancient moorings. the american constitution still remains in its essential principles and still enjoys not only the confidence but the affection of the great and varied people whom it rules. to the latter this remarkable achievement must be attributed rather than to any inherent strength in parchment or red seals, for in a democracy the living soul of any constitution must be such belief of the people in its wisdom and justice. if it should perish to-morrow, it would yet have enjoyed a life and growth of which any nation or age might be justly proud. moreover, it could claim with truth, if it finally perished, that it had been subjected to conditions for which it was never intended and that some of its essential principles had been ignored. the constitution is something more than a written formula of government--it is a great spirit. it is a high and noble assertion, and, indeed, vindication, of the morality of government. it "renders unto caesar [the political state] the things that are caesar's," but in safeguarding the fundamental moral rights of the people, it "renders unto god the things that are god's." in concluding, i cannot refrain from again reminding you that this consummate work of statecraft was the work of the english-speaking race, and that your people can therefore justly share in the pride which it awakens. it is not only one of the great achievements of that _gens aeterna_, but also one of the great monuments of human progress. it illustrates the possibilities of true democracy in its best estate. when the moral anarchy out of which it was born is called to mind, it can be truly said that while "sown in weakness, it was raised in power." to the succeeding ages, it will be a flaming beacon, and everywhere men, who are confronted with the acute problems of this complex age, can take encouragement from the fact that a small and weak people, when confronted with similar problems, had the strength and will to impose restraint upon themselves by peacefully proclaiming in the simple words of the noble preamble to the constitution: "we, the people of the united states, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america." note the words "ordain and establish." they imply perpetuity. they make no provision for the secession of any state, even if it deems itself aggrieved by federal action. and yet the right to secede was urged for many years, but lincoln completed the work of washington, franklin, madison and hamilton by establishing that "a government for the people, by the people and of the people should not perish from the earth." _iv. the revolt against authority_ "where there is no vision, the people perish: but he that keepeth the law, happy is he." proverbs xxix. . one of the most quoted--and also mis-quoted--proverbs of the wise solomon says, as translated in the authorized version: "where there is no vision, the people perish." what solomon actually said was: "where there is no vision, the people _cast off restraint_." the translator thus confused an effect with a cause. what was the vision to which the wise man referred? the rest of the proverb, which is rarely quoted, explains: "where there is no vision, the people cast off restraint: _but he that keepeth the law, happy is he_." the vision, then, is the authority of law, and solomon's warning is that to which the great and noble founder of pennsylvania, william penn, many centuries later gave utterance, when he said: "that government is free to the people under it, where the laws rule and the people are a party to those laws; and all the rest is tyranny, oligarchy and confusion." it is my present purpose to discuss the moral psychology of the present revolt against the spirit of authority. too little consideration has been paid by the legal profession to questions of moral psychology. these have been left to metaphysicians and ecclesiastics, and yet--to paraphrase the saying of the master--"the laws were made for man and not man for the laws," and if the science of the law ignores the study of human nature and attempts to conform man to the laws, rather than the laws to man, then its development is a very partial and imperfect one. let me first be sure of my premises. is there in this day and generation a spirit of lawlessness greater or different than that that has always characterized human society? such spirit of revolt against authority has always existed, even when the penalty of death was visited upon nearly all offences against life and property. blackstone tells us (book iv, chap. i) that in the eighteenth century it was a capital offence to cut down a cherry tree in an orchard--a drastic penalty which should increase our admiration for george washington's courage and veracity. we are apt to see the past in a golden haze, which obscures our vision. thus, we think of william penn's "holy experiment" on the banks of the delaware as the realization of sir thomas more's dream of utopia; and yet pennsylvania was somewhat intemperately called in "the greatest refuge for pirates and rogues in america," and penn himself wrote, about that time, that he had heard of no place which was "more overrun with wickedness" than his city of brotherly love, where things were so "openly committed in defiance of law and virtue--facts so foul that i am forbid by common modesty to relate them." conceding that lawlessness is not a novel phenomenon, is not the present time characterized by an exceptional revolt against the authority of law? the statistics of our criminal courts show in recent years an unprecedented growth in crimes. thus, in the federal courts, pending criminal indictments have increased from in the year to over , in the year . while this abnormal increase is, in part, due to sumptuary legislation--for approximately , cases now pending arise under the prohibition statutes--yet, eliminating these, there yet remains an increase in nine years of over per cent, in the comparatively narrow sphere of the federal criminal jurisdiction. i have been unable to get the data from the state courts; but the growth of crimes can be measured by a few illustrative statistics. thus, the losses from burglaries which have been repaid by casualty companies have grown in amount from $ , in to over $ , , in ; and, in a like period, embezzlements have increased five-fold. it is notorious that the thefts from the mails and express companies and other carriers have grown to enormous proportions. the hold-up of railroad trains is now of frequent occurrence, and is not confined to the unsettled sections of the country. not only in the united states, but even in europe, such crimes of violence are of increasing frequency, and a recent dispatch from berne, under date of august , , stated that the famous international expresses of europe were now run under a military guard. the streets of our cities, once reasonably secure from crimes of violence, have now become the field of operations for the foot-pad and highwayman. the days of dick turpin and jack sheppard have returned, with this serious difference--that the turpins and sheppards of our day are not dependent upon the horse, but have the powerful automobile to facilitate their crimes and make sure their escape. thus in chicago alone, automobiles were stolen in a single year. once murder was an infrequent and abnormal crime. to-day in our large cities it is of almost daily occurrence. in new york, in , there were murders and only convictions; in , , and convictions. in chicago, in , there were , and convictions. when the crime wave was at its height a year ago, the police authorities in more than one american city confessed their impotence to impose effective restraints. life and property had seemingly become almost as insecure as during the middle ages.[ ] [footnote : the reader will bear in mind that these words were spoken in august . unquestionably, the situation has greatly improved during the present year( ).] as to the subtler and more insidious crimes against the political state, it is enough to say that graft has become a science in city, state and nation. losses by such misapplication of public funds--piled pelion on ossa--no longer run in the millions but the hundreds of millions. our city governments are, in many instances, foul cancers on the body politic; and for us to boast of having solved the problem of local self-government is as fatuous as for a strong man to exult in his health when his body is covered with running sores. it has been estimated that the annual profits from violations of the prohibition laws have reached $ , , . men who thus violate these laws for sordid gain are not likely to obey other laws, and the respect for law among all classes steadily diminishes as our people become familiar with, and tolerant to, wholesale criminality. whether the moral and economic results of prohibition overbalance this rising wave of crime, time will tell. _in limine_, let us note the significant fact that this spirit of revolt against authority is not confined to the political state, and therefore its causes lie beyond that sphere of human action. human life is governed by all manner of man-made laws--laws of art, of social intercourse, of literature, music, business--all evolved by custom and imposed by the collective will of society. here we find the same revolt against tradition and authority. in music, its fundamental canons have been thrown aside and discord has been substituted for harmony as its ideal. its culmination--jazz--is a musical crime. if the forms of dancing and music are symptomatic of an age, what shall be said of the universal craze to indulge in crude and clumsy dancing to the vile discords of so-called "jazz" music? the cry of the time is: "on with the dance, let joy be" unrefined. in the plastic arts, the laws of form and the criteria of beauty have been swept aside by the futurists, cubists, vorticists, tactilists, and other aesthetic bolsheviki. in poetry, where beauty of rhythm, melody of sound and nobility of thought were once regarded as the true tests, we now have in freak forms of poetry the exaltation of the grotesque and brutal. hundreds of poets are feebly echoing the "barbaric yawp" of walt whitman, without the redeeming merit of his occasional sublimity of thought. in commerce, the revolt is against the purity of standards and the integrity of business morals. who can question that this is pre-eminently the age of the sham and the counterfeit? science is prostituted to deceive the public by cloaking the increasing deterioration in quality of merchandise. the blatant medium of advertising has become so mendacious as to defeat its own purpose. in the recent deflation in commodity values, there was widespread "welching" among business men who had theretofore been classed as reputable. of course, i recognize that a far greater number kept their contracts, even when it brought them to the verge of ruin. but when in the history of american business was there such a volume of broken faith as in the drastic deflation of ? in the greater sphere of social life, we find the same revolt against the institutions which have the sanction of the past. social laws, which mark the decent restraints of print, speech and dress, have in recent decades been increasingly disregarded. the very foundations of the great and primitive institutions of mankind--like the family, the church, and the state--have been shaken. nature itself is defied. thus, the fundamental difference of sex is disregarded by social and political movements which ignore the permanent differentiation of social function ordained by nature. all these are but illustrations of the general revolt against the authority of the past--a revolt that can be measured by the change in the fundamental presumption of men with respect to the value of human experience. in all former ages, all that was in the past was presumptively true, and the burden was upon him who sought to change it. to-day, the human mind apparently regards the lessons of the past as presumptively false--and the burden is upon him who seeks to invoke them. lest i be accused of undue pessimism, let me cite as a witness one who, of all men, is probably best equipped to express an opinion upon the moral state of the world. i refer to the venerable head of that religious organization[ ] which, with its trained representatives in every part of the world, is probably better informed as to its spiritual state than any other organization. [footnote : reference is to the late pope benedict.] speaking last christmas eve, in an address to the college of cardinals, the venerable pontiff gave expression to an estimate of present conditions which should have attracted far greater attention than it apparently did. the pope said that five plagues were now afflicting humanity. the first was the unprecedented challenge to authority. the second, an equally unprecedented hatred between man and man. the third was the abnormal aversion to work. the fourth, the excessive thirst for pleasure as the great aim of life. the fifth, a gross materialism which denied the reality of the spiritual in human life. the accuracy of this indictment will commend itself to men who like myself are not of pope benedict's communion. i trust that i have already shown that the challenge to authority is universal and is not confined to that of the political state. even in the narrower confine of the latter, the fires of revolution are either violently burning, or, at least, smouldering. two of the oldest empires in the world, which, together, have more than half of its population (china and russia) are in a welter of anarchy; while many lesser nations are in a stage of submerged revolt. if the revolt were confined to autocratic governments, we might see in it merely a reaction against tyranny; but even in the most stable of democracies and among the most enlightened peoples, the underground rumblings of revolution may be heard. the government of italy has been preserved from overthrow, not alone by its constituted authorities, but by a band of resolute men, called the "fascisti," who have taken the law into their own hands, as did the vigilance committees in western mining camps, to put down worse disorders. even england, the mother of democracies, and the most stable of all governments in the maintenance of law, has been shaken to its very foundations in the last three years, when powerful groups of men attempted to seize the state by the throat and compel submission to their demands by threatening to starve the community. this would be serious enough if it were only the world-old struggle between capital and labour and had only involved the conditions of manual toil. but the insurrection against the political state in england was more political than it was economic. it marked, on the part of millions of men, a portentous decay of belief in representative government and its chosen organ--the ballot box. great and powerful groups had suddenly discovered--and it may be the most portentous political discovery of the twentieth century--that the power involved in their control over the necessaries of life, as compared with the power of the voting franchise, was as a forty-two centimetre cannon to the bow and arrow. the end sought to be attained, namely the nationalization of the basic industries, and even the control of the foreign policy of great britain, vindicated the truth of the british prime minister's statement that these great strikes involved something more than a mere struggle over the conditions of labour, and that they were essentially seditious attempts against the life of the state.[ ] [footnote : i am here speaking of the conditions of . i appreciate the great improvement, which seems to me to justify the lincoln-like patience of lloyd george.] nor were they altogether unsuccessful; for, when the armies of lenin and trotsky were at the gates of warsaw, in the summer of , the attempts of the governments of england and belgium to afford assistance to the embattled poles were paralysed by the labour groups of both countries, who threatened a general strike if those two nations joined with france in aiding poland to resist a possibly greater menace to western civilization than has occurred since attila and his huns stood on the banks of the marne. of greater significance to the welfare of civilization is the complete subversion during the world war of nearly all the international laws which had been slowly built up in a thousand years. these principles, as codified by the two hague conventions, were immediately swept aside in the fierce struggle for existence, and civilized man, with his liquid fire and poison gas and his deliberate; attacks upon undefended cities and their women and children, waged war with the unrelenting ferocity of primitive times. surely, this fierce war of extermination, which caused the loss of three hundred billion dollars in property and thirty millions of human lives, did mark for the time being the "twilight of civilization." the hands on the dial of time had been put back--temporarily, let us hope and pray--a thousand years. nor will many question the accuracy of the second count in pope benedict's indictment. the war to end war only ended in unprecedented hatred between nation and nation, class and class, and man and man. victors and vanquished are involved in a common ruin. and if in this deluge of blood, which has submerged the world, there is a mount ararat, upon which the ark of a truer and better peace can find refuge, it has not yet appeared above the troubled surface of the waters. still less can one question the closely related third and fourth counts in pope benedict's indictment, namely the unprecedented aversion to work, when work is most needed to reconstruct the foundations of prosperity, or the excessive thirst for pleasure which preceded, accompanied, and now has followed the most terrible tragedy in the annals of mankind. the true spirit of work seems to have vanished from millions of men; that spirit of which shakespeare made his orlando speak when he said of his true servant, adam: "o good old man! how well in thee appears the constant service of the antique world. when service sweat for duty, not for meed!" the _moral_ of our industrial civilization has been shattered. work for work's sake, as the most glorious privilege of human faculties, has gone, both as an ideal and as a potent spirit. the conception of work as a degrading servitude, to be done with reluctance and grudging inefficiency, seems to be the ideal of millions of men of all classes and in all countries. the spirit of work is of more than sentimental importance. it may be said of it, as hamlet says of death: "the readiness is all." all of us are conscious of the fact that, given a love of work, and the capacity for it seems almost illimitable--as witness napoleon, with his thousand-man power, or shakespeare, who in twenty years could write more than twenty masterpieces. on the other hand, given an aversion to work, and the less a man does the less he wants to do, or is seemingly capable of doing. the great evil of the world to-day is this aversion to work. as the mechanical era diminished the element of physical exertion in work, we would have supposed that man would have sought expression for his physical faculties in other ways. on the contrary, the whole history of the mechanical era is a persistent struggle for more pay and less work, and to-day it has culminated in world-wide ruin; for there is not a nation in civilization which is not now in the throes of economic distress, and many of them are on the verge of ruin. in my judgment, the economic catastrophe of is far greater than the politico-military catastrophe of . the results of these two tendencies, measured in the statistics of productive industry, are literally appalling. thus, in , italy, according to statistics of her minister of labour, lost , , days of work because of strikes alone. from july to september, many great factories were in the hands of revolutionary communists. a full third of these strikes had for their end political and not economic purposes. in germany, the progressive revolt of labour against work is thus measured by competent authority: there were lost in strikes in , , working days; in , , , , and, in , , , . even in our own favoured land, the same phenomena are observable. in the state of new york alone for , there was a loss due to strikes of over , , working days. in all countries the losses by such cessations from labour are little as compared with those due to the spirit which in england is called "ca'-canny" or the shirking of performance of work, and of sabotage, which means the deliberate destruction of machinery in operation. everywhere the phenomenon has been observed that, with the highest wages known in the history of modern times, there has been an unmistakable lessening of efficiency, and that with an increase in the number of workers, there has been a decrease in output. thus, the transportation companies in the united states have seriously made a claim against the united states government for damages to their roads, amounting to $ , , , claimed to be due to the inefficiency of labour during the period of governmental operation. accompanying this indisposition to work efficiently has been a mad desire for pleasure, such as, if it existed in like measure in preceding ages, has not been seen within the memory of living man. man has danced upon the verge of a social abyss, and, as previously suggested, the dancing has, both in form and in accompanying music, lost its former grace and reverted to the primitive forms of crude vulgarity. which gives the spectators the maximum of emotional expression with the minimum of mental effort, had not been eclipsed by the splendour of a dempsey or a carpentier. of the last count in pope benedict's indictment, i shall say but little. it is more appropriate for the members of that great and noble profession which is more intimately concerned with the spiritual advance of mankind. it is enough to say that, while the church as an institution continues to exist, the belief in the supernatural and even in the spiritual has been supplanted in the souls of millions of men by a gross and debasing materialism. if my reader agrees with me in my premises then we are not likely to disagree in the conclusion that the causes of these grave symptoms are not ephemeral or superficial; but must have their origin in some deep-seated and world-wide change in human society. if there is to be a remedy, we must first diagnose this malady of the human soul. for example, let us not "lay the flattering unction to our souls" that this spirit is solely the reaction of the great war. the present weariness and lassitude of human spirit and the disappointment and disillusion as to the aftermath of the harvest of blood, may have aggravated, but they could not cause the symptoms of which i speak; for the very obvious reason that all these symptoms were in existence and apparent to a few discerning men for decades before the war. indeed, it is possible that the world war, far from causing the _malaise_ of the age, was, in itself, but one of its many symptoms. undoubtedly, there are many contributing causes which have swollen the turbid tide of this world-wide revolution against the spirit of authority. thus, the multiplicity of laws does not tend to develop a law-abiding spirit. this fact has often been noted. thus napoleon, on the eve of the th brumaire, complained that france, with a thousand folios of law, was a lawless nation. unquestionably, the political state suffers in authority by the abuse of legislation, and especially by the appeal to law to curb evils that are best left to individual conscience. in this age of democracy, the average individual is too apt to recognize two constitutions--one, the constitution of the state, and the second, an unwritten constitution, to him of higher authority, under which he believes that no law is obligatory which he regards as in excess of the true powers of government. of this latter spirit, the widespread violation of the prohibition law is a familiar illustration. a race of individualists obey reluctantly, when they obey at all, any laws which they regard as unreasonable or vexatious. indeed, they are increasingly opposed to any law, which affects their selfish interests. thus many good women are involuntary smugglers. they deny the authority of the state to impose a tax upon a paquin gown. the law's delays and laxity in administration breed a spirit of contempt, and too often invite men to take the law into their own hands. these causes are so familiar that their statement is a commonplace. proceeding to deeper and less recognized causes, some would attribute this spirit of lawlessness to the rampant individualism, which began in the eighteenth century, and which has steadily and naturally grown with the advance of democratic institutions. undoubtedly, the excessive emphasis upon the rights of man, which marked the political upheaval of the close of the eighteenth and the beginning of the nineteenth century, has contributed to this malady of the age. men talked, and still talk, loudly of their rights, but too rarely of their duties. and yet if we were to attribute the malady merely to excessive individualism, we would again err in mistaking a symptom for a cause. to diagnose truly this malady we must look to some cause that is coterminous in time with the disease itself and which has been operative throughout civilization. we must seek some widespread change in social conditions, for man's essential nature has changed but little, and the change must, therefore, be of environment. i know of but one such change that is sufficiently widespread and deep-seated to account adequately for this malady of our time. beginning with the close of the eighteenth century, and continuing throughout the nineteenth, a prodigious transformation has taken place in the environment of man, which has done more to revolutionize the conditions of human life than all the changes that had taken place in the , preceding years which science has attributed to man's life on the planet. up to the period of watt's discovery of steam vapour as a motive power, these conditions, so far as the principal facilities of life, were substantially those of the civilization which developed eighty centuries ago on the banks of the nile and later on the euphrates. man had indeed increased his conquest over nature in later centuries by a few mechanical inventions, such as gunpowder, telescope, magnetic needle, printing-press, spinning jenny, and hand-loom, but the characteristic of all those inventions, with the exception of gunpowder, was that they still remained a subordinate auxiliary to the physical strength and mental skill of man. in other words, man still dominated the machine, and there was still full play for his physical and mental faculties. moreover, all the inventions of preceding ages, from the first fashioning of the flint to the spinning-wheel and the hand-lever press, were all conquests of the tangible and visible forces of nature. with watt's utilization of steam vapour as a motive power, man suddenly passed into a new and portentous chapter of his varied history. thenceforth, he was to multiply his powers a thousandfold by the utilization of the invisible powers of nature--such as vapour and electricity. this prodigious change in his powers, and therefore his environment, has proceeded with ever-accelerating speed. man has suddenly become the superman. like the giants of the ancient fable, he has stormed the very ramparts of divine power, or, like prometheus, he has stolen fire of omnipotent forces from heaven itself for his use. his voice can now reach from the atlantic to the pacific, and, taking wing in his aeroplane, he can fly in one swift flight from nova scotia to england, or he can leave lausanne and, resting upon the icy summit of mont blanc--thus, like "the herald, mercury, new-lighted on a heaven-kissing hill"--he can again plunge into the void, and thus outfly the eagles themselves. in thus acquiring from the forces of nature almost illimitable power, he has minimized the necessity for his own physical exertion or even mental skill. the machine now not only acts for him, but too often _thinks_ for him. is it surprising that so portentous a change should have fevered his brain and disturbed his mental equilibrium? a new ideal, which he proudly called "progress," obsessed him, the ideal of quantity and not quality. his practical religion became that of acceleration and facilitation--to do things more quickly and easily--and thus to minimize exertion became his great objective. less and less he relied upon the initiative of his own brain and muscle, and more and more he put his faith in the power of machinery to relieve him of labour. the evil of our age is that its values are all false. it overrates speed, it underrates sureness; it overrates the new, it underrates the old; it overrates automatic efficiency, it underrates individual craftsmanship; it overrates rights, it underrates duties; it overrates political institutions, it underrates individual responsibility. we glory in the fact that we can talk a thousand miles, but we ignore the greater question, whether when we thus out-do stentor, we have anything worth saying. we have now made the serene spaces of the upper heavens our media to transmit market reports and sporting news, second-rate music and worse oratory and in the meantime the great masters of thought, homer and shakespeare, bach and beethoven remain unbidden on our library shelves. what a sordid vanity fair is our modern civilization! this incalculable multiplication of power has intoxicated man. the lust has obsessed him, without regard to whether it be constructive or destructive. quantity, not quality, becomes the great objective. man consumes the treasures of the earth faster than he produces them, deforesting its surface and disembowelling its hidden wealth. as he feverishly multiplied the things he desired, even more feverishly he multiplied his wants. to gain these, man sought the congested centres of human life. while the world, as a whole, is not over-populated, the leading countries of civilization were subjected to this tremendous pressure. europe, which, at the beginning of the nineteenth century, barely numbered , , people, suddenly grew nearly five-fold. millions left the farms to gather into the cities to exploit their new and seemingly easy conquest over nature. in the united states, as recently as , only per cent. of the people were crowded in the cities, per cent. remained upon the farms and still followed that occupation, which, of all occupations, still preserves, in its integrity, the dominance of human labour over the machine. to-day, per cent. of the population is in the cities, and with many of them existence is both feverish and artificial. while they have employment, many of them do not themselves work, but spend their lives in watching machines work. the result has been a minute subdivision of labour that has denied to many workers the true significance and physical benefit of labour. the direct results of this excessive tendency to specialization, whereby not only the work but the worker becomes divided into mere fragments, are threefold. hobson, in his work on john ruskin, thus classifies them. in the first place, _narrowness_, due to the confinement to a single action in which the elements of human skill or strength are largely eliminated; secondly, _monotony_, in the assimilation of man to a machine, whereby seemingly the machine dominates man and not man the machine, and, thirdly, _irrationality_, in that work became dissociated in the mind of the worker with any complete or satisfying achievement. the worker does not see the fruit of his travail, and cannot therefore be truly satisfied. to spend one's life in opening a valve to make a part of a pin is, as ruskin pointed out, demoralizing in its tendencies. the clerk who only operates an adding machine has little opportunity for self-expression. thus, millions of men have lost both the opportunity for real physical exertion, the incentive to work in the joyous competition of skill, and finally the reward of work in the sense of achievement. more serious than this, however, has been the destructive effort of quantity, the great object of the mechanical age, at the expense of quality. take, for example, the printing-press: no one can question the immense advantages which have flowed from the increased facility for transmitting ideas. but may it not be true that the thousandfold increase in such transmission by the rotary press has also tended to muddy the current thought of the time? true it is that the printing-press has piled up great treasures of human knowledge which make this age the richest in accessible information. i am not speaking of knowledge, but rather of the current thought of the living generation. i gravely question whether it has the same clarity as the brain of the generation which fashioned the constitution of the united states. our fathers could not talk over the telephone for three thousand miles, but have we surpassed them in thoughts of enduring value? washington and franklin could not travel sixty miles an hour in a railroad train, or twice that speed in an aeroplane, but does it follow that they did not travel to as good purpose as we, who scurry to and fro like the ants in a disordered ant-heap? unquestionably, man of to-day has a thousand ideas suggested to him by the newspaper and the library where our ancestors had one; but have we the same spirit of calm inquiry and do we co-ordinate the facts we know as wisely as our ancestors did? athens in the days of pericles had but thirty thousand people and few mechanical inventions; but she produced philosophers, poets and artists, whose work after more than twenty centuries still remain the despair of the would-be imitators. shakespeare had a theatre with the ground as its floor and the sky as its ceiling; but new york, which has fifty theatres and annually spends $ , , in the box offices of its varied amusement resorts, has rarely in two centuries produced a play that has lived. to-day, man has a cinematographic brain. a thousand images are impressed daily upon the screen of his consciousness, but they are as fleeting as moving pictures in a cinema theatre. the american press prints every year over , , , issues. no one can question its educational possibilities, for the best of all colleges is potentially the university of gutenberg. if it printed only the truth, its value would be infinite; but who can say in what proportions of this vast volume of printed matter is the true and the false? the framers of the constitution had few books and fewer newspapers. their thoughts were few and simple, but what they lacked in quantity they made up in unsurpassed quality. before the beginning of the present mechanical age, the current of living thought could be likened to a mountain stream, which though confined within narrow banks yet had waters of transparent clearness. may not the current thought of our time be compared with the mighty mississippi in the period of a spring freshet? its banks are wide and its current is swift, but the turbid stream that flows onward is one of muddy swirls and eddies and overflows its banks to their destruction. the great indictment, however, of the present age of mechanical power is that it has largely destroyed the spirit of work. the great enigma which it propounds to us, and which, like the riddle of the sphinx, we will solve or be destroyed, is this: _has the increase in the potential of human power, through thermodynamics, been accompanied by a corresponding increase in the potential of human character?_ to this life and death question, a great french philosopher, le bon, writing in , replied that the one unmistakable symptom of human life was "the increasing deterioration in human character," and a great physicist has described the symptom as "the progressive enfeeblement of the human will." in a famous book, _degeneration_, written at the close of the nineteenth century, max nordau, as a pathologist, explains this tendency by arguing that our complex civilization has placed too great a strain upon the limited nervous organization of man. a great financier, the elder j.p. morgan, once said of an existing financial condition that it was suffering from "undigested securities," and, paraphrasing him, is it not possible that man is suffering from undigested achievements and that his salvation must lie in adaptation to a new environment, which, measured by any standard known to science, is a thousandfold greater in this year of grace than it was at the beginning of the nineteenth century? no one would be mad enough to urge such a retrogression as the abandonment of labour-saving machinery would involve. indeed, it would be impossible; for, in speaking of its evils, i freely recognize that not only would civilization perish without its beneficent aid, but that every step forward in the history of man has been coincident with, and in large part attributable to, a new mechanical invention. but suppose the development of labour-saving machinery should reach a stage where all human labour was eliminated, what would be the effect on man? the answer is contained in an experiment which sir john lubbock made with a tribe of ants. originally the most voracious and militant of their species, yet when denied the opportunity for exercise and freed from the necessity of foraging for their food, in three generations they became anaemic and perished. take from man the opportunity of work and the sense of pride in achievement and you have taken from him the very life of his existence. robert burns could sing as he drove his ploughshare through the fields of ayr. to-day millions who simply watch an automatic infallible machine, which requires neither strength nor skill, do not sing at their work but too many curse the fate, which has chained them, like ixion, to a soulless machine. the evil is even greater. the specialization of our modern mechanical civilization has caused a submergence of the individual into the group or class. man is fast ceasing to be the unit of human society. self-governing groups are becoming the new units. this is true of all classes of men, the employer as well as the employee. the true justification for the american anti-monopoly statutes, including the sherman anti-trust law, lies not so much in the realm of economics as in that of morals. with the submergence of the individual, whether he be capitalist or wage-earner, into a group, there has followed the dissipation of moral responsibility. a mass morality has been substituted for individual morality, and unfortunately, group morality generally intensifies the vices more than the virtues of man. possibly, the greatest result of the mechanical age is this spirit of organization. its merits are manifold and do not require statement; but they have blinded us to the demerits of excessive organization. we are now beginning to see--slowly, but surely--that a faculty of organization which, as such, submerged the spirit of individualism, is not an unmixed good. indeed, the moral lesson of the tragedy of germany is the demoralizing influence of organization carried to the _n_th power. no nation was ever more highly organized than this modern state. physically, intellectually and spiritually it had become a highly developed machine. its dominating mechanical spirit so submerged the individual that, in , the paradox was observed of an enlightened nation that was seemingly destitute of a conscience. what was true of germany, however, was true--although in lesser degree--of all civilized nations. in all of them, the individual had been submerged in group formations, and the effect upon the character of man has been destructive of his nobler self. this may explain the paradox of so-called "progress." it may be likened to a great wheel, which, from the increasing domination of mechanical forces, developed an ever-accelerating speed, until, by centrifugal action, it went off its bearings in and caused an unprecedented catastrophe. as man slowly pulls himself out of that gigantic wreck and recovers consciousness, he begins to realize that speed is not necessarily progress. of all this, the nineteenth century, in its exultant pride in its conquest of the invisible forces, was almost blind. it not only accepted progress as an unmistakable fact--mistaking, however, acceleration and facilitation for progress--but in its mad folly believed in an immutable law of progress which, working with the blind forces of machinery, would propel man forward. a few men, however, standing on the mountain ranges of human observation, saw the future more clearly than did the mass. emerson, carlyle, ruskin, samuel butler, and max nordau, in the nineteenth century, and, in our time, ferrero, all pointed out the inevitable dangers of the excessive mechanization of human society. the prophecies were unhappily as little heeded as those of cassandra. one can see the tragedy of the time, as a few saw it, in comparing the first _locksley hall_ of alfred tennyson, written in , with its abiding faith in the "increasing purpose of the ages" and its roseate prophecies of the golden age, when the "war-drum would throb no longer and the battle flags be furled in the parliament of man and the federation of the world," and the later _locksley hall_, written sixty years later, when the great spiritual poet of our time gave utterance to the dark pessimism which flooded his soul: "gone the cry of 'forward, forward,' lost within a growing gloom; lost, or only heard in silence from the silence of a tomb. half the marvels of my morning, triumphs over time and space, staled by frequence, shrunk by usage, into commonest commonplace! evolution ever climbing after some ideal good, and reversion ever dragging evolution in the mud. is it well that while we range with science, glorying in the time, city children soak and blacken soul and sense in city slime?" am i unduly pessimistic? i fear that this is the case with most men who, like dante, have crossed their fiftieth year and find themselves in a "dark and sombre wood." my reader will probably subject me to the additional reproach that i suggest no remedy. there are many palliatives for the evils which i have discussed. to rekindle in men the love of work for work's sake and the spirit of discipline, which the lost sense of human solidarity once inspired, would do much to solve the problem, for work is the greatest moral force in the world. but i must frankly add that i have neither the time nor the qualifications to discuss the solution of this grave problem. if we of this generation can only recognize that the evil exists, then the situation is not past remedy; for man has never yet found himself in a blind alley of negation. he is still "master of his soul and captain of his fate," and, to me, the most encouraging sign of the times is the persistent evidence of contemporary literature that thoughtful men now recognize that much of our boasted progress was as unreal as a rainbow. while the temper of the times seems for the moment pessimistic, it merely marks the recognition of man of an abyss whose existence he barely suspected but over which his indomitable courage will yet carry him. i have faith in the inextinguishable spark of the divine, which is in the human soul and which our complex mechanical civilization has not extinguished. of this, the world war was in itself a proof. all the horrible resources of mechanics and chemistry were utilized to coerce the human soul, and all proved ineffectual. never did men rise to greater heights of self-sacrifice or show a greater fidelity "even unto death." millions went to their graves, as to their beds, for an ideal; and when that is possible, this pandora's box of modern civilization, which contained all imaginable evils, as well as benefits, also leaves hope behind. i am reminded of a remark that the great roumanian statesman, taku jonescu, made during the peace conference at paris. when asked his views as to the future of civilization, he replied: "judged by the light of reason there is but little hope, but i have faith in man's inextinguishable impulse to live." happily, that cannot be affected by any change in man's environment! for even when the cave-man retreated from the advance of the polar cap, which once covered europe with arctic desolation, he not only defied the elements but showed even then the love of the sublime by beautifying the walls of his icy prison with those mural decorations which were the beginning of art. assuredly, the man of to-day, with the rich heritage of countless ages, can do no less. he has but to diagnose the evil and he will then, in some way, meet it. but what can man-made law do in this warfare against the blind forces of nature? it is easy to exaggerate the value of all political institutions; for they are generally on the surface of human life and do not reach down to the deep under-currents of human nature. but the law can do something to protect the soul of man from destruction by the soulless machine. it can defend the spirit of individualism. it must champion the human soul in its god-given right to exercise freely the faculties of mind and body. we must defend the right to work against those who would either destroy or degrade it. we must defend the right of every man, not only to join with others in protecting his interests, whether he is a brain worker or a hand worker--for without the right of combination the individual would often be the victim of giant forces--but we must vindicate the equal right of an individual, if he so wills, to depend upon his own strength. the tendency of group morality to standardize man--and thus reduce all men to the dead level of an average mediocrity--is one that the law should combat. its protection should be given to those of superior skill and diligence, who ask the due rewards of such superiority. any other course, to use the fine phrase of thomas jefferson in his first inaugural, is to "take from the mouth of labour the bread it has earned." of this spirit one of the noblest expressions is the constitution of the united states. that magna charta has not wholly escaped the destructive tendencies of a mechanical age. it was framed at the very end of the pastoral-agricultural age and at a time when the spirit of individualism was in full flower. the hardy pioneers who, with their axes, made straight the pathway of an advancing civilization, were sturdy men who need not be undervalued to us of the mechanical age. the "prairie schooner," which met the elemental forces of nature with the proud challenge: "pike's peak or bust," produced as fine a type of manhood as the age which travels either in mr. ford's "fliver" or the more luxurious rolls-royce. the constitution was framed in the period that marked the passing of the primitive age and the dawn of the day of the machine. watt had recently discovered the potency of steam vapour as a motive power; but its only use at first was for pumping water out of the mines. when the framers of the constitution met in high convention in philadelphia in the summer of , a connecticut yankee, john fitch, was then also working in philadelphia upon his steamboat; but twenty years were to pass before the prow of the _clermont_ was to part the waters of the hudson, and nearly a half century before transportation was to be revolutionized by the utilization of watt's invention in the locomotive. of the wonders of the steamship, the railroad, the telegraphic cable, the wireless, the gasoline engine, and a thousand other mechanical miracles, the framers of the american constitution did not even dream. the greatest and noblest purpose of the constitution was not alone to hold in nicest equipose the relative powers of the nation and the states, but also to maintain in the scales of justice a true equilibrium between the rights of government and the rights of an individual. it did not believe that the state was omnipotent or infallible, and yet it proclaimed its authority within wise and just limits. it defended the integrity of the human soul. in other governments, these fundamental decencies of liberty rest upon the conscience of the legislature. under the american constitution, they are part of the fundamental law, and, as such, enforceable by judges sworn to defend the integrity of the individual as fully as the integrity of the state. when did a nobler "vision" inspire men in the political annals of mankind? without that vision to restrain each succeeding generation of americans from the tempting excesses of political power, the american commonwealth, with its great heterogeneous democracy, would probably perish. that vision still remains as an ideal with the american people and still leads them to ever-higher achievements, for in all the mad changes of a frenzied hour, they have not yet lost faith in or love for the constitution of the fathers! that vision will remain with them as long, and no longer, as there is in their hearts a conscious and willing acquiescence in its wisdom and justice. obviously, it can have no inherent vigour to perpetuate itself. if it ceases to be of the spirit of the people, then the yellow parchment whereon it is inscribed can avail nothing. when that parchment was last taken from the safe in the state department, the ink in which it had been engrossed nearly years ago was found to have faded. all who believe in constitutional government must hope that this is not a portentous symbol. the american people must write the compact, not with ink upon parchment, but with "letters of living light"--to use webster's phrase--upon their hearts. again the solemn warning of the wise man of old recurs to us: "where there is no vision, the people perish; but he that keepeth the law, happy is he." this ebook was produced by andrew sly. the british north america act, . victoria, chapter . an act for the union of canada, nova scotia, and new brunswick, and the government thereof; and for purposes connected therewith. [ th march, .] whereas the provinces of canada, nova scotia, and new brunswick have expressed their desire to be federally united into one dominion under the crown of the united kingdom of great britain and ireland, with a constitution similar in principle to that of the united kingdom: and whereas such a union would conduce to the welfare of the provinces and promote the interests of the british empire: and whereas on the establishment of the union by authority of parliament it is expedient, not only that the constitution of the legislative authority in the dominion be provided for, but also that the nature of the executive government therein be declared: and whereas it is expedient that provision be made for the eventual admission into the union of other parts of british north america: be it therefore enacted and declared by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows: i.--preliminary. . [short title.] this act may be cited as the british north america act, . . [application of provisions referring to the queen.] the provisions of this act referring to her majesty the queen extend also to the heirs and successors of her majesty, kings and queens of the united kingdom of great britain and ireland. ii.--union. . [declaration of union] it shall be lawful for the queen, by and with the advice of her majesty's most honourable privy council, to declare by proclamation that, on and after a day therein appointed, not being more than six months after the passing of this act, the provinces of canada, nova scotia, and new brunswick shall form and be one dominion under the name of canada; and on and after that day those three provinces shall form and be one dominion under that name accordingly. . [construction of subsequent provisions of act.] the subsequent provisions of this act shall, unless it is otherwise expressed or implied, commence and have effect on and after the union, that is to say, on and after the day appointed for the union taking effect in the queen's proclamation; and in the same provisions, unless it is otherwise expressed or implied, the name canada shall be taken to mean canada as constituted under this act. . [four provinces.] canada shall be divided into four provinces, named ontario, quebec, nova scotia, and new brunswick. . [provinces of ontario and quebec.] the parts of the province of canada (as it exists at the passing of this act) which formerly constituted respectively the provinces of upper canada and lower canada shall be deemed to be severed, and shall form two separate provinces. the part which formerly constituted the province of upper canada shall constitute the province of ontario; and the part which formerly constituted the province of lower canada shall constitute the province of quebec. . [provinces of nova scotia and new brunswick.] the provinces of nova scotia and new brunswick shall have the same limits as at the passing of this act. . [decennial census.] in the general census of the population of canada which is hereby required to be taken in the year one thousand eight hundred and seventy-one, and in every tenth year thereafter, the respective populations of the four provinces shall be distinguished. iii.--executive power. . [declaration of executive power in the queen.] the executive government and authority of and over canada is hereby declared to continue and be vested in the queen. . [application of provisions referring to governor general.] the provisions of this act referring to the governor general extend and apply to the governor general for the time being of canada, or other the chief executive officer or administrator for the time being carrying on the government of canada on behalf and in the name of the queen, by whatever title he is designated. . [constitution of privy council for canada.] there shall be a council to aid and advise in the government of canada, to be styled the queen's privy council for canada; and the persons who are to be members of that council shall be from time to time chosen and summoned by the governor general and sworn in as privy councillors, and members thereof may be from time to time removed by the governor general. . [all powers under acts to be exercised by governor general with advice of privy council, or alone.] all powers, authorities, and functions which under any act of the parliament of great britain, or of the parliament of the united kingdom of great britain and ireland, or of the legislature of upper canada, lower canada, canada, nova scotia, or new brunswick, are at the union vested in or exerciseable by the respective governors or lieutenant governors of those provinces, with the advice, or with the advice and consent, of the respective executive councils thereof, or in conjunction with those councils, or with any number of members thereof, or by those governors or lieutenant governors individually, shall, as far as the same continue in existence and capable of being exercised after the union in relation to the government of canada, be vested in and exerciseable by the governor general, with the advice or with the advice and consent of or in conjunction with the queen's privy council for canada, or any members thereof, or by the governor general individually, as the case requires, subject nevertheless (except with respect to such as exist under acts of the parliament of great britain or of the parliament of the united kingdom of great britain and ireland) to be abolished or altered by the parliament of canada. . [application of provisions referring to governor general in council.] the provisions of this act referring to the governor general in council shall be construed as referring to the governor general acting by and with the advice of the queen's privy council for canada. . [power to her majesty to authorize governor general to appoint deputies.] it shall be lawful for the queen, if her majesty thinks fit, to authorize the governor general from time to time to appoint any person or any persons jointly or severally to be his deputy or deputies within any part or parts of canada, and in that capacity to exercise during the pleasure of the governor general such of the powers, authorities, and functions of the governor general as the governor general deems it necessary or expedient to assign to him or them, subject to any limitations or directions expressed or given by the queen; but the appointment of such a deputy or deputies shall not affect the exercise by the governor general himself of any power, authority, or function. . [command of armed forces to continue to be vested in the queen.] the command-in-chief of the land and naval militia, and of all naval and military forces, of and in canada, is hereby declared to continue and be vested in the queen. . [seat of government of canada.] until the queen otherwise directs the seat of government of canada shall be ottawa. iv.--legislative power. . [constitution of parliament of canada.] there shall be one parliament for canada, consisting of the queen, an upper house styled the senate, and the house of commons. . [privileges, &c. of houses.] the privileges, immunities, and powers to be held, enjoyed, and exercised by the senate and by the house of commons and by the members thereof respectively shall be such as are from time to time defined by act of the parliament of canada, but so that the same shall never exceed those at the passing of this act held, enjoyed, and exercised by the commons house of parliament of the united kingdom of great britain and ireland and by the members thereof. . [first session of the parliament of canada.] the parliament of canada shall be called together not later than six months after the union. . [yearly session of the parliament of canada.] there shall be a session of the parliament of canada once at least in every year, so that twelve months shall not intervene between the last sitting of the parliament in one session and its first sitting in the next session. the senate. . [number of senators.] the senate shall, subject to the provisions of this act, consist of seventy-two members, who shall be styled senators. . [representation of provinces in senate.] in relation to the constitution of the senate, canada shall be deemed to consist of three divisions: . ontario; . quebec; . the maritime provinces, nova scotia and new brunswick; which three divisions shall (subject to the provisions of this act) be equally represented in the senate as follows: ontario by twenty-four senators; quebec by twenty-four senators; and the maritime provinces by twenty-four senators, twelve thereof representing nova scotia, and twelve thereof representing new brunswick. in the case of quebec each of the twenty-four senators representing that province shall be appointed for one of the twenty-four electoral divisions of lower canada specified in schedule a. to chapter one of the consolidated statutes of canada. . [qualifications of senator.] the qualifications of a senator shall be as follows: ( .) he shall be of the full age of thirty years: ( .) he shall be either a natural-born subject of the queen, or a subject of the queen naturalized by an act of the parliament of great britain, or of the parliament of the united kingdom of great britain and ireland, or of the legislature of one of the provinces of upper canada, lower canada, canada, nova scotia, or new brunswick, before the union, or of the parliament of canada after the union: ( .) he shall be legally or equitably seised as of freehold for his own use and benefit of lands or tenements held in free and common socage, or seised or possessed for his own use and benefit of lands or tenements held in franc-alleu or in roture, within the province for which he is appointed, of the value of four thousand dollars, over and above all rents, dues, debts, charges, mortgages, and incumbrances due or payable out of or charged on or affecting the same: ( .) his real and personal property shall be together worth four thousand dollars over and above his debts and liabilities: ( .) he shall be resident in the province for which he is appointed: ( .) in the case of quebec he shall have his real property qualification in the electoral division for which he is appointed, or shall be resident in that division. . [summons of senator.] the governor general shall from time to time, in the queen's name, by instrument under the great seal of canada, summon qualified persons to the senate; and, subject to the provisions of this act, every person so summoned shall become and be a member of the senate and a senator. . [summons of first body of senators.] such persons shall be first summoned to the senate as the queen by warrant under her majesty's royal sign manual thinks fit to approve, and their names shall be inserted in the queen's proclamation of union. . [addition of senators in certain cases.] if at any time on the recommendation of the governor general the queen thinks fit to direct that three or six members be added to the senate, the governor general may by summons to three or six qualified persons (as the case may be), representing equally the three divisions of canada, add to the senate accordingly. . [reduction of senate to normal number.] in case of such addition being at any time made, the governor general shall not summon any person to the senate, except on a further like direction by the queen on the like recommendation, until each of the three divisions of canada is represented by twenty-four senators and no more. . [maximum number of senators.] the number of senators shall not at any time exceed seventy-eight. . [tenure of place in senate.] a senator shall, subject to the provisions of this act, hold his place in the senate for life. . [resignation of place in senate.] a senator may by writing under his hand addressed to the governor general resign his place in the senate, and thereupon the same shall be vacant. . [disqualification of senators.] the place of a senator shall become vacant in any of the following cases:-- ( .) if for two consecutive sessions of the parliament he fails to give his attendance in the senate: ( .) if he takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or adherence to a foreign power, or does an act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen, of a foreign power: ( .) if he is adjudged bankrupt or insolvent, or applies for the benefit of any law relating to insolvent debtors, or becomes a public defaulter: ( .) if he is attainted of treason or convicted of felony or of any infamous crime: ( .) if he ceases to be qualified in respect of property or of residence; provided, that a senator shall not be deemed to have ceased to be qualified in respect of residence by reason only of his residing at the seat of the government of canada while holding an office under that government requiring his presence there. . [summons on vacancy in senate.] when a vacancy happens in the senate by resignation, death, or otherwise, the governor general shall by summons to a fit and qualified person fill the vacancy. . [questions as to qualifications and vacancies in senate.] if any question arises respecting the qualification of a senator or a vacancy in the senate the same shall be heard and determined by the senate. . [appointment of speaker of senate.] the governor general may from time to time, by instrument under the great seal of canada, appoint a senator to be speaker of the senate, and may remove him and appoint another in his stead. . [quorum of senate.] until the parliament of canada otherwise provides, the presence of at least fifteen senators, including the speaker, shall be necessary to constitute a meeting of the senate for the exercise of its powers. . [voting in senate.] questions arising in the senate shall be decided by a majority of voices, and the speaker shall in all cases have a vote, and when the voices are equal the decision shall be deemed to be in the negative. the house of commons. . [constitution of house of commons in canada.] the house of commons shall, subject to the provisions of this act, consist of one hundred and eighty-one members, of whom eighty-two shall be elected for ontario, sixty-five for quebec, nineteen for nova scotia, and fifteen for new brunswick. . [summoning of house of commons.] the governor general shall from time to time, in the queen's name, by instrument under the great seal of canada, summon and call together the house of commons. . [senators not to sit in house of commons.] a senator shall not be capable of being elected or of sitting or voting as a member of the house of commons. . [electoral districts of the four provinces.] until the parliament of canada otherwise provides, ontario, quebec, nova scotia, and new brunswick shall, for the purposes of the election of members to serve in the house of commons, be divided into electoral districts as follows: .--ontario. ontario shall be divided into the counties, ridings of counties, cities, parts of cities, and towns enumerated in the first schedule to this act, each whereof shall be an electoral district, each such district as numbered in that schedule being entitled to return one member. .--quebec. quebec shall be divided into sixty-five electoral districts, composed of the sixty-five electoral divisions into which lower canada is at the passing of this act divided under chapter two of the consolidated statutes of canada, chapter seventy-five of the consolidated statutes for lower canada, and the act of the province of canada of the twenty-third year of the queen, chapter one, or any other act amending the same in force at the union, so that each such electoral division shall be for the purposes of this act an electoral district entitled to return one member. .--nova scotia. each of the eighteen counties of nova scotia shall be an electoral district. the county of halifax shall be entitled to return two members, and each of the other counties one member. .--new brunswick. each of the fourteen counties into which new brunswick is divided, including the city and county of st. john, shall be an electoral district; the city of st. john shall also be a separate electoral district. each of those fifteen electoral districts shall be entitled to return one member. . [continuance of existing election laws until parliament of canada otherwise provides.] until the parliament of canada otherwise provides, all laws in force in the several provinces at the union relative to the following matters or any of them, namely,--the qualifications and disqualifications of persons to be elected or to sit or vote as members of the house of assembly or legislative assembly in the several provinces, the voters at elections of such members, the oaths to be taken by voters, the returning officers, their powers and duties, the proceedings at elections, the periods during which elections may be continued, the trial of controverted elections, and proceedings incident thereto, the vacating of seats of members, and the execution of new writs in case of seats vacated otherwise than by dissolution,--shall respectively apply to elections of members to serve in the house of commons for the same several provinces. provided that, until the parliament of canada otherwise provides, at any election for a member of the house of commons for the district of algoma, in addition to persons qualified by the law of the province of canada to vote, every male british subject, aged twenty-one years or upwards, being a householder, shall have a vote. . [writs for first election.] for the first election of members to serve in the house of commons the governor general shall cause writs to be issued by such person, in such form, and addressed to such returning officers as he thinks fit. the person issuing writs under this section shall have the like powers as are possessed at the union by the officers charged with the issuing of writs for the election of members to serve in the respective house of assembly or legislative assembly of the province of canada, nova scotia, or new brunswick; and the returning officers to whom writs are directed under this section shall have the like powers as are possessed at the union by the officers charged with the returning of writs for the election of members to serve in the same respective house of assembly or legislative assembly. . [as to casual vacancies.] in case a vacancy in the representation in the house of commons of any electoral district happens before the meeting of the parliament, or after the meeting of the parliament before provision is made by the parliament in this behalf, the provisions of the last foregoing section of this act shall extend and apply to the issuing and returning of a writ in respect of such vacant district. . [as to election of speaker of house of commons.] the house of commons on its first assembling after a general election shall proceed with all practicable speed to elect one of its members to be speaker. . [as to filling up vacancy in office of speaker.] in case of a vacancy happening in the office of speaker by death, resignation, or otherwise, the house of commons shall with all practicable speed proceed to elect another of its members to be speaker. . [speaker to preside.] the speaker shall preside at all meetings of the house of commons. . [provision in case of absence of speaker.] until the parliament of canada otherwise provides, in case of the absence for any reason of the speaker from the chair of the house of commons for a period of forty-eight consecutive hours, the house may elect another of its members to act as speaker, and the member so elected shall during the continuance of such absence of the speaker have and execute all the powers, privileges, and duties of speaker. . [quorum of house of commons.] the presence of at least twenty members of the house of commons shall be necessary to constitute a meeting of the house for the exercise of its powers; and for that purpose the speaker shall be reckoned as a member. . [voting in house of commons.] questions arising in the house of commons shall be decided by a majority of voices other than that of the speaker, and when the voices are equal, but not otherwise, the speaker shall have a vote. . [duration of house of commons.] every house of commons shall continue for five years from the day of the return of the writs for choosing the house (subject to be sooner dissolved by the governor general), and no longer. . [decennial re-adjustment of representation.] on the completion of the census in the year one thousand eight hundred and seventy-one, and of each subsequent decennial census, the representation of the four provinces shall be readjusted by such authority, in such manner, and from such time, as the parliament of canada from time to time provides, subject and according to the following rules: ( .) quebec shall have the fixed number of sixty-five members: ( .) there shall be assigned to each of the other provinces such a number of members as will bear the same proportion to the number of its population (ascertained at such census) as the number sixty-five bears to the number of the population of quebec (so ascertained): ( .) in the computation of the number of members for a province a fractional part not exceeding one half of the whole number requisite for entitling the province to a member shall be disregarded; but a fractional part exceeding one half of that number shall be equivalent to the whole number: ( .) on any such re-adjustment the number of members for a province shall not be reduced unless the proportion which the number of the population of the province bore to the number of the aggregate population of canada at the then last preceding re-adjustment of the number of members for the province is ascertained at the then latest census to be diminished by one twentieth part or upwards: ( .) such re-adjustment shall not take effect until the termination of the then existing parliament. . [increase of number of house of commons.] the number of members of the house of commons may be from time to time increased by the parliament of canada, provided the proportionate representation of the provinces prescribed by this act is not thereby disturbed. money votes; royal assent. . [appropriation and tax bills.] bills for appropriating any part of the public revenue, or for imposing any tax or impost, shall originate in the house of commons. . [recommendation of money votes.] it shall not be lawful for the house of commons to adopt or pass any vote, resolution, address, or bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been first recommended to that house by message of the governor general in the session in which such vote, resolution, address, or bill is proposed. . [royal assent to bills, &c.] where a bill passed by the houses of the parliament is presented to the governor general for the queen's assent, he shall declare, according to his discretion, but subject to the provisions of this act and to her majesty's instructions, either that he assents thereto in the queen's name, or that he withholds the queen's assent, or that he reserves the bill for the signification of the queen's pleasure. . [disallowance by order in council of act assented to by governor general.] where the governor general assents to a bill in the queen's name, he shall by the first convenient opportunity send an authentic copy of the act to one of her majesty's principal secretaries of state, and if the queen in council within two years after receipt thereof by the secretary of state thinks fit to disallow the act, such disallowance (with a certificate of the secretary of state of the day on which the act was received by him) being signified by the governor general, by speech or message to each of the houses of the parliament or by proclamation, shall annul the act from and after the day of such signification. . [signification of queen's pleasure on bill reserved.] a bill reserved for the signification of the queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the governor general for the queen's assent, the governor general signifies, by speech or message to each of the houses of the parliament or by proclamation, that it has received the assent of the queen in council. an entry of every such speech, message, or proclamation shall be made in the journal of each house, and a duplicate thereof duly attested shall be delivered to the proper officer to be kept among the records of canada. v.--provincial constitutions. executive power. . [appointment of lieutenant governors of provinces.] for each province there shall be an officer, styled the lieutenant governor, appointed by the governor general in council by instrument under the great seal of canada. . [tenure of office of lieutenant governor.] a lieutenant governor shall hold office during the pleasure of the governor general; but any lieutenant governor appointed after the commencement of the first session of the parliament of canada shall not be removeable within five years from his appointment, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by message to the senate and to the house of commons within one week thereafter if the parliament is then sitting, and if not then within one week after the commencement of the next session of the parliament. . [salaries of lieutenant governors.] the salaries of the lieutenant governors shall be fixed and provided by the parliament of canada. . [oaths, &c. of lieutenant governor.] every lieutenant governor shall, before assuming the duties of his office, make and subscribe before the governor general or some person authorized by him oaths of allegiance and office similar to those taken by the governor general. . [application of provisions referring to lieutenant governor.] the provisions of this act referring to the lieutenant governor extend and apply to the lieutenant governor for the time being of each province or other the chief executive officer or administrator for the time being carrying on the government of the province, by whatever title he is designated. . [appointment of executive officers for ontario and quebec.] the executive council of ontario and of quebec shall be composed of such persons as the lieutenant governor from time to time thinks fit, and in the first instance of the following officers, namely,--the attorney general, the secretary and registrar of the province, the treasurer of the province, the commissioner of crown lands, and the commissioner of agriculture and public works, with in quebec, the speaker of the legislative council and the solicitor general. . [executive government of nova scotia and new brunswick.] the constitution of the executive authority in each of the provinces of nova scotia and new brunswick shall, subject to the provisions of this act, continue as it exists at the union until altered under the authority of this act. . [powers to be exercised by lieutenant governor of ontario or quebec with advice, or alone.] all powers, authorities, and functions which under any act of the parliament of great britain, or of the parliament of the united kingdom of great britain and ireland, or of the legislature of upper canada, lower canada, or canada, were or are before or at the union vested in or exerciseable by the respective governors or lieutenant governors of those provinces, with the advice or with the advice and consent of the respective executive councils thereof, or in conjunction with those councils, or with any number of members thereof, or by those governors or lieutenant governors individually, shall, as far as the same are capable of being exercised after the union in relation to the government of ontario and quebec respectively, be vested in and shall or may be exercised by the lieutenant governor of ontario and quebec respectively, with the advice or with the advice and consent of or in conjunction with the respective executive councils, or any members thereof, or by the lieutenant governor individually, as the case requires, subject nevertheless (except with respect to such as exist under acts of the parliament of great britain, or of the parliament of the united kingdom of great britain and ireland,) to be abolished or altered by the respective legislatures of ontario and quebec. . [application of provisions referring to lieutenant governor in council.] the provisions of this act referring to the lieutenant governor in council shall be construed as referring to the lieutenant governor of the province acting by and with the advice of the executive council thereof. . [administration in absence, &c. of lieutenant governor.] the governor general in council may from time to time appoint an administrator to execute the office and functions of lieutenant governor during his absence, illness, or other inability. . [seats of provincial governments.] unless and until the executive government of any province otherwise directs with respect to that province, the seats of government of the provinces shall be as follows, namely,--of ontario, the city of toronto; of quebec, the city of quebec; of nova scotia, the city of halifax; and of new brunswick, the city of fredericton. legislative power. .--ontario. . [legislature for ontario.] there shall be a legislature for ontario consisting of the lieutenant governor and of one house, styled the legislative assembly of ontario. . [electoral districts.] the legislative assembly of ontario shall be composed of eighty-two members, to be elected to represent the eighty-two electoral districts set forth in the first schedule to this act. .--quebec. . [legislature for quebec.] there shall be a legislature for quebec consisting of the lieutenant governor and of two houses, styled the legislative council of quebec and the legislative assembly of quebec. . [constitution of legislative council.] the legislative council of quebec shall be composed of twenty-four members, to be appointed by the lieutenant governor in the queen's name, by instrument under the great seal of quebec, one being appointed to represent each of the twenty-four electoral divisions of lower canada in this act referred to, and each holding office for the term of his life, unless the legislature of quebec otherwise provides under the provisions of this act. . [qualification of legislative councillors.] the qualifications of the legislative councillors of quebec shall be the same as those of the senators for quebec. . [resignation, disqualification, &c.] the place of a legislative councillor of quebec shall become vacant in the cases, mutatis mutandis, in which the place of senator becomes vacant. . [vacancies.] when a vacancy happens in the legislative council of quebec by resignation, death, or otherwise, the lieutenant governor, in the queen's name, by instrument under the great seal of quebec, shall appoint a fit and qualified person to fill the vacancy. . [questions as to vacancies, &c.] if any question arises respecting the qualification of a legislative councillor of quebec, or a vacancy in the legislative council of quebec, the same shall be heard and determined by the legislative council. . [speaker of legislative council.] the lieutenant governor may from time to time, by instrument under the great seal of quebec, appoint a member of the legislative council of quebec to be speaker thereof, and may remove him and appoint another in his stead. . [quorum of legislative council.] until the legislature of quebec otherwise provides, the presence of at least ten members of the legislative council, including the speaker, shall be necessary to constitute a meeting for the exercise of its powers. . [voting in legislative council.] questions arising in the legislative council of quebec shall be decided by a majority of voices, and the speaker shall in all cases have a vote, and when the voices are equal the decision shall be deemed to be in the negative. . [constitution of legislative assembly of quebec.] the legislative assembly of quebec shall be composed of sixty-five members, to be elected to represent the sixty-five electoral divisions or districts of lower canada in this act referred to, subject to alteration thereof by the legislature of quebec: provided that it shall not be lawful to present to the lieutenant governor of quebec for assent any bill for altering the limits of any of the electoral divisions or districts mentioned in the second schedule to this act, unless the second and third readings of such bill have been passed in the legislative assembly with the concurrence of the majority of the members representing all those electoral divisions or districts, and the assent shall not be given to such bill unless an address has been presented by the legislative assembly to the lieutenant governor stating that it has been so passed. .--ontario and quebec. . [first session of legislatures.] the legislatures of ontario and quebec respectively shall be called together not later than six months after the union. . [summoning of legislative assemblies.] the lieutenant governor of ontario and of quebec shall from time to time, in the queen's name, by instrument under the great seal of the province, summon and call together the legislative assembly of the province. . [restriction on election of holders of offices.] until the legislature of ontario or of quebec otherwise provides, a person accepting or holding in ontario or in quebec any office, commission, or employment, permanent or temporary, at the nomination of the lieutenant governor, to which an annual salary, or any fee, allowance, emolument, or profit of any kind or amount whatever from the province is attached, shall not be eligible as a member of the legislative assembly of the respective province, nor shall he sit or vote as such; but nothing in this section shall make ineligible any person being a member of the executive council of the respective province, or holding any of the following offices, that is to say, the offices of attorney general, secretary and registrar of the province, treasurer of the province, commissioner of crown lands, and commissioner of agriculture and public works, and in quebec solicitor general, or shall disqualify him to sit or vote in the house for which he is elected, provided he is elected while holding such office. . [continuance of existing election laws.] until the legislatures of ontario and quebec respectively otherwise provide, all laws which at the union are in force in those provinces respectively, relative to the following matters, or any of them, namely,--the qualifications and disqualifications of persons to be elected or to sit or vote as members of the assembly of canada, the qualifications or disqualifications of voters, the oaths to be taken by voters, the returning officers, their powers and duties, the proceedings at elections, the periods during which such elections may be continued, and the trial of controverted elections and the proceedings incident thereto, the vacating of the seats of members and the issuing and execution of new writs in case of seats vacated otherwise than by dissolution,--shall respectively apply to elections of members to serve in the respective legislative assemblies of ontario and quebec. provided that until the legislature of ontario otherwise provides, at any election for a member of the legislative assembly of ontario for the district of algoma, in addition to persons qualified by the law of the province of canada to vote, every male british subject, aged twenty-one years or upwards, being a householder, shall have a vote. . [duration of legislative assemblies.] every legislative assembly of ontario and every legislative assembly of quebec shall continue for four years from the day of the return of the writs for choosing the same (subject nevertheless to either the legislative assembly of ontario or the legislative assembly of quebec being sooner dissolved by the lieutenant governor of the province), and no longer. . [yearly session of legislature.] there shall be a session of the legislature of ontario and of that of quebec once at least in every year, so that twelve months shall not intervene between the last sitting of the legislature in each province in one session and its first sitting in the next session. . [speaker, quorum, &c.] the following provisions of this act respecting the house of commons of canada shall extend and apply to the legislative assemblies of ontario and quebec, that is to say,--the provisions relating to the election of a speaker originally and on vacancies, the duties of the speaker, the absence of the speaker, the quorum, and the mode of voting, as if those provisions were here re-enacted and made applicable in terms to each such legislative assembly. .--nova scotia and new brunswick. . [constitutions of legislatures of nova scotia and new brunswick.] the constitution of the legislature of each of the provinces of nova scotia and new brunswick shall, subject to the provisions of this act, continue as it exists at the union until altered under the authority of this act; and the house of assembly of new brunswick existing at the passing of this act shall, unless sooner dissolved, continue for the period for which it was elected. .--ontario, quebec and nova scotia. . [first elections.] each of the lieutenant governors of ontario, quebec and nova scotia shall cause writs to be issued for the first election of members of the legislative assembly thereof in such form and by such person as he thinks fit, and at such time and addressed to such returning officer as the governor general directs, and so that the first election of member of assembly for any electoral district or any subdivision thereof shall be held at the same time and at the same places as the election for a member to serve in the house of commons of canada for that electoral district. .--the four provinces. . [application to legislatures of provisions respecting money votes, &c.] the following provisions of this act respecting the parliament of canada, namely,--the provisions relating to appropriation and tax bills, the recommendation of money votes, the assent to bills, the disallowance of acts, and the signification of pleasure on bills reserved,--shall extend and apply to the legislatures of the several provinces as if those provisions were here re-enacted and made applicable in terms to the respective provinces and the legislatures thereof, with the substitution of the lieutenant governor of the province for the governor general, of the governor general for the queen and for a secretary of state, of one year for two years, and of the province for canada. vi.--distribution of legislative powers. powers of the parliament. . [legislative authority of parliament of canada.] it shall be lawful for the queen, by and with the advice and consent of the senate and house of commons, to make laws for the peace, order, and good government of canada, in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this act) the exclusive legislative authority of the parliament of canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say,-- . the public debt and property. . the regulation of trade and commerce. . the raising of money by any mode or system of taxation. . the borrowing of money on the public credit. . postal service. . the census and statistics. . militia, military and naval service, and defence. . the fixing of and providing for the salaries and allowances of civil and other officers of the government of canada. . beacons, buoys, lighthouses, and sable island. . navigation and shipping. . quarantine and the establishment and maintenance of marine hospitals. . sea coast and inland fisheries. . ferries between a province and any british or foreign country or between two provinces. . currency and coinage. . banking, incorporation of banks, and the issue of paper money. . savings banks. . weights and measures. . bills of exchange and promissory notes. . interest. . legal tender. . bankruptcy and insolvency. . patents of invention and discovery. . copyrights. . indians, and lands reserved for the indians. . naturalization and aliens. . marriage and divorce. . the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters. . the establishment, maintenance, and management of penitentiaries. . such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this act assigned exclusively to the legislatures of the provinces. and any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this act assigned exclusively to the legislatures of the provinces. exclusive powers of provincial legislatures. . [subjects of exclusive provincial legislation.] in each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say,-- . the amendment from time to time, notwithstanding anything in this act, of the constitution of the province, except as regards the office of lieutenant governor. . direct taxation within the province in order to the raising of a revenue for provincial purposes. . the borrowing of money on the sole credit of the province. . the establishment and tenure of provincial offices and the appointment and payment of provincial officers. . the management and sale of the public lands belonging to the province and of the timber and wood thereon. . the establishment, maintenance, and management of public and reformatory prisons in and for the province. . the establishment, maintenance, and management of hospitals, asylums, charities, and eleemosynary institutions in and for the province, other than marine hospitals. . municipal institutions in the province. . shop, saloon, tavern, auctioneer, and other licences in order to the raising of a revenue for provincial, local, or municipal purposes. . local works and undertakings other than such as are of the following classes,-- a. lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province: b. lines of steam ships between the province and any british or foreign country: c. such works as, although wholly situate within the province, are before or after their execution declared by the parliament of canada to be for the general advantage of canada or for the advantage of two or more of the provinces. . the incorporation of companies with provincial objects. . the solemnization of marriage in the province. . property and civil rights in the province. . the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts. . the imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section. . generally all matters of a merely local or private nature in the province. education. . [legislation respecting education.] in and for each province the legislature may exclusively make laws in relation to education, subject and according to the following provisions:-- ( .) nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union: ( .) all the powers, privileges, and duties at the union by law conferred and imposed in upper canada on the separate schools and school trustees of the queen's roman catholic subjects shall be and the same are hereby extended to the dissentient schools of the queen's protestant and roman catholic subjects in quebec: ( .) where in any province a system of separate or dissentient schools exists by law at the union or is thereafter established by the legislature of the province, an appeal shall lie to the governor general in council from any act or decision of any provincial authority affecting any right or privilege of the protestant or roman catholic minority of the queen's subjects in relation to education: ( .) in case any such provincial law as from time to time seems to the governor general in council requisite for the due execution of the provisions of this section is not made, or in case any decision of the governor general in council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the parliament of canada may make remedial laws for the due execution of the provisions of this section and of any decision of the governor general in council under this section. uniformity of laws in ontario, nova scotia, and new brunswick. . [legislation for uniformity of laws in three provinces.] notwithstanding anything in this act, the parliament of canada may make provision for the uniformity of all or any of the laws relative to property and civil rights in ontario, nova scotia, and new brunswick, and of the procedure of all or any of the courts in those three provinces, and from and after the passing of any act in that behalf the power of the parliament of canada to make laws in relation to any matter comprised in any such act shall, notwithstanding anything in this act, be unrestricted; but any act of the parliament of canada making provision for such uniformity shall not have effect in any province unless and until it is adopted and enacted as law by the legislature thereof. agriculture and immigration. . [concurrent powers of legislation respecting agriculture, &c.] in each province the legislature may make laws in relation to agriculture in the province, and to immigration into the province; and it is hereby declared that the parliament of canada may from time to time make laws in relation to agriculture in all or any of the provinces, and to immigration into all or any of the provinces; and any law of the legislature of a province relative to agriculture or to immigration shall have effect in and for the province as long and as far only as it is not repugnant to any act of the parliament of canada. vii.--judicature. . [appointment of judges.] the governor general shall appoint the judges of the superior, district, and county courts in each province, except those of the courts of probate in nova scotia and new brunswick. . [selection of judges in ontario, &c.] until the laws relative to property and civil rights in ontario, nova scotia, and new brunswick, and the procedure of the courts in those provinces, are made uniform, the judges of the courts of those provinces appointed by the governor general shall be selected from the respective bars of those provinces. . [selection of judges in quebec.] the judges of the courts of quebec shall be selected from the bar of that province. . [tenure of office of judges of superior courts.] the judges of the superior courts shall hold office during good behaviour, but shall be removable by the governor general on address of the senate and house of commons. . [salaries, &c., of judges.] the salaries, allowances, and pensions of the judges of the superior, district, and county courts (except the courts of probate in nova scotia and new brunswick), and of the admiralty courts in cases where the judges thereof are for the time being paid by salary, shall be fixed and provided by the parliament of canada. . [general court of appeal, &c.] the parliament of canada may, notwithstanding anything in this act, from time to time, provide for the constitution, maintenance, and organization of a general court of appeal for canada, and for the establishment of any additional courts for the better administration of the laws of canada. viii.--revenues; debts; assets; taxation. . [creation of consolidated revenue fund.] all duties and revenues over which the respective legislatures of canada, nova scotia, and new brunswick before and at the union had and have power of appropriation, except such portions thereof as are by this act reserved to the respective legislatures of the provinces, or are raised by them in accordance with the special powers conferred on them by this act, shall form one consolidated revenue fund, to be appropriated for the public service of canada in the manner and subject to the charges in this act provided. . [expenses of collection, &c.] the consolidated revenue fund of canada shall be permanently charged with the costs, charges, and expenses incident to the collection, management, and receipt thereof, and the same shall form the first charge thereon, subject to be reviewed and audited in such manner as shall be ordered by the governor general in council until the parliament otherwise provides. . [interest of provincial public debts.] the annual interest of the public debts of the several provinces of canada, nova scotia, and new brunswick at the union shall form the second charge on the consolidated revenue fund of canada. . [salary of governor general.] unless altered by the parliament of canada, the salary of the governor general shall be ten thousand pounds sterling money of the united kingdom of great britain and ireland, payable out of the consolidated revenue fund of canada, and the same shall form the third charge thereon. . [appropriation from time to time.] subject to the several payments by this act charged on the consolidated revenue fund of canada, the same shall be appropriated by the parliament of canada for the public service. . [transfer of stocks, &c.] all stocks, cash, banker's balances, and securities for money belonging to each province at the time of the union, except as in this act mentioned, shall be the property of canada, and shall be taken in reduction of the amount of the respective debts of the provinces at the union. . [transfer of property in schedule.] the public works and property of each province, enumerated in the third schedule to this act, shall be the property of canada. . [property in lands, mines, &c.] all lands, mines, minerals, and royalties belonging to the several provinces of canada, nova scotia, and new brunswick at the union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several provinces of ontario, quebec, nova scotia, and new brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the province in the same. . [assets connected with provincial debts.] all assets connected with such portions of the public debt of each province as are assumed by that province shall belong to that province. . [canada to be liable for provincial debts.] canada shall be liable for the debts and liabilities of each province existing at the union. . [debts of ontario and quebec.] ontario and quebec conjointly shall be liable to canada for the amount (if any) by which the debt of the province of canada exceeds at the union sixty-two million five hundred thousand dollars, and shall be charged with interest at the rate of five per centum per annum thereon. . [assets of ontario and quebec.] the assets enumerated in the fourth schedule to this act belonging at the union to the province of canada shall be the property of ontario and quebec conjointly. . [debt of nova scotia.] nova scotia shall be liable to canada for the amount (if any) by which its public debt exceeds at the union eight million dollars, and shall be charged with interest at the rate of five per centum per annum thereon. . [debt of new brunswick.] new brunswick shall be liable to canada for the amount (if any) by which its public debt exceeds at the union seven million dollars, and shall be charged with interest at the rate of five per centum per annum thereon. . [payment of interest to nova scotia and new brunswick.] in case the public debts of nova scotia and new brunswick do not at the union amount to eight million and seven million dollars respectively, they shall respectively receive by half-yearly payments in advance from the government of canada interest at five per centum per annum on the difference between the actual amounts of their respective debts and such stipulated amounts. . [provincial public property.] the several provinces shall retain all their respective public property not otherwise disposed of in this act, subject to the right of canada to assume any lands or public property required for fortifications or for the defence of the country. . [grants to provinces.] the following sums shall be paid yearly by canada to the several provinces for the support of their governments and legislatures: dollars. ontario . . . . . . . . . . eighty thousand. quebec . . . . . . . . . . .seventy thousand. nova scotia . . . . . . . . sixty thousand. new brunswick . . . . . . . fifty thousand. ------------------ two hundred and sixty thousand; and an annual grant in aid of each province shall be made, equal to eighty cents per head of the population as ascertained by the census of one thousand eight hundred and sixty-one, and in the case of nova scotia and new brunswick, by each subsequent decennial census until the population of each of those two provinces amounts to four hundred thousand souls, at which rate such grant shall thereafter remain. such grants shall be in full settlement of all future demands on canada, and shall be paid half-yearly in advance to each province; but the government of canada shall deduct from such grants, as against any province, all sums chargeable as interest on the public debt of that province in excess of the several amounts stipulated in this act. . [further grant to new brunswick.] new brunswick shall receive by half-yearly payments in advance from canada for the period of ten years from the union an additional allowance of sixty-three thousand dollars per annum; but as long as the public debt of that province remains under seven million dollars, a deduction equal to the interest at five per centum per annum on such deficiency shall be made from that allowance of sixty-three thousand dollars. . [form of payments.] all payments to be made under this act, or in discharge of liabilities created under any act of the provinces of canada, nova scotia, and new brunswick respectively, and assumed by canada, shall, until the parliament of canada otherwise directs, be made in such form and manner as may from time to time be ordered by the governor general in council. . [canadian manufactures, &c.] all articles of the growth, produce, or manufacture of any one of the provinces shall, from and after the union, be admitted free into each of the other provinces. . [continuance of customs and excise laws.] the customs and excise laws of each province shall, subject to the provisions of this act, continue in force until altered by the parliament of canada. . [exportation and importation as between two provinces.] where customs duties are, at the union, leviable on any goods, wares, or merchandises in any two provinces, those goods, wares, and merchandises may, from and after the union, be imported from one of those provinces into the other of them on proof of payment of the customs duty leviable thereon in the province of exportation, and on payment of such further amount (if any) of customs duty as is leviable thereon in the province of importation. . [lumber dues in new brunswick.] nothing in this act shall affect the right of new brunswick to levy the lumber dues provided in chapter fifteen of title three of the revised statutes of new brunswick, or in any act amending that act before or after the union, and not increasing the amount of such dues; but the lumber of any of the provinces other than new brunswick shall not be subject to such dues. . [exemption of public lands, &c.] no lands or property belonging to canada or any province shall be liable to taxation. . [provincial consolidated revenue fund.] such portions of the duties and revenues over which the respective legislatures of canada, nova scotia, and new brunswick had before the union power of appropriation as are by this act reserved to the respective governments or legislatures of the provinces, and all duties and revenues raised by them in accordance with the special powers conferred upon them by this act, shall in each province form one consolidated revenue fund to be appropriated for the public service of the province. ix.--miscellaneous provisions. general. . [as to legislative councillors of provinces becoming senators.] if any person being at the passing of this act a member of the legislative council of canada, nova scotia, or new brunswick, to whom a place in the senate is offered, does not within thirty days thereafter, by writing under his hand addressed to the governor general of the province of canada or to the lieutenant governor of nova scotia or new brunswick (as the case may be), accept the same, he shall be deemed to have declined the same; and any person who, being at the passing of this act a member of the legislative council of nova scotia or new brunswick, accepts a place in the senate shall thereby vacate his seat in such legislative council. . [oath of allegiance, &c.] every member of the senate or house of commons of canada shall before taking his seat therein take and subscribe before the governor general or some person authorized by him, and every member of a legislative council or legislative assembly of any province shall before taking his seat therein take and subscribe before the lieutenant governor of the province or some person authorized by him, the oath of allegiance contained in the fifth schedule to this act; and every member of the senate of canada and every member of the legislative council of quebec shall also, before taking his seat therein, take and subscribe before the governor general, or some person authorized by him, the declaration of qualification contained in the same schedule. . [continuance of existing laws, courts, officers, &c.] except as otherwise provided by this act, all laws in force in canada, nova scotia, or new brunswick at the union, and all courts of civil and criminal jurisdiction, and all legal commissions, powers, and authorities, and all officers, judicial, administrative, and ministerial, existing therein at the union, shall continue in ontario, quebec, nova scotia, and new brunswick respectively, as if the union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under acts of the parliament of great britain or of the parliament of the united kingdom of great britain and ireland,) to be repealed, abolished, or altered by the parliament of canada, or by the legislature of the respective province, according to the authority of the parliament or of that legislature under this act. . [transfer of officers to canada.] until the parliament of canada otherwise provides, all officers of the several provinces having duties to discharge in relation to matters other than those coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces shall be officers of canada, and shall continue to discharge the duties of their respective offices under the same liabilities, responsibilities, and penalties as if the union had not been made. . [appointment of new officers.] until the parliament of canada otherwise provides, the governor general in council may from time to time appoint such officers as the governor general in council deems necessary or proper for the effectual execution of this act. . [treaty obligations.] the parliament and government of canada shall have all powers necessary or proper for performing the obligations of canada or of any province thereof, as part of the british empire, towards foreign countries arising under treaties between the empire and such foreign countries. . [use of english and french languages.] either the english or the french language may be used by any person in the debates of the houses of the parliament of canada and of the houses of the legislature of quebec; and both those languages shall be used in the respective records and journals of those houses; and either of those languages may be used by any person or in any pleading or process in or issuing from any court of canada established under this act, and in or from all or any of the courts of quebec. the acts of the parliament of canada and of the legislature of quebec shall be printed and published in both those languages. ontario and quebec. . [appointment of executive officers for ontario and quebec.] until the legislature of ontario or of quebec otherwise provides, the lieutenant governors of ontario and quebec may each appoint under the great seal of the province the following officers, to hold office during pleasure, that is to say,--the attorney general, the secretary and registrar of the province, the treasurer of the province, the commissioner of crown lands, and the commissioner of agriculture and public works, and in the case of quebec the solicitor general, and may, by order of the lieutenant governor in council, from time to time prescribe the duties of those officers and of the several departments over which they shall preside or to which they shall belong, and of the officers and clerks thereof; and may also appoint other and additional officers to hold office during pleasure, and may from time to time prescribe the duties of those officers, and of the several departments over which they shall preside or to which they shall belong, and of the officers and clerks thereof. . [powers, duties, &c., of executive officers.] until the legislature of ontario or quebec otherwise provides, all rights, powers, duties, functions, responsibilities, or authorities at the passing of this act vested in or imposed on the attorney general, solicitor general, secretary and registrar of the province of canada, minister of finance, commissioner of crown lands, commissioner of public works, and minister of agriculture and receiver general, by any law, statute or ordinance of upper canada, lower canada, or canada, and not repugnant to this act, shall be vested in or imposed on any officer to be appointed by the lieutenant governor for the discharge of the same or any of them; and the commissioner of agriculture and public works shall perform the duties and functions of the office of minister of agriculture at the passing of this act imposed by the law of the province of canada, as well as those of the commissioner of public works. . [great seals.] until altered by the lieutenant governor in council, the great seals of ontario and quebec respectively shall be the same, or of the same design, as those used in the provinces of upper canada and lower canada respectively before their union as the province of canada. . [construction of temporary acts.] the words "and from thence to the end of the then next ensuing session of the legislature," or words to the same effect, used in any temporary act of the province of canada not expired before the union, shall be construed to extend and apply to the next session of the parliament of canada if the subject matter of the act is within the powers of the same, as defined by this act, or to the next sessions of the legislatures of ontario and quebec respectively, if the subject matter of the act is within the powers of the same as defined by this act. . [as to errors in names.] from and after the union the use of the words "upper canada" instead of "ontario," or "lower canada" instead of "quebec," in any deed, writ, process, pleading, document, matter, or thing, shall not invalidate the same. . [as to issue of proclamations before union, to commence after union.] any proclamation under the great seal of the province of canada issued before the union to take effect at a time which is subsequent to the union, whether relating to that province, or to upper canada, or to lower canada, and the several matters and things therein proclaimed shall be and continue of like force and effect as if the union had not been made. . [as to issue of proclamations after union.] any proclamation which is authorized by any act of the legislature of the province of canada to be issued under the great seal of the province of canada, whether relating to that province, or to upper canada, or to lower canada, and which is not issued before the union, may be issued by the lieutenant governor of ontario or of quebec, as its subject matter requires, under the great seal thereof; and from and after the issue of such proclamation the same and the several matters and things therein proclaimed shall be and continue of the like force and effect in ontario or quebec as if the union had not been made. . [penitentiary.] the penitentiary of the province of canada shall, until the parliament of canada otherwise provides, be and continue the penitentiary of ontario and of quebec. . [arbitration respecting debts, &c.] the division and adjustment of the debts, credits, liabilities, properties, and assets of upper canada and lower canada shall be referred to the arbitrament of three arbitrators, one chosen by the government of ontario, one by the government of quebec, and one by the government of canada; and the selection of the arbitrators shall not be made until the parliament of canada and the legislatures of ontario and quebec have met; and the arbitrator chosen by the government of canada shall not be a resident either in ontario or in quebec. . [division of records.] the governor general in council may from time to time order that such and so many of the records, books, and documents of the province of canada as he thinks fit shall be appropriated and delivered either to ontario or to quebec, and the same shall thenceforth be the property of that province; and any copy thereof or extract therefrom, duly certified by the officer having charge of the original thereof, shall be admitted as evidence. . [constitution of townships in quebec.] the lieutenant governor of quebec may from time to time, by proclamation under the great seal of the province, to take effect from a day to be appointed therein, constitute townships in those parts of the province of quebec in which townships are not then already constituted, and fix the metes and bounds thereof. x.--intercolonial railway. . [duty of government and parliament of canada to make railway herein described.] inasmuch as the provinces of canada, nova scotia, and new brunswick have joined in a declaration that the construction of the intercolonial railway is essential to the consolidation of the union of british north america, and to the assent thereto of nova scotia and new brunswick, and have consequently agreed that provision should be made for its immediate construction by the government of canada: therefore, in order to give effect to that agreement, it shall be the duty of the government and parliament of canada to provide for the commencement within six months after the union, of a railway connecting the river st. lawrence with the city of halifax in nova scotia, and for the construction thereof without intermission, and the completion thereof with all practicable speed. xi.--admission of other colonies. . [power to admit newfoundland, &c., into the union.] it shall be lawful for the queen, by and with the advice of her majesty's most honourable privy council, on addresses from the houses of the parliament of canada, and from the houses of the respective legislatures of the colonies or provinces of newfoundland, prince edward island, and british columbia, to admit those colonies or provinces, or any of them, into the union, and on address from the houses of the parliament of canada to admit rupert's land and the north-western territory, or either of them, into the union, on such terms and conditions in each case as are in the addresses expressed and as the queen thinks fit to approve, subject to the provisions of this act; and the provisions of any order in council in that behalf shall have effect as if they had been enacted by the parliament of the united kingdom of great britain and ireland. . [as to representation of newfoundland and prince edward island in senate.] in case of the admission of newfoundland and prince edward island, or either of them, each shall be entitled to a representation in the senate of canada of four members, and (notwithstanding anything in this act) in case of the admission of newfoundland the normal number of senators shall be seventy-six and their maximum number shall be eighty-two; but prince edward island when admitted shall be deemed to be comprised in the third of the three divisions into which canada is, in relation to the constitution of the senate, divided by this act, and accordingly, after the admission of prince edward island, whether newfoundland is admitted or not, the representation of nova scotia and new brunswick in the senate shall, as vacancies occur, be reduced from twelve to ten members respectively, and the representation of each of those provinces shall not be increased at any time beyond ten, except under the provisions of this act for the appointment of three or six additional senators under the direction of the queen. schedules. the first schedule. electoral districts of ontario. a. existing electoral divisions. counties. . prescott. . glengarry. . stormont. . dundas. . russell. . carleton. . prince edward. . halton. . essex. ridings of counties . north riding of lanark. . south riding of lanark. . north riding of leeds and north riding of grenville. . south riding of leeds. . south riding of grenville. . east riding of northumberland. . west riding of northumberland (excepting therefrom the township of south monaghan). . east riding of durham. . west riding of durham. . north riding of ontario. . south riding of ontario. . east riding of york. . west riding of york. . north riding of york. . north riding of wentworth. . south riding of wentworth. . east riding of elgin. . west riding of elgin. . north riding of waterloo. . south riding of waterloo. . north riding of brant. . south riding of brant. . north riding of oxford. . south riding of oxford. . east riding of middlesex. cities, parts of cities, and towns. . west toronto. . east toronto. . hamilton . ottawa . kingston . london . town of brockville, with the township of elizabethtown thereto attached. . town of niagara, with the township of niagara thereto attached. . town of cornwall, with the township of cornwall thereto attached. b. new electoral divisions. . the provisional judicial district of algoma. the county of bruce, divided into two ridings, to be called respectively the north and south ridings:-- . the north riding of bruce to consist of the townships of bury, lindsay, eastnor, albermarle, amabel, arran, bruce, elderslie, and saugeen, and the village of southampton. . the south riding of bruce to consist of the townships of kincardine (including the village of kincardine), greenock, brant, huron, kinloss, culross, and carrick. the county of huron, divided into two ridings, to be called respectively the north and south ridings:-- . the north riding to consist of the townships of ashfield, wawanosh, turnberry, howick, morris, grey, colborne, hullett, including the village of clinton, and mckillop. . the south riding to consist of the town of goderich and the townships of goderich, tuckersmith, stanley, hay, usborne, and stephen. the county of middlesex, divided into three ridings, to be called respectively the north, west, and east ridings:-- . the north riding to consist of the townships of mcgillivray and biddulph (taken from the county of huron), and williams east, williams west, adelaide, and lobo. . the west riding to consist of the townships of delaware, carradoc, metcalfe, mosa and ekfrid, and the village of strathroy. [the east riding to consist of the townships now embraced therein, and be bounded as it is at present.] . the county of lambton to consist of the townships of bosanquet, warwick, plympton, sarnia, moore, enniskillen, and brooke, and the town of sarnia. . the county of kent to consist of the townships of chatham, dover, east tilbury, romney, raleigh, and harwich, and the town of chatham. . the county of bothwell to consist of the townships of sombra, dawn, and euphemia (taken from the county of lambton), and the townships of zone, camden with the gore thereof, orford, and howard (taken from the county of kent). the county of grey, divided into two ridings, to be called respectively the south and north ridings:-- . the south riding to consist of the townships of bentinck, glenelg, artemesia, osprey, normanby, egremont, proton, and melancthon. . the north riding to consist of the townships of collingwood, euphrasia, holland, saint-vincent, sydenham, sullivan, derby, and keppel, sarawak and brooke, and the town of owen sound. the county of perth, divided into two ridings, to be called respectively the south and north ridings:-- . the north riding to consist of the townships of wallace, elma, logan, ellice, mornington, and north easthope, and the town of stratford. . the south riding to consist of the townships of blanchard, downie, south easthope, fullarton, hibbert, and the villages of mitchell and ste. marys. the county of wellington, divided into three ridings, to be called respectively north, south and centre ridings:-- . the north riding to consist of the townships of amaranth, arthur, luther, minto, maryborough, peel, and the village of mount forest. . the centre riding to consist of the townships of garafraxa, erin, eramosa, nichol, and pilkington, and the villages of fergus and elora. . the south riding to consist of the town of guelph, and the townships of guelph and puslinch. the county of norfolk, divided into two ridings, to be called respectively the south and north ridings:-- . the south riding to consist of the townships of charlotteville, houghton, walsingham, and woodhouse, and with the gore thereof. . the north riding to consist of the townships of middleton, townsend, and windham, and the town of simcoe. . the county of haldimand to consist of the townships of oneida, seneca, cayuga north, cayuga south, raynham, walpole, and dunn. . the county of monck to consist of the townships of canborough and moulton, and sherbrooke, and the village of dunnville (taken from the county of haldimand), the townships of caistor and gainsborough (taken from the county of lincoln), and the townships of pelham and wainfleet (taken from the county of welland). . the county of lincoln to consist of the townships of clinton, grantham, grimsby, and louth, and the town of st. catherines. . the county of welland to consist of the townships of bertie, crowland, humberstone, stamford, thorold, and willoughby, and the villages of chippewa, clifton, fort erie, thorold, and welland. . the county of peel to consist of the townships of chinguacousy, toronto, and the gore of toronto, and the villages of brampton and streetsville. . the county of cardwell to consist of the townships of albion and caledon (taken from the county of peel), and the townships of adjala and mono (taken from the county of simcoe). the county of simcoe, divided into two ridings, to be called respectively the south and north ridings:-- . the south riding to consist of the townships of west gwillimbury, tecumseth, innisfil, essa, tossorontio, mulmur, and the village of bradford. . the north riding to consist of the townships of nottawasaga, sunnidale, vespra, flos, oro, medonte, orillia and matchedash, tiny and tay, balaklava and robinson, and the towns of barrie and collingwood. the county of victoria, divided into two ridings, to be called respectively the south and north ridings:-- . the south riding to consist of the townships of ops, mariposa, emily, verulam, and the town of lindsay. . the north riding to consist of the townships of anson, bexley, carden, dalton, digby, eldon, fenelon, hindon, laxton, lutterworth, macaulay and draper, sommerville, and morrison, muskoka, monck and watt (taken from the county of simcoe), and any other surveyed townships lying to the north of the said north riding. the county of peterborough, divided into two ridings, to be called respectively the west and east ridings:-- . the west riding to consist of the townships of south monaghan (taken from the county of northumberland), north monaghan, smith, and ennismore, and the town of peterborough. . the east riding to consist of the townships of asphodel, belmont and methuen, douro, dummer, galway, harvey, minden, stanhope and dysart, otonabee, and snowden, and the village of ashburnham, and any other surveyed townships lying to the north of the said east riding. the county of hastings, divided into three ridings, to be called respectively the west, east, and north ridings:-- . the west riding to consist of the town of belleville, the township of sydney, and the village of trenton. . the east riding to consist of the townships of thurlow, tyendinaga, and hungerford. . the north riding to consist of the townships of rawdon, huntingdon, madoc, elzevir, tudor, marmora, and lake, and the village of stirling, and any other surveyed townships lying to the north of the said north riding. . the county of lennox to consist of the townships of richmond, adolphustown, north fredericksburgh, south fredericksburgh, ernest town, and amherst island, and the village of napanee. . the county of addington to consist of the townships of camden, portland, sheffield, hinchinbrooke, kaladar, kennebec, olden, oso, anglesea, barrie, clarendon, palmerston, effingham, abinger, miller, canonto, denbigh, loughborough, and bedford. . the county of frontenac to consist of the townships of kingston, wolfe island, pittsburg and howe island, and storrington. the county of renfrew, divided into two ridings, to be called respectively the south and north ridings:-- . the south riding to consist of the townships of mcnab, bagot, blithfield, brougham, horton, admaston, grattan, matawatchan, griffith, lyndoch, raglan, radcliffe, brudenell, sebastopol, and the villages of arnprior and renfrew. . the north riding to consist of the townships of ross, bromley, westmeath, stafford, pembroke, wilberforce, alice, petawawa, buchanan, south algona, north algona, fraser, mckay, wylie, rolph, head, maria, clara, haggerty, sherwood, burns, and richards, and any other surveyed townships lying north-westerly of the said north riding. every town and incorporated village existing at the union, not especially mentioned in this schedule, is to be taken as part of the county or riding within which it is locally situate. the second schedule. electoral districts of quebec specially fixed. counties of-- pontiac. ottawa. argenteuil. huntingdon. missisquoi. brome. shefford. stanstead. compton. wolfe and richmond. megantic. town of sherbrooke. the third schedule. provincial public works and property to be the property of canada. . canals, with lands and water power connected therewith. . public harbours. . lighthouses and piers, and sable island. . steamboats, dredges, and public vessels. . rivers and lake improvements. . railways and railway stocks, mortgages, and other debts due by railway companies. . military roads. . custom houses, post offices, and all other public buildings, except such as the government of canada appropriate for the use of the provincial legislatures and governments. . property transferred by the imperial government, and known as ordnance property. . armouries, drill sheds, military clothing, and munitions of war, and lands set apart for general public purposes. the fourth schedule. assets to be the property of ontario and quebec conjointly. upper canada building fund. lunatic asylums. normal school. court houses in | aylmer, | lower canada. montreal, | kamouraska, | law society, upper canada. montreal turnpike trust. university permanent fund. royal institution. consolidated municipal loan fund, upper canada. consolidated municipal loan fund, lower canada. agricultural society, upper canada. lower canada legislative grant. quebec fire loan. temiscouata advance account. quebec turnpike trust. education--east. building and jury fund, lower canada. municipalities fund. lower canada superior education income fund. the fifth schedule. oath of allegiance. i, a.b., do swear, that i will be faithful and bear true allegiance to her majesty queen victoria. note.--the name of the king or queen of the united kingdom of great britain and ireland for the time being is to be substituted from time to time, with proper terms of reference thereto. declaration of qualification. i, a.b., do declare and testify, that i am by law duly qualified to be appointed a member of the senate of canada [or as the case may be], and that i am legally or equitably seised as of freehold for my own use and benefit of lands or tenements held in free and common socage [or seised or possessed for my own use and benefit of lands or tenements held in franc-alleu or in roture (as the case may be),] in the province of nova scotia [or as the case may be] of the value of four thousand dollars over and above all rents, dues, debts, mortgages, charges, and incumbrances due or payable out of or charged on or affecting the same, and that i have not collusively or colourably obtained a title to or become possessed of the said lands and tenements or any part thereof for the purpose of enabling me to become a member of the senate of canada [or as the case may be], and that my real and personal property are together worth four thousand dollars over and above my debts and liabilities. no treason. no. vi. the constitution of no authority. by lysander spooner. boston: published by the author. . no treason the constitution of no authority i. the constitution has no inherent authority or obligation. it has no authority or obligation at all, unless as a contract between man and man. and it does not so much as even purport to be a contract between persons now existing. it purports, at most, to be only a contract between persons living eighty years ago. and it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. those persons, if any, who did give their consent formally, are all dead now. most of them have been dead forty, fifty, sixty, or seventy years. _and the constitution, so far as it was their contract, died with them._ they had no natural power or right to make it obligatory upon their children. it is not only plainly impossible, in the nature of things, that they _could_ bind their posterity, but they did not even attempt to bind them. that is to say, the instrument does not purport to be an agreement between any body but "the people" _then_ existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. let us see. its language is: we, the people of the united states (that is, the people _then existing_ in the united states), in order to form a more perfect union, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves _and our posterity_, do ordain and establish this constitution for the united states of america. it is plain, in the first place, that this language, _as an agreement_, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. in the second place, the language neither expresses nor implies that they had any intention or desire, nor that they imagined they had any right or power, to bind their "posterity" to live under it. it does not say that their "posterity" will, shall, or must live under it. it only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquility, liberty, etc. suppose an agreement were entered into, in this form: we, the people of boston, agree to maintain a fort on governor's island, to protect ourselves and our posterity against invasion. this agreement, as an agreement, would clearly bind nobody but the people then existing. secondly, it would assert no right, power, or disposition, on their part, to compel their "posterity" to maintain such a fort. it would only indicate that the supposed welfare of their posterity was one of the motives that induced the original parties to enter into the agreement. when a man says he is building a house for himself and his posterity, he does not mean to be understood as saying that he has any thought of binding them, nor is it to be inferred that he is so foolish as to imagine that he has any right or power to bind them, to live in it. so far as they are concerned, he only means to be understood as saying that his hopes and motives, in building it, are that they, or at least some of them, may find it for their happiness to live in it. so when a man says he is planting a tree for himself and his posterity, he does not mean to be understood as saying that he has any thought of compelling them, nor is it to be inferred that he is such a simpleton as to imagine that he has any right or power to compel them, to eat the fruit. so far as they are concerned, he only means to say that his hopes and motives, in planting the tree, are that its fruit may be agreeable to them. so it was with those who originally adopted the constitution. whatever may have been their personal intentions, the legal meaning of their language, so far as their "posterity" was concerned, simply was, that their hopes and motives, in entering into the agreement, were that it might prove useful and acceptable to their posterity; that it might promote their union, safety, tranquility, and welfare; and that it might tend "to secure to them the blessings of liberty." the language does not assert nor at all imply, any right, power, or disposition, on the part of the original parties to the agreement, to compel their "posterity" to live under it. if they had intended to bind their posterity to live under it, they should have said that their object was, not "to secure to them the blessings of liberty," but to make slaves of them; for if their "posterity" are bound to live under it, they are nothing less than the slaves of their foolish, tyrannical, and dead grandfathers. it cannot be said that the constitution formed "the people of the united states," for all time, into a corporation. it does not speak of "the people" as a corporation, but as individuals. a corporation does not describe itself as "we," nor as "people," nor as "ourselves." nor does a corporation, in legal language, have any "posterity." it supposes itself to have, and speaks of itself as having, perpetual existence, as a single individuality. moreover, no body of men, existing at any one time, have the power to create a perpetual corporation. a corporation can become practically perpetual only by the voluntary accession of new members, as the old ones die off. but for this voluntary accession of new members, the corporation necessarily dies with the death of those who originally composed it. legally speaking, therefore, there is, in the constitution, nothing that professes or attempts to bind the "posterity" of those who established it. if, then, those who established the constitution, had no power to bind, and did not attempt to bind, their posterity, the question arises, whether their posterity have bound themselves. if they have done so, they can have done so in only one or both of these two ways, viz., by voting, and paying taxes. ii. let us consider these two matters, voting and tax paying, separately. and first of voting. all the voting that has ever taken place under the constitution, has been of such a kind that it not only did not pledge the whole people to support the constitution, but it did not even pledge any one of them to do so, as the following considerations show. . in the very nature of things, the act of voting could bind nobody but the actual voters. but owing to the property qualifications required, it is probable that, during the first twenty or thirty years under the constitution, not more than one-tenth, fifteenth, or perhaps twentieth of the whole population (black and white, men, women, and minors) were permitted to vote. consequently, so far as voting was concerned, not more than one-tenth, fifteenth, or twentieth of those then existing, could have incurred any obligation to support the constitution. at the present time, it is probable that not more than one-sixth of the whole population are permitted to vote. consequently, so far as voting is concerned, the other five-sixths can have given no pledge that they will support the constitution. . of the one-sixth that are permitted to vote, probably not more than two-thirds (about one-ninth of the whole population) have usually voted. many never vote at all. many vote only once in two, three, five, or ten years, in periods of great excitement. no one, by voting, can be said to pledge himself for any longer period than that for which he votes. if, for example, i vote for an officer who is to hold his office for only a year, i cannot be said to have thereby pledged myself to support the government beyond that term. therefore, on the ground of actual voting, it probably cannot be said that more than one-ninth or one-eighth, of the whole population are usually under any pledge to support the constitution. . it cannot be said that, by voting, a man pledges himself to support the constitution, unless the act of voting be a perfectly voluntary one on his part. yet the act of voting cannot properly be called a voluntary one on the part of any very large number of those who do vote. it is rather a measure of necessity imposed upon them by others, than one of their own choice. on this point i repeat what was said in a former number,[a] viz.: "in truth, in the case of individuals, their actual voting is not to be taken as proof of consent, _even for the time being_. on the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. he sees, too, that other men practice this tyranny over him by the use of the ballot. he sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. in short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. and he has no other alternative than these two. in self-defence, he attempts the former. his case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. neither in contests with the ballot--which is a mere substitute for a bullet--because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. on the contrary, it is to be considered that, in an exigency into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him. "doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby meliorating their condition. but it would not, therefore, be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or even consented to. "therefore, a man's voting under the constitution of the united states, is not to be taken as evidence that he ever freely assented to the constitution, _even for the time being_. consequently we have no proof that any very large portion, even of the actual voters of the united states, ever really and voluntarily consented to the constitution, _even for the time being_. nor can we ever have such proof, until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to be disturbed or injured by others." as we can have no legal knowledge as to who votes from choice, and who from the necessity thus forced upon him, we can have no legal knowledge, as to any particular individual, that he voted from choice; or, consequently, that by voting, he consented, or pledged himself, to support the government. legally speaking, therefore, the act of voting utterly fails to pledge _any one_ to support the government. it utterly fails to prove that the government rests upon the voluntary support of anybody. on general principles of law and reason, it cannot be said that the government has any voluntary supporters at all, until it can be distinctly shown who its voluntary supporters are. . as taxation is made compulsory on all, whether they vote or not, a large proportion of those who vote, no doubt do so to prevent their own money being used against themselves; when, in fact, they would have gladly abstained from voting, if they could thereby have saved themselves from taxation alone, to say nothing of being saved from all the other usurpations and tyrannies of the government. to take a man's property without his consent, and then to infer his consent because he attempts, by voting, to prevent that property from being used to his injury, is a very insufficient proof of his consent to support the constitution. it is, in fact, no proof at all. and as we can have no legal knowledge as to who the particular individuals are, if there are any, who are willing to be taxed for the sake of voting, we can have no legal knowledge that any particular individual consents to be taxed for the sake of voting; or, consequently, consents to support the constitution. . at nearly all elections, votes are given for various candidates for the same office. those who vote for the unsuccessful candidates cannot properly be said to have voted to sustain the constitution. they may, with more reason, be supposed to have voted, not to support the constitution, but specially to prevent the tyranny which they anticipate the successful candidate intends to practice upon them under color of the constitution; and therefore may reasonably be supposed to have voted against the constitution itself. this supposition is the more reasonable, inasmuch as such voting is the only mode allowed to them of expressing their dissent to the constitution. . many votes are usually given for candidates who have no prospect of success. those who give such votes may reasonably be supposed to have voted as they did, with a special intention, not to support, but to obstruct the execution of, the constitution; and, therefore, against the constitution itself. . as all the different votes are given secretly (by secret ballot), there is no legal means of knowing, from the votes themselves, who votes for, and who against, the constitution. therefore, voting affords no legal evidence that any particular individual supports the constitution. and where there can be no legal evidence that any particular individual supports the constitution, it cannot legally be said that anybody supports it. it is clearly impossible to have any legal proof of the intentions of large numbers of men, where there can be no legal proof of the intentions of any particular one of them. . there being no legal proof of any man's intentions, in voting, we can only conjecture them. as a conjecture, it is probable, that a very large proportion of those who vote, do so on this principle, viz., that if, by voting, they could but get the government into their own hands (or that of their friends), and use its powers against their opponents, they would then willingly support the constitution; but if their opponents are to have the power, and use it against them, then they would _not_ willingly support the constitution. in short, men's voluntary support of the constitution is doubtless, in most cases, wholly contingent upon the question whether, by means of the constitution, they can make themselves masters, or are to be made slaves. such contingent consent as that is, in law and reason, no consent at all. . as everybody who supports the constitution by voting (if there are any such) does so secretly (by secret ballot), and in a way to avoid all personal responsibility for the act of his agents or representatives, it cannot legally or reasonably be said that anybody at all supports the constitution by voting. no man can reasonably or legally be said to do such a thing as to assent to, or support, the constitution, _unless he does it openly, and in a way to make himself personally responsible for the acts of his agents, so long as they act within the limits of the power he delegates to them_. . as all voting is secret (by secret ballot), and as all secret governments are necessarily only secret bands of robbers, tyrants, and murderers, the general fact that our government is practically carried on by means of such voting, only proves that there is among us a secret band of robbers, tyrants and murderers, whose purpose is to rob, enslave, and, so far as necessary to accomplish their purposes, murder, the rest of the people. the simple fact of the existence of such a band does nothing towards proving that "the people of the united states," or any one of them, voluntarily supports the constitution. for all the reasons that have now been given, voting furnishes no legal evidence as to who the particular individuals are (if there are any), who voluntarily support the constitution. it therefore furnishes no legal evidence that anybody supports it voluntarily. so far, therefore, as voting is concerned, the constitution, legally speaking, has no supporters at all. and, as matter of fact, there is not the slightest probability that the constitution has a single bona fide supporter in the country. that is to say, there is not the slightest probability that there is a single man in the country, who both understands what the constitution really is, _and sincerely supports it for what it really is_. the ostensible supporters of the constitution, like the ostensible supporters of most other governments, are made up of three classes, viz.: . knaves, a numerous and active class, who see in the government an instrument which they can use for their own aggrandizement or wealth. . dupes--a large class, no doubt--each of whom, because he is allowed one voice out of millions in deciding what he may do with his own person and his own property, and because he is permitted to have the same voice in robbing, enslaving, and murdering others, that others have in robbing, enslaving, and murdering himself, is stupid enough to imagine that he is a "free man," a "sovereign"; that this is "a free government"; "a government of equal rights," "the best government on earth,"[b] and such like absurdities. . a class who have some appreciation of the evils of government, but either do not see how to get rid of them, or do not choose to so far sacrifice their private interests as to give themselves seriously and earnestly to the work of making a change. iii. the payment of taxes, being compulsory, of course furnishes no evidence that any one voluntarily supports the constitution. . it is true that the _theory_ of our constitution is, that all taxes are paid voluntarily; that our government is a mutual insurance company, voluntarily entered into by the people with each other; that each man makes a free and purely voluntary contract with all others who are parties to the constitution, to pay so much money for so much protection, the same as he does with any other insurance company; and that he is just as free not to be protected, and not to pay tax, as he is to pay a tax, and be protected. but this theory of our government is wholly different from the practical fact. the fact is that the government, like a highwayman, says to a man: "your money, or your life." and many, if not most, taxes are paid under the compulsion of that threat. the government does not, indeed, waylay a man in a lonely place, spring upon him from the roadside, and, holding a pistol to his head, proceed to rifle his pockets. but the robbery is none the less a robbery on that account; and it is far more dastardly and shameful. the highwayman takes solely upon himself the responsibility, danger, and crime of his own act. he does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. he does not pretend to be anything but a robber. he has not acquired impudence enough to profess to be merely a "protector," and that he takes men's money against their will, merely to enable him to "protect" those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. he is too sensible a man to make such professions as these. furthermore, having taken your money, he leaves you, as you wish him to do. he does not persist in following you on the road, against your will; assuming to be your rightful "sovereign," on account of the "protection" he affords you. he does not keep "protecting" you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. he is too much of a gentleman to be guilty of such impostures, and insults, and villainies as these. in short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave. the proceedings of those robbers and murderers, who call themselves "the government," are directly the opposite of these of the single highwayman. in the first place, they do not, like him, make themselves individually known; or, consequently, take upon themselves personally the responsibility of their acts. on the contrary, they secretly (by secret ballot) designate some one of their number to commit the robbery in their behalf, while they keep themselves practically concealed. they say to the person thus designated: go to a---- b----, and say to him that "the government" has need of money to meet the expenses of protecting him and his property. if he presumes to say that he has never contracted with us to protect him, and that he wants none of our protection, say to him that that is our business, and not his; that we _choose_ to protect him, whether he desires us to do so or not; and that we demand pay, too, for protecting him. if he dares to inquire who the individuals are, who have thus taken upon themselves the title of "the government," and who assume to protect him, and demand payment of him, without his having ever made any contract with them, say to him that that, too, is our business, and not his; that we do not _choose_ to make ourselves _individually_ known to him; that we have secretly (by secret ballot) appointed you our agent to give him notice of our demands, and, if he complies with them, to give him, in our name, a receipt that will protect him against any similar demand for the present year. if he refuses to comply, seize and sell enough of his property to pay not only our demands, but all your own expenses and trouble beside. if he resists the seizure of his property, call upon the bystanders to help you (doubtless some of them will prove to be members of our band). if, in defending his property, he should kill any of our band who are assisting you, capture him at all hazards; charge him (in one of our courts) with murder; convict him, and hang him. if he should call upon his neighbors, or any others who, like him, may be disposed to resist our demands, and they should come in large numbers to his assistance, cry out that they are all rebels and traitors; that "our country" is in danger; call upon the commander of our hired murderers; tell him to quell the rebellion and "save the country," cost what it may. tell him to kill all who resist, though they should be hundreds of thousands; and thus strike terror into all others similarly disposed. see that the work of murder is thoroughly done; that we may have no further trouble of this kind hereafter. when these traitors shall have thus been taught our strength and our determination, they will be good loyal citizens for many years, and pay their taxes without a why or a wherefore. it is under such compulsion as this that taxes, so called, are paid. and how much proof the payment of taxes affords, that the people consent to support "the government," it needs no further argument to show. . still another reason why the payment of taxes implies no consent, or pledge, to support the government, is that the taxpayer does not know, and has no means of knowing, who the particular individuals are who compose "the government." to him "the government" is a myth, an abstraction, an incorporeality, with which he can make no contract, and to which he can give no consent, and make no pledge. he knows it only through its pretended agents. "the government" itself he never sees. he knows indeed, by common report, that certain persons, of a certain age, are permitted to vote; and thus to make themselves parts of, or (if they choose) opponents of, the government, for the time being. but who of them do thus vote, and especially how each one votes (whether so as to aid or oppose the government), he does not know; the voting being all done secretly (by secret ballot). who, therefore, practically compose "the government," for the time being, he has no means of knowing. of course he can make no contract with them, give them no consent, and make them no pledge. of necessity, therefore, his paying taxes to them implies, on his part, no contract, consent, or pledge to support them--that is, to support "the government," or the constitution. . not knowing who the particular individuals are, who call themselves "the government," the taxpayer does not know whom he pays his taxes to. all he knows is that a man comes to him, representing himself to be the agent of "the government"--that is, the agent of a secret band of robbers and murderers, who have taken to themselves the title of "the government," and have determined to kill everybody who refuses to give them whatever money they demand. to save his life, he gives up his money to this agent. but as this agent does not make his principals individually known to the taxpayer, the latter, after he has given up his money, knows no more who are "the government"--that is, who were the robbers--than he did before. to say, therefore, that by giving up his money to their agent, he entered into a voluntary contract with them, that he pledges himself to obey them, to support them, and to give them whatever money they should demand of him in the future, is simply ridiculous. . all political power, as it is called, rests practically upon this matter of money. any number of scoundrels, having money enough to start with, can establish themselves as a "government"; because, with money, they can hire soldiers, and with soldiers extort more money; and also compel general obedience to their will. it is with government, as caesar said it was in war, that money and soldiers mutually supported each other; that with money he could hire soldiers, and with soldiers extort money. so these villains, who call themselves governments, well understand that their power rests primarily upon money. with money they can hire soldiers, and with soldiers extort money. and, when their authority is denied, the first use they always make of money, is to hire soldiers to kill or subdue all who refuse them more money. for this reason, whoever desires liberty, should understand these vital facts, viz.: . that every man who puts money into the hands of a "government" (so called), puts into its hands a sword which will be used against himself, to extort more money from him, and also to keep him in subjection to its arbitrary will. . that those who will take his money, without his consent, in the first place, will use it for his further robbery and enslavement, if he presumes to resist their demands in the future. . that it is a perfect absurdity to suppose that any body of men would ever take a man's money without his consent, for any such object as they profess to take it for, viz., that of protecting him; for why should they wish to protect him, if he does not wish them to do so? to suppose that they would do so, is just as absurd as it would be to suppose that they would take his money without his consent, for the purpose of buying food or clothing for him, when he did not want it. . if a man wants "protection," he is competent to make his own bargains for it; and nobody has any occasion to rob him, in order to "protect" him against his will. . that the only security men can have for their political liberty, consists in their keeping their money in their own pockets, until they have assurances, perfectly satisfactory to themselves, that it will be used as they wish it to be used, for their benefit, and not for their injury. . that no government, so called, can reasonably be trusted for a moment, or reasonably be supposed to have honest purposes in view, any longer than it depends wholly upon voluntary support. these facts are all so vital and so self-evident, that it cannot reasonably be supposed that any one will voluntarily pay money to a "government," for the purpose of securing its protection, unless he first makes an explicit and purely voluntary contract with it for that purpose. it is perfectly evident, therefore, that neither such voting, nor such payment of taxes, as actually takes place, proves anybody's consent, or obligation, to support the constitution. consequently we have no evidence at all that the constitution is binding upon anybody, or that anybody is under any contract or obligation whatever to support it. and nobody is under any obligation to support it. iv. _the constitution not only binds nobody now, but it never did bind anybody._ it never bound anybody, because it was never agreed to by anybody in such a manner as to make it, on general principles of law and reason, binding upon him. it is a general principle of law and reason, that a _written_ instrument binds no one until he has signed it. this principle is so inflexible a one, that even though a man is unable to write his name, he must still "make his mark," before he is bound by a written contract. this custom was established ages ago, when few men could write their names; when a clerk--that is, a man who could write--was so rare and valuable a person, that even if he were guilty of high crimes, he was entitled to pardon, on the ground that the public could not afford to lose his services. even at that time, a written contract must be signed; and men who could not write, either "made their mark," or signed their contracts by stamping their seals upon wax affixed to the parchment on which their contracts were written. hence the custom of affixing seals, that has continued to this time. the law holds, and reason declares, that if a written instrument is not signed, the presumption must be that the party to be bound by it, did not choose to sign it, or to bind himself by it. and law and reason both give him until the last moment, in which to decide whether he will sign it, or not. neither law nor reason requires or expects a man to agree to an instrument, _until it is written_; for until it is written, he cannot know its precise legal meaning. and when it is written, and he has had the opportunity to satisfy himself of its precise legal meaning, he is then expected to decide, and not before, whether he will agree to it or not. and if he does not _then_ sign it, his reason is supposed to be, that he does not choose to enter into such a contract. the fact that the instrument was written for him to sign, or with the hope that he would sign it, goes for nothing. where would be the end of fraud and litigation, if one party could bring into court a written instrument, without any signature, and claim to have it enforced, upon the ground that it was written for another man to sign? that this other man had promised to sign it? that he ought to have signed it? that he had had the opportunity to sign it, if he would? but that he had refused or neglected to do so? yet that is the most that could ever be said of the constitution.[c] the very judges, who profess to derive all their authority from the constitution--from an instrument that nobody ever signed--would spurn any other instrument, not signed, that should be brought before them for adjudication. moreover, a written instrument must, in law and reason, not only be signed, but must also be delivered to the party (or to some one for him), in whose favor it is made, before it can bind the party making it. the signing is of no effect, unless the instrument be also delivered. and a party is at perfect liberty to refuse to deliver a written instrument, after he has signed it. he is as free to refuse to deliver it, as he is to refuse to sign it. the constitution was not only never signed by anybody, but it was never delivered by anybody, or to anybody's agent or attorney. it can therefore be of no more validity as a contract, than can any other instrument, that was never signed or delivered. v. as further evidence of the general sense of mankind, as to the practical necessity there is that all men's _important_ contracts, especially those of a permanent nature, should be both written and signed, the following facts are pertinent. for nearly two hundred years--that is, since --there has been on the statute book of england, and the same, in substance, if not precisely in letter, has been re-enacted, and is now in force, in nearly or quite all the states of this union, a statute, the general object of which is to declare that no action shall be brought to enforce contracts of the more important class, _unless they are put in writing, and signed by the parties to be held chargeable upon them_.[d] the principle of the statute, be it observed, is, not merely that written contracts shall be signed, but also that all contracts, except those specially exempted--generally those that are for small amounts, and are to remain in force but for a short time--_shall be both written and signed_. the reason of the statute, on this point, is, that it is now so easy a thing for men to put their contracts in writing, and sign them, and their failure to do so opens the door to so much doubt, fraud, and litigation, that men who neglect to have their contracts--of any considerable importance--written and signed, ought not to have the benefit of courts of justice to enforce them. and this reason is a wise one; and that experience has confirmed its wisdom and necessity, is demonstrated by the fact that it has been acted upon in england for nearly two hundred years, and has been so nearly universally adopted in this country, and that nobody thinks of repealing it. we all know, too, how careful most men are to have their contracts written and signed, even when this statute does not require it. for example, most men, if they have money due them, of no larger amount than five or ten dollars, are careful to take a note for it. if they buy even a small bill of goods, paying for it at the time of delivery, they take a receipted bill for it. if they pay a small balance of a book account, or any other small debt previously contracted, they take a written receipt for it. furthermore, the law everywhere (probably) in our country, as well as in england, requires that a large class of contracts, such as wills, deeds, etc., shall not only be written and signed, but also sealed, witnessed, and acknowledged. and in the case of married women conveying their rights in real estate, the law, in many states, requires that the women shall be examined separate and apart from their husbands, and declare that they sign their contracts free of any fear or compulsion of their husbands. such are some of the precautions which the laws require, and which individuals--from motives of common prudence, even in cases not required by law--take, to put their contracts in writing, and have them signed, and, to guard against all uncertainties and controversies in regard to their meaning and validity. and yet we have what purports, or professes, or is claimed, to be a contract--the constitution--made eighty years ago, by men who are now all dead, and who never had any power to bind _us_, but which (it is claimed) has nevertheless bound three generations of men, consisting of many millions, and which (it is claimed) will be binding upon all the millions that are to come; but which nobody ever signed, sealed, delivered, witnessed, or acknowledged; and which few persons, compared with the whole number that are claimed to be bound by it, have ever read, or even seen, or ever will read, or see. and of those who ever have read it, or ever will read it, scarcely any two, perhaps no two, have ever agreed, or ever will agree, as to what it means. moreover, this supposed contract, which would not be received in any court of justice sitting under its authority, if offered to prove a debt of five dollars, owing by one man to another, is one by which--_as it is generally interpreted by those who pretend to administer it_--all men, women and children throughout the country, and through all time, surrender not only all their property, but also their liberties, and even lives, into the hands of men who by this supposed contract, are expressly made wholly irresponsible for their disposal of them. and we are so insane, or so wicked, as to destroy property and lives without limit, in fighting to compel men to fulfill a supposed contract, which, inasmuch as it has never been signed by anybody, is, on general principles of law and reason--such principles as we are all governed by in regard to other contracts--the merest waste paper, binding upon nobody, fit only to be thrown into the fire; or, if preserved, preserved only to serve as a witness and a warning of the folly and wickedness of mankind. vi. it is no exaggeration, but a literal truth, to say that, by the constitution--_not as i interpret it, but as it is interpreted by those who pretend to administer it_--the properties, liberties, and lives of the entire people of the united states are surrendered unreservedly into the hands of men who, it is provided by the constitution itself, shall never be "questioned" as to any disposal they make of them. thus the constitution (art. i, sec. ) provides that, "for any speech or debate (or vote), in either house, they (the senators and representatives) shall not be questioned in any other place." the whole law-making power is given to these senators and representatives (when acting by a two-thirds vote)[e]; and this provision protects them from all responsibility for the laws they make. the constitution also enables them to secure the execution of all their laws, by giving them power to withhold the salaries of, and to impeach and remove, all judicial and executive officers, who refuse to execute them. thus the whole power of the government is in their hands, and they are made utterly irresponsible for the use they make of it. what is this but absolute, irresponsible power? it is no answer to this view of the case to say that these men are under oath to use their power only within certain limits; for what care they, or what should they care, for oaths or limits, when it is expressly provided, by the constitution itself, that they shall never be "questioned," or held to any responsibility whatever, for violating their oaths, or transgressing those limits? neither is it any answer to this view of the case to say that the particular individuals holding this power can be changed once in two or six years; for the power of each set of men is absolute during the term for which they hold it; and when they can hold it no longer, they are succeeded only by men whose power will be equally absolute and irresponsible. neither is it any answer to this view of the case to say that the men holding this absolute, irresponsible power, must be men chosen by the people (or portions of them) to hold it. a man is none the less a slave because he is allowed to choose a new master once in a term of years. neither are a people any the less slaves because permitted periodically to choose new masters. what makes them slaves is the fact that they now are, and are always hereafter to be, in the hands of men whose power over them is, and always is to be, absolute and irresponsible.[f] the right of absolute and irresponsible dominion is the right of property, and the right of property is the right of absolute, irresponsible dominion. the two are identical; the one necessarily implying the other. neither can exist without the other. if, therefore, congress have that absolute and irresponsible law-making power, which the constitution--according to their interpretation of it--gives them, it can only be because they own us as property. if they own us as property, they are our masters, and their will is our law. if they do not own us as property, they are not our masters, and their will, as such, is of no authority over us. but these men who claim and exercise this absolute and irresponsible dominion over us, dare not be consistent, and claim either to be our masters, or to own us as property. they say they are only our servants, agents, attorneys, and representatives. but this declaration involves an absurdity, a contradiction. no man can be my servant, agent, attorney, or representative, and be, at the same time, uncontrollable by me, and irresponsible to me for his acts. it is of no importance that i appointed him, and put all power in his hands. if i made him uncontrollable by me, and irresponsible to me, he is no longer my servant, agent, attorney, or representative. if i gave him absolute, irresponsible power over my property, i gave him the property. if i gave him absolute, irresponsible power over myself, i made him my master, and gave myself to him as a slave. and it is of no importance whether i called him master or servant, agent or owner. the only question is, what power did i put into his hands? was it an absolute and irresponsible one? or a limited and responsible one? for still another reason they are neither our servants, agents, attorneys, nor representatives. and that reason is, that we do not make ourselves responsible for their acts. if a man is my servant, agent, or attorney, i necessarily make myself responsible for all his acts done within the limits of the power i have intrusted to him. if i have intrusted him, as my agent, with either absolute power, or any power at all, over the persons or properties of other men than myself, i thereby necessarily make myself responsible to those other persons for any injuries he may do them, so long as he acts within the limits of the power i have granted him. but no individual who may be injured in his person or property, by acts of congress, can come to the individual electors, and hold them responsible for these acts of their so-called agents or representatives. this fact proves that these pretended agents of the people, of everybody, are really the agents of nobody. if, then, nobody is individually responsible for the acts of congress, the members of congress are nobody's agents. and if they are nobody's agents, they are themselves individually responsible for their own acts, and for the acts of all whom they employ. and the authority they are exercising is simply their own individual authority; and, by the law of nature--the highest of all laws--anybody injured by their acts, anybody who is deprived by them of his property or his liberty, has the same right to hold them individually responsible, that he has to hold any other trespasser individually responsible. he has the same right to resist them, and their agents, that he has to resist any other trespassers. vii. it is plain, then, that on general principles of law and reason--such principles as we all act upon in courts of justice and in common life--the constitution is no contract; that it binds nobody, and never did bind anybody; and that all those who pretend to act by its authority, are really acting without any legitimate authority at all; that, on general principles of law and reason, they are mere usurpers, and that everybody not only has the right, but is morally bound, to treat them as such. if the people of this country wish to maintain such a government as the constitution describes, there is no reason in the world why they should not sign the instrument itself, and thus make known their wishes in an open, authentic manner; in such manner as the common sense and experience of mankind have shown to be reasonable and necessary in such cases; _and in such manner as to make themselves (as they ought to do) individually responsible for the acts of the government_. but the people have never been asked to sign it. and the only reason why they have never been asked to sign it, has been that it has been known that they never would sign it; that they were neither such fools nor knaves as they must needs have been to be willing to sign it; that (at least as it has been practically interpreted) it is not what any sensible and honest man wants for himself; nor such as he has any right to impose upon others. it is, to all moral intents and purposes, as destitute of obligation as the compacts which robbers and thieves and pirates enter into with each other, but never sign. if any considerable number of the people believe the constitution to be good, why do they not sign it themselves, and make laws for, and administer them upon, each other; leaving all other persons (who do not interfere with them) in peace? until they have tried the experiment for themselves, how can they have the face to impose the constitution upon, or even to recommend it to, others? plainly the reason for such absurd and inconsistent conduct is that they want the constitution, not solely for any honest or legitimate use it can be of to themselves or others, but for the dishonest and illegitimate power it gives them over the persons and properties of others. but for this latter reason, all their eulogiums on the constitution, all their exhortations, and all their expenditures of money and blood to sustain it, would be wanting. viii. the constitution itself, then, being of no authority, on what authority does our government practically rest? on what ground can those who pretend to administer it, claim the right to seize men's property, to restrain them of their natural liberty of action, industry, and trade, and to kill all who deny their authority to dispose of men's properties, liberties, and lives at their pleasure or discretion? the most they can say, in answer to this question, is, that some half, two-thirds, or three-fourths, of the male adults of the country have a _tacit understanding_ that they will maintain a government under the constitution; that they will select, by ballot, the persons to administer it; and that those persons who may receive a majority, or a plurality, of their ballots, shall act as their representatives, and administer the constitution in their name, and by their authority. but this tacit understanding (admitting it to exist) cannot at all justify the conclusion drawn from it. a tacit understanding between a, b, and c, that they will, by ballot, depute d as their agent, to deprive me of my property, liberty, or life, cannot at all authorize d to do so. he is none the less a robber, tyrant, and murderer, because he claims to act as their agent, than he would be if he avowedly acted on his own responsibility alone. neither am i bound to recognize him as their agent, nor can he legitimately claim to be their agent, when he brings no _written_ authority from them accrediting him as such. i am under no obligation to take his word as to who his principals may be, or whether he has any. bringing no credentials, i have a right to say he has no such authority even as he claims to have: and that he is therefore intending to rob, enslave, or murder me on his own account. this tacit understanding, therefore, among the voters of the country, amounts to nothing as an authority to their agents. neither do the ballots by which they select their agents, avail any more than does their tacit understanding; for their ballots are given in secret, and therefore in a way to avoid any personal responsibility for the acts of their agents. no body of men can be said to authorize a man to act as their agent, to the injury of a third person, unless they do it in so open and authentic a manner as to make themselves personally responsible for his acts. none of the voters in this country appoint their political agents in any open, authentic manner, or in any manner to make themselves responsible for their acts. therefore these pretended agents cannot legitimately claim to be really agents. somebody must be responsible for the acts of these pretended agents; and if they cannot show any open and authentic credentials from their principals, they cannot, in law or reason, be said to have any principals. the maxim applies here, that what does not appear, does not exist. if they can show no principals, they have none. but even these pretended agents do not themselves know who their pretended principals are. these latter act in secret; for acting by secret ballot is acting in secret as much as if they were to meet in secret conclave in the darkness of the night. and they are personally as much unknown to the agents they select, as they are to others. no pretended agent therefore can ever know by whose ballots he is selected, or consequently who his real principals are. not knowing who his principals are, he has no right to say that he has any. he can, at most, say only that he is the agent of a secret band of robbers and murderers, who are bound by that faith which prevails among confederates in crime, to stand by him, if his acts, done in their name, shall be resisted. men honestly engaged in attempting to establish justice in the world, have no occasion thus to act in secret; or to appoint agents to do acts for which they (the principals) are not willing to be responsible. the secret ballot makes a secret government; and a secret government is a secret band of robbers and murderers. open despotism is better than this. the single despot stands out in the face of all men, and says: i am the state: my will is law: i am your master: i take the responsibility of my acts: the only arbiter i acknowledge is the sword: if any one denies my right, let him try conclusions with me. but a secret government is little less than a government of assassins. under it, a man knows not who his tyrants are, until they have struck, and perhaps not then. he may _guess_, beforehand, as to some of his immediate neighbors. but he really knows nothing. the man to whom he would most naturally fly for protection, may prove an enemy, when the time of trial comes. this is the kind of government we have; and it is the only one we are likely to have, until men are ready to say: we will consent to no constitution, except such an one as we are neither ashamed nor afraid to sign; and we will authorize no government to do anything in our name which we are not willing to be personally responsible for. ix. what is the motive to the secret ballot? this, and only this: like other confederates in crime, those who use it are not friends, but enemies; and they are afraid to be known, and to have their individual doings known, even to each other. they can contrive to bring about a sufficient understanding to enable them to act in concert against other persons; but beyond this they have no confidence, and no friendship, among themselves. in fact, they are engaged quite as much in schemes for plundering each other, as in plundering those who are not of them. and it is perfectly well understood among them that the strongest party among them will, in certain contingencies, murder each other by the hundreds of thousands (as they lately did do) to accomplish their purposes against each other. hence they dare not be known, and have their individual doings known, even to each other. and this is avowedly the only reason for the ballot: for a secret government; a government by secret bands of robbers and murderers. and we are insane enough to call this liberty! to be a member of this secret band of robbers and murderers is esteemed a privilege and an honor! without this privilege, a man is considered a slave; but with it a free man! with it he is considered a free man, because he has the same power to secretly (by secret ballot) procure the robbery, enslavement, and murder of another man, and that other man has to procure his robbery, enslavement, and murder. and this they call equal rights! if any number of men, many or few, claim the right to govern the people of this country, let them make and sign an open compact with each other to do so. let them thus make themselves individually known to those whom they propose to govern. and let them thus openly take the legitimate responsibility of their acts. how many of those who now support the constitution, will ever do this? how many will ever dare openly proclaim their right to govern? or take the legitimate responsibility of their acts? not one! x. it is obvious that, on general principles of law and reason, there exists no such thing as a government created by, or resting upon, any consent, compact, or agreement of "the people of the united states" with each other; that the only visible, tangible, responsible government that exists, is that of a few individuals only, who act in concert, and call themselves by the several names of senators, representatives, presidents, judges, marshals, treasurers, collectors, generals, colonels, captains, etc., etc. on general principles of law and reason, it is of no importance whatever that those few individuals profess to be the agents and representatives of "the people of the united states"; since they can show no credentials from the people themselves; they were never appointed as agents or representatives in any open, authentic manner; they do not themselves know, and have no means of knowing, and cannot prove, who their principals (as they call them) are individually; and consequently cannot, in law or reason, be said to have any principals at all. it is obvious, too, that if these alleged principals ever did appoint these pretended agents, or representatives, they appointed them secretly (by secret ballot), and in a way to avoid all personal responsibility for their acts; that, at most, these alleged principals put these pretended agents forward for the most criminal purposes, viz: to plunder the people of their property, and restrain them of their liberty; and that the only authority that these alleged principals have for so doing, is simply a _tacit understanding_ among themselves that they will imprison, shoot, or hang every man who resists the exactions and restraints which their agents or representatives may impose upon them. thus it is obvious that the only visible, tangible government we have is made up of these professed agents or representatives of a secret band of robbers and murderers, who, to cover up, or gloss over, their robberies and murders, have taken to themselves the title of "the people of the united states"; and who, on the pretense of being "the people of the united states," assert their right to subject to their dominion, and to control and dispose of at their pleasure, all property and persons found in the united states. xi. on general principles of law and reason, the oaths which these pretended agents of the people take "to support the constitution," are of no validity or obligation. and why? for this, if for no other reason, viz., _that they are given to nobody_. there is no privity (as the lawyers say)--that is, no mutual recognition, consent, and agreement--between those who take these oaths, and any other persons. if i go upon boston common, and in the presence of a hundred thousand people, men, women and children, with whom i have no contract on the subject, take an oath that i will enforce upon them the laws of moses, of lycurgus, of solon, of justinian, or of alfred, that oath is, on general principles of law and reason, of no obligation. it is of no obligation, not merely because it is intrinsically a criminal one, _but also because it is given to nobody_, and consequently pledges my faith to nobody. it is merely given to the winds. it would not alter the case at all to say that, among these hundred thousand persons, in whose presence the oath was taken, there were two, three, or five thousand male adults, who had _secretly_--by secret ballot, and in a way to avoid making themselves _individually_ known to me, or to the remainder of the hundred thousand--designated me as their agent to rule, control, plunder, and, if need be, murder, these hundred thousand people. the fact that they had designated me secretly, and in a manner to prevent my knowing them individually, prevents all privity between them and me; and consequently makes it impossible that there can be any contract, or pledge of faith, on my part towards them; for it is impossible that i can pledge my faith, in any legal sense, to a man whom i neither know, nor have any means of knowing, individually. so far as i am concerned, then, these two, three, or five thousand persons are a secret band of robbers and murderers, who have secretly, and in a way to save themselves from all responsibility for my acts, designated me as their agent; and have, through some other agent, or pretended agent, made their wishes known to me. but being, nevertheless, individually unknown to me, and having no open, authentic contract with me, my oath is, on general principles of law and reason, of no validity as a pledge of faith to them. and being no pledge of faith to them, it is no pledge of faith to anybody. it is mere idle wind. at most, it is only a pledge of faith to an unknown band of robbers and murderers, whose instrument for plundering and murdering other people, i thus publicly confess myself to be. and it has no other obligation than a similar oath given to any other unknown body of pirates, robbers, and murderers. for these reasons the oaths taken by members of congress, "to support the constitution," are, on general principles of law and reason, of no validity. they are not only criminal in themselves, and therefore void; but they are also void for the further reason _that they are given to nobody_. it cannot be said that, in any legitimate or legal sense, they are given to "the people of the united states"; because neither the whole, nor any large proportion of the whole, people of the united states ever, either openly or secretly, appointed or designated these men as their agents to carry the constitution into effect. the great body of the people--that is, men, women and children--were never asked, or even permitted, to signify, in any _formal_ manner, either openly or secretly, their choice or wish on the subject. the most that these members of congress can say, in favor of their appointment, is simply this: each one can say for himself: i have evidence satisfactory to myself, that there exists, scattered throughout the country, a band of men, having a tacit understanding with each other, and calling themselves "the people of the united states," whose general purposes are to control and plunder each other, and all other persons in the country, and, so far as they can, even in neighboring countries; and to kill every man who shall attempt to defend his person and property against their schemes of plunder and dominion. who these men are, _individually_, i have no certain means of knowing, for they sign no papers, and give no open, authentic evidence of their individual membership. they are not known individually even to each other. they are apparently as much afraid of being individually known to each other, as of being known to other persons. hence they ordinarily have no mode either of exercising, or of making known, their individual membership, otherwise than by giving their votes secretly for certain agents to do their will. but although these men are individually unknown, both to each other and to other persons, it is generally understood in the country that none but male persons, of the age of twenty-one years and upwards, can be members. it is also generally understood that _all_ male persons, born in the country, having certain complexions, and (in some localities) certain amounts of property, and (in certain cases) even persons of foreign birth, are _permitted_ to be members. but it appears that usually not more than one half, two-thirds, or, in some cases, three-fourths, of all who are thus permitted to become members of the band, ever exercise, or consequently prove, their actual membership, in the only mode in which they ordinarily can exercise or prove it, viz., by giving their votes secretly for the officers or agents of the band. the number of these secret votes, so far as we have any account of them, varies greatly from year to year, thus tending to prove that the band, instead of being a permanent organization, is a merely _pro tempore_ affair with those who choose to act with it for the time being. the gross number of these secret votes, or what purports to be their gross number, in different localities, is occasionally published. whether these reports are accurate or not, we have no means of knowing. it is generally supposed that great frauds are often committed in depositing them. they are understood to be received and counted by certain men, who are themselves appointed for that purpose by the same secret process by which all other officers and agents of the band are selected. according to the reports of these receivers of votes (for whose accuracy or honesty, however, i cannot vouch), and according to my best knowledge of the whole number of male persons "in my district," who (it is supposed) were permitted to vote, it would appear that one-half, two-thirds or three-fourths actually did vote. who the men were, individually, who cast these votes, i have no knowledge, for the whole thing was done secretly. but of the secret votes thus given for what they call a "member of congress," the receivers reported that i had a majority, or at least a larger number than any other one person. and it is only by virtue of such a designation that i am now here to act in concert with other persons similarly selected in other parts of the country. it is understood among those who sent me here, that all the persons so selected, will, on coming together at the city of washington, take an oath in each other's presence "to support the constitution of the united states." by this is meant a certain paper that was drawn up eighty years ago. it was never signed by anybody, and apparently has no obligation, and never had any obligation, as a contract. in fact, few persons ever read it, and doubtless much the largest number of those who voted for me and the others, never even saw it, or now pretend to know what it means. nevertheless, it is often spoken of in the country as "the constitution of the united states"; and for some reason or another, the men who sent me here, seem to expect that i, and all with whom i act, will swear to carry this constitution into effect. i am therefore ready to take this oath, and to co-operate with all others, similarly selected, who are ready to take the same oath. this is the most that any member of congress can say in proof that he has any constituency; that he represents anybody; that his oath "to support the constitution," _is given to anybody_, or pledges his faith to _anybody_. he has no open, written, or other authentic evidence, such as is required in all other cases, that he was ever appointed the agent or representative of anybody. he has no written power of attorney from any single individual. he has no such legal knowledge as is required in all other cases, by which he can identify a single one of those who pretend to have appointed him to represent them. of course his oath, professedly given to them, "to support the constitution," is, on general principles of law and reason, an oath given to nobody. it pledges his faith to nobody. if he fails to fulfil his oath, not a single person can come forward, and say to him, you have betrayed me, or broken faith with me. no one can come forward and say to him: i appointed you my attorney to act for me. i required you to swear that, as my attorney, you would support the constitution. you promised me that you would do so; and now you have forfeited the oath you gave to me. no single individual can say this. no open, avowed, or responsible association, or body of men, can come forward and say to him: we appointed you our attorney, to act for us. we required you to swear that, as our attorney, you would support the constitution. you promised us that you would do so; and now you have forfeited the oath you gave to us. no open, avowed, or responsible association, or body of men, can say this to him; because there is no such association or body of men in existence. if any one should assert that there is such an association, let him prove, if he can, who compose it. let him produce, if he can, any open, written, or other authentic contract, signed or agreed to by these men; forming themselves into an association; making themselves known as such to the world; appointing him as their agent; and making themselves individually, or as an association, responsible for his acts, done by their authority. until all this can be shown, no one can say that, in any legitimate sense, there is any such association; or that he is their agent; or that he ever gave his oath to them; or ever pledged his faith to them. on general principles of law and reason, it would be a sufficient answer for him to say, to all individuals, and all pretended associations of individuals, who should accuse him of a breach of faith to them: i never knew you. where is your evidence that you, either individually or collectively, ever appointed me your attorney? that you ever required me to swear to you, that, as your attorney, i would support the constitution? or that i have now broken any faith i ever pledged to you? you may, or you may not, be members of that secret band of robbers and murderers, who act in secret; appoint their agents by a secret ballot; who keep themselves individually unknown even to the agents they thus appoint; and who, therefore, cannot claim that they have any agents; or that any of their pretended agents ever gave his oath, or pledged his faith, to them. i repudiate you altogether. my oath was given to others, with whom you have nothing to do; or it was idle wind, given only to the idle winds. begone! xii. for the same reasons, the oaths of all the other pretended agents of this secret band of robbers and murderers are, on general principles of law and reason, equally destitute of obligation. they are given to nobody; but only to the winds. the oaths of the tax-gatherers and treasurers of the band, are, on general principles of law and reason, of no validity. if any tax gatherer, for example, should put the money he receives into his own pocket, and refuse to part with it, the members of this band could not say to him: you collected that money as our agent, and for our uses; and you swore to pay it over to us, or to those we should appoint to receive it. you have betrayed us, and broken faith with us. it would be a sufficient answer for him to say to them: i never knew you. you never made yourselves individually known to me. i never gave my oath to you, as individuals. you may, or you may not, be members of that secret band, who appoint agents to rob and murder other people; but who are cautious not to make themselves individually known, either to such agents, or to those whom their agents are commissioned to rob. if you are members of that band, you have given me no proof that you ever commissioned me to rob others for your benefit. i never knew you, as individuals, and of course never promised you that i would pay over to you the proceeds of my robberies. i committed my robberies on my own account, and for my own profit. if you thought i was fool enough to allow you to keep yourselves concealed, and use me as your tool for robbing other persons; or that i would take all the personal risk of the robberies, and pay over the proceeds to you, you were particularly simple. as i took all the risk of my robberies, i propose to take all the profits. begone! you are fools, as well as villains. if i gave my oath to anybody, i gave it to other persons than you. but i really gave it to nobody. i only gave it to the winds. it answered my purposes at the time. it enabled me to get the money i was after, and now i propose to keep it. if you expected me to pay it over to you, you relied only upon that honor that is said to prevail among thieves. you now understand that that is a very poor reliance. i trust you may become wise enough to never rely upon it again. if i have any duty in the matter, it is to give back the money to those from whom i took it; not to pay it over to such villains as you. xiii. on general principles of law and reason, the oaths which foreigners take, on coming here, and being "naturalized" (as it is called), are of no validity. they are necessarily given to nobody; because there is no open, authentic association, to which they can join themselves; or to whom, as individuals, they can pledge their faith. no such association, or organization, as "the people of the united states," having ever been formed by any open, written, authentic, or voluntary contract, there is, on general principles of law and reason, no such association, or organization, in existence. and all oaths that purport to be given to such an association are necessarily given only to the winds. they cannot be said to be given to any man, or body of men, as individuals, because no man, or body of men, can come forward _with any proof_ that the oaths were given to them, as individuals, or to any association of which they are members. to say that there is a tacit understanding among a portion of the male adults of the country, that they will call themselves "the people of the united states," and that they will act in concert in subjecting the remainder of the people of the united states to their dominion; but that they will keep themselves personally concealed by doing all their acts secretly, is wholly insufficient, on general principles of law and reason, to prove the existence of any such association, or organization, as "the people of the united states"; or consequently to prove that the oaths of foreigners were given to any such association. xiv. on general principles of law and reason, all the oaths which, since the war, have been given by southern men, that they will obey the laws of congress, support the union, and the like, are of no validity. such oaths are invalid, not only because they were extorted by military power, and threats of confiscation, and because they are in contravention of men's natural right to do as they please about supporting the government, _but also because they were given to nobody_. they were nominally given to "the united states." but being nominally given to "the united states," they were necessarily given to nobody, because, on general principles of law and reason, there were no "united states," to whom the oaths could be given. that is to say, there was no open, authentic, avowed, legitimate association, corporation, or body of men, known as "the united states," or as "the people of the united states," to whom the oaths could have been given. if anybody says there was such a corporation, let him state who were the individuals that composed it, and how and when they became a corporation. were mr. a, mr. b, and mr. c members of it? if so, where are their signatures? where the evidence of their membership? where the record? where the open, authentic proof? there is none. therefore, in law and reason, there was no such corporation. on general principles of law and reason, every corporation, association, or organized body of men, having a legitimate corporate existence, and legitimate corporate rights, must consist of certain known individuals, who can prove, by legitimate and reasonable evidence, their membership. but nothing of this kind can be proved in regard to the corporation, or body of men, who call themselves "the united states." not a man of them, in all the northern states, can prove by any legitimate evidence, such as is required to prove membership in other legal corporations, that he himself, or any other man whom he can name, is a member of any corporation or association called "the united states," or "the people of the united states," or, consequently, that there is any such corporation. and since no such corporation can be proved to exist, it cannot of course be proved that the oaths of southern men were given to any such corporation. the most that can be claimed is that the oaths were given to a secret band of robbers and murderers, who called themselves "the united states," and extorted those oaths. but that certainly is not enough to prove that the oaths are of any obligation. xv. on general principles of law and reason, the oaths of soldiers, that they will serve a given number of years, that they will obey the orders of their superior officers, that they will bear true allegiance to the government, and so forth, are of no obligation. independently of the criminality of an oath, that, for a given number of years, he will kill all whom he may be commanded to kill, without exercising his own judgment or conscience as to the justice or necessity of such killing, there is this further reason why a soldier's oath is of no obligation, viz., that, like all the other oaths that have now been mentioned, _it is given to nobody_. there being, in no legitimate sense, any such corporation, or nation, as "the united states," nor, consequently, in any legitimate sense, any such government as "the government of the united states," a soldier's oath given to, or contract made with, such nation or government, is necessarily an oath given to, or a contract made with, nobody. consequently such oath or contract can be of no obligation. xvi. on general principles of law and reason, the treaties, so called, which purport to be entered into with other nations, by persons calling themselves ambassadors, secretaries, presidents, and senators of the united states, in the name, and in behalf, of "the people of the united states," are of no validity. these so-called ambassadors, secretaries, presidents, and senators, who claim to be the agents of "the people of the united states," for making these treaties, can show no open, written, or other authentic evidence that either the whole "people of the united states," or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors and others to make treaties in the name of, or binding upon any one of, "the people of the united states," or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors, secretaries, and others, in their name and behalf, to recognize certain other persons, calling themselves emperors, kings, queens, and the like, as the rightful rulers, sovereigns, masters, or representatives of the different peoples whom they assume to govern, to represent, and to bind. the "nations," as they are called, with whom our pretended ambassadors, secretaries, presidents, and senators profess to make treaties, are as much myths as our own. on general principles of law and reason, there are no such "nations." that is to say, neither the whole people of england, for example, nor any open, avowed, responsible body of men, calling themselves by that name, ever, by any open, written, or other authentic contract with each other, formed themselves into any bona fide, legitimate association or organization, or authorized any king, queen, or other representative to make treaties in their name, or to bind them, either individually, or as an association, by such treaties. our pretended treaties, then, being made with no legitimate or bona fide nations, or representatives of nations, and being made, on our part, by persons who have no legitimate authority to act for us, have intrinsically no more validity than a pretended treaty made by the man in the moon with the king of the pleiades. xvii. on general principles of law and reason, debts contracted in the name of "the united states," or of "the people of the united states," are of no validity. it is utterly absurd to pretend that debts to the amount of twenty-five hundred millions of dollars are binding upon thirty-five or forty millions of people, when there is not a particle of legitimate evidence--such as would be required to prove a private debt--that can be produced against any one of them, that either he, or his properly authorized attorney, ever contracted to pay one cent. certainly, neither the whole people of the united states, nor any number of them, ever separately or individually contracted to pay a cent of these debts. certainly, also, neither the whole people of the united states, nor any number of them, ever, by any open, written, or other authentic and voluntary contract, united themselves as a firm, corporation, or association, by the name of "the united states," or "the people of the united states," and authorized their agents to contract debts in their name. certainly, too, there is in existence no such firm, corporation, or association as "the united states," or "the people of the united states," formed by any open, written, or other authentic and voluntary contract, and having corporate property with which to pay these debts. how, then, is it possible, on any general principle of law or reason, that debts that are binding upon nobody individually, can be binding upon forty millions of people collectively, when, on general and legitimate principles of law and reason, these forty millions of people neither have, nor ever had, any corporate property? never made any corporate or individual contract? and neither have, nor ever had, any corporate existence? who, then, created these debts, in the name of "the united states"? why, at most, only a few persons, calling themselves "members of congress," etc., who pretended to represent "the people of the united states," but who really represented only a secret band of robbers and murderers, who wanted money to carry on the robberies and murders in which they were then engaged; and who intended to extort from the future people of the united states, by robbery and threats of murder (and real murder, if that should prove necessary), the means to pay these debts. this band of robbers and murderers, who were the real principals in contracting these debts, is a secret one, because its members have never entered into any open, written, avowed, or authentic contract, by which they may be individually known to the world, or even to each other. their real or pretended representatives, who contracted these debts in their name, were selected (if selected at all) for that purpose secretly (by secret ballot), and in a way to furnish evidence against none of the principals _individually_; and these principals were really known _individually_ neither to their pretended representatives who contracted these debts in their behalf, nor to those who lent the money. the money, therefore, was all borrowed and lent in the dark; that is, by men who did not see each other's faces, or know each other's names; who could not then, and cannot now, identify each other as principals in the transactions; and who consequently can prove no contract with each other. furthermore, the money was all lent and borrowed for criminal purposes; that is, for purposes of robbery and murder; and for this reason the contracts were all intrinsically void; and would have been so, even though the real parties, borrowers and lenders, had come face to face, and made their contracts openly, in their own proper names. furthermore, this secret band of robbers and murderers, who were the real borrowers of this money, having no legitimate corporate existence, have no corporate property with which to pay these debts. they do indeed pretend to own large tracts of wild lands, lying between the atlantic and pacific oceans, and between the gulf of mexico and the north pole. but, on general principles of law and reason, they might as well pretend to own the atlantic and pacific oceans themselves; or the atmosphere and the sunlight; and to hold them, and dispose of them, for the payment of these debts. having no corporate property with which to pay what purports to be their corporate debts, this secret band of robbers and murderers are really bankrupt. they have nothing to pay with. in fact, they do not propose to pay their debts otherwise than from the proceeds of their future robberies and murders. these are confessedly their sole reliance; and were known to be such by the lenders of the money, at the time the money was lent. and it was, therefore, virtually a part of the contract, that the money should be repaid only from the proceeds of these future robberies and murders. for this reason, if for no other, the contracts were void from the beginning. in fact, these apparently two classes, borrowers and lenders, were really one and the same class. they borrowed and lent money from and to themselves. they themselves were not only part and parcel, but the very life and soul, of this secret band of robbers and murderers, who borrowed and spent the money. individually they furnished money for a common enterprise; taking, in return, what purported to be corporate promises for individual loans. the only excuse they had for taking these so-called corporate promises of, for individual loans by, the same parties, was that they might have some apparent excuse for the future robberies of the band (that is, to pay the debts of the corporation), and that they might also know what shares they were to be respectively entitled to out of the proceeds of their future robberies. finally, if these debts had been created for the most innocent and honest purposes, and in the most open and honest manner, by the real parties to the contracts, these parties could thereby have bound nobody but themselves, and no property but their own. they could have bound nobody that should have come after them, and no property subsequently created by, or belonging to, other persons. xviii. the constitution having never been signed by anybody; and there being no other open, written, or authentic contract between any parties whatever, by virtue of which the united states government, so called, is maintained; and it being well known that none but male persons, of twenty-one years of age and upwards, are allowed any voice in the government; and it being also well known that a large number of these adult persons seldom or never vote at all; and that all those who do vote, do so secretly (by secret ballot), and in a way to prevent their individual votes being known, either to the world, or even to each other; and consequently in a way to make no one openly responsible for the acts of their agents, or representatives,--all these things being known, the questions arise: _who_ compose the real governing power in the country? who are the men, _the responsible men_, who rob us of our property? restrain us of our liberty? subject us to their arbitrary dominion? and devastate our homes, and shoot us down by the hundreds of thousands, if we resist? how shall we find these men? how shall we know them from others? how shall we defend ourselves and our property against them? who, of our neighbors, are members of this secret band of robbers and murderers? how can we know which are _their_ houses, that we may burn or demolish them? which _their_ property, that we may destroy it? which their persons, that we may kill them, and rid the world and ourselves of such tyrants and monsters? these are questions that must be answered, before men can be free; before they can protect themselves against this secret band of robbers and murderers, who now plunder, enslave, and destroy them. the answer to these questions is, that only those who have the will and the power to shoot down their fellow men, are the real rulers in this, as in all other (so-called) civilized countries; for by no others will civilized men be robbed, or enslaved. among savages, mere physical strength, on the part of one man, may enable him to rob, enslave, or kill another man. among barbarians, mere physical strength, on the part of a body of men, disciplined, and acting in concert, though with very little money or other wealth, may, under some circumstances, enable them to rob, enslave, or kill another body of men, as numerous, or perhaps even more numerous, than themselves. and among both savages and barbarians, mere want may sometimes compel one man to sell himself as a slave to another. but with (so-called) civilized peoples, among whom knowledge, wealth, and the means of acting in concert, have become diffused; and who have invented such weapons and other means of defense as to render mere physical strength of less importance; and by whom soldiers in any requisite number, and other instrumentalities of war in any requisite amount, can always be had for money, the question of war, and consequently the question of power, is little else than a mere question of money. as a necessary consequence, those who stand ready to furnish this money, are the real rulers. it is so in europe, and it is so in this country. in europe, the nominal rulers, the emperors and kings and parliaments, are anything but the real rulers of their respective countries. they are little or nothing else than mere tools, employed by the wealthy to rob, enslave, and (if need be) murder those who have less wealth, or none at all. the rothschilds, and that class of money-lenders of whom they are the representatives and agents--men who never think of lending a shilling to their next-door neighbors, for purposes of honest industry, unless upon the most ample security, and at the highest rate of interest--stand ready, at all times, to lend money in unlimited amounts to those robbers and murderers, who call themselves governments, to be expended in shooting down those who do not submit quietly to being robbed and enslaved. they lend their money in this manner, knowing that it is to be expended in murdering their fellow men, for simply seeking their liberty and their rights; knowing also that neither the interest nor the principal will ever be paid, except as it will be extorted under terror of the repetition of such murders as those for which the money lent is to be expended. these money-lenders, the rothschilds, for example, say to themselves: if we lend a hundred millions sterling to the queen and parliament of england, it will enable them to murder twenty, fifty, or a hundred thousand people in england, ireland, or india; and the terror inspired by such wholesale murder, will enable them to keep the whole people of those countries in subjection for twenty, or perhaps fifty, years to come; to control all their trade and industry; and to extort from them large amounts of money, under the name of taxes; and from the wealth thus extorted from them, they (the queen and parliament) can afford to pay us a higher rate of interest for our money than we can get in any other way. or, if we lend this sum to the emperor of austria, it will enable him to murder so many of his people as to strike terror into the rest, and thus enable him to keep them in subjection, and extort money from them, for twenty or fifty years to come. and they say the same in regard to the emperor of russia, the king of prussia, the emperor of france, or any other ruler, so called, who, in their judgment, will be able, by murdering a reasonable portion of his people, to keep the rest in subjection, and extort money from them, for a long time to come, to pay the interest and principal of the money lent him. and why are these men so ready to lend money for murdering their fellow men? solely for this reason, viz., that such loans are considered better investments than loans for purposes of honest industry. they pay higher rates of interest; and it is less trouble to look after them. this is the whole matter. the question of making these loans is, with these lenders, a mere question of pecuniary profit. they lend money to be expended in robbing, enslaving, and murdering their fellow men, solely because, on the whole, such loans pay better than any others. they are no respecters of persons, no superstitious fools, that reverence monarchs. they care no more for a king, or an emperor, than they do for a beggar, except as he is a better customer, and can pay them better interest for their money. if they doubt his ability to make his murders successful for maintaining his power, and thus extorting money from his people in future, they dismiss him as unceremoniously as they would dismiss any other hopeless bankrupt, who should want to borrow money to save himself from open insolvency. when these great lenders of blood-money, like the rothschilds, have loaned vast sums in this way, for purposes of murder, to an emperor or a king, they sell out the bonds taken by them, in small amounts, to anybody, and everybody, who are disposed to buy them at satisfactory prices, to hold as investments. they (the rothschilds) thus soon get back their money, with great profits; and are now ready to lend money in the same way again to any other robber and murderer, called an emperor or a king, who, they think, is likely to be successful in his robberies and murders, and able to pay a good price for the money necessary to carry them on. this business of lending blood-money is one of the most thoroughly sordid, cold-blooded, and criminal that was ever carried on, to any considerable extent, amongst human beings. it is like lending money to slave traders, or to common robbers and pirates, to be repaid out of their plunder. and the men who loan money to governments, so called, for the purpose of enabling the latter to rob, enslave, and murder their people, are among the greatest villains that the world has ever seen. and they as much deserve to be hunted and killed (if they cannot otherwise be got rid of) as any slave traders, robbers, or pirates that ever lived. when these emperors and kings, so-called, have obtained their loans, they proceed to hire and train immense numbers of professional murderers, called soldiers, and employ them in shooting down all who resist their demands for money. in fact, most of them keep large bodies of these murderers constantly in their service, as their only means of enforcing their extortions. there are now, i think, four or five millions of these professional murderers constantly employed by the so-called sovereigns of europe. the enslaved people are, of course, forced to support and pay all these murderers, as well as to submit to all the other extortions which these murderers are employed to enforce. it is only in this way that most of the so-called governments of europe are maintained. these so-called governments are in reality only great bands of robbers and murderers, organized, disciplined, and constantly on the alert. and the so-called sovereigns, in these different governments, are simply the heads, or chiefs, of different bands of robbers and murderers. and these heads or chiefs are dependent upon the lenders of blood-money for the means to carry on their robberies and murders. they could not sustain themselves a moment but for the loans made to them by these blood-money loan-mongers. and their first care is to maintain their credit with them; for they know their end is come, the instant their credit with them fails. consequently the first proceeds of their extortions are scrupulously applied to the payment of the interest on their loans. in addition to paying the interest on their bonds, they perhaps grant to the holders of them great monopolies in banking, like the banks of england, of france, and of vienna; with the agreement that these banks shall furnish money whenever, in sudden emergencies, it may be necessary to shoot down more of their people. perhaps also, by means of tariffs on competing imports, they give great monopolies to certain branches of industry, in which these lenders of blood-money are engaged. they also, by unequal taxation, exempt wholly or partially the property of these loan-mongers, and throw corresponding burdens upon those who are too poor and weak to resist. thus it is evident that all these men, who call themselves by the high-sounding names of emperors, kings, sovereigns, monarchs, most christian majesties, most catholic majesties, high mightinesses, most serene and potent princes, and the like, and who claim to rule "by the grace of god," by "divine right"--that is, by special authority from heaven--are intrinsically not only the merest miscreants and wretches, engaged solely in plundering, enslaving, and murdering their fellow men, but that they are also the merest hangers on, the servile, obsequious, fawning dependents and tools of these blood-money loan-mongers, on whom they rely for the means to carry on their crimes. these loan-mongers, like the rothschilds, laugh in their sleeves, and say to themselves: these despicable creatures, who call themselves emperors, and kings, and majesties, and most serene and potent princes; who profess to wear crowns, and sit on thrones; who deck themselves with ribbons, and feathers, and jewels; and surround themselves with hired flatterers and lickspittles; and whom we suffer to strut around, and palm themselves off, upon fools and slaves, as sovereigns and lawgivers specially appointed by almighty god; and to hold themselves out as the sole fountains of honors, and dignities, and wealth, and power--all these miscreants and imposters know that we make them, and use them; that in us they live, move, and have their being; that we require them (as the price of their positions) to take upon themselves all the labor, all the danger, and all the odium of all the crimes they commit for our profit; and that we will unmake them, strip them of their gewgaws, and send them out into the world as beggars, or give them over to the vengeance of the people they have enslaved, the moment they refuse to commit any crime we require of them, or to pay over to us such share of the proceeds of their robberies as we see fit to demand. xix. now, what is true in europe, is substantially true in this country. the difference is the immaterial one, that, in this country, there is no visible, permanent head, or chief, of these robbers and murderers, who call themselves "the government." that is to say, there is no _one man_, who calls himself the state, or even emperor, king, or sovereign; no one who claims that he and his children rule "by the grace of god," by "divine right," or by special appointment from heaven. there are only certain men, who call themselves presidents, senators, and representatives, and claim to be the authorized agents, _for the time being, or for certain short periods, of all_ "the people of the united states"; but who can show no credentials, or powers of attorney, or any other open, authentic evidence that they are so; and who notoriously are not so; but are really only the agents of a secret band of robbers and murderers, whom they themselves do not know, and have no means of knowing, individually; but who, they trust, will openly or secretly, when the crisis comes, sustain them in all their usurpations and crimes. what is important to be noticed is, that these so-called presidents, senators, and representatives, these pretended agents of all "the people of the united states," the moment their exactions meet with any formidable resistance from any portion of "the people" themselves, are obliged, like their co-robbers and murderers in europe, to fly at once to the lenders of blood money, for the means to sustain their power. and they borrow their money on the same principle, and for the same purpose, viz., to be expended in shooting down all those "people of the united states"--their own constituents and principals, as they profess to call them--who resist the robberies and enslavement which these borrowers of the money are practising upon them. and they expect to repay the loans, if at all, only from the proceeds of the future robberies, which they anticipate it will be easy for them and their successors to perpetrate through a long series of years, upon their pretended principals, if they can but shoot down now some hundreds of thousands of them, and thus strike terror into the rest. perhaps the facts were never made more evident, in any country on the globe, than in our own, that these soulless blood-money loan-mongers are the real rulers; that they rule from the most sordid and mercenary motives; that the ostensible government, the presidents, senators, and representatives, so called, are merely their tools; and that no ideas of, or regard for, justice or liberty had anything to do in inducing them to lend their money for the war. in proof of all this, look at the following facts. nearly a hundred years ago we professed to have got rid of all that religious superstition, inculcated by a servile and corrupt priesthood in europe, that rulers, so called, derived their authority directly from heaven; and that it was consequently a religious duty on the part of the people to obey them. we professed long ago to have learned that governments could rightfully exist only by the free will, and on the voluntary support, of those who might choose to sustain them. we all professed to have known long ago, that the only legitimate objects of government were the maintenance of liberty and justice equally for all. all this we had professed for nearly a hundred years. and we professed to look with pity and contempt upon those ignorant, superstitious, and enslaved peoples of europe, who were so easily kept in subjection by the frauds and force of priests and kings. notwithstanding all this, that we had learned, and known, and professed, for nearly a century, these lenders of blood money had, for a long series of years previous to the war, been the willing accomplices of the slave-holders in perverting the government from the purposes of liberty and justice, to the greatest of crimes. they had been such accomplices _for a purely pecuniary consideration_, to wit, a control of the markets in the south; in other words, the privilege of holding the slave-holders themselves in industrial and commercial subjection to the manufacturers and merchants of the north (who afterwards furnished the money for the war). and these northern merchants and manufacturers, these lenders of blood-money, were willing to continue to be the accomplices of the slave-holders in the future, for the same pecuniary consideration. but the slave-holders, either doubting the fidelity of their northern allies, or feeling themselves strong enough to keep their slaves in subjection without northern assistance, would no longer pay the price which these northern men demanded. and it was to enforce this price in the future--that is, to monopolize the southern markets, to maintain their industrial and commercial control over the south--that these northern manufacturers and merchants lent some of the profits of their former monopolies for the war, in order to secure to themselves the same, or greater, monopolies in the future. these--and not any love of liberty or justice--were the motives on which the money for the war was lent by the north. in short, the north said to the slave-holders: if you will not pay us our price (give us control of your markets) for our assistance against your slaves, we will secure the same price (keep control of your markets) by helping your slaves against you, and using them as our tools for maintaining dominion over you; for the control of your markets we will have, whether the tools we use for that purpose be black or white, and be the cost, in blood and money, what it may. on this principle, and from this motive, and not from any love of liberty, or justice, the money was lent in enormous amounts, and at enormous rates of interest. and it was only by means of these loans that the objects of the war were accomplished. and now these lenders of blood-money demand their pay; and the government, so called, becomes their tool, their servile, slavish, villainous tool, to extort it from the labor of the enslaved people both of the north and the south. it is to be extorted by every form of direct, and indirect, and unequal taxation. not only the nominal debt and interest--enormous as the latter was--are to be paid in full; but these holders of the debt are to be paid still further--and perhaps doubly, triply, or quadruply paid--by such tariffs on imports as will enable our home manufacturers to realize enormous prices for their commodities; also by such monopolies in banking as will enable them to keep control of, and thus enslave and plunder, the industry and trade of the great body of the northern people themselves. in short, the industrial and commercial slavery of the great body of the people, north and south, black and white, is the price which these lenders of blood money demand, and insist upon, and are determined to secure, in return for the money lent for the war. this programme having been fully arranged and systematized, they put their sword into the hands of the chief murderer of the war, and charge him to carry their scheme into effect. and now he, speaking as their organ, says: "_let us have peace_." the meaning of this is: submit quietly to all the robbery and slavery we have arranged for you, and you can have "peace." but in case you resist, the same lenders of blood-money, who furnished the means to subdue the south, will furnish the means again to subdue you. these are the terms on which alone this government, or, with few exceptions, any other, ever gives "peace" to its people. the whole affair, on the part of those who furnished the money, has been, and now is, a deliberate scheme of robbery and murder; not merely to monopolize the markets of the south, but also to monopolize the currency, and thus control the industry and trade, and thus plunder and enslave the laborers, of both north and south. and congress and the president are today the merest tools for these purposes. they are obliged to be, for they know that their own power, as rulers, so-called, is at an end, the moment their credit with the blood-money loan-mongers fails. they are like a bankrupt in the hands of an extortioner. they dare not say nay to any demand made upon them. and to hide at once, if possible, both their servility and their crimes, they attempt to divert public attention, by crying out that they have "abolished slavery!" that they have "saved the country!" that they have "preserved our glorious union!" and that, in now paying the "national debt," as they call it (as if the people themselves, _all of them who are to be taxed for its payment_, had really and voluntarily joined in contracting it), they are simply "maintaining the national honor!" by "maintaining the national honor," they mean simply that they themselves, open robbers and murderers, assume to be the nation, and will keep faith with those who lend them the money necessary to enable them to crush the great body of the people under their feet; and will faithfully appropriate, from the proceeds of their future robberies and murders, enough to pay all their loans, principal and interest. the pretense that the "abolition of slavery" was either a motive or justification for the war, is a fraud of the same character with that of "maintaining the national honor." who, but such usurpers, robbers, and murderers as they, ever established slavery? or what government, except one resting upon the sword, like the one we now have, was ever capable of maintaining slavery? and why did these men abolish slavery? not from any love of liberty in general--not as an act of justice to the black man himself, but only "as a war measure," and because they wanted his assistance, and that of his friends, in carrying on the war they had undertaken for maintaining and intensifying that political, commercial, and industrial slavery, to which they have subjected the great body of the people, both white and black. and yet these imposters now cry out that they have abolished the chattel slavery of the black man--although that was not the motive of the war--as if they thought they could thereby conceal, atone for, or justify that other slavery which they were fighting to perpetuate, and to render more rigorous and inexorable than it ever was before. there was no difference of principle--but only of degree--between the slavery they boast they have abolished, and the slavery they were fighting to preserve; for all restraints upon men's natural liberty, not necessary for the simple maintenance of justice, are of the nature of slavery, and differ from each other only in degree. if their object had really been to abolish slavery, or maintain liberty or justice generally, they had only to say: all, whether white or black, who want the protection of this government, shall have it; and all who do not want it, will be left in peace, so long as they leave us in peace. had they said this, slavery would necessarily have been abolished at once; the war would have been saved; and a thousand times nobler union than we have ever had would have been the result. it would have been a voluntary union of free men; such a union as will one day exist among all men, the world over, if the several nations, so called, shall ever get rid of the usurpers, robbers, and murderers, called governments, that now plunder, enslave, and destroy them. still another of the frauds of these men is, that they are now establishing, and that the war was designed to establish, "a government of consent." the only idea they have ever manifested as to what is a government of consent, is this--that it is one to which everybody must consent, or be shot. this idea was the dominant one on which the war was carried on; and it is the dominant one, now that we have got what is called "peace." their pretenses that they have "saved the country," and "preserved our glorious union," are frauds like all the rest of their pretenses. by them they mean simply that they have subjugated, and maintained their power over, an unwilling people. this they call "saving the country"; as if an enslaved and subjugated people--or as if any people kept in subjection by the sword (as it is intended that all of us shall be hereafter)--could be said to have any country. this, too, they call "preserving our glorious union"; as if there could be said to be any union, glorious or inglorious, that was not voluntary. or as if there could be said to be any union between masters and slaves; between those who conquer, and those who are subjugated. all these cries of having "abolished slavery," of having "saved the country," of having "preserved the union," of establishing "a government of consent," and of "maintaining the national honor," are all gross, shameless, transparent cheats--so transparent that they ought to deceive no one--when uttered as justifications for the war, or for the government that has succeeded the war, or for now compelling the people to pay the cost of the war, or for compelling anybody to support a government that he does not want. the lesson taught by all these facts is this: as long as mankind continue to pay "national debts," so-called--that is, so long as they are such dupes and cowards as to pay for being cheated, plundered, enslaved, and murdered--so long there will be enough to lend the money for those purposes; and with that money a plenty of tools, called soldiers, can be hired to keep them in subjection. but when they refuse any longer to pay for being thus cheated, plundered, enslaved, and murdered, they will cease to have cheats, and usurpers, and robbers, and murderers and blood-money loan-mongers for masters. appendix. inasmuch as the constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. nevertheless, the writer thinks it proper to say that, in his opinion, the constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the constitution itself purports to authorize. he has heretofore written much, and could write much more, to prove that such is the truth. but whether the constitution really be one thing, or another, this much is certain--that it has either authorized such a government as we have had, or has been powerless to prevent it. in either case, it is unfit to exist. footnotes: [a] see _no treason_, no. , pages and . [b] suppose it be "the best government on earth," does that prove its own goodness, or only the badness of all other governments? [c] the very men who drafted it, never signed it in any way to bind themselves by it, _as a contract_. and not one of them probably ever would have signed it in any way to bind himself by it, _as a contract_. [d] i have personally examined the statute books of the following states, viz.: maine, new hampshire, vermont, massachusetts, rhode island, connecticut, new york, new jersey, pennsylvania, delaware, virginia, north carolina, south carolina, georgia, florida, alabama, mississippi, tennessee, kentucky, ohio, michigan, indiana, illinois, wisconsin, texas, arkansas, missouri, iowa, minnesota, nebraska, kansas, nevada, california, and oregon, and find that in all these states the english statute has been re-enacted, sometimes with modifications, but generally enlarging its operations, and is now in force. the following are some of the provisions of the massachusetts statute: "no action shall be brought in any of the following cases, that is to say: ... "to charge a person upon a special promise to answer for the debt, default, or misdoings of another: ... "upon a contract for the sale of lands, tenements, hereditaments, or of any interest in, or concerning them; or "upon an agreement that is not to be performed within one year from the writing thereof: "unless the promise, contract, or agreement, upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized." "no contract for the sale of goods, wares, or merchandise, for the price of fifty dollars or more, shall be good or valid, unless the purchaser accepts and receives part of the goods so sold, or gives something in earnest to bind the bargain, or in part payment; or unless some note or memorandum in writing of the bargain is made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized." [e] and this two-thirds vote may be but two-thirds of a quorum--that is two-thirds of a majority--instead of two-thirds of the whole. [f] of what appreciable value is it to any man, as an individual, that he is allowed a voice in choosing these public masters? his voice is only one of several millions. transcriber's notes: passages in italics are indicated by _italics_. inconsistencies in spelling and hyphenation have been retained from the original. obvious typographical errors have been corrected as follows: page : "do" changed to "does" punctuation has been corrected without note. count the cost. an address to the people of connecticut, on sundry political subjects, and particularly on the proposition for a new constitution. by jonathan steadfast "however combinations or associations of the above description may now and then answer popular ends, they are likely in the course of time and things to become potent engines, by which cunning ambitions and unprincipled men will be enabled to subvert the power of the people, and to usurp to themselves, the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion." washington's farewell address. an address to the people of connecticut. "for which of you intending to build a tower sitteth not down first and counteth the cost?" an interesting question is here asked by the direction of infinite wisdom. this question contains the following useful and important instruction: that no man or body of men should attempt the accomplishment of any great object without duly estimating the evils and benefits probably resulting from it. such a rule of life and adopted and adhered to would have prevented many schemes and projects which have cost much, and which have been productive of nothing but the disgrace to their authors and misery to the human race--it would induce men to obey the dictates of experience rather than the dreams of enthusiasm, and would drive from the world a species of wisdom which is indeed folly. an attempt is now making in this state to change the vital principles of our government, to remove from office all our present rulers, and to introduce a new order of things. to these innovations the people are invited, allured and exhorted.--to effect these objects no pains are spared--no exertions are omitted. an important question here arises, viz. would the accomplishment of the object be worth the cost?--an individual who neither holds an office nor seeks one--who can have nothing in view but the maintenance of that order of things which shall most effectually promote public and private happiness, and who has the same interest in the welfare of society as the great body of his fellow citizens, requests the dispassionate attention of the reader, while he considers this important subject. he will use no weapon but truth and truth will be regarded by all except those who love darkness rather than light. to exhibit a correct view of the subject, it will be proper, first, to enquire into the present condition of connecticut, and secondly, to examine the various plans or projects proposed for our adoption, and estimate the probably cost attending them. we can then in the third place form a just opinion of the propriety of the proposed changes. the condition of connecticut first claims our attention. that our climate, soil and situation are such as to insure as much health, riches and prosperity as any people can rationally wish, seems not to be doubted. our natural advantages do not indeed promise such an accumulation of wealth as might satisfy that avarice which like the horse leach is constantly crying give--give--they are such however as will in ordinary cases, ensure to industry an ample reward and this should satisfy a virtuous mind. the diffusion of knowledge is greater than in any other part of the globe of equal dimensions. such are the excellent provisions of our laws, and the virtuous habits of our citizens, that schools of instruction in all useful knowledge are to be found in every place where they are needed. there is no village in this state which will not attest to this fact. in various places also flourishing academies are supported, in which the higher branches of science are taught, and our college is at once our ornament and our pride. religious instruction is also brought almost to every man's door, so that none can justly complain that they are denied the means of growing wiser and better. by the liberality of the benevolent private libraries are every where found which, with the other sources of information, evince the superiority of our condition to that of any other people, in the means of gaining valuable knowledge. to those, who with the writer, believe that ignorance is the parent of vice, and that the civilized is preferable to the savage state, our situation, in the above particulars, demands the gratitude of every heart. our constitution and government are perfectly free, and our laws are mild, equitable and just. to the truth of this position there is the most ample and unequivocal proof. . those who seek to revolutionize the state declare this to be the nature of our government with few exceptions.--such testimony cannot be doubted--it is the testimony of a man against himself. ask your neighbour to point you to the evils under which he labours--ask him to name the man who is oppressed except by his vices or his follies, and if he be honest, he will tell you that there is no such man--if he be dishonest, his silence will be proof in point. . strangers who reside here a sufficient time to learn our laws, universally concur in their declarations on this subject. they will ask, with surprize, why the people of connecticut should complain? they see every man indulged in worshiping god as he pleases, and they see many indulged in neglecting his worship entirely--they see men every where enjoying the liberty of doing what is right--and such liberty they rightly decide is the perfection of freedom. . the experience of a century and a half, affords irresistible proof on this subject. during this long period convulsions have shaken many parts of the earth, and there has been a mighty waste of human happiness. empires and kingdoms have been prostrated, and the sword hath been devouring without cessation. this state too hath been threatened-- clouds have gathered and portended a dreadful desolation, but we have been defended, protected and saved. no essential changes in our government have ever taken place--formed by men who knew the important difference between liberty and licentiousness, it has been our shield-- our strong tower--our secure fortress.--to the calls of our country we have ever been obedient--no state hath more cheerfully met danger--no state hath more readily or effectually resisted foreign aggression. washington while living was a witness to this fact, and tho' dead he yet speaketh. while plots, insurrections and rebellions have distressed many states and nations, connecticut hath enjoyed an internal peace and tranquility, which forcibly demonstrates the wisdom and equity of her government.--such a government, administered by men of virtue and talents, has produced the most benign effects, and our prosperity is calculated to excite the warmest expressions of gratitude rather than the murmurs of disaffection. . our treasury exhibits the truth of these remarks. it is clear from the statement in the appendix, to which every reader will advert with pleasure, that the people of connecticut annually receive thirty seven thousand four hundred and fifty-five dollars and seventy six cents more from the treasury than they pay into it by taxes and duties.--at the close of the late war such had been our exertions, we were encumbered with a debt of nearly two millions of dollars. now that debt is paid and we have nearly that sum in advance. where is the state which can justly boast of greater prosperity? notwithstanding this enviable situation a clamour is excited, the people are agitated, and discord, with its train of evils, is prevailing. some of our citizens, in the height of political prosperity, are seeking to destroy an order of things which has prevailed an hundred and fifty years, and throw themselves into the arms of projectors and reformers. is there nothing unaccountable in such conduct? is there nothing calculated to excite indignation? my fellow citizens, shall any considerable portion of the people of connecticut subject themselves to the reproach which rested on an ancient people? "the ox knoweth his owner and the ass his master's crib, but my people do not know, israel doth not consider." secondly. let us examine some of the plans and projects proposed for our adoption and estimate the probably cost attending them.– here we must speak with less certainty--what the present condition of connecticut is we know--respecting its future destiny we can only judge by arguing from cause to effect. why a man who regards the happiness of his fellow men, should attempt a change here, is too wonderful for an ordinary capacity. no prudent farmer ever pulled up a hill of corn, which was flourishing, to see if there was not a worm at the root. one of these projects is the repeal of all laws for the support of religious institutions. the language of those who favor the measure is, that religion will take care of itself--that no external aid is necessary--that all legislative interference is impious. many, and it is believed by far the greater part, of those who make these declarations, intend to throw down all the barriers which christianity has erected against vice. they are obstinately determined to banish from the public mind all affection and veneration for the clergy, and respect for the institutions of religion, and to reduce connecticut to that condition which knows no distinction between "him who serveth god and him who serveth him not." they wish to see a republic without religion; and should they be gratified, the consequence would speedily be, a miserable race of men without virtue, walling in vice and ripening for a dreadful destruction. if infinite truth is to be credited, "god will pour out his indignation on the heathen who know him not." these reformers, under the specious pretext of exercising unbounded liberality in matters of religion, become intolerant to all who differ from them, charging the professors of christianity with breathing out a spirit of persecution, they become the most furious persecutors, and while they affect to possess great moderation and candor towards all denominations of christians, they clearly evince that they would grant indulgence or protection to none. on the other hand a great majority of the people and the legislature, insist that every man in the community who is able, should contribute, in some way, towards the support of the institutions of religion. no wish is entertained to legislate in matters of faith, or to establish one sect in preference to another. our laws permit every man to worship god when, where, and in the manner most agreeable to his principles or to his inclination, and not the least restraint is imposed; all ideas of dictating to the conscience are discarded, and every man "sits under his own vine and fig tree." our laws only enforce the great principle abovementioned that the members of the community should contribute towards the support of these institutions, as means to promote the prosperity of the people in the same manner as they provide for the public accommodation, peace and happiness, by the maintenance of the roads and bridges, the organization of the militia, and the support of schools of instruction. should objections be urged by any individuals that they cannot conscientiously contribute to the promotion of these objects, their objections would be disregarded. there is a class of men, very respectable for the sobriety of their habits, and their peaceful deportment, who always refuse to be taxed for military defence. no one doubts that in their opposition, they are conscientious, and yet few doubt the propriety of enforcing such taxes. the principle now advocated is interwoven with all our laws and habits --it has existed from the first settlement of the state--it has produced much good--it ought not therefore to be abandoned without the utmost deliberation. the clamor against this principle, is the clamor of those who wish to see the state revolutionized--it is the clamor of those turbulent spirits which delight in confusion and which pull down and destroy with a dexterity which they never shew in building up. let the sober citizens of connecticut look at the authors of this clamor--let them view such men as abraham bishop, and eye the path which they have trodden from their youth, and then ask their own hearts, if they are not under some apprehension, lest if they should enlist under such leaders and fight their cause, they may be found contending against the best interests of society, and "fighting against god." another project zealously supported is that of districting the state for the choice of assistants, and representatives in congress. the only argument which is urged for the adoption of this measure with any plausibility, is that in the district elections the candidate would be better known. to this argument it may be replied, the state of connecticut is so limited in its extent, information of all kinds is so generally diffused, and there is such a flood of newspapers that the characters of all the candidates for office may be thoroughly known by all who will bestow any attention to the subject. this state is scarcely more extensive than a single county in many other states, and the intercourse of the inhabitants of the various parts with each other is such that no evil can exist in our present mode of elections--but there are serious and weighty objections against district elections. . such elections open wide the door for intrigue.--as this door, already too widely extended, the most alarming mischiefs enter-- mischiefs which sap the foundations of an elective government by corrupting the minds of the freemen and this converting an election ground into a theatre on which is displayed the most vile and demoralizing practices. let the reader satisfy himself as to the truth of this observation by examining the history of an election in the southern states, where this mode alone is adopted. let him learn that they candidates for office and his host of dependents and tools, are employed for weeks before and on the days of election, in the most infamous intrigues, and that falsehood and bribery are so much in fashion, and are so universally resorted to, that success invariably attends the most impudent and the most profligate, while the man of modesty and virtue, though possessing the fairest claims to promotion, is abashed, confounded and overwhelmed. ndly. the candidate when elected becomes the creature of the district and not the ruler of a state--he is and must be devoted to the interest of that portion of the community which has elected him, and their views and schemes must be patronized though they oppose the welfare of the whole. rdly. such elections do not secure the best talents. if talents and worth are of consideration, surely they should be at the command of the public. it is of no moment where a man dwells, but it is of immense importance that he be a wise man rather than a fool--a man of integrity rather than a knave. thly. experience, the only save and unerring guide, is altogether in favor of elections at large rather than by districts. the representation of this state in congress has ever been of the most respectable character--it is not too much to say that no state in the union can justly claim a superiority to connecticut in this respect. the fame may be affirmed, with truth, of the upper house of the legislature of this state. has there not been a constant succession of able and wise men in that branch of the administration of connecticut? for more than a century we have preserved an unexampled prosperity.--shall we hazard our interests on the speculations of zealous partizans who are constantly bewildering themselves and their followers in new schemes? another project is that of universal suffrage. the streets resound with the clamour that men are deprived of the invaluable privilege of choosing their rulers, and the people are invited to extend this privilege to all who pay taxes and do military duty. it is now discovered that connecticut, in this particular, is not free.--the great argument urged in support of universal suffrage is that taxation and representation should go hand in hand--it is said that this maxim was deemed just during the revolutionary war, and that americans adhered to it as a fundamental principle.--this principle the writer readily recognizes as a sound and indisputable position in every free government. but what is the meaning of the maxim? does it intend that every person who is taxed, can of right claim the privilege of giving his suffrage? if so persons convicted of offences, or who are infamous for their vices may vote--for such persons are not outlawed.--on this principle, women of full age and unmarried, are also to be admitted.-- minors also whose property is taxed, should be permitted to exercise this franchise, at least by guardian or proxy. what then is the true meaning of the maxim, that representation and taxation are inseparable? here all writers agree--it means that no community should be taxed by the legislature unless that community is, or might have been represented in such legislature.--hence several towns in this state till lately, were not represented in the general assembly, and of course not taxed.-- barkhempsted, colebrook, and winchester, it is believed, were of this description. this state and the other states understood this maxim precisely as now explained, in their opposition to great-britain.--we complained that the colonies should not be taxed because they were not represented in parliament. in this view of the subject the maxim is wise and just. again, is not every town in connecticut now represented in the legislature, and of course each individual equally with every other? in the representative of hartford, for example, a representative of the freemen of hartford, or of the town of hartford? the truth is, every man, woman and child are represented. but it is said that many persons are excluded from giving their suffrages who have life, liberty and reputation to protect. on a close attention to this fact it will be found that the number of those worthy members of society who do not possess the legal qualification, is small, and if men are to have an influence in elections according to the amount of their taxes, why should not the man who pays fifty dollars, be entitled to more than one vote? no one pleads for such a privilege, but there are many who insist that the man without a cent of property shall have the same direction in the choice of those who are charged with the interests of the community, as he who is worth thousands of dollars. a friend to the rights of man seems to feel no alarm at the idea that one who exhausts his earnings in the grog-shop, should have an influence in elections in proportion to strength of his lungs, or his activity in intrigue, but he is greatly agitated from an apprehension that men who have property to protect, will not promote the well being of society. a juror who is to decide on the controversies of his neighbours--an appraiser of land--a distributor of a deceased persons estate, must be freeholders by a standing law which is the subject of no ensure, and yet it is said that in the important transaction of choosing men to enact laws, and to appoint those who are to decide on, and execute those laws, no qualifications are necessary. again, it is insisted by those who oppose universal suffrage, and the reader is desired to notice the remark with attention, that no community can be safe unless the power of elections resides principally with the great body of the landholders. such an influence had this principle on those wise men who formed our laws, that a mere trifle in real property gives the right of suffrage, while a man may be excluded who is the proprietor of personal property to a large amount. landholders have an enduring interest in the welfare of the community. they are lords of their own soil, and of course, to a certain degree, independent--they therefore will resist tyranny--they will equally oppose anarchy because they are aware that in any storm which may arise they must abide its fury. the merchant, with his thousands, can seek a shelter--to the mere bird of passage, who has no "abiding country and who seeks none to come," it is of little moment whether stability or confusion predominate, but to the former who is enchained to the state, peace and order is of inestimable value. what, my fellow citizens, is the attempt now making? what is the language of those who advocate universal suffrage? it is nothing less than an effort to rest from the farmers of connecticut that controul over the elections which is their only fortress of safety. let men who wish to protect their invaluable rights ponder on these things, and let them at the same time, remember that no nation in which universal suffrage hath been allowed, hath remained free and happy. another project urged, with great vehemence, is, to displace all our present rulers--by those, is meant our legislators in the general and state government--our judges and magistrates of every grade. that such is a darling object with those who seek to revolutionize connecticut, there is no doubt. is such a measure wise? who are these rulers? a candid observer must reply, they are men in whose hands power has been wisely placed by the people, and who have never abused that power, men of unquestionable talents and of spotless fame. among them are your trumbulls, your ellsworths, your hillhouses, your griswolds, your goodriches and your cavenports, men tried and approved. among them there is one who was side by side with your beloved washington during the revolutionary war, who has repeatedly been elected your first magistrate, and, against whom, the tongue of slander never moved but in the hard service of a harder master. there is another, who, for more than twenty years has been employed in the first offices in the gift of his country, and whose probity and talents are second to those of none of his contemporaries. among these are many who must enjoy the affection and veneration of their countrymen while superior worth is regarded. against these men the cry is raised--not the cry of the oppressed, for god knows no man in connecticut is oppressed, but the cry of those who pant for office, and who can rise only on the ruins of others. your judges also to whom is committed the administration of justice, are marked out as the victims of party spirit. is not a wise and faithful execution of the laws the chief object of every good government? without this who is safe for a moment? without this, liberty can exist only in name--the name indeed may be blasphemously uttered, but the substance is gone with the liberty of all who have relied on professions. let the people of connecticut look at their tribunals of justice. are they not filled with men of incorruptible integrity? where has innocence received a more ample protection? is not the transgressor punished, and are not the wrongs of the injured redressed? are not our mild laws executed in mercy, and is not justice awarded with impartiality to individuals? can you look at the seat of justice and say "iniquity is there?" dare any man say that the judges of our high courts are not upright, intelligent and learned? who then can justly complain? yet the stripling of yesterday--the bold projector--the unprincipled ad ambitious, with a host of deceived followers, with matchless effrontery, arraign the conduct of these magistrates and loudly demand that they be driven from their offices, and from public confidence. another favorite scheme is to elevate to all the offices of importance men who have never enjoyed the public confidence. the language of these revolutionists is, respecting the men in power in connecticut, "we will not have these men to rule over us"--we will fill their places with men of our choice--the creatures of our hands, and who will be subservient to our views. but, my countrymen, before you join in this project, pause and enquire, who are these men who thus assert their claim to rule over you? who are these men who place themselves in the corners of the streets and cry "oh, that we were made judges in the land?" it is no part of the writer's design to hunt vice from its guilty retreat, to expose before an insulted people, the horrid features which distinguish certain individuals who challenge popular applause, or to attach private character, but justice demands that men who boldly claim to be the rulers of the free and happy state of connecticut, should be known. the men who are to stand in the places of our trumbulls and our ellsworths should not shrink from public investigation. to those who respect the authority of god it is a matter of no small moment that those who rule over men should be just, ruling in the fear of god nor will men, accustomed to revere this solemn declaration, lend their aid to elevate men of vicious and corrupt lives, without some dismay. it is not enough to tell us that men will be selected of more virtue and talents than those now in power--such a pretence is vain--no man in his senses will regard it--no man makes such a pretence but for wicked purpose. if we are directed to turn our eyes to those who for years past have been held up in the unsuccessful nominations, and are told that these are to be substituted for the men who now guide our councils, what are we to expect? an appeal may be made to every man not bewildered in this new and destructive madness--he may be asked who among these men stand-forth with fair claims to public confidence? where among them, can be found the polished scholar--the able civilian, the enlightened judge? do we see in a single individual an assemblage of talents united with virtue sufficient to qualify him for the seat of justice? if there are such men they have hitherto hid their talents i the earth. it will not here be forgotten that the attempt is, to reject men long known and respected, and to fill their places with those who are without a witness in their favor. a still more mischievous and alarming project is, that of making a new constitution for connecticut. this project originates entirely in a spirit of jacobinism--it is a new theme on which to descant to effect a revolution in connecticut. the object is, by false assertions, to induce a belief that no constitution exists and that tyranny prevails. this party always address the passions and never the understanding.--review their measures for a few years, and you will distinctly perceive their motives and aims. to create disaffection and hatred towards those who formerly administered the general government, it was boldly asserted that the treasury had been plundered. even the illustrious saviour of his country was accused of embezzling public money, and his followers could not expect a less happy fate. men of the most unsuspected integrity, were openly attacked by anonymous publications, or dispoiled of their good name by secret insinuations. these calumnies were kept in circulation by their authors till impudence itself was abashed, and the object in view obtained--not a tittle of proof was ever adduced, and investigation always shewed that the charges were not only false, but entirely groundless. for the same unworthy purpose it was asserted in every circle of opposition that salaries were too high, and the incomes of office enormous. every tavern resounded with this grievance. at length the principal authors of this clamor got into place, and the clamor was hushed. yes, men who urged the people of connecticut almost to rebellion on this account, stept into the places and, without a blush, took more from the people than their predecessors. look at mr. babcock's paper in and , and see its columns filled with railing against high salaries--look at it since abraham bishop takes dollars a year, and alexander wolcott more than four, and find, if you can, a complaint on this subject. such meanness, such baseness, such hypocrisy in office seekers, exhibit in strong colors the depravity of human nature and teach us what dependence may justly be placed on pretensions and professions. to inflame the passions and to create animosity, various subjects have been successively seized upon, and pressed into the service of the revolutionists--every quarrel however trivial is noticed--every seed of discord however small is nourished to disseminate murmurs and to further the great object.-various classes of the community are told, with apparent anxiety for their welfare, that they are oppressed, and that a new order of things must arise, or that they will be enslaved. new subjects are started as old ones cease to operate, and thus all that ingenuity and art, industry and perseverance, can devise or effect is accomplished. thus, that numerous and respectably body of christians called episcopalians have been told, and repeatedly told, that the more numerous denomination were seeking to deprive them of their just and equal rights, and to subject them to the tyranny of an overbearing majority--these tales were reiterated till their authors found them useless from their folly and falsehood. at another time the baptists are addressed by a set of men who denied the reality of any religion and the most earnest yearnings for their welfare. they tyranny of the legislature was painted in horrid colors, and they were exhorted to lend their aid to vindicate the cause of the oppressed. those who conscientiously believe that no taxes ought to be paid for the support of religion, and those who wish that religion might no more infest the residence of men, were addressed with considerations adapted to their respective cases. at one time men destitute of property are seduced by the alluring doctrine of universal suffrage--then the farmer is told that taxes are too high on land, and, with the same breath, the mechanic is sagely informed, that the poll tax should be repealed, and the burden fall back on the land holder. festivals under the pretence of honoring the election of mr. jefferson and mr. burr, and of extolling the wisdom of the purchase of louisiana, but with a real design to blazen the fame of those who assume the character of friends of the people that they may the more readily destroy the most free and equitable government in the world, are continually holden, and the discontented, the factious, the ambitious and the corrupt, are collected and flattered with declamations in the various shapes of prayers, sermons and orations. thus a people enjoying the height of political prosperity are cajoled into a belief that men without virtue, without the restraints of the gospel, without a particle of real regard for their fellow men, are their best friends, and are anxiously laboring to promote their good. let such remember, that when the ethiopian shall change his skin, when the leopard shall change his spots, and when bitter fountains shall send forth sweet water, then will those who flatter the people with their tongues, and deceive them with their lips seek their happiness. such are some of the measures resorted to by those who have sworn in their wrath that connecticut shall be revolutionized. finding all these ineffectual, and that the good sence and virtue of connecticut has hitherto opposed an inseparable barrier to all their plans, they now exclaim connecticut has no constitution. such a gross absurdity could never have been promulgated till the mind was in some degree prepared, by being accustomed to misrepresentation. this was well known to mr. bishop, who has for years been in the habit of disregarding moral obligation. in the year this orator pronounced several inflammatory invectives against the constitution of the united states, to which he was a bitter enemy till he obtained an office under it worth three thousand dollars a year. at that time his language was, the constitution of connecticut is the best in the world--it has grown up with the people, and is fitted to their condition.--now this consistent man who is endeavoring to gull the people that he may successfully tyrannize over them, avows that they are without a constitution. my fellow citizens, examine this head of clamor with candor, read the solemn declaration of washington in the title page, attend to the following remarks, and then tell me if you do not perceive in this project, with the manner in which it is supported and attempted to be accomplished, enough of the revolutionary spirit of france, to excite the indignation of every real friend to the peace and happiness of connecticut. . if there be no constitution in connecticut then your huntingtons, your trumbulls, your shermans, your wolcotts and your davenports, with many other worthies, who were your defence in war, and your ornament in peace, and who are now sleeping with their fathers, were wicked usurpers --they ruled their fellow citizens without authority--they were tyrants. let judd and bishop approach the sepulchures of these venerable men--let them lift the covering from these venerable ashes and in the face of heaven pronounce them tyrants!! could you see them approach their dust with such language on their tongues, you would see them retreat with horrible confusion from these relicks of departed worth. . the present rulers are acting also without authority, and their laws are void--then you are already in the midst of anarchy and wild misrule --then has no man a title to an inch of land, and you are ready for an equal of division of property--all protection of life and liberty is at an end, and the will of a mob is now to prevail. . if indeed there is no constitution, then the oath which has been administered in your freemen's meetings for twenty years, by which each man has sworn "to be true and faithful to the constitution" of the state, is worse than impious profanation of the name of god--then your judges, magistrates and jurors have stripped men of their property, condemned some to newgate and others to the post, the pillory and the gallows without a warrant, and are therefore murderers.--o thou god of order in this our condition!!! but, . we have a constitution--a free and happy constitution. it was to our fathers like the shadow of a great rock in a weary land--it has enabled them to transmit to us a fair and glorious inheritance--if we suffer revolutionists to rob us of this birth right "then we are bastards and not sons." it is a fact as well authenticated as the settlement of the state, that a constitution was formed by the people of the then colony of connecticut, before the charter of king charles. this charter was a guarantee of that constitution. trumbull's history of connecticut gives us this constitution and its origin. on our separation from great- britain, the people, thro' their representatives, made the following declaration on this subject: "an act containing an abstract and declaration of the rights and privileges of the people of this state, and securing the same. the people of this state, being by the providence of god, free and independent, have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and having from their ancestors derived a free and excellent constitution of government whereby the legislature depends on the free and annual election of the people, they have the best security for the preservation of their civil and religious rights and liberties. and forasmuch as the free fruition of such liberties and privileges as humanity, civility and christianity call for, as is due to every man in his place and proportion, without impeachment and infringement, hath ever been, and wilt be the tranquility and stability of churches and commonwealths; and the denial thereof, the disturbance, if not the ruin of both. par. i. be it enacted and declared by the governor, and council and house of representatives, in general court assembled: that the ancient form of civil government, contained in the charter from charles the second, king of england, and adopted by the people of this state, shall be and remain the civil constitution of this state under the sole authority of the people thereof, independent of any king or prince whatever. and that this republic is, and shall forever be and remain, a free, sovereign and independent sate, by the name of the state of connecticut. . and be it further enacted and declared, that no man's land shall be taken away: no man's honor or good name shall be stained: no man's person shall be arrested, restrained, banished, dismembered, nor any ways punished: no man shall be deprived of his wife or children; no man's goods or estate shall be taken away from him nor any ways indamaged under the color of law, or countenance of authority; unless clearly warranted by the laws of this state. . that all the free inhabitants of this or any other of the united states of america, and foreigners in amity with this state, shall enjoy the same justice and law within this state, which is general for the state in all cases proper for the cognizance of the civil authority and court of judicature within the same, and that without partiality or delay. . and that no man's person shall be restrained, or imprisoned, by any authority whatsoever, before the law hat sentenced him thereunto, if he can and will give sufficient security, bail, or mainprize for his appearance and good behaviour in the mean time, unless it be for capital crimes, contempt in open court, or in such cases wherein some express law doth allow of, or order the same." these proceedings have been regarded as the ark of our political safety by the great and the good of all parties, who have gone before us. never till this year have we heard, or even suspected that our state was governed by lawless mobs. now, as a means to effect a revolution, for the first time, have a few designing men endeavored to excite alarm-- they have indeed excited alarm--sober men of their own party are alarmed--honest men, who are not misguided, see the whole extent of this project and they will frown it into contempt. . mr. edwards, as chairman of a body of men whom he calls a state committee, on the th of july, without consulting even his brethren of the committee, ordered delegates to meet at new-haven on the th wednesday of august. in those towns where enough could not be assembled to elect a member, the person written to, was authorized to attend and take a seat. in some towns the proposition was rejected even by republicans. the delegates thus chosen, with all who united with their opinions, and chose to attend, met at the time and place appointed--shut their doors against every eye and ear--sat one day, formed an address, ordered ten thousand copies printed and dissolved. this address we have seen. it deserves some notice: the first thing that attracts our attention is, that william judd, esq. of farmington, is appointed chairman. this was an admirable provision --such a meeting should certainly have such a head. a man with the habit of devoting his feeble talents to intrigue, and who is noticeable only for an ostentatious parade, would preside in such an assembly with peculiar grace. his acquaintance could not but approve of this exhibition of the power of inflammable air and be pleased with its effects [on] an exhausted receiver. the meeting thus organized proceeded to stile this convention as follows: "at a meeting of delegates from ninety-seven towns of the state of connecticut, convened at new-haven on the th of august, ." delegates--delegates do they stile themselves? the people would be obliged to this convention to disclose their authority. who commissioned these gentlemen for this important labor of providing them with a constitution? the truth is not a man in that convention was chosen by a majority of the people of [their] town--in many instances with less than a quarter part, and in general with less than a tenth----yet they call themselves delegates. thus [the] convention with major judd in the chair, precede their address [with] a grosly deceptive declaration---a declaration notoriously false and [impu]dent. they then declare it as their unanimous opinion, "that the people of this state are at present without a constitution of civil government." this was to have been expected. mr. edwards ordered them to meet for that purpose, and shall they not obey their master? bishop and wolcott have repeatedly directed them to make this declaration, and major judd knows it to be true. can any man doubt either the truth of this remark or the sincerity with which it is uttered? is it not clear that this whole proceeding originates in a pure unmixed affection for the people and a sacred regard to truth? my fellow citizens, look at the whole course of the lives of judd, (i place him first on the list because he was chairman) of bishop and of wolcott, and say if they have not ever been under the influence of the most disinterested virtue and the most exalted patriotism? look also at these delegates from ninety- seven towns, and say if they can have any other object in view but the dignity, happiness and glory of their country? individuals can only vouch for individuals. the writer can vouch for about thirty with major judd at their head. if any reader shall think that the subject is treated with too much levity, he should reflect that we are now animadverting on this convention in their appointment of chairman, their stiling themselves delegates from ninety-seven towns, and their declaration that we have no constitution. on these subjects it is scarcely possible to be serious. the address proceeds to declare how many of the confederated states have made for themselves constitutions. we ask, which of them is more prosperous than connecticut? in which of them are the great interests of society better secured? in new-york a convention was called about three years since to amend their constitution. in pennsylvania they have had two constitutions and they are now on the eve of a civil war. duane the great moving spring of all jacobin societies, a vile outcast from europe, reigns with uncontroled sway in every measure, and every man of virtue is denounced. in georgia they have had two constitutions, and in vermont two, and who dare pronounce their political situation equal to that of connecticut. the people of france have had six constitutions within fifteen years, and where are those constitutions? in the grave of anarchy and despotism with millions of deluded inhabitants who have been sacrificed by the robespieres and the bishops of that suffering nation. to that suffering nation turn your eyes and reflect that the mighty mass of woe under which they have groaned, was produced by an ambition, fierce, cruel and destructive as hell, and that an ambition alike terrible reigns every where. read this address attentively, and you will be struck with the idea that no grievance is mentioned----not a single evil is pointed out---indeed the convention declare that they must be "excused a detail of the numerous wrongs which have arrived to us under this government"----these are their words---they are excused indeed---yes, they are excused from not polluting their address with falsehoods in this particular---full well they knew that no such wrongs existed----full well they anticipated that a certain detection would follow any such attempt at imposition. the leaders in this convention knew full well that there is intelligence enough in connecticut to meet them on any complaint, and to shew that it is groundless. they, therefore, prudently decline to be explicit, and yielding to us that the government is now well administered, they shew a great anxiety for the safety of the "next generation." what an astonishing display of philanthropy!! bishop and wolcott are not at ease in their hearts while there is a prospect that even the generations which succeed us, will experience a woe!! after many remarks directed to the passions, without proposing in specific terms a single provision of their newly projected constitution, without laying their finger upon a single grievance, without urging a single argument tending to shew that a constitution does not exist, the address unmakes itself---it unmasks the convention---it unmasks these patriotic delegates, and discovers the true cause of this jacobinic meeting. towards the close of it, speaking of the people, it says, "by their votes will be known their decision. if a constitution appears desirable, they will vote for men who are in favor of it." here the convention speak which all may understand---but lest they had not made themselves sufficiently intelligible, they add, "we ask men of all parties to attend punctually at proxies and to continue a contest of votes till the great question whether this state shall have a constitution be settled finally and forever." now, the plain english of these sentences is this "we who are here assembled in convention wish the people of connecticut to vote for such men, in future, for office, as are in favor of a new constitution---we have already declared that we are in favor of such a constitution---pray therefore vote for us and continue" the context "till we succeed and then"---yes---my fellow- citizens, and then, what will they do? why laugh at your folly---take all the offices and leave you to take care of yourselves. if such would not be their conduct then the sun will no more rise in the east. gentlemen of the convention pray cease your pretensions to promotion till the people discover your merit. if you are honest, great and wise you will certainly be noticed and promoted--if you are pygmy politicians, the mushroom growth of an hour, dressed only with the little brief authority of self created delegates to a self created convention to aggrandise yourselves, then probably you will live with little further notice, and it will only be said hereafter of you that you belonged to an assembly convened at new-haven on the th of august , which sprang up in a day, chose major judd chairman; and like "jonah's gourd withered in a day." in this convention the question was much discussed whether the address should be made to the people or to the constituted authority of our state, the legislature. some honest republicans insisted that it was proper to apply to the legislature, but this was opposed by the young lawyers and the leaders of the party universally--full well they knew that such a measure would not answer their purpose--mobs never talk of any authority except that of the sovereign people--to the sovereign people they go, and to the sovereign people they appeal till a sovereign people are cruelly insulted, cajoled and enslaved. marat, robespierre and bonaparte told the sovereign people that they were all in all till they had robbed them of their dearest interests, and enchained them in despotism, and they now mock them with such declarations as these,* "the perfectability of human nature, the worst disease of man"-"the caprice of elections must be destroyed"-"the people cannot govern themselves" having examined some of the plans or projects proposed for our adoption, we will now estimate the probably cost attending them. it is to be recollected that the proposition is to change the vital principles of our government--to displace our present rulers and to fill their places with men who never enjoyed the public confidence. to determine whether these objects are worth accomplishing, it is necessary to count the cost. . one part of this cost will be an increase of the violence of parties. men who regard their property, their liberty and their lives, will not yield them a willing sacrifice to the demands of the ambitious and unprincipled--men who faced danger and braved death during a seven years war--men whose veins are warm with the blood of their venerable ancestors who planted this happy state, and defended it amidst innumerable hardships and calamities--men who deem their birthright sacred--their own freedom valuable, and their children dear as their own blood, will not calmly, nor cowardly suffer those who have no claims but their impudence, to storm their fortress and to capture them. they will defend it in all lawful ways.-bishop and wolcott, and a thousand other mercenary hirelings may attempt to subdue or terrify them--a proud and haughty leader who under the guise of patriotism, is attempting to undermine the happiness of the best regulated and freest state in the union, with a thousand sycophants, conspiring to bring us under the yoke of virginia, may exhaust their ingenuity and malice, still connecticut will remain unshaken. she will never crouch like isachar to chains and fetters while any portion of the noble spirit of her ancestors who transmitted this fair inheritance at a mighty expense, remains to impel them to noble exertions.--it is ardently to be wished that the passions of those who seek to overturn the venerable institutions of connecticut, my subside, and that a spirit of reconciliation and moderation may succeed to that madness which threatens our peace.--if however the controversy is to be continued and a mob insist on the right to rule, freemen will protect their lives and their liberties.--and is not the peace and tranquility of the state of importance? we have been told with more truth than sincerity that "life itself is a dreary thing" without "harmony in social intercourse." happy would it have been if the author of that just and pertinent remark had not contributed more than any other man in the united states to embitter parties, and to render life indeed a "dreary thing." . another item in the expense of accomplishing these projects, is a corruption of morals. to revolutionize connecticut it will be necessary to circulate, without any intermission, many gross falsehoods respecting the men in power, the judges, legislators and magistrates, and the acts and proceedings of the general assembly. we have seen the columns of the mercury and the republican farmer filled with vile libels.--we have seen abraham bishop followed by hundreds enter a temple devoted to the service of god, and we have heard him there utter the most malignant slanders on the clergy, the legislature and the courts of law.--we have seen him publicly denounce one class and another of his fellow citizens as hypocrites, old tories and traitors.--we have seen him receiving for this, the applause of a wretched collection of disappointed, ambitious and corrupt men. this has been borne and the author despised, and indignantly hissed from the society of the respectable and virtuous--but the end is not gained--new themes of reviling--new subjects of abuse must be sought, and the party who wish to effect a revolution, are pledged to uphold and protect the agents however wicked. what then may now be expected? that dreadful declaration "truth is fallen in their streets" will soon be but an inconsiderable part of our miserable character. it need not be added that such a condition evinces great corruption of morals. . another part of this expense will be the elevation of men to office who are unworthy of public confidence. what can a nation or state expect from such men? what could now be expected from these men but that they become immediately the creatures of a party--the tools of a faction? is it worthy of no consideration that judges who are to be the arbiters of controversies--who are to adjudicate on the lives of their fellow citizens, and to whom is committed the dearest and highest interests of society, should be men of virtue--of wisdom and of unsullied reputation? can a court be a shield against the proud oppressor when a daring leader can crush them with his nod? be not deceived my fellow citizens--no nation hath yet made such an experiment without feeling its bitter and dreadful effects. see the revolutionary tribunals of france--see in them a melancholy picture of corrupt courts and unprincipled judges--the cruelty of that nation hath appeared no where more infernal than through their forms of law and in their sanctuaries of justice--a corrupt judgment seat is the greatest curse with which a people can be punished. in the mean time all subordinate tribunals will partake of the same character.--thus instead of a government of laws, there will be the tyranny of a desperate faction.--let no one reply that there is no danger of such evils in connecticut. we now see a few leaders controul a party of several thousands--we have seen six hundred meet and applaud the purchase of louisiana when not one in five of them could form any opinion on the merits of the bargain--we have seen a few leaders direct the offering of incense to burr while the great body of their followers cursed him--we see a party suffering the pride of virginia to controul the government of the union and to oppress new-england with a heavy impost because she would not submit to internal taxes--we see a few leaders direct a convention of about two hundred to issue an address to the people of connecticut, which address contains on the face of it many palpable falsehoods.--and cannot these same leaders controul a court? . another part of the cost of these projects, is the loss of all our institutions of religion.--it is not here intended that these institutions will be at once abolished--such a measure would alarm some honest men of the party--a gradual but sure destruction is the evil to be feared. the constitution of the united states was first attacked by an unconstitutional repeal of a law, and now the independence of the supreme court is to be destroyed, by impeachments of the judges. so will it fare with your institutions. the principle openly advocated is that none shall be obliged to contribute for the support of religious institutions. this once established destroys the vitals of the system, and the residue of its existence will be misery and wretchedness. shall a party avowing this sentiment and seeking by every artifice to give it effect, receive the support of a people who have derived such substantial benefits from these institutions? shall we look in vain thro' the ranks of that party for one to lift up his voice against this daring and dangerous innovation? are there not many who either do not believe this to be the object of their leaders, or if such shall be their object, who are determined to resist them? yes, there are many who act with them, who still intend to progress to no such excesses. let such view the conduct of similar parties--let such not be deceived--this is indeed their object--they do not avow it to you, they know you would reject it, but they have made a vow that the influence of the clergy shall be destroyed--this can be done in no other way. nor can you resist them--they regard you now because they wish your assistance to confer on them power, but will they regard you when your exertions can neither aid nor defeat their designs?--surely not--such has been the conduct of all factions.--it will be theirs should they prevail--the world has not furnished one solitary exception, nor can you expect one in this case. they seek their own good, and not the good of others, if inspiration is to be credited. in return for these losses what good is to acrue to the people? will you hazard these evils without a fair and reasonable expectation of some solid benefits? is it then unreasonable to enquire what good is to be obtained? do the characters of these men elevate your hopes? you know many of them in private life--do they there abound in good works? shall they be heard and regarded when they demand of you to displace your faithful and approved rulers, and commit to them your all? modest men will wait your notice and rise at your request. shall the impudent, banish them from your affections and usurp their places in your hearts? let it again be asked what good will result to connecticut by a new constitution, by the prevalence of revolutionary principles? france, switzerland, the netherlands, italy and holland, have seen revolution after revolution, one new constitution after another, and liberty has a thousand times been immovably established. altars have been demolished --temples polluted, kings, queens, nobles and priests murdered in the cause of liberty--millions have perished--religion banished, and the worship of god prohibited--projectors have exhausted their ingenuity --the treasures of wealth have been wasted and the peace of the world sacrificed! what is the result? an accumulation of misery which baffles all description. not an individual is more happy or more virtuous. not a nation more prosperous--not a tittle added to human felicity. ye reformers, look at france--behold the crimes which have risen up to demand the vengeance of god--see the woes which you have brought on the race of man, and tremble lest your works should follow you? if this picture is too glaring, look at our sister states in which revolutions have been effected, and shew us the benefit. a noisy or seditious individual has obtained a lucrative office--an ambitious leader is in the char of state satiating his pride, or like abraham bishop gratifying his passion for ignoble pelf, upon his thousands.--he drives his carriage by his industrious neighbor who has toiled for him at an election, cracks his whip, and laughs at the folly of his dupe, and will laugh till he may need his services again, and then he will again cringe and bow and flatter and gull. but is the mechanic, the farmer, the merchant profited? is society enriched, or the public good promoted? in this view of the subject we will briefly ask, in the third place, is it proper to make the proposed changes--to adopt these projects? if no benefits will result--if much evil will probably ensue--the course of duty and interest is plain. aware, however, that it may be said many of the dangers are imaginary, and are founded upon the supposition that we shall act with as little discretion and prudence as the people of other countries, it is important to observe that revolutions are the same, in nature in every nation. those who speak of a new constitution, and of thorough reforms, should recollect that the promoters of these schemes in france, constantly amused the people with the idea that a new order of things--new rights--new principles, were to arise. who does not recollect to have read of the perfectability human nature--of the enlightened age of regenerated france? she boldly proclaimed herself the example of the world, and all nations were invited to see her glory, and enjoy her blessed liberty and her glorious equality. but mark the issue --not twelve years have elapsed before she has returned to an inglorious despotism--she has exchanged her capets for a foreign usurper, with an incalculable loss, and here her history ends. such is the constant termination of such revolutions, and shall we claim to be an exception? how do we judge as to the propriety of any course of life except by observation, experience or history? we see industry and integrity rewarded with competence or wealth--we see intemperance and sloth followed with disease, loss of reputation and poverty. these are sure grounds on which to predict respecting our neighbors, and by which to regulate our own conduct. on similar principles a wise people regard the conduct of other nations, and are solemnly admonished by their example. let not then the projector persuade us to adopt his theories with proofs of their danger thus glaring before our eyes. look at the conduct of our revolutionists for four years past, and see if you do not discover the genuine principles of the jacobins of france--recollect also that they had first a convention--then an executive directory--then a consul for years--then a consul for life, and then an usurper with an hereditary descent in his family. at each successive revolution the people were courted--were flattered--were promised transcendent felicity. the people swore eternal hatred to monarchy, and eternal fidelity to constitutions, till, heaven, weary of their perjuries, sent them a despot in his wrath. my fellow citizens human nature is the same here as in france--then before you give ear to the songs of enchantment count the cost--before you sell your birthright for a mess of pottage count the cost. before you consent to yield up the institutions of your wise and pious ancestors, count the cost--before you admit universal suffrage count the cost--before you submit to the mischievous doctrine of district elections, count the cost.--before you reject from office the men whom your hearts approve, count the cost, the great cost of weak and wicked rulers.--before you consent to be governed by men whose impudence, and vice constitute many of their claims to promotion, count the cost. this evil you can prevent by attending with punctuality on our elections. the freemen of connecticut are mighty when they arise in their strength. no freeman can justify absence except from necessity.--that people who will not faithfully attend upon the choice of their rulers, cannot expect to retain their freedom.--trust not to a majority--say not that things will go well without me--such language is unbecoming freemen--despair not of a majority--if you will not "go with the multitude to do evil," go against them to do good. before you neglect an election count the cost --if the loss of your vote should prove the loss of an election of a single man, then will you not have counted the cost. my fellow citizens--we have a government which has protected us a century and an half--we have enjoyed unexampled prosperity.--we may transmit a glorious inheritance to posterity.--the writer has children dear to him as his own blood--these children are to him a sacred deposit--he can, with confidence, commit their political interests to such a government as connecticut has enjoyed.--he is persuaded that if they feel the iron hand of despotism, it will not be from such a government, and such rulers as we now possess--before he yields his own, and their dear, and inestimable rights to the wild projects of the reformers of this age, he is firmly resolved to sit down and count the cost, and he entreats his fellow citizens to adopt similar resolutions. appendix. a view of the fiscal concerns of connecticut. capital funds of the civil list. dols. cts. funded per cent. stock, (real capital) - , deferred --do. - do. - do. - - , funded per cent. do. - - - , bank stock - - - - - , __________ , __________ school funds. bonds collaterally secured - - , , new lands received in payment of school bonds, price at which received, , funded per cent. stock, (real capital) , deferred --do. - do. -do. - - - , funded per cent. do. - - - - , ___________ , , ___________ annual expense of government. viz. salaries of executive officers, - - , debentures and contingent expenses of the legislature for two sessions, - , debenture of the supreme court of errors, judicial expenses, - - - - , expense of newgate prison, - - - , charges of paupers and vagrants, - - , allowance of dollars on the of the list being a draw-back from the state tax, , contingent expenses, comprising all other charges of government, - - - , ____________ , ____________ means for defraying the annual expense of the civil list. viz. annual interest on the above-mentioned stock appertaining to the civil list funds, , duties on civil processes, - - , annual tax of mills on the dollar, neat amount, - , _____________ , _____________ n.b. one eighth part of all the state taxes and one tenth part of all rateable polls are abated for the relief of the indigent. the yearly interest of the whole school funds would be - , deduct the interest on that part which lies in lands, and also on those bonds whereon interest has not yet commenced, amounts to , n.b. several bonds draw interest in present year, which were not on interest last year. and the whole present annual interest will be , add to this the allowance of dolls. on the of the list, - - , total annual amount payable for schools, , drawable from the state treasury annually, by the people in their capacity of school societies, - , payable by the people into the state treasury annually in taxes (including duties on civil processes) only the sum of - , balance drawn out beyond what is paid by taxes and duties, - - - - , from the foregoing view of their financial arrangements, it appears that the people of connecticut not only enjoy the blessings of civil government free from expense, but even receive from the public treasury yearly, in sum of , dollars and cents more than they contribute to in taxes, &c. who can behold this uparalleled situation of finances, taking into view at the same time our embarrassed circumstances at the close of the late war, when we were not only destitute of any funds except direct taxes, but incumbered with a debt of two millions of dollars, and not admire and appreciate the faithfulness and ability of those who have so sucessfully managed the public affairs of this state. the journal of the debates in the convention which framed the constitution of the united states may-september, as recorded by james madison edited by gaillard hunt in two volumes volume ii. g. p. putnam's sons new york and london =the knickerbocker press= =the knickerbocker press, new york= contents of volume ii. page chronology vii journal of the constitutional convention index * * * * * fac-simile. facing page first page of the constitution, reduced chronology of james madison. . * * * * * july . advocates election of the executive by the people. july . speaks in favor of making the executive impeachable. july . seconds proposition to include the judiciary with the executive in power to revise laws. moves that judges be appointed by the executive with concurrence of two-thirds of senate. july . shows the difficulty of devising satisfactory mode of selecting executive. august . advocates liberal suffrage. august . moves that basis of representation in house of representatives be one to not more than , inhabitants. opposes proposition that money bills originate only in house of representatives. august . opposes incorporation in constitution of provision against persons of foreign birth holding office. august . moves that legislature have power to compel attendance of members. august . moves that congress publish its journals, except such parts of senate proceedings as may be ordered kept secret. advocates a centrally located capital. august . seconds motion in favor of liberal treatment of foreigners. speaks in favor of participation of senate in making appropriations. august . moves that all bills be passed upon by the executive and judiciary before becoming laws. august . advocates national power to tax exports. august . moves that legislature have power to declare war. august . submits propositions for national power over public lands, to form governments for new states, over indian affairs, over seat of government, to grant charters of incorporation, copyrights, to establish a university, grant patents, acquire forts, magazines, etc. speaks in favor of national control of militia. august . appointed on committee to consider navigation acts. moves that states have power to appoint militia officers under rank of general officers. moves to commit question of negative of state laws. moves to include the executive in treaty-making power. august . declares it is wrong to admit the idea of property in men in constitution. august . suggests that in case of death of president his council may act. moves form of oath for president. moves that judges' salaries be fixed. expresses doubt whether judiciary should have power over cases arising under constitution. august . moves that states be forbidden to lay embargoes, export and import duties. august . speaks in favor of navigation acts. august . moves that ratification of constitution be by a majority of states and people. advocates ratification by state conventions. appointed on committee to consider parts of constitution and propositions not yet acted upon. sept . thinks eventual election of president by legislature should be made difficult. sept . moves that senate have power to make treaties of peace without president. sept . moves that quorum of senate be two-thirds of all the members. seconds motion to increase representation. sept . suggests that legislature should have power to grant charters of incorporation. sept . signs constitution. journal of the constitutional convention of . thursday july . in convention. on reconsideration of the vote rendering the executive re-eligible a ^d time, m^r martin moved to re-instate the words, "to be ineligible a ^d time." m^r governeur morris. it is necessary to take into one view all that relates to the establishment of the executive; on the due formation of which must depend the efficacy & utility of the union among the present and future states. it has been a maxim in political science that republican government is not adapted to a large extent of country, because the energy of the executive magistracy can not reach the extreme parts of it. our country is an extensive one. we must either then renounce the blessings of the union, or provide an executive with sufficient vigor to pervade every part of it. this subject was of so much importance that he hoped to be indulged in an extensive view of it. one great object of the executive is to controul the legislature. the legislature will continually seek to aggrandize & perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. it is necessary then that the executive magistrate should be the guardian of the people, even of the lower classes, ag^{st} legislative tyranny, against the great & the wealthy who in the course of things will necessarily compose the legislative body. wealth tends to corrupt the mind to nourish its love of power, and to stimulate it to oppression. history proves this to be the spirit of the opulent. the check provided in the ^d branch was not meant as a check on legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the ^{st} branch to legislate too much to run into projects of paper money & similar expedients. it is no check on legislative tyranny. on the contrary it may favor it, and if the ^{st} branch can be seduced may find the means of success. the executive therefore ought to be so constituted as to be the great protector of the mass of the people.--it is the duty of the executive to appoint the officers & to command the forces of the republic: to appoint . ministerial officers for the administration of public affairs. . officers for the dispensation of justice. who will be the best judges whether these appointments be well made? the people at large, who will know, will see, will feel the effects of them. again who can judge so well of the discharge of military duties for the protection & security of the people, as the people themselves who are to be protected & secured? he finds too that the executive is not to be re-eligible. what effect will this have? . it will destroy the great incitement to merit public esteem by taking away the hope of being rewarded with a reappointment. it may give a dangerous turn to one of the strongest passions in the human breast. the love of fame is the great spring to noble & illustrious actions. shut the civil road to glory & he may be compelled to seek it by the sword. . it will tempt him to make the most of the short space of time allotted him, to accumulate wealth and provide for his friends. . it will produce violations of the very constitution it is meant to secure. in moments of pressing danger the tried abilities and established character of a favorite magistrate will prevail over respect for the forms of the constitution. the executive is also to be impeachable. this is a dangerous part of the plan. it will hold him in such dependence that he will be no check on the legislature, will not be a firm guardian of the people and of the public interest. he will be the tool of a faction, of some leading demagogue in the legislature. these then are the faults of the executive establishment as now proposed. can no better establish^t be devised? if he is to be the guardian of the people let him be appointed by the people? if he is to be a check on the legislature let him not be impeachable. let him be of short duration, that he may with propriety be re-eligible. it has been said that the candidates for this office will not be known to the people. if they be known to the legislature, they must have such a notoriety and eminence of character, that they cannot possibly be unknown to the people at large. it cannot be possible that a man shall have sufficiently distinguished himself to merit this high trust without having his character proclaimed by fame throughout the empire. as to the danger from an unimpeachable magistrate he could not regard it as formidable. there must be certain great officers of state; a minister of finance, of war, of foreign affairs &c. these he presumes will exercise their functions in subordination to the executive, and will be amenable by impeachment to the public justice. without these ministers the executive can do nothing of consequence. he suggested a biennial election of the executive at the time of electing the ^{st} branch, and the executive to hold over, so as to prevent any interregnum in the administration. an election by the people at large throughout so great an extent of country could not be influenced by those little combinations and those momentary lies, which often decide popular elections within a narrow sphere. it will probably, be objected that the election will be influenced by the members of the legislature; particularly of the ^{st} branch, and that it will be nearly the same thing with an election by the legislature itself. it could not be denied that such an influence would exist. but it might be answered that as the legislature or the candidates for it would be divided, the enmity of one part would counteract the friendship of another; that if the administration of the executive were good, it would be unpopular to oppose his re-election, if bad it ought to be opposed & a reappointm^t prevented; and lastly that in every view this indirect dependence on the favor of the legislature could not be so mischievous as a direct dependence for his appointment. he saw no alternative for making the executive independent of the legislature but either to give him his office for life, or make him eligible by the people. again, it might be objected that two years would be too short a duration. but he believes that as long as he should behave himself well, he would be continued in his place. the extent of the country would secure his re-election ag^{st} the factions & discontents of particular states. it deserved consideration also that such an ingredient in the plan would render it extremely palatable to the people. these were the general ideas which occurred to him on the subject, and which led him to wish & move that the whole constitution of the executive might undergo reconsideration. m^r randolph urged the motion of m^r l. martin for restoring the words making the executive ineligible a ^d time. if he ought to be independent, he should not be left under a temptation to court a re-appointment. if he should be re-appointable by the legislature, he will be no check on it. his revisionary power will be of no avail. he had always thought & contended as he still did that the danger apprehended by the little states was chimerical; but those who thought otherwise ought to be peculiarly anxious for the motion. if the executive be appointed, as has been determined, by the legislature, he will probably be appointed either by joint ballot of both houses, or be nominated by the ^{st} and appointed by the ^d branch. in either case the large states will preponderate. if he is to court the same influence for his re-appointment, will he not make his revisionary power, and all the other functions of his administration subservient to the views of the large states. besides, is there not great reason to apprehend that in case he should be re-eligible, a false complaisance in the legislature might lead them to continue an unfit man in office in preference to a fit one. it has been said that a constitutional bar to re-appointment will inspire unconstitutional endeavours to perpetuate himself. it may be answered that his endeavours can have no effect unless the people be corrupt to such a degree as to render all precautions hopeless; to which may be added that this argument supposes him to be more powerful & dangerous, than other arguments which have been used, admit, and consequently calls for stronger fetters on his authority. he thought an election by the legislature with an incapacity to be elected a second time would be more acceptable to the people than the plan suggested by m^r gov^r morris. m^r king did not like the ineligibility. he thought there was great force in the remark of m^r sherman, that he who has proved himself most fit for an office, ought not to be excluded by the constitution from holding it. he would therefore prefer any other reasonable plan that could be substituted. he was much disposed to think that in such cases the people at large would chuse wisely. there was indeed some difficulty arising from the improbability of a general concurrence of the people in favor of any one man. on the whole he was of opinion that an appointment by electors chosen by the people for the purpose, would be liable to fewest objections. m^r patterson's ideas nearly coincided he said with those of m^r king. he proposed that the executive should be appointed by electors to be chosen by the states in a ratio that would allow one elector to the smallest and three to the largest states. m^r wilson. it seems to be the unanimous sense that the executive should not be appointed by the legislature, unless he be rendered in-eligible a ^d time: he perceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people. m^r madison. if it be a fundamental principle of free gov^t that the legislative, executive & judiciary powers should be _separately_ exercised, it is equally so that they be _independently_ exercised. there is the same & perhaps greater reason why the executive sh^d be independent of the legislature, than why the judiciary should. a coalition of the two former powers would be more immediately & certainly dangerous to public liberty. it is essential then that the appointment of the executive should either be drawn from some source, or held by some tenure that will give him a free agency with regard to the legislature. this could not be if he was to be appointable from time to time by the legislature. it was not clear that an appointment in the ^{st} instance even with an ineligibility afterwards would not establish an improper connection between the two departments. certain it was that the appointment would be attended with intrigues and contentions that ought not to be unnecessarily admitted. he was disposed for these reasons to refer the appointment to some other source. the people at large was in his opinion the fittest in itself. it would be as likely as any that could be devised to produce an executive magistrate of distinguished character. the people generally could only know & vote for some citizen whose merits had rendered him an object of general attention & esteem. there was one difficulty however of a serious nature attending an immediate choice by the people. the right of suffrage was much more diffusive in the northern than the southern states; and the latter could have no influence in the election on the score of the negroes. the substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections. m^r gerry. if the executive is to be elected by the legislature he certainly ought not to be re-eligible. this would make him absolutely dependent. he was ag^{st} a popular election. the people are uninformed, and would be misled by a few designing men. he urged the expediency of an appointment of the executive by electors to be chosen by the state executives. the people of the states will then choose the ^{st} branch; the legislatures of the states the ^d branch of the national legislature, and the executives of the states, the national executive. this he thought would form a strong attachm^t in the states to the national system. the popular mode of electing the chief magistrate would certainly be the worst of all. if he should be so elected & should do his duty, he will be turned out for it like gov^r bowdoin in mass^{ts} & president sullivan in n. hampshire. on the question on m^r gov^r morris motion to reconsider generally the constitution of the executive mas. ay. c^t ay. n. j. ay. & all the others ay. m^r elseworth moved to strike out the appointm^t by the nat^l legislature, and to insert, to be chosen by electors appointed by the legislatures of the states in the following ratio; to wit--one for each state not exceeding , [ ] inhab^{ts} two for each above y^t number & not exceeding , . and three for each state exceeding , .--m^r broome ^{ded}. the motion.[ ] [ ] the journal gives it , .--_journal of the federal convention_, . [ ] "mr. broom is a plain good man, with some abilities, but nothing to render him conspicuous. he is silent in public, but chearful and conversable in private. he is about years old."--pierce's notes, _am. hist. rev._, iii., . m^r rutlidge was opposed to all the modes, except the appointm^t by the nat^l legislature. he will be sufficiently independent, if he be not re-eligible. m^r gerry preferred the motion of m^r elseworth to an appointm^t by the nat^l legislature, or by the people; tho' not to an app^t by the state executives. he moved that the electors proposed by m^r e. should be in number, and allotted in the following proportion. to n. h. . to mas. . to r. i. . to con^t . to n. y. . n. j. . p^a . del. . m^d . v^a . n. c. . s. c. . geo. . the question as moved by m^r elseworth being divided, on the ^{st} part shall y^e nat^l executive be appointed by electors? mas. div^d. con^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on ^d part shall the electors be chosen by the state legislatures? mas. ay. con^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. ay. the part relating to the ratio in which the states s^d chuse electors was postponed nem. con. m^r l. martin moved that the executive be ineligible a ^d time. m^r williamson, ^{ds} the motion. he had no great confidence in electors to be chosen for the special purpose. they would not be the most respectable citizens; but persons not occupied in the high offices of gov^t. they would be liable to undue influence, which might the more readily be practised as some of them will probably be in appointment or months before the object of it comes on. m^r elseworth supposed any persons might be appointed electors, excepting, solely, members of the nat^l legislature. on the question shall he be ineligible a ^d time? mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. on the question shall the executive continue for years? it passed in the negative mas. div^d. con^t ay.[ ] n. j. no. p^a no. del. no. m^d no. v^a no. n. c. div^d. s. c. ay. geo. ay. [ ] in the printed journal con^t, no: n. jersey ay.--madison's note. m^r king was afraid we sh^d shorten the term too much. m^r gov^r morris was for a short term, in order to avoid impeach^{ts} which w^d be otherwise necessary. m^r butler was ag^{st} the frequency of the elections. geo. & s. c. were too distant to send electors often. m^r elseworth was for years. if the elections be too frequent, the executive will not be firm eno. there must be duties which will make him unpopular for the moment. there will be _outs_ as well as _ins_. his administration therefore will be attacked and misrepresented. m^r williamson was for years. the expence will be considerable & ought not to be unnecessarily repeated. if the elections are too frequent, the best men will not undertake the service and those of an inferior character will be liable to be corrupted. on the question for years? mas. ay. con^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. adjourned friday july . in convention. the postponed ratio of electors for appointing the executive; to wit for each state whose inhabitants do not exceed . . &c. being taken up. m^r madison observed that this would make in time all or nearly all the states equal. since there were few that would not in time contain the number of inhabitants intitling them to electors; that this ratio ought either to be made temporary, or so varied as that it would adjust itself to the growing population of the states. m^r gerry moved that in the _ ^{st} instance_ the electors should be allotted to the states in the following ratio: to n. h. . mass. . r. i. . con^t . n. y. . n. j. . p^a . del. . m^d . v^a . n. c. . s. c. . geo. . on the question to postpone in order to take up this motion of m^r gerry. it passed in the affirmative mass. ay. con^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r elseworth moved that electors be allotted to n. h. some rule ought to be pursued; and n. h. has more than , inhabitants. he thought it would be proper also to allot . to georgia. m^r broom & m^r martin moved to postpone m^r gerry's allotment of electors, leaving a fit ratio to be reported by the committee to be appointed for detailing the resolutions. on this motion, mass. no. c^t no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r houston ^{ded} the motion of m^r elseworth to add another elector to n. h. & georgia. on the question; mass. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r williamson moved as an amendment to m^r gerry's allotment of electors in the ^{st} instance that in future elections of the nat^l executive, the number of electors to be appointed by the several states shall be regulated by their respective numbers of representatives in the ^{st} branch pursuing as nearly as may be the present proportions. on question on m^r gerry's ratio of electors mass. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. "to be removable on impeachment and conviction for malpractice or neglect of duty," see resol. . m^r pinkney & m^r gov^r morris moved to strike out this part of the resolution. m^r p. observ^d he ought not to be impeachable whilst in office. m^r davie. if he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. he considered this as an essential security for the good behaviour of the executive. m^r wilson concurred in the necessity of making the executive impeachable whilst in office. m^r gov^r morris. he can do no criminal act without coadjutors who may be punished. in case he should be re-elected, that will be a sufficient proof of his innocence. besides who is to impeach? is the impeachment to suspend his functions. if it is not the mischief will go on. if it is the impeachment will be nearly equivalent to a displacement, and will render the executive dependent on those who are to impeach. col. mason. no point is of more importance than that the right of impeachment should be continued. shall any man be above justice? above all shall that man be above it, who can commit the most extensive injustice? when great crimes were committed he was for punishing the principal as well as the coadjutors. there had been much debate & difficulty as to the mode of chusing the executive. he approved of that which had been adopted at first, namely of referring the appointment to the nat^l legislature. one objection ag^{st} electors was the danger of their being corrupted by the candidates, & this furnished a peculiar reason in favor of impeachments whilst in office. shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt? doc^r franklin was for retaining the clause as favorable to the executive. history furnishes one example only of a first magistrate being formally brought to public justice. every body cried out ag^{st} this as unconstitutional. what was the practice before this in cases where the chief magistrate rendered himself obnoxious? why recourse was had to assassination in w^{ch} he was not only deprived of his life but of the opportunity of vindicating his character. it w^d be the best way therefore to provide in the constitution for the regular punishment of the executive where his misconduct should deserve it, and for his honorable acquittal where he should be unjustly accused. m^r gov^r morris admits corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined. m^r madison thought it indispensable that some provision should be made for defending the community ag^{st} the incapacity, negligence or perfidy of the chief magistrate. the limitation of the period of his service was not a sufficient security. he might lose his capacity after his appointment. he might pervert his administration into a scheme of peculation or oppression. he might betray his trust to foreign powers. the case of the executive magistracy was very distinguishable, from that of the legislature or any other public body, holding offices of limited duration. it could not be presumed that all or even a majority of the members of an assembly would either lose their capacity for discharging, or be bribed to betray, their trust. besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. and if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. in the case of the executive magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the republic. m^r pinkney did not see the necessity of impeachments. he was sure they ought not to issue from the legislature who would in that case hold them as a rod over the executive and by that means effectually destroy his independence. his revisionary power in particular would be rendered altogether insignificant. m^r gerry urged the necessity of impeachments. a good magistrate will not fear them. a bad one ought to be kept in fear of them. he hoped the maxim would never be adopted here that the chief magistrate could do no wrong. m^r king expressed his apprehensions that an extreme caution in favor of liberty might enervate the government we were forming. he wished the house to recur to the primitive axiom that the three great departments of gov^{ts} should be separate & independent: that the executive & judiciary should be so as well as the legislative: that the executive should be so equally with the judiciary. would this be the case, if the executive should be impeachable? it had been said that the judiciary would be impeachable. but it should have been remembered at the same time that the judiciary hold their places not for a limited time, but during good behaviour. it is necessary therefore that a form should be established for trying misbehaviour. was the executive to hold his place during good behaviour? the executive was to hold his place for a limited term like the members of the legislature. like them, particularly the senate whose members would continue in appointm^t the same term of years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. like them therefore, he ought to be subject to no intermediate trial, by impeachment. he ought not to be impeachable unless he held his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. but under no circumstances ought he to be impeachable by the legislature. this would be destructive of his independence and of the principles of the constitution. he relied on the vigor of the executive as a great security for the public liberties. m^r randolph. the propriety of impeachments was a favorite principle with him. guilt wherever found ought to be punished. the executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. he is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the legislature from the business. he suggested for consideration an idea which had fallen (from col. hamilton) of composing a forum out of the judges belonging to the states: and even of requiring some preliminary inquest whether just ground of impeachment existed. doct^r franklin mentioned the case of the prince of orange during the late war. an agreement was made between france & holland; by which their two fleets were to unite at a certain time & place. the dutch fleet did not appear. every body began to wonder at it. at length it was suspected that the statholder was at the bottom of the matter. this suspicion prevailed more & more. yet as he could not be impeached and no regular examination took place, he remained in his office, and strengthening his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities & contentions. had he been impeachable, a regular & peaceable enquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public. m^r king remarked that the case of the statholder was not applicable. he held his place for life, and was not periodically elected. in the former case impeachments are proper to secure good behaviour. in the latter they are unnecessary; the periodical responsibility to the electors being an equivalent security. m^r wilson observed that if the idea were to be pursued, the senators who are to hold their places during the same term with the executive, ought to be subject to impeachment & removal. m^r pinkney apprehended that some gentlemen reasoned on a supposition that the executive was to have powers which would not be committed to him: he presumed that his powers would be so circumscribed as to render impeachments unnecessary. m^r gov^r morris's opinion had been changed by the arguments used in the discussion. he was now sensible of the necessity of impeachments, if the executive was to continue for any length of time in office. our executive was not like a magistrate having a life interest, much less like one having an hereditary interest in his office. he may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first magistrate in foreign pay, without being able to guard ag^{st} it by displacing him. one would think the king of england well secured ag^{st} bribery. he has as it were a fee simple in the whole kingdom. yet charles ii. was bribed by louis xiv. the executive ought therefore to be impeachable for treachery: corrupting his electors, and incapacity were other causes of impeachment. for the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. this magistrate is not the king but the prime minister. the people are the king. when we make him amenable to justice however we should take care to provide some mode that will not make him dependent on the legislature. it was moved & ^{ded} to postpone the question of impeachments which was negatived, mas. & s. carolina only being ay. on y^e question, shall the executive be removable on impeachments &c.? mass. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. "executive to receive fixed compensation." agreed to nem. con. "to be paid out of the national treasury" agreed to, n. jersey only in the negative. m^r gerry & gov^r morris moved that the electors of the executive shall not be members of the nat^l legislature, nor officers of the u. states, nor shall the electors themselves be eligible to the supreme magistracy. agreed to nem. con. doc^r mcclurg[ ] asked whether it would not be necessary, before a committee for detailing the constitution should be appointed, to determine on the means by which the executive, is to carry the laws into effect, and to resist combinations ag^{st} them. is he to have a military force for the purpose, or to have the command of the militia, the only existing force that can be applied to that use? as the resolutions now stand the committee will have no determinate directions on this great point. [ ] "mr. mcclurg is a learned physician, but having never appeared before in public life his character as a politician is not sufficiently known. he attempted once or twice to speak, but with no great success. it is certain that he has a foundation of learning, on which, if he pleases, he may erect a character of high renown. the doctor is about years of age, a gentleman of great respectability, and of a fair and unblemished character."--pierce's notes, _am. hist. rev._, iii., . m^r wilson thought that some additional directions to the committee w^d be necessary. m^r king. the committee are to provide for the end. their discretionary power to provide for the means is involved according to an established axiom. adjourned. saturday july in convention m^r williamson moved that the electors of the executive should be paid out of the national treasury for the service to be performed by them. justice required this: as it was a national service they were to render. the motion was agreed to nem. con. m^r wilson moved as an amendment to resol^n . that the supreme nat^l judiciary should be associated with the executive in the revisionary power. this proposition had been before made and failed: but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort: the judiciary ought to have an opportunity of remonstrating ag^{st} projected encroachments on the people as well as on themselves. it had been said that the judges, as expositors of the laws would have an opportunity of defending their constitutional rights. there was weight in this observation; but this power of the judges did not go far enough. laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the judges in refusing to give them effect. let them have a share in the revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the legislature.--m^r madison ^{ded} the motion. m^r ghorum did not see the advantage of employing the judges in this way. as judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. nor can it be necessary as a security for their constitutional rights. the judges in england have no such additional provision for their defence, yet their jurisdiction is not invaded. he thought it would be best to let the executive alone be responsible, and at most to authorize him to call on judges for their opinions. m^r elseworth approved heartily of the motion. the aid of the judges will give more wisdom & firmness to the executive. they will possess a systematic and accurate knowledge of the laws, which the executive cannot be expected always to possess. the law of nations also will frequently come into question. of this the judges alone will have competent information. m^r madison considered the object of the motion as of great importance to the meditated constitution. it would be useful to the judiciary departm^t by giving it an additional opportunity of defending itself ag^{st} legislative encroachments: it would be useful to the executive, by inspiring additional confidence & firmness in exerting the revisionary power: it would be useful to the legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity & technical propriety in the laws, qualities peculiarly necessary; & yet shamefully wanting in our republican codes. it would moreover be useful to the community at large as an additional check ag^{st} a pursuit of those unwise & unjust measures which constituted so great a portion of our calamities. if any solid objection could be urged ag^{st} the motion, it must be on the supposition that it tended to give too much strength either to the executive or judiciary. he did not think there was the least ground for this apprehension. it was much more to be apprehended that notwithstanding this co-operation of the two departments, the legislature would still be an overmatch for them. experience in all the states had evinced a powerful tendency in the legislature to absorb all power into its vortex. this was the real source of danger to the american constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles. m^r mason said he had always been a friend to this provision. it would give a confidence to the executive, which he would not otherwise have, and without which the revisionary power would be of little avail. m^r gerry did not expect to see this point which had undergone full discussion, again revived. the object he conceived of the revisionary power was merely to secure the executive department ag^{st} legislative encroachment. the executive therefore who will best know and be ready to defend his rights ought alone to have the defence of them. the motion was liable to strong objections. it was combining & mixing together the legislative & the other departments. it was establishing an improper coalition between the executive & judiciary departments. it was making statesmen of the judges; and setting them up as the guardians of the rights of the people. he relied for his part on the representatives of the people as the guardians of their rights & interests. it was making the expositors of the laws, the legislators which ought never to be done. a better expedient for correcting the laws, would be to appoint as had been done in pen^a, a person or persons of proper skill, to draw bills for the legislature. m^r strong thought with m^r gerry that the power of making ought to be kept distinct from that of expounding, the laws. no maxim was better established. the judges in exercising the function of expositors might be influenced by the part they had taken in framing the laws. m^r gov^r morris. some check being necessary on the legislature, the question is in what hands it should be lodged. on one side it was contended that the executive alone ought to exercise it. he did not think that an executive appointed for years, and impeachable whilst in office w^d be a very effectual check. on the other side it was urged that he ought to be reinforced by the judiciary department. ag^{st} this it was objected that expositors of laws ought to have no hand in making them, and arguments in favor of this had been drawn from england. what weight was due to them might be easily determined by an attention to facts. the truth was that the judges in england had a great share in y^e legislation. they are consulted in difficult & doubtful cases. they may be & some of them are members of the legislature. they are or may be members of the privy council, and can there advise the executive as they will do with us if the motion succeeds. the influence the english judges may have in the latter capacity in strengthening the executive check can not be ascertained, as the king by his influence in a manner dictates the laws. there is one difference in the two cases however which disconcerts all reasoning from the british to our proposed constitution. the british executive has so great an interest in his prerogatives and such powerful means of defending them that he will never yield any part of them. the interest of our executive is so inconsiderable & so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting incroachments. he was extremely apprehensive that the auxiliary firmness & weight of the judiciary would not supply the deficiency. he concurred in thinking the public liberty in greater danger from legislative usurpations than from any other source. it had been said that the legislature ought to be relied on as the proper guardians of liberty. the answer was short and conclusive. either bad laws will be pushed or not. on the latter supposition no check will be wanted. on the former a strong check will be necessary: and this is the proper supposition. emissions of paper money, largesses to the people--a remission of debts and similar measures, will at some times be popular, and will be pushed for that reason. at other times such measures will coincide with the interests of the legislature themselves, & that will be a reason not less cogent for pushing them. it may be thought that the people will not be deluded and misled in the latter case. but experience teaches another lesson. the press is indeed a great means of diminishing the evil, yet it is found to be unable to prevent it altogether. m^r l. martin, considered the association of the judges with the executive as a dangerous innovation; as well as one which could not produce the particular advantage expected from it. a knowledge of mankind, and of legislative affairs cannot be presumed to belong in a higher degree to the judges than to the legislature. and as to the constitutionality of laws, that point will come before the judges in their proper official character. in this character they have a negative on the laws. join them with the executive in the revision and they will have a double negative. it is necessary that the supreme judiciary should have the confidence of the people. this will soon be lost, if they are employed in the task of remonstrating ag^{st} popular measures of the legislature. besides in what mode & proportion are they to vote in the council of revision? m^r madison could not discover in the proposed association of the judges with the executive in the revisionary check on the legislature any violation of the maxim which requires the great departments of power to be kept separate & distinct. on the contrary he thought it an auxiliary precaution in favor of the maxim. if a constitutional discrimination of the departments on paper were a sufficient security to each ag^{st} encroachments of the others, all further provisions would indeed be superfluous. but experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests as will guarantee the provisions on paper. instead therefore of contenting ourselves with laying down the theory in the constitution that each department ought to be separate & distinct, it was proposed to add a defensive power to each which should maintain the theory in practice. in so doing we did not blend the departments together. we erected effectual barriers for keeping them separate. the most regular example of this theory was in the british constitution. yet it was not only the practice there to admit the judges to a seat in the legislature, and in the executive councils, and to submit to their previous examination all laws of a certain description, but it was a part of their constitution that the executive might negative any law whatever; a part of _their_ constitution which had been universally regarded as calculated for the preservation of the whole. the objection ag^{st} a union of the judiciary & executive branches in the revision of the laws, had either no foundation or was not carried far enough. if such a union was an improper mixture of powers, or such a judiciary check on the laws, was inconsistent with the theory of a free constitution, it was equally so to admit the executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether. col. mason observed that the defence of the executive was not the sole object of the revisionary power. he expected even greater advantages from it. notwithstanding the precautions taken in the constitution of the legislature, it would still so much resemble that of the individual states, that it must be expected frequently to pass unjust and pernicious laws. this restraining power was therefore essentially necessary. it would have the effect not only of hindering the final passage of such laws; but would discourage demagogues from attempting to get them passed. it has been said (by m^r l. martin) that if the judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of judges they would have one negative. he would reply that in this capacity they could impede in one case only, the operation of laws. they could declare an unconstitutional law void. but with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course. he wished the further use to be made of the judges, of giving aid in preventing every improper law. their aid will be the more valuable as they are in the habit and practice of considering laws in their true principles, and in all their consequences. m^r wilson. the separation of the departments does not require that they should have separate objects but that they should act separately tho' on the same objects. it is necessary that the two branches of the legislature should be separate and distinct, yet they are both to act precisely on the same object. m^r gerry had rather give the executive an absolute negative for its own defence than thus to blend together the judiciary & executive departments. it will bind them together in an offensive and defensive alliance ag^{st} the legislature, and render the latter unwilling to enter into a contest with them. m^r gov^r morris was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. suppose that the three powers, were to be vested in three persons, by compact among themselves; that one was to have the power of making, another of executing, and a third of judging, the laws. would it not be very natural for the two latter after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that as a security ag^{st} legislative acts of the former which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence, or at least to have an opportunity of stating their objections ag^{st} acts of encroachment? and would any one pretend that such a right tended to blend & confound powers that ought to be separately exercised? as well might it be said that if three neighbours had three distinct farms, a right in each to defend his farm ag^{st} his neighbours, tended to blend the farms together. m^r ghorum. all agree that a check on the legislature is necessary. but there are two objections ag^{st} admitting the judges to share in it which no observations on the other side seem to obviate, the ^{st} is that the judges ought to carry into the exposition of the laws no prepossessions with regard to them. ^d that as the judges will outnumber the executive, the revisionary check would be thrown entirely out of the executive hands, and instead of enabling him to defend himself, would enable the judges to sacrifice him. m^r wilson. the proposition is certainly not liable to all the objections which have been urged ag^{st} it. according (to m^r gerry) it will unite the executive & judiciary in an offensive & defensive alliance ag^{st} the legislature. according to m^r ghorum it will lead to a subversion of the executive by the judiciary influence. to the first gentleman the answer was obvious: that the joint weight of the two departments was necessary to balance the single weight of the legislature. to the ^{st} objection stated by the other gentleman it might be answered that supposing the prepossession to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient. to the ^d objection, that such a rule of voting might be provided in the detail as would guard ag^{st} it. m^r rutlidge thought the judges of all men the most unfit to be concerned in the revisionary council. the judges ought never to give their opinion on a law till it comes before them. he thought it equally unnecessary. the executive could advise with the officers of state, as of war, finance &c. and avail himself of their information & opinions. on question on m^r wilson's motion for joining the judiciary in the revision of laws it passed in the negative-- mass. no. con^t ay. n. j. not present. p^a div^d. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. div^d. resol. , giving the ex a qualified veto, without the amend^t was then ag^d to nem. con. the motion made by m^r madison july . & then postponed, "that the judges sh^d be nominated by the executive & such nominations become appointments unless disagreed to by / of the ^d branch of the legislature," was now resumed. m^r madison stated as his reasons for the motion, . that it secured the responsibility of the executive who would in general be more capable & likely to select fit characters than the legislature, or even the ^d b. of it, who might hide their selfish motives under the number concerned in the appointment. . that in case of any flagrant partiality or error, in the nomination it might be fairly presumed that / of the ^d branch would join in putting a negative on it. . that as the ^d b. was very differently constituted when the appointment of the judges was formerly referred to it, and was now to be composed of equal votes from all the states, the principle of compromise which had prevailed in other instances required in this that there sh^d be a concurrence of two authorities, in one of which the people, in the other the states should be represented. the executive magistrate w^d be considered as a national officer, acting for and equally sympathizing with every part of the u. states. if the ^d branch alone should have this power, the judges might be appointed by a minority of the people, tho' by a majority, of the states, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the states: and as it would moreover throw the appointments entirely into the hands of y^e northern states, a perpetual ground of jealousy & discontent would be furnished to the southern states. m^r pinkney was for placing the appointm^t in the ^d b. exclusively. the executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust. m^r randolph w^d have preferred the mode of appointm^t proposed formerly by m^r ghorum, as adopted in the constitution of mass^{ts} but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. he laid great stress on the responsibility of the executive as a security for fit appointments. appointments by the legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. the same inconveniences will proportionally prevail if the appointments be referred to either branch of the legislature or to any other authority administered by a number of individuals. m^r elseworth would prefer a negative in the executive on a nomination by the ^d branch, the negative to be overruled by a concurrence of / of the ^d b. to the mode proposed by the motion; but preferred an absolute appointment by the ^d branch to either. the executive will be regarded by the people with a jealous eye. every power for augmenting unnecessarily his influence will be disliked. as he will be stationary it was not to be supposed he could have a better knowledge of characters. he will be more open to caresses & intrigues than the senate. the right to supersede his nomination will be ideal only. a nomination under such circumstances will be equivalent to an appointment. m^r gov^r morris supported the motion. . the states in their corporate capacity will frequently have an interest staked on the determination of the judges. as in the senate the states are to vote the judges ought not to be appointed by the senate. next to the impropriety of being judge in one's own cause, is the appointment of the judge. . it had been said the executive would be uninformed of characters. the reverse was y^e truth. the senate will be so. they must take the character of candidates from the flattering pictures drawn by their friends. the executive in the necessary intercourse with every part of the u. s. required by the nature of his administration, will or may have the best possible information. . it had been said that a jealousy would be entertained of the executive. if the executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of jealousy in the present case. he added that if the objections ag^{st} an appointment of the executive by the legislature, had the weight that had been allowed there must be some weight in the objection to an appointment of the judges by the legislature or by any part of it. m^r gerry. the appointment of the judges like every other part of the constitution sh^d be so modelled as to give satisfaction both to the people and to the states. the mode under consideration will give satisfaction to neither. he could not conceive that the executive could be as well informed of characters throughout the union, as the senate. it appeared to him also a strong objection that / of the senate were required to reject a nomination of the executive. the senate would be constituted in the same manner as congress. and the appointments of congress have been generally good. m^r madison, observed that he was not anxious that / should be necessary to disagree to a nomination. he had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. he was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject. col. mason found it his duty to differ from his colleagues in their opinions & reasonings on this subject. notwithstanding the form of the proposition by which the appointment seemed to be divided between the executive & senate, the appointment was substantially vested in the former alone. the false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. he considered the appointment by the executive as a dangerous prerogative. it might even give him an influence over the judiciary department itself. he did not think the difference of interest between the northern and southern states could be properly brought into this argument. it would operate & require some precautions in the case of regulating navigation, commerce & imposts; but he could not see that it had any connection with the judiciary department. on the question, the motion now being "that the executive should nominate & such nominations should become appointments unless disagreed to by the senate" mass. ay. c^t no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. on question for agreeing to the clause as it stands by which the judges are to be appointed by the ^d branch mass. no. c^t ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. adjourned. monday july . in convention m^r john langdon & m^r nicholas gilman[ ] from n. hampshire,[ ] took their seats. [ ] m^r gilman is modest, genteel, and sensible. there is nothing brilliant or striking in his character, but there is something respectable and worthy in the man.--about years of age."--pierce's notes, _am. hist. rev._, iii., . he did not speak in the convention. [ ] the act appointing deputies to the convention was not passed by the new hampshire legislature till june , .--_journal of federal convention_, . resol:^n . that provision ought to be made for future amendments of the articles of union, agreed to, nem. con. resol^n . "requiring the legis: execut: & jud^y of the states to be bound by oath to support the articles of union," taken into consideration. m^r williamson suggests that a reciprocal oath should be required from the national officers, to support the governments of the states. m^r gerry moved to insert as an amendm^t that the oath of the officers of the national government also should extend to the support of the nat^l gov^t which was agreed to nem. con. m^r wilson said he was never fond of oaths, considering them as a left handed security only. a good gov^t did not need them, and a bad one could not or ought not to be supported. he was afraid they might too much trammel the members of the existing gov^t in case future alterations should be necessary; and prove an obstacle to resol: . just ag^d to. m^r ghorum did not know that oaths would be of much use; but could see no inconsistency between them and the . resol. or any regular amend^t of the constitution. the oath could only require fidelity to the existing constitution. a constitutional alteration of the constitution, could never be regarded as a breach of the constitution, or of any oath to support it. m^r gerry thought with m^r ghorum there could be no shadow of inconsistency in the case. nor could he see any other harm that could result from the resolution. on the other side he thought one good effect would be produced by it. hitherto the officers of the two governments had considered them as distinct from, and not as parts of the general system, & had in all cases of interference given a preference to the state gov^{ts}. the proposed oath will cure that error. the resol^n ( ) was agreed to nem. con. resol: . referring the new constitution to assemblies to be chosen by the people for the express purpose of ratifying it was next taken into consideration. m^r elseworth moved that it be referred to the legislatures of the states for ratification. m^r patterson ^{ded} the motion. col. mason considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. the legislatures have no power to ratify it. they are the mere creatures of the state constitutions, and cannot be greater than their creators. and he knew of no power in any of the constitutions, he knew there was no power in some of them, that could be competent to this object. whither then must we resort? to the people with whom all power remains that has not been given up in the constitutions derived from them. it was of great moment he observed that this doctrine should be cherished as the basis of free government. another strong reason was that admitting the legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding legislatures having equal authority could undo the acts of their predecessors; and the national gov^t would stand in each state on the weak and tottering foundation of an act of assembly. there was a remaining consideration of some weight. in some of the states the gov^{ts} were not derived from the clear & undisputed authority of the people. this was the case in virginia. some of the best & wisest citizens considered the constitution as established by an assumed authority. a national constitution derived from such a source would be exposed to the severest criticisms. m^r randolph. one idea has pervaded all our proceedings, to wit, that opposition as well from the states as from individuals, will be made to the system to be proposed. will it not then be highly imprudent, to furnish any unnecessary pretext by the mode of ratifying it. added to other objections ag^{st} a ratification by the legislative authority only, it may be remarked that there have been instances in which the authority of the common law has been set up in particular states ag^{st} that of the confederation which has had no higher sanction than legislative ratification.--whose opposition will be most likely to be excited ag^{st} the system? that of the local demagogues who will be degraded by it from the importance they now hold. these will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those brought with him into the convention. it is of great importance therefore that the consideration of this subject should be transferred from the legislatures where this class of men, have their full influence to a field in which their efforts can be less mischievous. it is moreover worthy of consideration that some of the states are averse to any change in their constitution, and will not take the requisite steps, unless expressly called upon to refer the question to the people. m^r gerry. the arguments of col. mason & m^r randolph prove too much. they prove an unconstitutionality in the present federal system & even in some of the state gov^{ts}. inferences drawn from such a source must be inadmissible. both the state gov^{ts} & the federal gov^t have been too long acquiesced in, to be now shaken. he considered the confederation to be paramount to any state constitution. the last article of it authorizing alterations must consequently be so as well as the others, and every thing done in pursuance of the article must have the same high authority with the article. great confusion he was confident would result from a recurrence to the people. they would never agree on any thing. he could not see any ground to suppose that the people will do what their rulers will not. the rulers will either conform to, or influence the sense of the people. m^r ghorum was ag^{st} referring the plan to the legislatures. . men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the legislature who are to lose the power which is to be given up to the gen^l gov^t. . some of the legislatures are composed of several branches. it will consequently be more difficult in these cases to get the plan through the legislatures, than thro' a convention. . in the states many of the ablest men are excluded from the legislatures, but may be elected into a convention. among these may be ranked many of the clergy who are generally friends to good government. their services were found to be valuable in the formation & establishment of the constitution of massach^{ts}. . the legislatures will be interrupted with a variety of little business, by artfully pressing which designing men will find means to delay from year to year, if not to frustrate altogether the national system. . if the last art: of the confederation is to be pursued the unanimous concurrence of the states will be necessary. but will any one say, that all the states are to suffer themselves to be ruined, if rho. island should persist in her opposition to general measures. some other states might also tread in her steps. the present advantage which n. york seems to be so much attached to, of taxing her neighbours by the regulation of her trade, makes it very probable, that she will be of the number. it would therefore deserve serious consideration whether provision ought not to be made for giving effect to the system without waiting for the unanimous concurrence of the states. m^r elseworth. if there be any legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents and pursue such a mode as w^d be competent. he thought more was to be expected from the legislatures than from the people. the prevailing wish of the people in the eastern states is to get rid of the public debt; and the idea of strengthening the nat^l gov^t carries with it that of strengthening the public debt. it was said by col. mason . that the legislatures have no authority in this case. . that their successors having equal authority could rescind their acts. as to the ^d point he could not admit it to be well founded. an act to which the states by their legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. as to the ^{st} point, he observed that a new sett of ideas seemed to have crept in since the articles of confederation were established. conventions of the people, or with power derived expressly from the people, were not then thought of. the legislatures were considered as competent. their ratification has been acquiesced in without complaint. to whom have cong^s applied on subsequent occasions for further powers? to the legislatures; not to the people. the fact is that we exist at present, and we need not enquire how, as a federal society, united by a charter one article of which is that alterations therein may be made by the legislative authority of the states. it has been said that if the confederation is to be observed, the states must _unanimously_ concur in the proposed innovations. he would answer that if such were the urgency & necessity of our situation as to warrant a new compact among a part of the states, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the legislatures. m^r williamson thought the resol:^n ( ) so expressed as that it might be submitted either to the legislatures or to conventions recommended by the legislatures. he observed that some legislatures were evidently unauthorized to ratify the system. he thought too that conventions were to be preferred as more likely to be composed of the ablest men in the states. m^r gov^r morris considered the inference of m^r elseworth from the plea of necessity as applied to the establishment of a new system on y^e consent of the people of a part of the states, in favor of a like establishm^t on the consent of a part of the legislatures, as a non sequitur. if the confederation is to be pursued no alteration can be made without the unanimous consent of the legislatures: legislative alterations not conformable to the federal compact, would clearly not be valid. the judges would consider them as null & void. whereas in case of an appeal to the people of the u. s., the supreme authority, the federal compact may be altered by a _majority of them_; in like manner as the constitution of a particular state may be altered by a majority of the people of the state. the amendm^t moved by m^r elseworth erroneously supposes that we are proceeding on the basis of the confederation. this convention is unknown to the confederation. m^r king thought with m^r elseworth that the legislatures had a competent authority, the acquiescence of the people of america in the confederation, being equivalent to a formal ratification by the people. he thought with m^r e. also that the plea of necessity was as valid in the one case as the other. at the same time he preferred a reference to the authority of the people expressly delegated to conventions, as the most certain means of obviating all disputes & doubts concerning the legitimacy of the new constitution; as well as the most likely means of drawing forth the best men in the states to decide on it. he remarked that among other objections made in the state of n. york to granting powers to cong^s one had been that such powers as would operate within the state, could not be reconciled to the constitution; and therefore were not grantible by the legislative authority. he considered it as of some consequence also to get rid of the scruples which some members of the state legislatures might derive from their oaths to support & maintain the existing constitutions. m^r madison thought it clear that the legislatures were incompetent to the proposed changes. these changes would make essential inroads on the state constitutions, and it would be a novel & dangerous doctrine that a legislature could change the constitution under which it held its existence. there might indeed be some constitutions within the union, which had given a power to the legislature to concur in alterations of the federal compact. but there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. he considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a _league_ or _treaty_, and a _constitution_. the former in point of _moral obligation_ might be as inviolable as the latter. in point of _political operation_, there were two important distinctions in favor of the latter. . a law violating a treaty ratified by a pre-existing law, might be respected by the judges as a law, though an unwise or perfidious one. a law violating a constitution established by the people themselves, would be considered by the judges as null & void. . the doctrine laid down by the law of nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. in the case of a union of people under one constitution, the nature of the pact has always been understood to exclude such an interpretation. comparing the two modes in point of expediency he thought all the considerations which recommended this convention in preference to congress for proposing the reform were in favor of state conventions in preference to the legislatures for examining and adopting it. on question on m^r elseworth's motion to refer the plan to the legislatures of the states n. h. no. mass. no. c^t ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r gov^r morris moved that the reference of the plan be made to one general convention, chosen & authorized by the people to consider, _amend_, & establish the same.--not seconded. on question for agreeing to resolution . touching the mode of ratification as reported from the committee of the whole; viz, to refer the const^n, after the approbation of cong^s to assemblies chosen by the people; n. h. ay. mass. ay. c^t ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris & m^r king moved that the representation in the second branch consist of ---- members from each state, who shall vote per capita. m^r elseworth said he had always approved of voting in that mode. m^r gov^r morris moved to fill the _blank_ with _three_. he wished the senate to be a pretty numerous body. if two members only should be allowed to each state, and a majority be made a quorum, the power would be lodged in members, which was too small a number for such a trust. m^r ghorum preferred two to three members for the blank. a small number was most convenient for deciding on peace & war &c. which he expected would be vested in the ^d branch. the number of states will also increase. kentucky, vermont, the province of mayne & franklin will probably soon be added to the present number. he presumed also that some of the largest states would be divided. the strength of the general gov^t will lie not in the largeness, but in the smallness of the states. col. mason thought from each state including new states would make the ^d branch too numerous. besides other objections, the additional expence ought always to form one, where it was not absolutely necessary. m^r williamson. if the number be too great, the distant states will not be on an equal footing with the nearer states. the latter can more easily send & support their ablest citizens. he approved of the voting per capita. on the question for filling the blank with "_three_" n. h. no. mass. no. con^t no. p^a ay. del. no. v^a no. n. c. no. s. c. no. geo. no. on question for filling it with "two." agreed to nem. con. m^r l martin was opposed to voting per capita, as departing from the idea of the _states_ being represented in the ^d branch. m^r carroll,[ ] was not struck with any particular objection ag^{st} the mode; but he did not wish so hastily to make so material an innovation. [ ] "mr. carrol is a man of large fortune, and influence in his state. he possesses plain good sense, and is in the full confidence of his countrymen. this gentleman is about [blank] years of age."--pierce's notes, _am. hist. rev._, iii., . on the question on the whole motion viz. the ^d b. to consist of members from each state and to vote per capita, n. h. ay. mass. ay. c^t ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r houston[ ] & m^r spaight moved "that the appointment of the executive by electors chosen by the legislatures of the states, be reconsidered." m^r houston urged the extreme inconveniency & the considerable expence, of drawing together men from all the states for the single purpose of electing the chief magistrate. [ ] "mr. houston is an attorney at law, and has been member of congress for the state of georgia. he is a gentleman of family, and was educated in england. as to his legal or political knowledge he has very little to boast of. nature seems to have done more for his corporeal than mental powers. his person is striking, but his mind very little improved with useful or elegant knowledge. he has none of the talents requisite for the orator, but in public debate is confused and irregular. mr. houston is about years of age of an amiable and sweet temper, and of good and honorable principles."--pierce's notes, _am. hist. rev._, iii., . on the question which was put without any debate n. h. ay. mass. ay. ct. ay. p^a no. del. ay. m^d no. virg^a no. n. c. ay. s. c. ay. geo. ay. ordered that tomorrow be assigned for the reconsideration, con^t & pen^a no--all the rest ay. m^r gerry moved that the proceedings of the convention for the establishment of a nat^l gov^t (except the part relating to the executive), be referred to a committee to prepare & report a constitution conformable thereto. gen^l pinkney reminded the convention that if the committee should fail to insert some security to the southern states ag^{st} an emancipation of slaves, and taxes on exports, he sh^d be bound by duty to his state to vote ag^{st} their report. the app^t of a com^e as moved by m^r gerry. ag^d to nem. con. shall the com^e consist of members one from each state pres^t--all the states were _no_, except delaware, _ay_. shall it consist of . members n. h. ay. mas. ay. c^t ay. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. ay. geo. no. the question being lost by an equal division of votes. it was agreed, nem-con- that the committee consist of members to be appointed tomorrow. adjourned. tuesday july . in convention the appointment of the executive by electors reconsidered. m^r houston moved that he be appointed by the "nat^l legislature," instead of "electors appointed by the state legislatures" according to the last decision of the mode. he dwelt chiefly on the improbability, that capable men would undertake the service of electors from the more distant states. m^r spaight seconded the motion. m^r gerry opposed it. he thought there was no ground to apprehend the danger urged by m^r houston. the election of the executive magistrate will be considered as of vast importance and will create great earnestness. the best men, the governours of the states will not hold it derogatory from their character to be the electors. if the motion should be agreed to, it will be necessary to make the executive ineligible a ^d time, in order to render him independent of the legislature; which was an idea extremely repugnant to his way of thinking. m^r strong supposed that there would be no necessity, if the executive should be appointed by the legislature, to make him ineligible a ^d time; as new elections of the legislature will have intervened; and he will not depend for his ^d appointment on the same sett of men as his first was rec^d from. it had been suggested that _gratitude_ for his past appointment w^d produce the same effect as dependence for his future appointment. he thought very differently. besides this objection would lie ag^{st} the electors who would be objects of gratitude as well as the legislature. it was of great importance not to make the gov^t too complex which would be the case if a new sett of men like the electors should be introduced into it. he thought also that the first characters in the states would not feel sufficient motives to undertake the office of electors. m^r williamson was for going back to the original ground; to elect the executive for years and render him ineligible a ^d time. the proposed electors would certainly not be men of the ^{st} nor even of the ^d grade in the states. these would all prefer a seat either in the senate or the other branch of the legislature. he did not like the unity in the executive. he had wished the executive power to be lodged in three men taken from three districts into which the states should be divided. as the executive is to have a kind of veto on the laws, and there is an essential difference of interests between the n. & s. states, particularly in the carrying trade, the power will be dangerous, if the executive is to be taken from part of the union, to the part from which he is not taken. the case is different here from what it is in england; where there is a sameness of interests throughout the kingdom. another objection ag^{st} a single magistrate is that he will be an elective king, and will feel the spirit of one. he will spare no pains to keep himself in for life, and will then lay a train for the succession of his children. it was pretty certain he thought that we should at some time or other have a king; but he wished no precaution to be omitted that might postpone the event as long as possible.--ineligibility a ^d time appeared to him to be the best precaution. with this precaution he had no objection to a longer term than years. he would go as far as or years. m^r gerry moved that the legislatures of the states should vote by ballot for the executive in the same proportions as it had been proposed they should chuse electors; and that in case a majority of the votes should not centre on the same person, the ^{st} branch of the nat^l legislature should chuse two out of the candidates having most votes, and out of these two, the ^d branch should chuse the executive. m^r king seconded the motion--and on the question to postpone in order to take it into consideration. the _noes_ were so predominant, that the states were not counted. question on m^r houston's motion that the executive be app^d by the na^l legislature. n. h. ay. mass. ay. c^t no. n. j. ay. p^a no. del. ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. m^r l. martin & m^r gerry moved to re-instate the ineligibility of the executive a ^d time. m^r elseworth. with many this appears a natural consequence of his being elected by the legislature. it was not the case with him. the executive he thought should be reelected if his conduct proved him worthy of it. and he will be more likely to render himself, worthy of it if he be rewardable with it. the most eminent characters also, will be more willing to accept the trust under this condition, than if they foresee a necessary degradation at a fixt period. m^r gerry. that the executive sh^d be independent of the legislature is a clear point. the longer the duration of his appointment the more will his dependence be diminished. it will be better then for him to continue . . or even . years and be ineligible afterwards. m^r king was for making him re-eligible. this is too great an advantage to be given up for the small effect it will have on his dependence, if impeachments are to lie. he considered these as rendering the tenure during pleasure. m^r l. martin, suspending his motion as to the ineligibility, moved "that the appointm^t of the executive shall continue for eleven years. m^r gerry suggested fifteen years. m^r king twenty years. this is the medium life of princes.[ ] [ ] this might possibly be meant as a carricature of the previous motions in order to defeat the object of them.--madison's note. m^r davie eight years. m^r wilson. the difficulties & perplexities into which the house is thrown proceed from the election by the legislature which he was sorry had been reinstated. the inconveniency of this mode was such that he would agree to almost any length of time in order to get rid of the dependence which must result from it. he was persuaded that the longest term would not be equivalent to a proper mode of election, unless indeed it should be during good behaviour. it seemed to be supposed that at a certain advance of life, a continuance in office would cease to be agreeable to the officer, as well as desirable to the public. experience had shewn in a variety of instances that both a capacity & inclination for public service existed in very advanced stages. he mentioned the instance of a doge of venice who was elected after he was years of age. the popes have generally been elected at very advanced periods, and yet in no case had a more steady or a better concerted policy been pursued than in the court of rome. if the executive should come into office at years of age, which he presumes may happen & his continuance should be fixt at years, at the age of . in the very prime of life, and with all the aid of experience, he must be cast aside like a useless hulk. what an irreparable loss would the british jurisprudence have sustained, had the age of . been fixt there as the ultimate limit of capacity or readiness to serve the public. the great luminary (l^d mansfield) held his seat for thirty years after his arrival at that age. notwithstanding what had been done he could not but hope that a better mode of election would yet be adopted; and one that would be more agreeable to the general sense of the house. that time might be given for further deliberation he w^d move that the present question be postponed till tomorrow. m^r broom seconded the motion to postpone. m^r gerry. we seem to be entirely at a loss on this head. he would suggest whether it would not be advisable to refer the clause relating to the executive to the committee of detail to be appointed. perhaps they will be able to hit on something that may unite the various opinions which have been thrown out. m^r wilson. as the great difficulty seems to spring from the mode of election, he w^d suggest a mode which had not been mentioned. it was that the executive be elected for years by a small number, not more than of the nat^l legislature, to be drawn from it, not by ballot, but by lot and who should retire immediately and make the election without separating. by this mode intrigue would be avoided in the first instance, and the dependence would be diminished. this was not he said a digested idea and might be liable to strong objections. m^r gov^r morris. of all possible modes of appointment that by the legislature is the worst. if the legislature is to appoint, and to impeach or to influence the impeachment, the executive will be the mere creature of it. he had been opposed to the impeachment but was now convinced that impeachments must be provided for, if the app^t was to be of any duration. no man w^d say, that an executive known to be in the pay of an enemy, should not be removable in some way or other. he had been charged heretofore (by col. mason) with inconsistency in pleading for confidence in the legislature on some occasions, & urging a distrust on others. the charge was not well founded. the legislature is worthy of unbounded confidence in some respects, and liable to equal distrust in others. when their interest coincides precisely with that of their constituents, as happens in many of their acts, no abuse of trust is to be apprehended. when a strong personal interest happens to be opposed to the general interest, the legislature cannot be too much distrusted. in all public bodies there are two parties. the executive will necessarily be more connected with one than with the other. there will be a personal interest therefore in one of the parties to oppose as well as in the other to support him. much had been said of the intrigues, that will be practised by the executive to get into office. nothing had been said on the other side of the intrigues to get him out of office. some leader of a party will always covet his seat, will perplex his administration, will cabal with the legislature, till he succeeds in supplanting him. this was the way in which the king of england was got out, he meant the real king, the minister. this was the way in which pitt (l^d chatham) forced himself into place. fox was for pushing the matter still farther. if he had carried his india bill, which he was very near doing, he would have made the minister, the king in form almost as well as in substance. our president will be the british minister, yet we are about to make him appointable by the legislature. something had been said of the danger of monarchy. if a good government should not now be formed, if a good organization of the executive should not be provided, he doubted whether we should not have something worse than a limited monarchy. in order to get rid of the dependence of the executive on the legislature, the expedient of making him ineligible a ^d time had been devised. this was as much as to say we sh^d give him the benefit of experience, and then deprive ourselves of the use of it. but make him ineligible a ^d time--and prolong his duration even to years, will he by any wonderful interposition of providence at that period cease to be a man? no he will be unwilling to quit his exaltation, the road to his object thro' the constitution will be shut; he will be in possession of the sword, a civil war will ensue, and the co[~m]ander of the victorious army on which ever side, will be the despot of america. this consideration renders him particularly anxious that the executive should be properly constituted. the vice here would not, as in some other parts of the system be curable. it is the most difficult of all rightly to balance the executive. make him too weak: the legislature will usurp his powers. make him too strong. he will usurp on the legislature. he preferred a short period, a re-eligibility, but a different mode of election. a long period would prevent an adoption of the plan: it ought to do so. he sh^d himself be afraid to trust it. he was not prepared to decide on m^r wilson's mode of election just hinted by him. he thought it deserved consideration. it would be better that chance sh^d decide than intrigue. on a question to postpone the consideration of the resolution on the subject of the executive n. h. no. mass. no. c^t ay. n. j. no. p^a ay. del. div^d. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r wilson then moved that the executive be chosen every ---- years by ---- electors to be taken by lot from the nat^t legislature who shall proceed immediately to the choice of the executive and not separate until it be made." m^r carrol ^{ds} the motion. m^r gerry. this is committing too much to chance. if the lot should fall on a sett of unworthy men, an unworthy executive must be saddled on the country. he thought it had been demonstrated that no possible mode of electing by the legislature could be a good one. m^r king. the lot might fall on a majority from the same state which w^d ensure the election of a man from that state. we ought to be governed by reason, not by chance. as nobody seemed to be satisfied, he wished the matter to be postponed. m^r wilson did not move this as the best mode. his opinion remained unshaken that we ought to resort to the people for the election. he seconded the postponement. m^r gov^r morris observed that the chances were almost infinite ag^{st} a majority of electors from the same state. on a question whether the last motion was in order, it was determined in the affirmative: ays. noes. on the question of postponem^t it was agreed to nem. con. m^r carrol took occasion to observe that he considered the clause declaring that direct taxation on the states should be in proportion to representation, previous to the obtaining an actual census, as very objectionable, and that he reserved to himself the right of opposing it, if the report of the committee of detail should leave it in the plan. m^r gov^r morris hoped the committee would strike out the whole of the clause proportioning direct taxation to representation. he had only meant it as a bridge[ ] to assist us over a certain gulph; having passed the gulph the bridge may be removed. he thought the principle laid down with so much strictness, liable to strong objections. [ ] the object was to lessen the eagerness on one side, & the opposition on the other, to the share of representation claimed by the s. states on account of the negroes.--madison's note. on a ballot for a committee to report a constitution conformable to the resolutions passed by the convention, the members chosen were m^r rutlidge, m^r randolph, m^r ghorum, m^r elseworth, m^r wilson-- on motion to discharge the com^e of the whole from the propositions submitted to the convention by m^r c. pinkney as the basis of a constitution, and to refer them to the committee of detail just appointed, it was ag^d to nem: con. a like motion was then made & agreed to nem: con: with respect to the propositions of m^r patterson. adjourned. wednesday july . in convention clause relating to the executive being again under consideration[ ] [ ] "permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare expressly that the command in chief of the american army shall not be given to, nor devolve on, any but a natural _born_ citizen."--john jay to washington, july , (wash. mss.). m^r elseworth moved "that the executive be appointed by the legislature," except when the magistrate last chosen shall have continued in office the whole term for which he was chosen, & be reeligible, in which case the choice shall be by electors appointed by the legislatures of the states for that purpose. by this means a deserving magistrate may be reelected without making him dependent on the legislature. m^r gerry repeated his remark that an election at all by the nat^l legislature was radically and incurably wrong; and moved that the executive be appointed by the governours & presidents of the states, with advice of their councils, and where there are no councils by electors chosen by the legislatures. the executives to vote in the following proportions: viz-- m^r madison. there are objections ag^{st} every mode that has been, or perhaps can be proposed. the election must be made either by some existing authority under the nat^l or state constitutions--or by some special authority derived from the people--or by the people themselves.--the two existing authorities under the nat^l constitution w^d be the legislative & judiciary. the latter he presumed was out of the question. the former was in his judgment liable to insuperable objections. besides the general influence of that mode on the independence of the executive, . the election of the chief magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. . the candidate would intrigue with the legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. . the ministers of foreign powers would have and would make use of, the opportunity to mix their intrigues & influence with the election. limited as the powers of the executive are, it will be an object of great moment with the great rival powers of europe who have american possessions, to have at the head of our governm^t a man attached to their respective politics & interests. no pains, nor perhaps expence, will be spared, to gain from the legislature an appointm^t favorable to their wishes. germany & poland are witnesses of this danger. in the former, the election of the head of the empire, till it became in a manner hereditary, interested all europe, and was much influenced by foreign interference. in the latter, altho' the elective magistrate has very little real power, his election has at all times produced the most eager interference of foreign princes, and has in fact at length slid entirely into foreign hands. the existing authorities in the states are the legislative, executive & judiciary. the appointment of the nat^l executive by the first was objectionable in many points of view, some of which had been already mentioned. he would mention one which of itself would decide his opinion. the legislatures of the states had betrayed a strong propensity to a variety of pernicious measures. one object of the nat^l legisl^{re} was to controul this propensity. one object of the nat^l executive, so far as it would have a negative on the laws, was to controul the nat^l legislature so far as it might be infected with a similar propensity. refer the appointm^t of the nat^l executive to the state legislatures, and this controuling purpose may be defeated. the legislatures can & will act with some kind of regular plan, and will promote the appointm^t of a man who will not oppose himself to a favorite object. should a majority of the legislatures at the time of election have the same object, or different objects of the same kind, the nat^l executive would be rendered subservient to them.--an appointment by the state executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the candidates, by their partizans, and by the ministers of foreign powers. the state judiciary had not & he presumed w^d not be proposed as a proper source of appointment. the option before us then lay between an appointment by electors chosen by the people--and an immediate appointment by the people. he thought the former mode free from many of the objections which had been urged ag^{st} it, and greatly preferable to an appointment by the nat^l legislature. as the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. as a further precaution, it might be required that they should meet at some place, distinct from the seat of gov^t and even that no person within a certain distance of the place at the time sh^d be eligible. this mode however had been rejected so recently & by so great a majority that it probably would not be proposed anew. the remaining mode was an election by the people or rather by the qualified part of them, at large: with all its imperfections he liked this best. he would not repeat either the general argum^{ts}. for or the objections ag^{st} this mode. he would only take notice of two difficulties which he admitted to have weight. the first arose from the disposition in the people to prefer a citizen of their own state, and the disadvantage this w^d throw on the smaller states. great as this objection might be he did not think it equal to such as lay ag^{st} every other mode which had been proposed. he thought too that some expedient might be hit upon that would obviate it. the second difficulty arose from the disproportion of qualified voters in the n. & s. states, and the disadvantages which this mode would throw on the latter. the answer to this objection was . that this disproportion would be continually decreasing under the influence of the republican laws introduced in the s. states, and the more rapid increase of their population. . that local considerations must give way to the general interest. as an individual from the s. states, he was willing to make the sacrifice. m^r elseworth. the objection drawn from the different sizes of the states, is unanswerable. the citizens of the largest states would invariably prefer the candidate within the state; and the largest states w^d invariably have the man. question on m^r elseworth's motion as above. n. h. ay. mass. no. c^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r pinkney moved that the election by the legislature be qualified with a proviso that no person be eligible for more than years in any twelve years. he thought this would have all the advantage & at the same time avoid in some degree the inconveniency, of an absolute ineligibility a ^d time. col. mason approved the idea. it had the sanction of experience in the instance of cong^s and some of the executives of the states. it rendered the executive as effectually independent, as an ineligibility after his first election, and opened the way at the same time for the advantage of his future services. he preferred on the whole the election by the nat^l legislature: tho' candor obliged him to admit, that there was great danger of foreign influence, as had been suggested. this was the most serious objection with him that had been urged. m^r butler. the two great evils to be avoided are cabal at home, & influence from abroad. it will be difficult to avoid either if the election be made by the nat^l legislature. on the other hand. the gov^t should not be made so complex & unwieldy as to disgust the states. this would be the case, if the election sh^d be referred to the people. he liked best an election by electors chosen by the legislatures of the states. he was ag^{st} a re-eligibility at all events. he was also ag^{st} a ratio of votes in the states. an equality should prevail in this case. the reasons for departing from it do not hold in the case of the executive as in that of the legislature. m^r gerry approved of m^r pinkney's motion as lessening the evil. m^r gov^r morris was ag^{st} a rotation in every case. it formed a political school, in w^{ch} we were always governed by the scholars, and not by the masters. the evils to be guarded ag^{st} in this case are. . the undue influence of the legislature. . instability of councils. . misconduct in office. to guard ag^{st} the first, we run into the second evil. we adopt a rotation which produces instability of councils. to avoid sylla we fall into charibdis. a change of men is ever followed by a change of measures. we see this fully exemplified in the vicissitudes among ourselves, particularly in the state of pen^a. the self-sufficiency of a victorious party scorns to tread in the paths of their predecessors. rehoboam will not imitate soloman. . the rotation in office will not prevent intrigue and dependence on the legislature. the man in office will look forward to the period at which he will become re-eligible. the distance of the period, the improbability of such a protraction of his life will be no obstacle. such is the nature of man, formed by his benevolent author no doubt for wise ends, that altho' he knows his existence to be limited to a span, he takes his measures as if he were to live for ever. but taking another supposition, the inefficacy of the expedient will be manifest. if the magistrate does not look forward to his re-election to the executive, he will be pretty sure to keep in view the opportunity of his going into the legislature itself. he will have little objection then to an extension of power on a theatre where he expects to act a distinguished part; and will be very unwilling to take any step that may endanger his popularity with the legislature, on his influence over which the figure he is to make will depend. . to avoid the third evil, impeachments will be essential. and hence an additional reason ag^{st} an election by the legislature. he considered an election by the people as the best, by the legislature as the worst, mode. putting both these aside, he could not but favor the idea of m^r wilson, of introducing a mixture of lot. it will diminish, if not destroy both cabal & dependence. m^r williamson was sensible that strong objections lay ag^{st} an election of the executive by the legislature, and that it opened a door for foreign influence. the principal objection ag^{st} an election by the people seemed to be, the disadvantage under which it would place the smaller states. he suggested as a cure for this difficulty, that each man should vote for candidates, one of them he observed would be probably of his own state, the other . of some other states; and as probably of a small as a large one. m^r gov^r morris liked the idea, suggesting as an amendment that each man should vote for two persons one of whom at least should not be of his own state. m^r madison also thought something valuable might be made of the suggestion with the proposed amendment of it. the second best man in this case would probably be the first, in fact. the only objection which occurred was that each citizen after hav^g given his vote for his favorite fellow citizen, w^d throw away his second on some obscure citizen of another state, in order to ensure the object of his first choice. but it could hardly be supposed that the citizens of many states would be so sanguine of having their favorite elected, as not to give their second vote with sincerity to the next object of their choice. it might moreover be provided in favor of the smaller states that the executive should not be eligible more than ---- times in ---- years from the same state. m^r gerry. a popular election in this case is radically vicious. the ignorance of the people would put it in the power of some one set of men dispersed through the union & acting in concert to delude them into any appointment. he observed that such a society of men existed in the order of the cincinnati. they are respectable, united, and influential. they will in fact elect the chief magistrate in every instance, if the election be referred to the people. his respect for the characters composing this society could not blind him to the danger & impropriety of throwing such a power into their hands. m^r dickinson. as far as he could judge from the discussions which had taken place during his attendance, insuperable objections lay ag^{st} an election of the executive by the nat^l legislature; as also by the legislatures or executives of the states. he had long leaned towards an election by the people which he regarded as the best & purest source. objections he was aware lay ag^{st} this mode, but not so great he thought as ag^{st} the other modes. the greatest difficulty in the opinion of the house seemed to arise from the partiality of the states to their respective citizens. but might not this very partiality be turned to a useful purpose. let the people of each state chuse its best citizen. the people will know the most eminent characters of their own states, and the people of different states will feel an emulation in selecting those of which they will have the greatest reason to be proud. out of the thirteen names thus selected, an executive magistrate may be chosen either by the nat^l legislature, or by electors appointed by it. on a question which was moved for postponing m^r pinkney's motion, in order to make way for some such proposition as had been hinted by m^r williamson & others, it passed in the negative. n. h. no. mass. no. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on m^r pinkney's motion that no person shall serve in the executive more than years in . years, it passed in the negative. n. h. ay. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. on a motion that the members of the committee be furnished with copies of the proceedings it was so determined; s. carolina alone being in the negative. it was then moved that the members of the house might take copies of the resolutions which had been agreed to; which passed in the negative. n. h. no. mas. no. con. ay. n. j. ay. p^a no. del. ay. mary^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r gerry & m^r butler moved to refer the resolution relating to the executive (except the clause making it consist of a single person) to the co[~m]ittee of detail. m^r wilson hoped that so important a branch of the system w^d not be committed untill a general principle sh^d be fixed by a vote of the house. m^r langdon. was for the commitment--adj^d. thursday july. . in convention.[ ] [ ] "the affairs of the federal government are, i believe, in the utmost confusion: the convention is an expedient that will produce a decisive effect. it will either recover us from our present embarrassments or complete our ruin; for i do suspect that if what they recommend sho^d be rejected this wo^d be the case. but i trust that the presence of gen^l washington will have great weight in the body itself so as to overawe & keep under the demon of party, & that the signature of his name to whatever act shall be the result of their deliberations will secure its passage thro' the union."--monroe to jefferson, july , (_writings of monroe_, i., ). col. mason. in every stage of the question relative to the executive, the difficulty of the subject and the diversity of the opinions concerning it have appeared. nor have any of the modes of constituting that department been satisfactory. . it has been proposed that the election should be made by the people at large; that is that an act which ought to be performed by those who know most of eminent characters, & qualifications, should be performed by those who know least. . that the election should be made by the legislatures of the states. . by the executives of the states. ag^{st} these modes also strong objections have been urged. . it has been proposed that the election should be made by electors chosen by the people for that purpose. this was at first agreed to: but on further consideration has been rejected. . since which, the mode of m^r williamson, requiring each freeholder to vote for several candidates has been proposed. this seemed like many other propositions, to carry a plausible face, but on closer inspection is liable to fatal objections. a popular election in any form, as m^r gerry has observed, would throw the appointment into the hands of the cincinnati, a society for the members of which he had a great respect, but which he never wished to have a preponderating influence in the gov^t. . another expedient was proposed by m^r dickinson, which is liable to so palpable & material an inconvenience that he had little doubt of its being by this time rejected by himself. it would exclude every man who happened not to be popular within his own state; tho' the causes of his local unpopularity might be of such a nature as to recommend him to the states at large. . among other expedients, a lottery has been introduced. but as the tickets do not appear to be in much demand, it will probably, not be carried on, and nothing therefore need be said on that subject. after reviewing all these various modes, he was led to conclude, that an election by the nat^l legislature as originally proposed, was the best. if it was liable to objections, it was liable to fewer than any other. he conceived at the same time that a second election ought to be absolutely prohibited. having for his primary object for the pole-star of his political conduct, the preservation of the rights of the people, he held it as an essential point, as the very palladium of civil liberty, that the great officers of state, and particularly the executive should at fixed periods return to that mass from which they were at first taken, in order that they may feel & respect those rights & interests, which are again to be personally valuable to them. he concluded with moving that the constitution of the executive as reported by the com^e of the whole be reinstated, viz. "that the executive be appointed for seven years, & be ineligible a ^d time." m^r davie seconded the motion. doc^r franklin. it seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. this he thought was contrary to republican principles. in free governments the rulers are the servants, and the people their superiors & sovereigns. for the former therefore to return among the latter was not to _degrade_ but to _promote_ them. and it would be imposing an unreasonable burden on them, to keep them always in a state of servitude, and not allow them to become again one of the masters. question on col. masons motion as above; which passed in the affirmative n. h. ay. mass^{ts} not on floor. c^t no. n. j. ay. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris was now ag^{st} the whole paragraph. in answer to col. mason's position that a periodical return of the great officers of the state into the mass of the people, was the palladium of civil liberty he w^d observe that on the same principle the judiciary ought to be periodically degraded; certain it was that the legislature ought on every principle, yet no one had proposed, or conceived that the members of it should not be re-eligible. in answer to doc^r franklin, that a return into the mass of the people would be a promotion, instead of a degradation, he had no doubt that our executive like most others would have too much patriotism to shrink from the burthen of his office, and too much modesty not to be willing to decline the promotion. on the question on the whole resolution as amended in the words following--"that a national executive be instituted--to consist of a single person--to be chosen by the nat^l legislature--for the term of seven years--to be ineligible a ^d time--with power to carry into execution the nat^l laws--to appoint to offices in cases not otherwise provided for--to be removable on impeachment & conviction of mal-practice or neglect of duty--to receive a fixt compensation for the devotion of his time to the public service, to be paid out of the nat^l treasury"--it passed in the affirmative n. h. ay. mass. not on floor. c^t ay. n. j. ay. p^a no. del. no. m^d no. v^a div^d. m^r blair & col. mason ay. gen^l washington & m^r madison no. m^r randolph happened to be out of the house. n. c. ay. s. c. ay. geo. ay. m^r mason moved "that the co[~m]ittee of detail be instructed to receive a clause requiring certain qualifications of landed property & citizenship of the u. states, in members of the legislature, and disqualifying persons having unsettled acc^{ts} with or being indebted to the u. s., from being members of the nat^l legislature."--he observed that persons of the latter descriptions had frequently got into the state legislatures, in order to promote laws that might shelter their delinquencies; and that this evil had crept into cong^s if report was to be regarded. m^r pinckney seconded the motion. mr. gov^r morris. if qualifications are proper, he w^d prefer them in the electors rather than the elected. as to debtors of the u. s. they are but few. as to persons having unsettled accounts he believed them to be pretty many. he thought however that such a discrimination would be both odious & useless, and in many instances, unjust & cruel. the delay of settlem^t had been more the fault of the public than of the individuals. what will be done with those patriotic citizens who have lent money, or services or property to their country, without having been yet able to obtain a liquidation of their claims? are they to be excluded? m^r ghorum was for leaving to the legislature the providing ag^{st} such abuses as had been mentioned. col. mason mentioned the parliamentary qualifications adopted in the reign of queen anne, which he said had met with universal approbation. m^r madison had witnessed the zeal of men having acc^{ts} with the public, to get into the legislatures for sinister purposes. he thought however that if any precaution were taken for excluding them, the one proposed by col. mason ought to be new modelled. it might be well to limit the exclusion to persons who had rec^d money from the public, and had not accounted for it. m^r gov^r morris. it was a precept of great antiquity as well as of high authority that we should not be righteous overmuch. he thought we ought to be equally on our guard ag^{st} being wise overmuch. the proposed regulation would enable the govern^t to exclude particular persons from office as long as they pleased. he mentioned the case of the co[~m]ander in chief's presenting his account for secret services, which he said was so moderate that every one was astonished at it; and so simple that no doubt could arise on it. yet had the auditor been disposed to delay the settlement, how easily he might have effected it, & how cruel w^d it be in such a case to keep a distinguished & meritorious citizen under a temporary disability & disfranchisement. he mentioned this case merely to illustrate the objectionable nature of the proposition. he was opposed to such minutious regulations in a constitution. the parliamentary qualifications quoted by col. mason, had been disregarded in practice; and was but a scheme of the landed ag^{st} the monied interest. m^r pinckney & gen^l pinckney moved to insert by way of amendm^t the words judiciary & executive so as to extend the qualifications to those departments which was agreed to nem con. m^r gerry thought the inconveniency of excluding a few worthy individuals who might be public debtors or have unsettled acc^{ts} ought not to be put in the scale ag^{st} the public advantages of the regulation, and that the motion did not go far enough. m^r king observed that there might be great danger in requiring landed property as a qualification since it would exclude the monied interest, whose aids may be essential in particular emergencies to the public safety. m^r dickinson, was ag^{st} any recital of qualifications in the constitution. it was impossible to make a compleat one, and a partial one w^d by implication tie up the hands of the legislature from supplying the omissions. the best defence lay in the freeholders who were to elect the legislature. whilst this source should remain pure, the public interest would be safe. if it ever should be corrupt, no little expedients would repel the danger. he doubted the policy of interweaving into a republican constitution a veneration for wealth. he had always understood that a veneration for poverty & virtue, were the objects of republican encouragement. it seemed improper that any man of merit should be subjected to disabilities in a republic where merit was understood to form the great title to public trust, honors & rewards. m^r gerry if property be one object of government, provisions to secure it cannot be improper. m^r madison moved to strike out the word _landed_, before the word "qualifications." if the proposition s^d be agreed to he wished the committee to be at liberty to report the best criterion they could devise. landed possessions were no certain evidence of real wealth. many enjoyed them to a great extent who were more in debt than they were worth. the unjust laws of the states had proceeded more from this class of men, than any others. it had often happened that men who had acquired landed property on credit, got into the legislatures with a view of promoting an unjust protection ag^{st} their creditors. in the next place, if a small quantity of land should be made the standard, it would be no security; if a large one, it would exclude the proper representatives of those classes of citizens who were not landholders. it was politic as well as just that the interests & rights of every class should be duly represented & understood in the public councils. it was a provision every where established that the country should be divided into districts & representatives taken from each, in order that the legislative assembly might equally understand & sympathize with the rights of the people in every part of the community. it was not less proper that every class of citizens should have an opportunity of making their rights be felt & understood in the public councils. the three principal classes into which our citizens were divisible, were the landed the commercial, & the manufacturing. the ^d & ^d class, bear as yet a small proportion to the first. the proportion however will daily increase. we see in the populous countries in europe now, what we shall be hereafter. these classes understand much less of each others interests & affairs, than men of the same class inhabiting different districts. it is particularly requisite therefore that the interests of one or two of them should not be left entirely to the care, or impartiality of the third. this must be the case if landed qualifications should be required; few of the mercantile, & scarcely any of the manufacturing class chusing whilst they continue in business to turn any part of their stock into landed property. for these reasons he wished if it were possible that some other criterion than the mere possession of land should be devised. he concurred with m^r gov^r morris in thinking that qualifications in the electors would be much more effectual than in the elected. the former would discriminate between real & ostensible property in the latter; but he was aware of the difficulty of forming any uniform standard that would suit the different circumstances & opinions prevailing in the different states. m^r gov^r morris ^{ded} the motion. on the question for striking out "landed" n. h. ay. mass. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. on question on ^{st} part of col. masons proposition as to "qualification of property & citizenship," as so amended n. h. ay. mas^{ts} ay. c^t no. n. j. ay. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. "the ^d part, for disqualifying debtors, and persons having unsettled accounts," being under consideration m^r carrol moved to strike out "having unsettled accounts" m^r ghorum seconded the motion; observing that it would put the commercial & manufacturing part of the people on a worse footing than others as they would be most likely to have dealings with the public. m^r l. martin, if these words should be struck out, and the remaining words concerning debtors retained, it will be the interest of the latter class to keep their accounts unsettled as long as possible. m^r wilson was for striking them out. they put too much power in the hands of the auditors, who might combine with rivals in delaying settlements in order to prolong the disqualifications of particular men. we should consider that we are providing a constitution for future generations, and not merely for the peculiar circumstances of the moment. the time has been, and will again be, when the public safety may depend on the voluntary aids of individuals which will necessarily open acc^{ts} with the public, and when such acc^{ts} will be a characteristic of patriotism. besides a partial enumeration of cases will disable the legislature from disqualifying odious & dangerous characters. m^r langdon[ ] was for striking out the whole clause for the reasons given by m^r wilson. so many exclusions he thought too would render the system unacceptable to the people. [ ] "m^r langdon is a man of considerable fortune, possesses a liberal mind, and a good plain understanding--about years old."--pierce's notes, _am. hist. rev._, iii., . m^r gerry. if the argum^{ts} used today were to prevail, we might have a legislature composed of public debtors, pensioners, placemen & contractors. he thought the proposed qualifications would be pleasing to the people. they will be considered as a security ag^{st} unnecessary or undue burdens being imposed on them. he moved to add "pensioners" to the disqualified characters which was negatived. n. h. no. mas. ay. con. no. n. j. no. p^a no. del. no. mary^d ay. v^a no. n. c. divided. s. c. no. geo. ay. m^r gov^r morris. the last clause, relating to public debtors will exclude every importing merchant. revenue will be drawn it is foreseen as much as possible, from trade. duties of course will be bonded, and the merch^{ts} will remain debtors to the public. he repeated that it had not been so much the fault of individuals as of the public that transactions between them had not been more generally liquidated & adjusted. at all events to draw from our short & scanty experience rules that are to operate through succeeding ages, does not savour much of real wisdom. on question for striking out, "persons having unsettled accounts with the u. states." n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. m^r elseworth was for disagreeing to the remainder of the clause disqualifying public debtors; and for leaving to the wisdom of the legislature and the virtue of the citizens, the task of providing ag^{st} such evils. is the smallest as well as the largest debtor to be excluded? then every arrear of taxes will disqualify. besides how is it to be known to the people when they elect who are or are not public debtors. the exclusion of pensioners & placemen in engl^d is founded on a consideration not existing here. as persons of that sort are dependent on the crown, they tend to increase its influence. m^r pinkney s^d he was at first a friend to the proposition, for the sake of the clause relating to qualifications of property; but he disliked the exclusion of public debtors; it went too far. it w^d exclude persons who had purchased confiscated property or should purchase western territory of the public, and might be some obstacle to the sale of the latter. on the question for agreeing to the clause disqualifying public debtors n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. no. geo. ay. col. mason, observed that it would be proper, as he thought, that some provision should be made in the constitution ag^{st} choosing for the seat of the gen^l gov^t the city or place at which the seat of any state gov^t might be fixt. there were objections ag^{st} having them at the same place, which without mentioning others, required some precaution on the subject. the ^{st} was that it tended to produce disputes concerning jurisdiction. the ^d & principal one was that the intermixture of the two legislatures tended to give a provincial tincture to y^e nat^l deliberations. he moved that the com^e be instructed to receive a clause to prevent the seat of the nat^l gov^t being in the same city or town with the seat of the gov^t of any state longer than untill the necessary public buildings could be erected. m^r alex. martin ^{ded} the motion. m^r gov^r morris did not dislike the idea, but was apprehensive that such a clause might make enemies of philad^a & n. york which had expectations of becoming the seat of the gen^l gov^t. m^r langdon approved the idea also: but suggested the case of a state moving its seat of gov^t to the nat^l seat after the erection of the public buildings. m^r ghorum. the precaution may be evaded by the nat^l legisl^{re} by delaying to erect the public buildings. m^r gerry conceived it to be the gen^l sense of america, that neither the seat of a state gov^t nor any large commercial city should be the seat of the gen^l gov^t. m^r williamson liked the idea, but knowing how much the passions of men were agitated by this matter, was apprehensive of turning them ag^{st} the system. he apprehended also that an evasion, might be practised in the way hinted by m^r ghorum. m^r pinkney thought the seat of a state gov^t ought to be avoided; but that a large town or its vicinity would be proper for the seat of the gen^l gov^t. col. mason did not mean to press the motion at this time, nor to excite any hostile passions ag^{st} the system. he was content to withdraw the motion for the present. m^r butler was for fixing by the constitution the place, & a central one, for the seat of the nat^l gov^t. the proceedings since monday last were referred unanimously to the com^e of detail, and the convention then unanimously adjourned till monday, aug^{st} . that the com^e of detail might have time to prepare & report the constitution. the whole proceedings as referred are as follow[ ]: [ ] madison's note says: "here copy them from the journal p. ." in the _journal_ they are given as having been "collected from the proceedings of the convention, as they are spread over the journal from june ^{th} to july ^{th}."--_journal of federal convention_, . the dates show when the resolutions were agreed to, and are correct. june . i. resolved, that the government of the united states ought to consist of a supreme legislative, judiciary, and executive. june . ii. resolved, that the legislature consist of two branches. iii. resolved, that the members of the first branch of the legislature ought to be elected by the people of the several states, for the term of two years; to be paid june . out of the publick treasury; to receive an adequate compensation for their services; to be of the age of june . twenty-five years at least; to be ineligible and incapable of holding any office under the authority of the united states (except those peculiarly belonging to the functions of the first branch) during the term of service of the first branch. june . iv. resolved, that the members of the second branch of the legislature of the united states ought to be chosen by the individual legislatures; to be of the age of june . thirty years at least; to hold their offices for six years, one third to go out biennally; to receive a compensation for the devotion of their time to the publick service; to be ineligible to and incapable of holding any office, under the authority of the united states (except those peculiarly belonging to the functions of the second branch) during the term for which they are elected, and for one year thereafter. v. resolved, that each branch ought to possess the right of originating acts. vi. resolved, that the national legislature ought to postponed . possess the legislative rights vested in congress by the july . confederation; and moreover, to legislate in all cases for the general interests of the union, and also in july . those to which the states are separately incompetent, or in which the harmony of the united states may be interrupted by the exercise of individual legislation. vii. resolved, that the legislative acts of the united states, made by virtue and in pursuance of the articles of union, and all treaties made and ratified under the authority of the united states, shall be the supreme law of the respective states, as far as those acts or treaties shall relate to the said states, or their july citizens and inhabitants; and that the judiciaries of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual states to the contrary, notwithstanding. july . viii. resolved, that in the original formation of the legislature of the united states, the first branch thereof shall consist of sixty-five members; of which number new hampshire shall send three, massachusetts eight, rhode island one, connecticut five, new york six, new jersey four, pennsylvania eight, delaware one, maryland six, virginia ten, north carolina five, south carolina five, georgia three. but as the present situation of the states may probably alter in the number of their inhabitants, the legislature of the united states shall be authorized, from time to time, to apportion the number of representatives; and in case any of the states shall hereafter be divided, or enlarged by addition of territory, or any two or more states united, or any new states created within the limits of the united states, the legislature of the united states shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principle of their number of inhabitants according to the provisions hereafter mentioned, namely--provided always, that representation ought to be proportioned to direct taxation. and in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the states-- ix. resolved, that a census be taken within six years from the first meeting of the legislature of the united states, and once within the term of every ten years afterwards, of all the inhabitants of the united states, in the manner and according to the ratio recommended by congress in their resolution of april , ; and that the legislature of the united states shall proportion the direct taxation accordingly. x. resolved, that all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the united states, shall originate in the first branch of the legislature of the united states, and shall not be altered or amended by the second branch; and that no money shall be drawn from the publick treasury, but in pursuance of appropriations to be originated by the first branch. xi. resolved, that in the second branch of the legislature of the united states, each state shall have an equal vote. july . xii. resolved, that a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; to be ineligible a second time; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be removable on impeachment, and conviction of mal-practice or neglect of duty; to receive a fixed compensation for the devotion of his time to the publick service; to be paid out of the publick treasury. july . xiii. resolved, that the national executive shall have a right to negative any legislative act, which shall not be afterwards passed, unless by two third parts of each branch of the national legislature. july . xiv. resolved, that a national judiciary be established, to consist of one supreme tribunal, the judges of which july . shall be appointed by the second branch of the national july . legislature; to hold their offices during good behaviour; to receive punctually, at stated times, a fixed compensation for their services, in which no diminution shall be made, so as to affect the persons actually in office at the time of such diminution. xv. resolved, that the national legislature be empowered to appoint inferior tribunals. xvi. resolved, that the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature; and to such other questions as involve the national peace and harmony. xvii. resolved, that provision ought to be made for the admission of states lawfully arising within the limits of the united states, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole. xviii. resolved, that a republican form of government shall be guarantied to each state; and that each state shall be protected against foreign and domestick violence. july . xix. resolved, that provision ought to be made for the amendment of the articles of union, whensoever it shall seem necessary. xx. resolved, that the legislative, executive, and judiciary powers within the several states, and of the national government, ought to be bound, by oath, to support the articles of union. xxi. resolved, that the amendments which shall be offered to the confederation by the convention ought, at a proper time or times after the approbation of congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon. xxii. resolved, that the representation in the second branch of the legislature of the united states consist of two members from each state, who shall vote per capita. july . xxiii. resolved, that it be an instruction to the committee, to whom were referred the proceedings of the convention for the establishment of a national government, to receive a clause or clauses, requiring certain qualifications of property and citizenship, in the united states, for the executive, the judiciary, and the members of both branches of the legislature of the united states. with the above resolutions were referred the propositions offered by m^r c. pinckney on the ^{th} of may, & by m^r patterson on the ^{th} of june.[ ] [ ] "aug . williamsb. "dear col. "we are here & i believe every where all impatience to know something of your conventional deliberations. if you cannot tell us what you are doing, you might at least give us some information of what you are not doing. this w^d afford food for political conjecture, and perhaps be sufficient to satisfy present impatience. i hope you have already discovered the means of preserving the american empire united--& that the scheme of a disunion has been found pregnant with y^e greatest evils--but we are not at this distance able to judge with any accuracy upon subjects so truly important & interesting as those w^{ch} must engage you at present--we can only hope, that you will all resemble cæsar, at least in one particular: 'nil actum reputans si quid superesset agendum';--& that your exertions will be commensurate to y^e great expectations w^{ch} have been formed... "j. madison."[a] [a] president of william and mary college, and the first bishop of the episcopal church in virginia. he was a second cousin of james madison, of orange. (mad. mss.) "richmond aug^t . . "dear sir, "i am much obliged to you for your communication of the proceedings of y^e convention, since i left them; for i feel that anxiety about y^e result, which it's importance must give to every honest citizen. if i thought that my return could contribute in the smallest degree to it's improvement, nothing should keep me away. but as i know that the talents, knowledge, & well-established character, of our present delegates have justly inspired the country with y^e most entire confidence in their determinations; & that my vote could only _operate_ to produce a division, & so destroy y^e vote of y^e state, i think that my attendance now would certainly be useless, perhaps injurious. "i am credibly inform'd that m^r henry has openly express'd his disapprobation of the circular letter of congress, respecting y^e payment of british debts; & that he has declared his opinion that y^e interests of this state cannot safely be trusted with that body. the doctrine of three confederacies, or great republics, has its advocates here. i have heard hervie support it, along with y^e extinction of state legislatures within each great department. the necessity of some independent power to controul the assembly by a negative, seems now to be admitted by y^e most zealous republicans--they only differ about y^e mode of constituting such a power. b. randolph seems to think that a magistrate annually elected by y^e people might exercise such a controul as independently as y^e king of g. b. i hope that our representative, marshall, will be a powerful aid to mason in the next assembly. he has observ'd the actual depravation of mens manners, under y^e corrupting influence of our legislature; and is convinc'd that nothing but y^e adoption of some efficient plan from y^e convention can prevent anarchy first, & civil convulsions afterwards. m^r h----y has certainly converted a majority of prince edward, formerly y^e most averse to paper money, to y^e patronage of it.... "your friend & humble serv^t. "james mcclurg." (mad. mss.) monday august ^{th}. in convention m^r john francis mercer from maryland took his seat. m^r rutlidge delivered in the report of the committee of detail as follows: a printed copy being at the same time furnished to each member[ ]: [ ] madison's printed copy is marked: "as reported by com^e of detail viz of five. aug. . ." it is a large folio of seven pages. in the enumeration of the articles by a misprint vi. was repeated, and the alterations in article vii. and succeeding articles were made by madison. in sect. ii of article vi., as it was printed, it appeared: "the enacting stile of the laws of the united states shall be. 'be it enacted and it is hereby enacted by the house of representatives, and by the senate of the united states, in congress assembled,'" which madison altered to read: "the enacting stile of the laws of the united states shall be. 'be it enacted by the senate & representatives, in congress assembled.'" the printed copy among the madison papers is a duplicate of the copy filed by general washington with the papers of the constitution, and sec. ii is there given as actually printed.--_journal of the federal convention_, . (const. mss.) madison accurately transcribed the report for his journal and it is this copy which is used in the text. "we the people of the states of new hampshire, massachusetts, rhode-island and providence plantations, connecticut, new york, new jersey, pennsylvania, delaware, maryland, virginia, north-carolina, south-carolina, and georgia, do ordain, declare, and establish the following constitution for the government of ourselves and our posterity. article i the stile of the government shall be, "the united states of america." ii the government shall consist of supreme legislative, executive, and judicial powers. iii the legislative power shall be vested in a congress, to consist of two separate and distinct bodies of men, a house of representatives and a senate; each of which shall in all cases have a negative on the other. the legislature shall meet on the first monday in december in every year. iv sect. . the members of the house of representatives shall be chosen every second year, by the people of the several states comprehended within this union. the qualifications of the electors shall be the same, from time to time, as those of the electors in the several states, of the most numerous branch of their own legislatures. sect. . every member of the house of representatives shall be of the age of twenty five years at least; shall have been a citizen in the united states for at least three years before his election; and shall be, at the time of his election, a resident of the state in which he shall be chosen. sect. . the house of representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner hereinafter described, consist of sixty-five members, of whom three shall be chosen in new-hampshire, eight in massachusetts, one in rhode-island and providence plantations, five in connecticut, six in new-york, four in new-jersey, eight in pennsylvania, one in delaware, six in maryland, ten in virginia, five in north-carolina, five in south-carolina, and three in georgia. sect. . as the proportions of numbers in different states will alter from time to time; as some of the states may hereafter be divided; as others may be enlarged by addition of territory; as two or more states may be united; as new states will be erected within the limits of the united states, the legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions herein after made, at the rate of one for every forty thousand. sect. . all bills for raising or appropriating money, and for fixing the salaries of the officers of government, shall originate in the house of representatives, and shall not be altered or amended by the senate. no money shall be drawn from the public treasury, but in pursuance of appropriations that shall originate in the house of representatives. sect. . the house of representatives shall have the sole power of impeachment. it shall choose its speaker and other officers. sect. . vacancies in the house of representatives shall be supplied by writs of election from the executive authority of the state, in the representation from which they shall happen. v sect. . the senate of the united states shall be chosen by the legislatures of the several states. each legislature shall chuse two members. vacancies may be supplied by the executive until the next meeting of the legislature. each member shall have one vote. sect. . the senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two and three. the seats of the members of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, of the third class at the expiration of the sixth year, so that a third part of the members may be chosen every second year. sect. . every member of the senate shall be of the age of thirty years at least; shall have been a citizen in the united states for at least four years before his election; and shall be, at the time of his election, a resident of the state for which he shall be chosen. sect. . the senate shall chuse its own president and other officers. vi sect. . the times and places and manner of holding the elections of the members of each house shall be prescribed by the legislature of each state; but their provisions concerning them may, at any time, be altered by the legislature of the united states. sect. . the legislature of the united states shall have authority to establish such uniform qualifications of the members of each house, with regard to property, as to the said legislature shall seem expedient. sect. . in each house a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day. sect. . each house shall be the judge of the elections, returns and qualifications of its own members. sect. . freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place out of the legislature; and the members of each house shall, in all cases, except treason felony and breach of the peace, be privileged from arrest during their attendance at congress, and in going to and returning from it. sect. . each house may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member. sect. . the house of representatives, and the senate, when it shall be acting in a legislative capacity, shall keep a journal of their proceedings, and shall, from time to time, publish them: and the yeas and nays of the members of each house, on any question, shall at the desire of one-fifth part of the members present, be entered on the journal. sect. . neither house, without the consent of the other, shall adjourn for more than three days, nor to any other place than that at which the two houses are sitting. but this regulation shall not extend to the senate, when it shall exercise the powers mentioned in the ---- article. sect. . the members of each house shall be ineligible to, and incapable of holding any office under the authority of the united states, during the time for which they shall respectively be elected: and the members of the senate shall be ineligible to, and incapable of holding any such office for one year afterwards. sect. . the members of each house shall receive a compensation for their services, to be ascertained and paid by the state, in which they shall be chosen. sect. . the enacting stile of the laws of the united states shall be, "be it enacted by the senate and representatives in congress assembled." sect. . each house shall possess the right of originating bills, except in the cases beforementioned. sect. . every bill, which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the united states for his revision: if, upon such revision, he approve of it, he shall signify his approbation by signing it: but if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that house in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider the bill. but if after such reconsideration, two thirds of that house shall, notwithstanding the objections of the president, agree to pass it, it shall together with his objections, be sent to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of the other house also, it shall become a law. but in all such cases, the votes of both houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the journal of each house respectively. if any bill shall not be returned by the president within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return; in which case it shall not be a law. vii sect. . the legislature of the united states shall have the power to lay and collect taxes, duties, imposts and excises; to regulate commerce with foreign nations, and among the several states; to establish an uniform rule of naturalization throughout the united states; to coin money; to regulate the value of foreign coin; to fix the standard of weights and measures; to establish post-offices; to borrow money, and emit bills on the credit of the united states; to appoint a treasurer by ballot; to constitute tribunals inferior to the supreme court; to make rules concerning captures on land and water; to declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the united states, and of offences against the law of nations; to subdue a rebellion in any state, on the application of its legislature; to make war; to raise armies; to build and equip fleets; to call forth the aid of the militia, in order to execute the laws of the union, enforce treaties, suppress insurrections, and repel invasions; and to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this constitution, in the government of the united states, or in any department or officer thereof; sect. . treason against the united states shall consist only in levying war against the united states, or any of them; and in adhering to the enemies of the united states, or any of them. the legislature of the united states shall have power to declare the punishment of treason. no person shall be convicted of treason, unless on the testimony of two witnesses. no attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted. sect. . the proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, (except indians not paying taxes) which number shall, within six years after the first meeting of the legislature, and within the term of every ten years afterwards, be taken in such manner as the said legislature shall direct. sect. . no tax or duty shall be laid by the legislature on articles exported from any state; nor on the migration or importation of such persons as the several states shall think proper to admit; nor shall such migration or importation be prohibited. sect. . no capitation tax shall be laid, unless in proportion to the census hereinbefore directed to be taken. sect. . no navigation act shall be passed without the assent of two thirds of the members present in each house. sect. . the united states shall not grant any title of nobility. viii the acts of the legislature of the united states made in pursuance of this constitution, and all treaties made under the authority of the united states shall be the supreme law of the several states, and of the citizens and inhabitants; and the judges in the several states shall be bound thereby in their decisions; any thing in the constitutions or laws of the several states to the contrary notwithstanding. ix sect . the senate of the united states shall have power to make treaties, and to appoint ambassadors, and judges of the supreme court. sect. . in all disputes and controversies now subsisting, or that may hereafter subsist between two or more states, respecting jurisdiction or territory, the senate shall possess the following powers. whenever the legislature, or the executive authority, or lawful agent of any state, in controversy with another, shall by memorial to the senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given by order of the senate, to the legislature or the executive authority of the other state in controversy. the senate shall also assign a day for the appearance of the parties, by their agents, before the house. the agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question. but if the agents cannot agree, the senate shall name three persons out of each of the several states; and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them shall be commissioners or judges to hear and finally determine the controversy; provided a majority of the judges, who shall hear the cause, agree in the determination. if either party shall neglect to attend at the day assigned, without shewing sufficient reasons for not attending, or being present shall refuse to strike, the senate shall proceed to nominate three persons out of each state, and the clerk of the senate shall strike in behalf of the party absent or refusing. if any of the parties shall refuse to submit to the authority of such court; or shall not appear to prosecute or defend their claim or cause, the court shall nevertheless proceed to pronounce judgment. the judgment shall be final and conclusive. the proceedings shall be transmitted to the president of the senate, and shall be lodged among the public records for the security of the parties concerned. every commissioner shall, before he sit in judgment, take an oath, to be administered by one of the judges of the supreme or superior court of the state where the cause shall be tried, "well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward." sect. . all controversies concerning lands claimed under different grants of two or more states, whose jurisdictions, as they respect such lands, shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different states. x sect. . the executive power of the united states shall be vested in a single person. his stile shall be, "the president of the united states of america;" and his title shall be, "his excellency." he shall be elected by ballot by the legislature. he shall hold his office during the term of seven years; but shall not be elected a second time. sect. . he shall, from time to time, give information to the legislature, of the state of the union: he may recommend to their consideration such measures as he shall judge necessary, and expedient: he may convene them on extraordinary occasions. in case of disagreement between the two houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper: he shall take care that the laws of the united states be duly and faithfully executed: he shall commission all the officers of the united states; and shall appoint officers in all cases not otherwise provided for by this constitution. he shall receive ambassadors, and may correspond with the supreme executives of the several states. he shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment. he shall be commander in chief of the army and navy of the united states, and of the militia of the several states. he shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during his continuance in office. before he shall enter on the duties of his department, he shall take the following oath or affirmation, "i ---- solemnly swear, (or affirm) that i will faithfully execute the office of president of the united states of america." he shall be removed from his office on impeachment by the house of representatives, and conviction in the supreme court, of treason, bribery, or corruption. in case of his removal as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the president of the senate shall exercise those powers and duties, until another president of the united states be chosen, or until the disability of the president be removed. xi sect. . the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the united states. sect. . the judges of the supreme court, and of the inferior courts, shall hold their offices during good behaviour. they shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. sect. . the jurisdiction of the supreme court shall extend to all cases arising under laws passed by the legislature of the united states; to all cases affecting ambassadors, other public ministers and consuls; to the trial of impeachments of officers of the united states; to all cases of admiralty and maritime jurisdiction; to controversies between two or more states, (except such as shall regard territory or jurisdiction) between a state and citizens of another state, between citizens of different states, and between a state or the citizens thereof and foreign states, citizens or subjects. in cases of impeachment, cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, this jurisdiction shall be original. in all the other cases beforementioned, it shall be appellate, with such exceptions and under such regulations as the legislature shall make. the legislature may assign any part of the jurisdiction abovementioned (except the trial of the president of the united states) in the manner, and under the limitations which it shall think proper, to such inferior courts, as it shall constitute from time to time. sect. . the trial of all criminal offences (except in cases of impeachments) shall be in the state where they shall be committed; and shall be by jury. sect. . judgment, in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit, under the united states. but the party convicted shall, nevertheless be liable and subject to indictment, trial, judgment and punishment according to law. xii no state shall coin money; nor grant letters of marque and reprisal; nor enter into any treaty, alliance, or confederation; nor grant any title of nobility. xiii no state, without the consent of the legislature of the united states, shall emit bills of credit, or make any thing but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another state, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent, as not to admit of a delay, until the legislature of the united states can be consulted. xiv the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. xv any person charged with treason, felony or high misdemeanor in any state, who shall flee from justice, and shall be found in any other state, shall, on demand of the executive power of the state from which he fled, be delivered up and removed to the state having jurisdiction of the offence. xvi full faith shall be given in each state to the acts of the legislatures, and to the records and judicial proceedings of the courts and magistrates of every other state. xvii new states lawfully constituted or established within the limits of the united states may be admitted, by the legislature, into this government; but to such admission the consent of two thirds of the members present in each house shall be necessary. if a new state shall arise within the limits of any of the present states, the consent of the legislatures of such states shall be also necessary to its admission. if the admission be consented to, the new states shall be admitted on the same terms with the original states. but the legislature may make conditions with the new states, concerning the public debt which shall be then subsisting. xviii the united states shall guaranty to each state a republican form of government; and shall protect each state against foreign invasions, and, on the application of its legislature, against domestic violence. xix on the application of the legislatures of two thirds of the states in the union, for an amendment of this constitution, the legislature of the united states shall call a convention for that purpose. xx the members of the legislatures, and the executive and judicial officers of the united states, and of the several states, shall be bound by oath to support this constitution. xxi the ratification of the conventions of ---- states shall be sufficient for organizing this constitution. xxii this constitution shall be laid before the united states in congress assembled, for their approbation; and it is the opinion of this convention, that it should be afterwards submitted to a convention chosen, under the recommendation of its legislature, in order to receive the ratification of such convention. xxiii to introduce this government, it is the opinion of this convention, that each assenting convention should notify its assent and ratification to the united states in congress assembled; that congress, after receiving the assent and ratification of the conventions of ---- states, should appoint and publish a day, as early as may be, and appoint a place, for commencing proceedings under this constitution; that after such publication, the legislatures of the several states should elect members of the senate, and direct the election of members of the house of representatives; and that the members of the legislature should meet at the time and place assigned by congress, and should, as soon as may be, after their meeting, choose the president of the united states, and proceed to execute this constitution. a motion was made to adjourn till wednesday, in order to give leisure to examine the report; which passed in the negative-- n. h. no. mas. no. c^t no. p^a ay. m^d ay. virg. ay. n. c. no. s. c. no. the house then adjourned till to-morrow oc. tuesday august .[ ] in convention [ ] although the secrecy of the proceedings was guarded carefully, the reason of the long adjournment was generally known outside of the convention. "the convention adjourned about three weeks ago and appointed a committee consisting of m^r rutlege, m^r randolph, m^r wilson, m^r elsworth, & m^r gorham to draw into form the measures which had been agreed upon--they reassembled last monday sen'night to receive the report--i suppose we shall have the result of this great business in a few weeks more."--edward carrington to monroe, august , . monroe mss. _cf._ king's account of the debate confirming the accuracy of madison's report (king's _life and correspondence of rufus king_, i., ). the report of the committee of detail being taken up, m^r pinkney moved that it be referred to a committee of the whole. this was strongly opposed by m^r ghorum & several others, as likely to produce unnecessary delay; and was negatived, delaware mary^d & virg^a only being in the affirmative. the preamble of the report was agreed to nem. con. so were art: i & ii. art: iii considered. col. mason doubted the propriety of giving each branch a negative on the other "in all cases." there were some cases in which it was he supposed not intended to be given as in the case of balloting for appointments. m^r gov^r morris moved to insert "legislative acts" instead of "all cases." m^r williamson ^{ds} him. m^r sherman. this will restrain the operation of the clause too much. it will particularly exclude a mutual negative in the case of ballots, which he hoped would take place. m^r ghorum contended that elections ought to be made by _joint ballot_. if separate ballots should be made for the president, and the two branches should be each attached to a favorite, great delay contention & confusion may ensue. these inconveniences have been felt in mas^{ts} in the election of officers of little importance compared with the executive of the u. states. the only objection ag^{st} a joint ballot is that it may deprive the senate of their due weight; but this ought not to prevail over the respect due to the public tranquility & welfare. m^r wilson was for a joint ballot in several cases at least; particularly in the choice of the president, and was therefore for the amendment. disputes between the two houses during & concern^g the vacancy of the executive might have dangerous consequences. col. mason thought the amendment of m^r gov^r morris extended too far. treaties are in a subsequent part declared to be laws, they will therefore be subjected to a negative; altho' they are to be made as proposed by the senate alone. he proposed that the mutual negative should be restrained to "cases requiring the distinct assent" of the two houses. m^r gov^r morris thought this but a repetition of the same thing; the mutual negative and distinct assent, being equivalent expressions. treaties he thought were not laws. m^r madison moved to strike out the words each of which shall in all cases, have a negative on the other; the idea being sufficiently expressed in the preceding member of the article; vesting the "legislative power" in "distinct bodies," especially as the respective powers and mode of exercising them were fully delineated in a subsequent article. gen^l pinkney ^{ded} the motion. on question for inserting legislative acts as moved by m^r gov^r morris n. h. ay. mas. ay. c^t ay. p^a ay. del. no. m^d no. v^a no. n. c. ay. s. c. no. geo. no. on question for agreeing to m^r m's motion to strike out &c.---- n. h. ay. mas. ay. c^t no. p^a ay. del. ay. m^d no. v^a ay. n. c. no. s. c. ay. geo. ay. m^r madison wished to know the reasons of the com^e for fixing by y^e constitution the time of meeting for the legislature; and suggested, that it be required only that one meeting at least should be held every year leaving the time to be fixed or varied by law. m^r gov^r morris moved to strike out the sentence. it was improper to tie down the legislature to a particular time, or even to require a meeting every year. the public business might not require it. m^r pinkney concurred with m^r madison. m^r ghorum. if the time be not fixed by the constitution, disputes will arise in the legislature; and the states will be at a loss to adjust thereto, the times of their elections. in the n. england states the annual time of meeting had been long fixed by their charters & constitutions, and no inconvenience had resulted. he thought it necessary that there should be one meeting at least every year as a check on the executive department. m^r elseworth was ag^{st} striking out the words. the legislature will not know till they are met whether the public interest required their meeting or not. he could see no impropriety in fixing the day, as the convention could judge of it as well as the legislature. m^r wilson thought on the whole it would be best to fix the day. m^r king could not think there would be a necessity for a meeting every year. a great vice in our system was that of legislating too much. the most numerous objects of legislation belong to the states. those of the nat^l legislature were but few. the chief of them were commerce & revenue. when these should be once settled alterations would be rarely necessary & easily made. m^r madison thought if the time of meeting should be fixed by a law it w^d be sufficiently fixed & there would be no difficulty then as had been suggested, on the part of the states in adjusting their elections to it. one consideration appeared to him to militate strongly ag^{st} fixing a time by the constitution. it might happen that the legislature might be called together by the public exigencies & finish their session but a short time before the annual period. in this case it would be extremely inconvenient to reassemble so quickly & without the least necessity. he thought one annual meeting ought to be required; but did not wish to make two unavoidable. col. mason thought the objections against fixing the time insuperable: but that an annual meeting ought to be required as essential to the preservation of the constitution. the extent of the country will supply business. and if it should not, the legislature, besides _legislative_, is to have _inquisitorial_ powers, which cannot safely be long kept in a state of suspension. m^r sherman was decided for fixing the time, as well as for frequent meetings of the legislative body. disputes and difficulties will arise between the two houses, & between both & the states, if the time be changeable--frequent meetings of parliament were required at the revolution in england as an essential safeguard of liberty. so also are annual meetings in most of the american charters & constitutions. there will be business eno' to require it. the western country, and the great extent and varying state of our affairs in general will supply objects. m^r randolph was ag^{st} fixing any day irrevocably; but as there was no provision made any where in the constitution for regulating the periods of meeting, and some precise time must be fixed, untill the legislature shall make provision, he could not agree to strike out the words altogether. instead of which he moved to add the words following--"unless a different day shall be appointed by law." m^r madison ^{ded} the motion, & on the question n. h. no. mass. ay. c^t no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris moved to strike out dec^r & insert may. it might frequently happen that our measures ought to be influenced by those in europe, which were generally planned during the winter and of which intelligence would arrive in the spring. m^r madison ^{ded} the motion, he preferred may to dec^r because the latter would require the travelling to & from the seat of gov^t in the most inconvenient seasons of the year. m^r wilson. the winter is the most convenient season for business. m^r elseworth. the summer will interfere too much with private business, that of almost all the probable members of the legislature being more or less connected with agriculture. m^r randolph. the time is of no great moment now, as the legislature can vary it. on looking into the constitutions of the states, he found that the times of their elections with which the election of the nat^l representatives would no doubt be made to coincide, would suit better with dec^r than may. and it was advisable to render our innovations as little incommodious as possible. on the question for "may" instead of "dec^r" n. h. no. mass. no. c^t no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r read moved to insert after the word "senate," the words, "subject to the negative to be hereafter provided." his object was to give an absolute negative to the executive--he considered this as so essential to the constitution, to the preservation of liberty, & to the public welfare, that his duty compelled him to make the motion. m^r gov^r morris ^{ded} him. and on the question n. h. no. mass. no. c^t no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r rutlidge. altho' it is agreed on all hands that an annual meeting of the legislature should be made necessary, yet that point seems not to be free from doubt as the clause stands. on this suggestion, "once at least in every year," were inserted, nem. con. art. iii with the foregoing alterations was ag^d to nem. con., and is as follows: "the legislative power shall be vested in a congress to consist of separate & distinct bodies of men; a house of rep^s & a senate. the legislature shall meet at least once in every year, and such meeting shall be on the ^{st} monday in dec^r unless a different day shall be appointed by law." "article iv. sect. . taken up." m^r gov^r morris moved to strike out the last member of the section beginning with the words "qualifications of electors," in order that some other provision might be substituted which w^d restrain the right of suffrage to freeholders. m^r fitzsimons ^{ded} the motion. m^r williamson was opposed to it. m^r wilson. this part of the report was well considered by the committee, and he did not think it could be changed for the better. it was difficult to form any uniform rule of qualifications for all the states. unnecessary innovations he thought too should be avoided. it would be very hard & disagreeable for the same persons at the same time, to vote for representatives in the state legislature and to be excluded from a vote for those in the nat^l legislature. m^r gov^r morris. such a hardship would be neither great nor novel. the people are accustomed to it and not dissatisfied with it, in several of the states. in some the qualifications are different for the choice of the gov^r & representatives; in others for different houses of the legislature. another objection ag^{st} the clause as it stands is that it makes the qualifications of the nat^l legislature depend on the will of the states, which he thought not proper. m^r elseworth. thought the qualifications of the electors stood on the most proper footing. the right of suffrage was a tender point, and strongly guarded by most of the state constitutions. the people will not readily subscribe to the nat^l constitution if it should subject them to be disfranchised. the states are the best judges of the circumstances & temper of their own people. col. mason. the force of habit is certainly not attended to by those gentlemen who wish for innovations on this point. eight or nine states have extended the right of suffrage beyond the freeholders. what will the people there say, if they should be disfranchised. a power to alter the qualifications would be a dangerous power in the hands of the legislature. m^r butler. there is no right of which the people are more jealous than that of suffrage. abridgments of it tend to the same revolution as in holland where they have at length thrown all power into the hands of the senates, who fill up vacancies themselves, and form a rank aristocracy. m^r dickinson. had a very different idea of the tendency of vesting the right of suffrage in the freeholders of the country. he considered them as the best guardians of liberty; and the restriction of the right to them as a necessary defence ag^{st} the dangerous influence of those multitudes without property & without principle with which our country like all others, will in time abound. as to the unpopularity of the innovation it was in his opinion chimerical. the great mass of our citizens is composed at this time of freeholders, and will be pleased with it. m^r elseworth. how shall the freehold be defined? ought not every man who pays a tax, to vote for the representative who is to levy & dispose of his money? shall the wealthy merchants & manufacturers, who will bear a full share of the public burthens be not allowed a voice in the imposition of them. taxation & representation ought to go together. m^r gov^r morris. he had long learned not to be the dupe of words. the sound of aristocracy therefore had no effect on him. it was the thing, not the name, to which he was opposed, and one of his principal objections to the constitution as it is now before us, is that it threatens this country with an aristocracy. the aristocracy will grow out of the house of representatives. give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. we should not confine our attention to the present moment. the time is not distant when this country will abound with mechanics & manufacturers who will receive their bread from their employers. will such men be the secure & faithful guardians of liberty? will they be the impregnable barrier ag^{st} aristocracy?--he was as little duped by the association of the words, "taxation & representation." the man who does not give his vote freely is not represented. it is the man who dictates the vote. children do not vote. why? because they want prudence, because they have no will of their own. the ignorant & the dependent can be as little trusted with the public interest. he did not conceive the difficulty of defining "freeholders" to be insuperable. still less that the restriction could be unpopular. / of the people are at present freeholders and these will certainly be pleased with it. as to merch^{ts}. &c. if they have wealth & value the right they can acquire it. if not they don't deserve it. col. mason. we all feel too strongly the remains of antient prejudices, and view things too much through a british medium. a freehold is the qualification in england, & hence it is imagined to be the only proper one. the true idea in his opinion was that every man having evidence of attachment to & permanent common interest with the society ought to share in all its rights & privileges. was this qualification restrained to freeholders? does no other kind of property but land evidence a common interest in the proprietor? does nothing besides property mark a permanent attachment. ought the merchant, the monied man, the parent of a number of children whose fortunes are to be pursued in his own country to be viewed as suspicious characters, and unworthy to be trusted with the common rights of their fellow citizens. m^r madison. the right of suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the legislature. a gradual abridgment of this right has been the mode in which aristocracies have been built on the ruins of popular forms. whether the constitutional qualification ought to be a freehold, would with him depend much on the probable reception such a change would meet with in states where the right was now exercised by every description of people. in several of the states a freehold was now the qualification. viewing the subject in its merits alone, the freeholders of the country would be the safest depositories of republican liberty. in future times a great majority of the people will not only be without landed, but any other sort of property. these will either combine, under the influence of their common situation: in which case, the rights of property & the public liberty, will not be secure in their hands: or which is more probable, they will become the tools of opulence & ambition, in which case there will be equal danger on another side. the example of england has been misconceived (by col. mason.) a very small proportion of the representatives are there chosen by freeholders. the greatest part are chosen by the cities & boroughs, in many of which the qualification of suffrage is as low as it is in any one of the u. s. and it was in the boroughs & cities rather than the counties, that bribery most prevailed, & the influence of the crown on elections was most dangerously exerted.[ ] [ ] "note to speech of j. m. in convention of , august ^{th}.: "as appointments for the general government here contemplated will, in part, be made by the state gov^{ts}, all the citizens in states where the right of suffrage is not limited to the holders of property, will have an indirect share of representation in the general government. but this does not satisfy the fundamental principle that men cannot be justly bound by laws in making which they have no part. persons & property being both essential objects of government, the most that either can claim, is such a structure of it as will leave a reasonable security for the other. and the most obvious provision, of this double character, seems to be that of confining to the holders of property the object deemed least secure in popular gov^{ts} the right of suffrage for one of the two legislative branches. this is not without example among us, as well as other constitutional modifications, favouring the influence of property in the government. but the u. s. have not reached the stage of society in which conflicting feelings of the class with, and the class without property, have the operation natural to them in countries fully peopled. the most difficult of all political arrangements is that of so adjusting the claims of the two classes as to give security to each and to promote the welfare of all. the federal principle,--which enlarges the sphere of power without departing from the elective basis of it and controuls in various ways the propensity in small republics to rash measures & the facility of forming & executing them, will be found the best expedient yet tried for solving the problem."--madison's note. * * * * * "note to the speech of j. m. on the [ ^{th}.] day of [august]. "these observations (in the speech of j. m. see debates in the convention of , on the [ ^{th}.] day of [august]) do not convey the speaker's more full & matured view of the subject, which is subjoined. he felt too much at the time the example of virginia. "the right of suffrage is a fundamental article in republican constitutions. the regulation of it is, at the same time, a task of peculiar delicacy. allow the right exclusively to property, and the rights of persons may be oppressed. the feudal polity, alone sufficiently proves it. extend it equally to all, and the rights of property, or the claims of justice, may be overruled by a majority without property or interested in measures of injustice. of this abundant proof is afforded by other popular gov^{ts} and is not without examples in our own, particularly in the laws impairing the obligation of contracts. "in civilized communities, property as well as personal rights is an essential object of the laws, which encourage industry by securing the enjoyment of its fruits; that industry from which property results, & that enjoyment which consists not merely in its immediate use, but in its posthumous destination to objects of choice and of kindred affection. "in a just & a free government, therefore, the rights both of property & of persons ought to be effectually guarded. will the former be so in case of a universal & equal suffrage? will the latter be so in case of a suffrage confined to the holders of property? "as the holders of property have at stake all the other rights common to those without property, they may be the more restrained from infringing, as well as the less tempted to infringe the rights of the latter. it is nevertheless certain, that there are various ways in which the rich may oppress the poor; in which property may oppress liberty; and that the world is filled with examples. it is necessary that the poor should have a defence against the danger. "on the other hand, the danger to the holders of property cannot be disguised, if they be undefended against a majority without property. bodies of men are not less swayed by interest than individuals, and are less controlled by the dread of reproach and the other motives felt by individuals. hence the liability of the rights of property, and of the impartiality of laws affecting it, to be violated by legislative majorities having an interest real or supposed in the injustice: hence agrarian laws, and other leveling schemes: hence the cancelling or evading of debts, and other violations of contracts. we must not shut our eyes to the nature of man, nor to the light of experience. who would rely on a fair decision from three individuals if two had an interest in the case opposed to the rights of the third? make the number as great as you please, the impartiality will not be increased; nor any further security against injustice be obtained, than what may result from the greater difficulty of uniting the wills of a greater number. "in all gov^{ts} there is a power which is capable of oppressive exercise. in monarchies and aristocracies oppression proceeds from a want of sympathy & responsibility in the gov^t towards the people. in popular governments the danger lies in an undue sympathy among individuals composing a majority, and a want of responsibility in the majority to the minority. the characteristic excellence of the political system of the u. s. arises from a distribution and organization of its powers, which at the same time that they secure the dependence of the gov^t on the will of the nation, provides better guards than are found in any other popular gov^t against interested combinations of a majority against the rights of a minority. "the u. states have a precious advantage also in the actual distribution of property particularly the landed property; and in the universal hope of acquiring property. this latter peculiarity is among the happiest contrasts in their situation to that of the old world, where no anticipated change in this respect, can generally inspire a like sympathy with the rights of property. there may be at present, a majority of the nation, who are even freeholders, or the heirs or aspirants to freeholds. and the day may not be very near when such will cease to make up a majority of the community. but they cannot always so continue. with every admissible subdivision of the arable lands, a populousness not greater than that of england or france will reduce the holders to a minority. and whenever the majority shall be without landed or other equivalent property and without the means or hope of acquiring it, what is to secure the rights of property ag^{st} the danger from an equality & universality of suffrage, vesting compleat power over property in hands without a share in it: not to speak of a danger in the meantime from a dependence of an increasing number on the wealth of a few? in other countries this dependence results in some from the relations between landlords & tenants in others both from that source & from the relations between wealthy capitalists and indigent labourers. in the u. s. the occurrence must happen from the last source; from the connection between the great capitalists in manufactures & commerce and the numbers employed by them. nor will accumulations of capital for a certain time be precluded by our laws of descent & of distribution; such being the enterprise inspired by free institutions, that great wealth in the hands of individuals and associations may not be unfrequent. but it may be observed, that the opportunities may be diminished, and the permanency defeated by the equalizing tendency of our laws. "no free country has ever been without parties, which are a natural offspring of freedom. an obvious and permanent division of every people is into the owners of the soil, and the other inhabitants. in a certain sense the country may be said to belong to the former. if each landholder has an exclusive property in his share, the body of landholders have an exclusive property in the whole. as the soil becomes subdivided, and actually cultivated by the owners, this view of the subject derives force from the principle of natural law, which vests in individuals an exclusive right to the portions of ground with which he has incorporated his labour & improvements. whatever may be the rights of others derived from their birth in the country, from their interest in the highways & other parcels left open for common use, as well as in the national edifices and monuments; from their share in the public defence, and from their concurrent support of the gov^t, it would seem unreasonable to extend the right so far as to give them when become the majority, a power of legislation over the landed property without the consent of the proprietors. some barrier ag^{st} the invasion of their rights would not be out of place in a just and provident system of gov^t. the principle of such an arrangement has prevailed in all gov^{ts} where peculiar privileges or interests held by a part were to be secured ag^{st} violation, and in the various associations where pecuniary or other property forms the stake. in the former case a defensive right has been allowed; and if the arrangement be wrong, it is not in the defense but in the kind of privilege to be defended. in the latter case, the shares of suffrage, allotted to individuals have been with acknowledged justice apportioned more or less to their respective interests in the common stock. "these reflections suggest the expediency of such a modification of gov^t as would give security to the part of the society having most at stake and being most exposed to danger. three modifications present themselves. " . _confining_ the right of suffrage to freeholders, & to such as hold an equivalent property, convertible of course into freeholds. the objection to this regulation is obvious. it violates the vital principle of free gov^t that those who are to be bound by laws, ought to have a voice in making them. and the violation w^d be more strikingly unjust as the law makers become the minority. the regulation would be as unpropitious, also, as it would be unjust. it would engage the numerical & physical force in a constant struggle ag^{st} the public authority; unless kept down by a standing army fatal to all parties. " . confining the right of suffrage for one branch to the holders of property, and for the other branch to those without property. this arrangement which w^d give a mutual defence, where there might be mutual danger of encroachment, has an aspect of equality & fairness. but it w^d not be in fact either equal or fair, because the rights to be defended would be unequal, being on one side those of property as well as of persons, and on the other those of persons only. the temptation also to encroach tho' in a certain degree mutual, w^d be felt more strongly on one side than on the other: it would be more likely to beget an abuse of the legislative negative in extorting concessions at the expence of property, than the reverse. the division of the state into two classes, with distinct & independ^t organs of power, and without any intermingled agency whatever, might lead to contests & antipathies not dissimilar to those between the patricians & plebeians at rome. " . confining the right of electing one branch of the legislature to freeholders, and admitting all others to a common right with holders of property in electing the other branch. this w^d give a defensive power to holders of property, and to the class also without property when becoming a majority of electors, without depriving them in the meantime of a participation in the public councils. if the holders of property would thus have a two-fold share of representation, they w^d have at the same time a two-fold stake in it, the rights of property as well as of persons, the two-fold object of political institutions. and if no exact & safe equilibrium can be introduced, it is more reasonable that a preponderating weight sh^d be allowed to the greater interest than to the lesser. experience alone can decide how far the practice in this case would correspond with the theory. such a distribution of the right of suffrage was tried in n. york and has been abandoned whether from experienced evils, or party calculations, may possibly be a question. it is still on trial in n. carolina, with what practical indications is not known. it is certain that the trial, to be satisfactory ought to be continued for no inconsiderable period; untill in fact the non-freeholders should be the majority. " . should experience or public opinion require an equal & universal suffrage for each branch of the gov^t such as prevails generally in the u. s., a resource favorable to the rights of the landed & other property, when its possessors become the minority, may be found in an enlargement of the election districts for one branch of the legislature, and an extension of its period of service. large districts are manifestly favorable to the election of persons of general respectability, and of probable attachment to the rights of property, over competitors depending on the personal solicitation practicable on a contracted theatre. and altho' an ambitious candidate, of personal distinction, might occasionally recommend himself to popular choice by espousing a popular though unjust object, it might rarely happen to many districts at the same time. the tendency of a longer period of service would be, to render the body more stable in its policy, and more capable of stemming popular currents taking a wrong direction, till reason & justice could regain their ascendancy. " . should even such a modification as the last be deemed inadmissible, and universal suffrage and very short periods of elections within contracted spheres, be required for each branch of the gov^t, the security for the holders of property when the minority, can only be derived from the ordinary influence possessed by property, & the superior information incident to its holders; from the popular sense of justice enlightened & enlarged by a diffusive education; and from the difficulty of combining & effectuating unjust purposes throughout an extensive country; a difficulty essentially distinguishing the u. s. & even most of the individual states, from the small communities where a mistaken interest or contagious passion, could readily unite a majority of the whole under a factious leader, in trampling on the rights of the minor party. "under every view of the subject, it seems indispensable that the mass of citizens should not be without a voice, in making the laws which they are to obey, & in chusing the magistrates who are to administer them, and if the only alternative be between an equal & universal right of suffrage for each branch of the gov^t and a confinement of the _entire_ right to a part of the citizens, it is better that those having the greater interest at stake namely that of property & persons both, should be deprived of half their share in the gov^t than, that those having the lesser interest, that of personal rights only, should be deprived of the whole."--madison's note. doc^r franklin. it is of great consequence that we sh^d not depress the virtue & public spirit of our common people; of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it. he related the honorable refusal of the american seamen who were carried in great numbers into the british prisons during the war, to redeem themselves from misery or to seek their fortunes, by entering on board the ships of the enemies to their country; contrasting their patriotism with a contemporary instance in which the british seamen made prisoners by the americans, readily entered on the ships of the latter on being promised a share of the prizes that might be made out of their own country. this proceeded he said from the different manner in which the common people were treated in america & g. britain. he did not think that the elected had any right in any case to narrow the privileges of the electors. he quoted as arbitrary the british statute setting forth the danger of tumultuous meetings, and under that pretext narrowing the right of suffrage to persons having freeholds of a certain value; observing that this statute was soon followed by another under the succeeding parliam^t subjecting the people who had no votes to peculiar labors & hardships. he was persuaded also that such a restriction as was proposed would give great uneasiness in the populous states. the sons of a substantial farmer, not being themselves freeholders, would not be pleased at being disfranchised, and there are a great many persons of that description. m^r mercer. the constitution is objectionable in many points, but in none more than the present. he objected to the footing on which the qualification was put, but particularly to the _mode of election_ by the people. the people can not know & judge of the characters of candidates. the worse possible choice will be made. he quoted the case of the senate in virg^a as an example in point. the people in towns can unite their votes in favor of one favorite; & by that means always prevail over the people of the country, who being dispersed will scatter their votes among a variety of candidates. m^r rutlidge thought the idea of restraining the right of suffrage to the freeholders a very unadvised one. it would create division among the people & make enemies of all those who should be excluded. on the question for striking out as moved by m^r gov^r morris, from the word "qualifications" to the end of the iii article n. h. no. mass. no. c^t no. p^a no. del. ay. m^d div^d. v^a no. n. c. no. s. c. no. geo. not pres^t. adjourned wednesday aug^{st} . in convention art: iv. sect. .--m^r mercer expressed his dislike of the whole plan, and his opinion that it never could succeed. m^r ghorum. he had never seen any inconveniency from allowing such as were not freeholders to vote, though it had long been tried. the elections in phil^a, n. york & boston where the merchants & mechanics vote are at least as good as those made by freeholders only. the case in england was not accurately stated yesterday (by m^r madison). the cities & large towns are not the seat of crown influence & corruption. these prevail in the boroughs, and not on account of the right which those who are not freeholders have to vote, but of the smallness of the number who vote. the people have been long accustomed to this right in various parts of america, and will never allow it to be abridged. we must consult their rooted prejudices if we expect their concurrence in our propositions. m^r mercer did not object so much to an election by the people at large including such as were not freeholders, as to their being left to make their choice without any guidance. he hinted that candidates ought to be nominated by the state legislatures. on the question for agreeing to art: iv--sect, it pass^d nem. con. art. iv. sect. . taken up. col. mason was for opening a wide door for emigrants; but did not chuse to let foreigners and adventurers make laws for us & govern us. citizenship for three years was not enough for ensuring that local knowledge which ought to be possessed by the representative. this was the principal ground of his objection to so short a term. it might also happen that a rich foreign nation, for example great britain, might send over her tools who might bribe their way into the legislature for insidious purposes. he moved that "seven" years instead of "three," be inserted. m^r gov^r morris ^{ded} the motion, & on the question, all the states agreed to it except connecticut. m^r sherman moved to strike out the word "resident" and insert "inhabitant," as less liable to misconstruction. m^r madison ^{ded} the motion, both were vague, but the latter least so in common acceptation, and would not exclude persons absent occasionally for a considerable time on public or private business. great disputes had been raised in virg^a concerning the meaning of residence as a qualification of representatives which were determined more according to the affection or dislike to the man in question, than to any fixt interpretation of the word. m^r wilson preferred "inhabitant." m^r gov^r morris, was opposed to both and for requiring nothing more than a freehold. he quoted great disputes in n. york occasioned by these terms, which were decided by the arbitrary will of the majority. such a regulation is not necessary. people rarely chuse a nonresident--it is improper as in the ^{st} branch, _the people at large_, not the _states_, are represented. m^r rutlidge urged & moved, that a residence of years sh^d be required in the state wherein the member sh^d be elected. an emigrant from n. england to s. c. or georgia would know little of its affairs and could not be supposed to acquire a thorough knowledge in less time. m^r read reminded him that we were now forming a _nat^l_ gov^t and such a regulation would correspond little with the idea that we were one people. m^r wilson. enforced the same consideration. m^r madison suggested the case of new states in the west, which could have perhaps no representation on that plan. m^r mercer. such a regulation would present a greater alienship among the states than existed under the old federal system. it would interweave local prejudices & state distinctions in the very constitution which is meant to cure them. he mentioned instances of violent disputes raised in maryland concerning the term "residence." m^r elseworth thought seven years of residence was by far too long a term: but that some fixt term of previous residence would be proper. he thought one year would be sufficient, but seemed to have no objection to three years. m^r dickinson proposed that it should read "inhabitant actually resident for ---- years." this would render the meaning less indeterminate. m^r wilson. if a short term should be inserted in the blank, so strict an expression might be construed to exclude the members of the legislature, who could not be said to be actual residents in their states whilst at the seat of the gen^l government. m^r mercer. it would certainly exclude men, who had once been inhabitants, and returning from residence elsewhere to resettle in their original state; although a want of the necessary knowledge could not in such cases be presumed. m^r mason thought years too long, but would never agree to part with the principle. it is a valuable principle. he thought it a defect in the plan that the representatives would be too few to bring with them all the local knowledge necessary. if residence be not required, rich men of neighbouring states, may employ with success the means of corruption in some particular district and thereby get into the public councils after having failed in their own state. this is the practice in the boroughs of england. on the question for postponing in order to consider m^r dickinsons motion n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. on the question for inserting "inhabitant" in place of "resident"--ag^d to nem. con. m^r elseworth & col. mason move to insert "one year" for previous inhabitancy. m^r williamson liked the report as it stood. he thought "resident" a good eno' term. he was ag^{st} requiring any period of previous residence. new residents if elected will be most zealous to conform to the will of their constituents, as their conduct will be watched with a more jealous eye. m^r butler & m^r rutlidge moved "three years" instead of "one year" for previous inhabitancy. on the question for years, n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. on the question for " year" n. h. no.--mass. no. c^t no. n. j. ay. p^a no. del. no. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. ay. art. iv. sect. . as amended in manner preceding, was agreed to nem. con. art. iv. sect. . taken up. gen^l pinkney & m^r pinkney moved that the number of representatives allotted to s. carol^a be "six." on the question, n. h. no. mass. no. c^t no. n. j. no. p^a no. delaware ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. the . sect of art: iv, was then agreed to. art: iv. sect. . taken up. m^r williamson moved to strike out "according to the provisions hereinafter made" and to insert the words "according to the rule hereafter to be provided for direct taxation."--see art. vii. sect. . on the question for agreeing to m^r williamson's amendment n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r king wished to know what influence the vote just passed was meant to have on the succeeding part of the report, concerning the admission of slaves into the rule of representation. he could not reconcile his mind to the article if it was to prevent objections to the latter part. the admission of slaves was a most grating circumstance to his mind, & he believed would be so to a great part of the people of america. he had not made a strenuous opposition to it heretofore because he had hoped that this concession would have produced a readiness which had not been manifested, to strengthen the gen^l gov^t and to mark a full confidence in it. the report under consideration had by the tenor of it, put an end to all those hopes. in two great points the hands of the legislature were absolutely tied. the importation of slaves could not be prohibited--exports could not be taxed. is this reasonable? what are the great objects of the gen^l system? . defence ag^{st} foreign invasion. . ag^{st} internal sedition. shall all the states then be bound to defend each; & shall each be at liberty to introduce a weakness which will render defence more difficult? shall one part of the u. s. be bound to defend another part, and that other part be at liberty not only to increase its own danger, but to withhold the compensation for the burden? if slaves are to be imported shall not the exports produced by their labor, supply a revenue the better to enable the gen^l gov^a to defend their masters? there was so much inequality & unreasonableness in all this, that the people of the northern states could never be reconciled to it. no candid man could undertake to justify it to them. he had hoped that some accommodation w^d have taken place on this subject; that at least a time w^d have been limited for the importation of slaves. he never could agree to let them be imported without limitation & then be represented in the nat^l legislature. indeed he could so little persuade himself of the rectitude of such a practice, that he was not sure he could assent to it under any circumstances. at all events, either slaves should not be represented, or exports should be taxable. m^r sherman regarded the slave trade as iniquitous; but the point of representation having been settled after much difficulty & deliberation, he did not think himself bound to make opposition; especially as the present article as amended did not preclude any arrangement whatever on that point in another place of the report. m^r madison objected to for every . inhabitants as a perpetual rule. the future increase of population if the union sh^d be permanent, will render the number of representatives excessive. m^r ghorum. it is not to be supposed that the gov^t will last so long as to produce this effect. can it be supposed that this vast country including the western territory will years hence remain one nation? m^r elseworth. if the gov^t should continue so long, alterations may be made in the constitution in the manner proposed in a subsequent article. m^r sherman & m^r madison moved to insert the words "not exceeding," before the words " for every . ." which was agreed to nem. con. m^r gov^r morris moved to insert "free" before the word inhabitants. much he said would depend on this point. he never would concur in upholding domestic slavery. it was a nefarious institution. it was the curse of heaven on the states where it prevailed. compare the free regions of the middle states, where a rich & noble cultivation marks the prosperity & happiness of the people, with the misery & poverty which overspread the barren wastes of v^a mary^d & the other states having slaves. travel thro' y^e whole continent & you behold the prospect continually varying with the appearance & disappearance of slavery. the moment you leave y^e e. states & enter n. york, the effects of the institution become visible, passing thro' the jerseys & entering p^a every criterion of superior improvement witnesses the change. proceed southw^{dly}. & every step you take thro' y^e great regions of slaves presents a desert increasing, with y^e increasing [word is illegible] proportion of these wretched beings. upon what principle is it that the slaves shall be computed in the representation? are they men? then make them citizens and let them vote. are they property? why then is no other property included? the houses in this city (philad^a) are worth more than all the wretched slaves which cover the rice swamps of south carolina. the admission of slaves into the representation when fairly explained comes to this: that the inhabitant of georgia and s. c. who goes to the coast of africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a gov^t instituted for protection of the rights of mankind, than the citizen of p^a or n. jersey who views with a laudable horror, so nefarious a practice. he would add that domestic slavery is the most prominent feature in the aristocratic countenance of the proposed constitution. the vassalage of the poor has ever been the favorite offspring of aristocracy. and what is the proposed compensation to the northern states for a sacrifice of every principle of right, of every impulse of humanity. they are to bind themselves to march their militia for the defence of the s. states; for their defence ag^{st} those very slaves of whom they complain. they must supply vessels & seamen in case of foreign attack. the legislature will have indefinite power to tax them by excises, and duties on imports: both of which will fall heavier on them than on the southern inhabitants; for the bohae tea used by a northern freeman, will pay more tax than the whole consumption of the miserable slave, which consists of nothing more than his physical subsistence and the rag that covers his nakedness. on the other side the southern states are not to be restrained from importing fresh supplies of wretched africans, at once to increase the danger of attack, and the difficulty of defence; nay they are to be encouraged to it by an assurance of having their votes in the nat^l gov^t increased in proportion, and are at the same time to have their exports & their slaves exempt from all contributions for the public service. let it not be said that direct taxation is to be proportioned to representation. it is idle to suppose that the gen^l gov^t can stretch its hand directly into the pockets of the people scattered over so vast a country. they can only do it through the medium of exports imports & excises. for what then are all the sacrifices to be made? he would sooner submit himself to a tax for paying for all the negroes in the u. states, than saddle posterity with such a constitution. m^r dayton ^{ded} the motion. he did it he said that his sentiments on the subject might appear whatever might be the fate of the amendment. m^r sherman, did not regard the admission of the negroes into the ratio of representation, as liable to such insuperable objections. it was the freemen of the south^n states who were in fact to be represented according to the taxes paid by them, and the negroes are only included in the estimate of the taxes. this was his idea of the matter. m^r pinkney, considered the fisheries & the western frontier as more burthensome to the u. s. than the slaves. he thought this could be demonstrated if the occasion were a proper one. m^r wilson, thought the motion premature. an agreement to the clause would be no bar to the object of it. question on motion to insert "free" before "inhabitants," n. h. no. mass. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. on the suggestion of m^r dickinson the words, "provided that each state shall have one representative at least,"--were added nem. con. art. iv. sect. . as amended was agreed to con. nem. art. iv. sect. . taken up. m^r pinkney moved to strike out sect. . as giving no peculiar advantage to the house of representatives, and as clogging the gov^t. if the senate can be trusted with the many great powers proposed, it surely may be trusted with that of originating money bills. m^r ghorum. was ag^{st} allowing the senate to _originate_; but only to _amend_. m^r gov^r morris. it is particularly proper that the senate sh^d have the right of originating money bills. they will sit constantly, will consist of a smaller number, and will be able to prepare such bills with due correctness; and so as to prevent delay of business in the other house. col. mason was unwilling to travel over this ground again. to strike out the section, was to unhinge the compromise of which it made a part. the duration of the senate made it improper. he does not object to that duration. on the contrary he approved of it. but joined with the smallness of the number, it was an argument against adding this to the other great powers vested in that body. his idea of an aristocracy was that it was the govern^t of the few over the many. an aristocratic body, like the screw in mechanics, work^g its way by slow degrees, and holding fast whatever it gains, should ever be suspected of an encroaching tendency. the purse strings should never be put into its hands. m^r mercer, considered the exclusive power of originating money bills as so great an advantage, that it rendered the equality of votes in the senate ideal & of no consequence. m^r butler was for adhering to the principle which had been settled. m^r wilson was opposed to it on its merits without regard to the compromise. m^r elseworth did not think the clause of any consequence, but as it was thought of consequence by some members from the larger states, he was willing it should stand. m^r madison was for striking it out; considering it as of no advantage to the large states as fettering the gov^t and as a source of injurious altercations between the two houses. on the question for striking out "sect. , art. iv". n. h. no. mass. no. c^t no. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay. adj^d. thursday, aug^{st} . in convention art: iv. sect. . m^r randolph expressed his dissatisfaction at the disagreement yesterday to sect. . concerning money bills, as endangering the success of the plan, and extremely objectionable in itself; and gave notice that he should move for a reconsideration of the vote. m^r williamson said he had formed a like intention. m^r wilson, gave notice that he sh^d move to reconsider the vote, requiring seven instead of three years of citizenship as a qualification of candidates for the house of representatives. art. iv. sec. . & . agreed to nem. con. art. v. sect. . taken up. m^r wilson objected to vacancies in the senate being supplied by the executives of the states. it was unnecessary as the legislatures will meet so frequently. it removes the appointment too far from the people; the executives in most of the states being elected by the legislatures. as he had always thought the appointment of the executives by the legislative department wrong; so it was still more so that the executive should elect into the legislative department. m^r randolph thought it necessary in order to prevent inconvenient chasms in the senate. in some states the legislatures meet but once a year. as the senate will have more power & consist of a smaller number than the other house, vacancies there will be of more consequence. the executives might be safely trusted he thought with the appointment for so short a time. m^r elseworth. it is only said that the executive _may_ supply vacancies. when the legislative meeting happens to be near, the power will not be exerted. as there will be but two members from a state vacancies may be of great moment. m^r williamson. senators may resign or not accept. this provision is therefore absolutely necessary. on the question for striking out "vacancies shall be supplied by the executives" n. h. no. mass. no. c^t no. n. j. no. p^a ay. m^d div^d. v^a no. n. c. no. s. c. no. geo. no. m^r williamson moved to insert after "vacancies shall be supplied by the executives," the following words "unless other provision shall be made by the legislature" (of the state). m^r elseworth. he was willing to trust the legislature, or the executive of a state, but not to give the former a discretion to refer appointments for the senate to whom they pleased. question on m^r williamson's motion n. h. no. mass. no. c^t no. n. j. no. p^a no. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. m^r madison in order to prevent doubts whether resignations could be made by senators, or whether they could refuse to accept, moved to strike out the words after "vacancies," & insert the words "happening by refusals to accept, resignations or otherwise, may be supplied by the legislature of the state in the representation of which such vacancies shall happen, or by the executive thereof until the next meeting of the legislature." m^r gov^r morris this is absolutely necessary, otherwise, as members chosen into the senate are disqualified from being appointed to any office by sect. . of this art: it will be in the power of a legislature by appointing a man a senator ag^{st} his consent, to deprive the u. s. of his services. the motion of m^r madison was agreed to nem. con. m^r randolph called for division of the section, so as to leave a distinct question on the last words "each member shall have one vote." he wished this last sentence to be postponed until the reconsideration should have taken place on sect. . art. iv. concerning money bills. if that section should not be reinstated his plan would be to vary the representation in the senate. m^r strong concurred in m^r randolph's ideas on this point. m^r read did not consider the section as to money bills of any advantage to the larger states and had voted for striking it out as being viewed in the same light by the larger states. if it was considered by them as of any value, and as a condition of the equality of votes in the senate, he had no objection to its being re-instated. m^r wilson--m^r elseworth & m^r madison urged that it was of no advantage to the larger states, and that it might be a dangerous source of contention between the two houses. all the principal powers of the nat^l legislature had some relation to money. doc^r franklin, considered the two clauses, the originating of money bills, and the equality of votes in the senate, as essentially connected by the compromise which had been agreed to. col. mason said this was not the time for discussing this point. when the originating of money bills shall be reconsidered, he thought it could be demonstrated that it was of essential importance to restrain the right to the house of representatives the immediate choice of the people. m^r williamson. the state of n. c. had agreed to an equality in the senate, merely in consideration that money bills should be confined to the other house: and he was surprised to see the smaller states forsaking the condition on which they had received their equality. question on the section . down to the last sentence n. h. ay. mass. no. c^t ay. n. j. ay. p^a[ ] no. del. ay. m^d ay. virg^a ay. n. c. no. s. c. div^d. geo. ay. [ ] "in the printed journal pennsylvania ay."--madison's note. m^r randolph moved that the last sentence "each member shall have one vote," be postponed. it was observed that this could not be necessary; as in case the sanction as to originating money bills should not be reinstated, and a revision of the constitution should ensue, it w^d still be proper that the members should vote per capita. a postponement of the preceding sentence allowing to each state members w^d have been more proper. m^r mason, did not mean to propose a change of this mode of voting per capita in any event. but as there might be other modes proposed, he saw no impropriety in postponing the sentence. each state may have two members, and yet may have unequal votes. he said that unless the exclusive originating of money bills should be restored to the house of representatives, he should, not from obstinacy but duty and conscience, oppose throughout the equality of representation in the senate. m^r gov^r morris. such declarations were he supposed, addressed to the smaller states in order to alarm them for their equality in the senate, and induce them ag^{st} their judgments, to concur in restoring the section concerning money bills. he would declare in his turn that as he saw no prospect of amending the constitution of the senate & considered the section relating to money bills as intrinsically bad, he would adhere to the section establishing the equality at all events. m^r wilson. it seems to have been supposed by some that the section concerning money bills is desirable to the large states. the fact was that two of those states (p^a & v^a) had uniformly voted ag^{st} it without reference to any other part of the system. m^r randolph, urged as col. mason had done that the sentence under consideration was connected with that relating to money bills, and might possibly be affected by the result of the motion for reconsidering the latter. that the postponement was therefore not improper. question for postponing "each member shall have one vote," n. h. div^d. mass. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. the words were then agreed to as part of the section. m^r randolph then gave notice that he should move to reconsider this whole sect: . art. v. as connected with the . sect. art. iv. as to which he had already given such notice. art. v. sect. ^d taken up. m^r gov^r morris moved to insert after the words, "immediately after," the following "they shall be assembled in consequence of," which was agreed to nem. con. as was then the whole sect. . art: v. sect. . taken up. m^r gov^r morris moved to insert instead of years citizenship as a qualification for senators: urging the danger of admitting strangers into our public councils. m^r pinkney ^d him. m^r elseworth, was opposed to the motion as discouraging meritorious aliens from emigrating to this country. m^r pinkney. as the senate is to have the power of making treaties & managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments. he quoted the jealousy of the athenians on this subject who made it death for any stranger to intrude his voice into their legislative proceedings. col. mason highly approved of the policy of the motion. were it not that many not natives of this country had acquired great merit during the revolution, he should be for restraining the eligibility into the senate, to natives. m^r madison was not averse to some restrictions on this subject; but could never agree to the proposed amendment. he thought any restriction however in the _constitution_ unnecessary, and improper, unnecessary; because the nat^l legisl^{re} is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence or conditions of enjoying different privileges of citizenship: improper; because it will give a tincture of illiberality to the constitution: because it will put it out of the power of the nat^l legislature even by special acts of naturalization to confer the full rank of citizens on meritorious strangers & because it will discourage the most desirable class of people from emigrating to the u. s. should the proposed constitution have the intended effect of giving stability & reputation to our gov^{ts} great numbers of respectable europeans; men who love liberty and wish to partake its blessings, will be ready to transfer their fortunes hither. all such would feel the mortification of being marked with suspicious incapacitations though they s^d not covet the public honors. he was not apprehensive that any dangerous number of strangers would be appointed by the state legislatures, if they were left at liberty to do so: nor that foreign powers would make use of strangers as instruments for their purposes. their bribes would be expended on men whose circumstances would rather stifle than excite jealousy & watchfulness in the public. m^r butler was decidedly opposed to the admission of foreigners without a long residence in the country. they bring with them, not only attachments to other countries; but ideas of gov^t so distinct from ours that in every point of view they are dangerous. he acknowledged that if he himself had been called into public life within a short time after his coming to america, his foreign habits opinions & attachments would have rendered him an improper agent in public affairs. he mentioned the great strictness observed in great britain on this subject. doc^r franklin was not against a reasonable time, but should be very sorry to see any thing like illiberality inserted in the constitution. the people in europe are friendly to this country. even in the country with which we have been lately at war, we have now & had during the war, a great many friends not only among the people at large but in both houses of parliament. in every other country in europe all the people are our friends. we found in the course of the revolution, that many strangers served us faithfully, and that many natives took part ag^{st} their country. when foreigners after looking about for some other country in which they can obtain more happiness, give a preference to ours, it is a proof of attachment which ought to excite our confidence & affection. m^r randolph did not know but it might be problematical whether emigrations to this country were on the whole useful or not: but he could never agree to the motion for disabling them for years to participate in the public honours. he reminded the convention of the language held by our patriots during the revolution, and the principles laid down in all our american constitutions. many foreigners may have fixed their fortunes among us under the faith of these invitations. all persons under this description, with all others who would be affected by such a regulation, would enlist themselves under the banners of hostility to the proposed system. he would go as far as seven years, but no further. m^r wilson said he rose with feelings which were perhaps peculiar; mentioning the circumstance of his not being a native, and the possibility, if the ideas of some gentlemen should be pursued, of his being incapacitated from holding a place under the very constitution, which he had shared in the trust of making. he remarked the illiberal complexion which the motion would give to the system & the effect which a good system would have in inviting meritorious foreigners among us, and the discouragement & mortification they must feel from the degrading discrimination now proposed. he had himself experienced this mortification. on his removal into maryland, he found himself, from defect of residence, under certain legal incapacities which never ceased to produce chagrin, though he assuredly did not desire & would not have accepted the offices to which they related. to be appointed to a place may be matter of indifference. to be incapable of being appointed, is a circumstance grating and mortifying. m^r gov^r morris. the lesson we are taught is that we should be governed as much by our reason, and as little by our feelings as possible. what is the language of reason on this subject? that we should not be polite at the expence of prudence. there was a moderation in all things. it is said that some tribes of indians, carried their hospitality so far as to offer to strangers their wives & daughters. was this a proper model for us? he would admit them to his house, he would invite them to his table, would provide for them comfortable lodgings; but would not carry the complaisance so far as, to bed them with his wife. he would let them worship at the same altar, but did not choose to make priests of them. he ran over the privileges which emigrants would enjoy among us, though they should be deprived of that of being eligible to the great offices of government; observing that they exceeded the privileges allowed to foreigners in any part of the world; and that as every society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted, there could be no room for complaint. as to those philosophical gentlemen, those citizens of the world as they called themselves, he owned he did not wish to see any of them in our public councils. he would not trust them. the men who can shake off their attachments to their own country can never love any other. these attachments are the wholesome prejudices which uphold all governments. admit a frenchman into your senate, and he will study to increase the commerce of france: an englishman, he will feel an equal bias in favor of that of england. it has been said that the legislatures will not chuse foreigners, at least improper ones. there was no knowing what legislatures would do. some appointments made by them, proved that every thing ought to be apprehended from the cabals practised on such occasions. he mentioned the case of a foreigner who left this state in disgrace, and worked himself into an appointment from another to congress. question on the motion of m^r gov^r morris to insert in place of years n.h. ay. mass. no. c^t no. n.j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. on years, moved by m^r gov^r morris n. h. ay. mass. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. on years moved by gen^l pinkney n. h. ay. mass. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. d^r franklin reminded the convention that it did not follow from an omission to insert the restriction in the constitution that the persons in question w^d be actually chosen into the legislature. m^r rutlidge. years of citizenship have been required for the house of representatives. surely a longer time is requisite for the senate, which will have more power. m^r williamson. it is more necessary to guard the senate in this case than the other house. bribery & cabal can be more easily practised in the choice of the senate which is to be made by the legislatures composed of a few men, than of the house of represent^s who will be chosen by the people. m^r randolph will agree to years with the expectation that it will be reduced to seven if m^r wilson's motion to reconsider the vote fixing years for the house of representatives should produce a reduction of that period. on a question for years n. h. ay. mass. no. c^t no. n. j. ay. p^a no. del. ay. m^d no. v^a ay. n. c. div^d. s. c. ay. geo. ay. the term "resident" was struck out, & "inhabitant" inserted nem. con. art. v. sect. . as amended agreed to nem. con. sect. . agreed to nem. con. article vi. sect. . taken up. m^r madison & m^r gov^r morris moved to strike out "each house" & to insert "the house of representatives;" the right of the legislatures to regulate the times & places &c. in the election of senators being involved in the right of appointing them, which was disagreed to. division of the question being called, it was taken on the first part down to "but their provisions concerning &c." the first part was agreed to nem. con. m^r pinkney & m^r rutlidge moved to strike out the remaining part viz but their provisions concerning them may at any time be altered by the legislature of the united states. the states they contended could & must be relied on in such cases. m^r ghorum. it would be as improper take this power from the nat^l legislature, as to restrain the british parliament from regulating the circumstances of elections, leaving this business to the counties themselves-- m^r madison.[ ] the necessity of a gen^l gov^t supposes that the state legislatures will sometimes fail or refuse to consult the common interest at the expence of their local conveniency or prejudices. the policy of referring the appointment of the house of representatives to the people and not to the legislatures of the states, supposes that the result will be somewhat influenced by the mode. this view of the question seems to decide that the legislatures of the states ought not to have the uncontrouled right of regulating the times places & manner of holding elections. these were words of great latitude. it was impossible to foresee all the abuses that might be made of the discretionary power. whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, sh^d all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the legislatures, and might materially affect the appointments. whenever the state legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. besides, the inequality of the representation in the legislatures of particular states, would produce a like inequality in their representation in the nat^l legislature, as it was presumable that the counties having the power in the former case would secure it to themselves in the latter. what danger could there be in giving a controuling power to the nat^l legislature? of whom was it to consist? . of a senate to be chosen by the state legislatures. if the latter therefore could be trusted, their representatives could not be dangerous. . of representatives elected by the same people who elect the state legislatures; surely then if confidence is due to the latter, it must be due to the former. it seemed as improper in principle, though it might be less inconvenient in practice, to give to the state legislatures this great authority over the election of the representatives of the people in the gen^l legislature, as it would be to give to the latter a like power over the election of their representatives in the state legislatures. [ ] madison wrote to jefferson, july : "i have taken lengthy notes of everything that has yet passed, and mean to go on with the drudgery, if no indisposition obliges me to discontinue it. it is not possible to form any judgment of the future duration of the session. i am led by sundry circumstances to guess that the residue of the work will not be very quickly despatched. the public mind is very impatient for ye event, and various reports are circulating which tend to inflame curiosity. i do not learn however that any discontent is expressed at the concealment; and have little doubt that the people will be as ready to receive as we shall be able to propose, a government that will secure their liberties & happiness."--mad. mss. m^r king. if this power be not given to the nat^l legislature, their right of judging of the returns of their members may be frustrated. no probability has been suggested of its being abused by them. altho this scheme of erecting the gen^l gov^t on the authority of the state legislatures has been fatal to the federal establishment, it would seem as if many gentlemen, still foster the dangerous idea. m^r gov^r morris observed that the states might make false returns and then make no provisions for new elections. m^r sherman did not know but it might be best to retain the clause, though he had himself sufficient confidence in the state legislatures. the motion of m^r p. & m^r r. did not prevail. the word "respectively" was inserted after the word "state." on the motion of m^r read the word "their" was struck out, & "regulations in such cases" inserted in place of "provisions concerning them" the clause then reading--"but regulations in each of the foregoing cases may at any time, be made or altered by the legislature of the u. s." this was meant to give the nat^l legislature a power not only to alter the provisions of the states, but to make regulations in case the states should fail or refuse altogether. art. vi. sect. . as thus amended was agreed to nem. con. adjourned. friday aug^{st} . in convention art. vi. sect. . taken up. m^r pinkney. the committee as he had conceived were instructed to report the proper qualifications of property for the members of the nat^l legislature; instead of which they have referred the task to the nat^l legislature itself. should it be left on this footing, the first legislature will meet without any particular qualifications of property; and if it should happen to consist of rich men they might fix such qualifications as may be too favorable to the rich; if of poor men, an opposite extreme might be run into. he was opposed to the establishment of an undue aristocratic influence in the constitution but he thought it essential that the members of the legislature, the executive, and the judges, should be possessed of competent property to make them independent & respectable. it was prudent when such great powers were to be trusted to connect the tie of property with that of reputation in securing a faithful administration. the legislature would have the fate of the nation put into their hands. the president would also have a very great influence on it. the judges would have not only important causes between citizen & citizen but also where foreigners are concerned. they will even be the umpires between the u. states and individual states as well as between one state & another. were he to fix the quantum of property which should be required, he should not think of less than one hundred thousand dollars for the president, half of that sum for each of the judges, and in like proportion for the members of the nat^l legislature. he would however leave the sums blank. his motion was that the president of the u. s. the judges, and members of the legislature should be required to swear that they were respectively possessed of a cleared unincumbered estate to the amount of ---- in the case of the president &c &c. m^r rutlidge seconded the motion, observing that the committee had reported no qualifications because they could not agree on any among themselves, being embarrassed by the danger on one side of displeasing the people by making them high, and on the other of rendering them nugatory by making them low. m^r elseworth. the different circumstances of different parts of the u. s. and the probable difference between the present and future circumstances of the whole, render it improper to have either _uniform_ or _fixed_ qualifications. make them so high as to be useful in the s. states, and they will be inapplicable to the e. states. suit them to the latter, and they will serve no purpose in the former. in like manner what may be accommodated to the existing state of things among us, may be very inconvenient in some future state of them. he thought for these reasons that it was better to leave this matter to the legislative discretion than to attempt a provision for it in the constitution. doct^r franklin expressed his dislike of every thing that tended to debase the spirit of the common people. if honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property. some of the greatest rogues he was ever acquainted with, were the richest rogues. we should remember the character which the scripture requires in rulers, that they should be men hating covetousness. this constitution will be much read and attended to in europe, and if it should betray a great partiality to the rich will not only hurt us in the esteem of the most liberal and enlightened men there, but discourage the common people from removing to this country. the motion of m^r pinkney was rejected by so general a _no_, that the states were not called. m^r madison was opposed to the section as vesting an improper & dangerous power in the legislature. the qualifications of electors and elected were fundamental articles in a republican gov^t and ought to be fixed by the constitution. if the legislature could regulate those of either, it can by degrees subvert the constitution. a republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorized to elect. in all cases where the representatives of the people will have a personal interest distinct from that of their constituents, there was the same reason for being jealous of them, as there was for relying on them with full confidence, when they had a common interest. this was one of the former cases. it was as improper as to allow them to fix their own wages, or their own privileges. it was a power also which might be made subservient to the views of one faction ag^{st} another. qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of a weaker faction. m^r elseworth, admitted that the power was not unexceptionable; but he could not view it as dangerous. such a power with regard to the electors would be dangerous because it would be much more liable to abuse. m^r gov^r morris moved to strike out "with regard to property" in order to leave the legislature entirely at large. m^r williamson. this would surely never be admitted. should a majority of the legislature be composed of any particular description of men, of lawyers for example, which is no improbable supposition, the future elections might be secured to their own body. m^r madison observed that the british parliam^t possessed the power of regulating the qualifications both of the electors, and the elected; and the abuse they had made of it was a lesson worthy of our attention. they had made the changes in both cases subservient to their own views, or to the views of political or religious parties. question on the motion to strike out with regard to property n. h. no. mass. no. c^t ay. n. j. ay. p^a ay. del.[ ] no. m^d no. v^a no. n. c. no. s. c. no. geo. ay. [ ] in the printed journal delaware did not vote--madison's note. m^r rutlidge was opposed to leaving the power to the legislature--he proposed that the qualifications should be the same as for members of the state legislatures. m^r wilson thought it would be best on the whole to let the section go out. a uniform rule would probably never be fixed by the legislature, and this particular power would constructively exclude every other power of regulating qualifications. on the question for agreeing to art. vi. sect. ^d n. h. ay. mass. ay. c^t no. n. j. no. p^a no. m^d no. v^a no. n. c. no. s. c. no. geo. ay. on motion of m^r wilson to reconsider art: iv. sect. ; so as to restore in place of seven years of citizenship as a qualification for being elected into the house of represent^s. n. h. no. mass. no. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. monday next was then assigned for the reconsideration; all the states being ay. except mass^{ts}. & georgia. art: vi. sect. . taken up. m^r ghorum contended that less than a majority in each house should be made a quorum, otherwise great delay might happen in business, and great inconvenience from the future increase of numbers. m^r mercer was also for less than a majority. so great a number will put it in the power of a few by seceding at a critical moment to introduce convulsions, and endanger the governm^t. examples of secession have already happened in some of the states. he was for leaving it to the legislature to fix the quorum, as in great britain, where the requisite number is small & no inconveniency has been experienced. col. mason. this is a valuable & necessary part of the plan. in this extended country, embracing so great a diversity of interests, it would be dangerous to the distant parts to allow a small number of members of the two houses to make laws. the central states could always take care to be on the spot and by meeting earlier than the distant ones, or wearying their patience, and outstaying them, could carry such measures as they pleased. he admitted that inconveniences might spring from the secession of a small number; but he had also known good produced by an apprehension, of it. he had known a paper emission prevented by that cause in virginia. he thought the constitution as now moulded was founded on sound principles, and was disposed to put into it extensive powers. at the same time he wished to guard ag^{st} abuses as much as possible. if the legislature should be able to reduce the number at all, it might reduce it as low as it pleased & the u. states might be governed by a juncto--a majority of the number which had been agreed on, was so few that he feared it would be made an objection ag^{st} the plan. m^r king admitted there might be some danger of giving an advantage to the central states; but he was of opinion that the public inconveniency on the other side was more to be dreaded. m^r gov^r morris moved to fix the quorum at members in the h. of rep^s & in the senate. this is a majority of the present number, and will be a bar to the legislature: fix the number low and they will generally attend knowing that advantage may be taken of their absence, the secession of a small number ought not to be suffered to break a quorum. such events in the states may have been of little consequence. in the national councils they may be fatal. besides other mischiefs, if a few can break up a quorum, they may seize a moment when a particular part of the continent may be in need of immediate aid, to extort, by threatening a secession, some unjust & selfish measure. m^r mercer ^{ded} the motion. m^r king said he had just prepared a motion which instead of fixing the numbers proposed by m^r gov^r morris as quorums, made those the lowest numbers, leaving the legislature at liberty to increase them or not. he thought the future increase of members would render a majority of the whole extremely cumbersome. m^r mercer agreed to substitute m^r king's motion in place of m^r morris's. m^r elseworth was opposed to it. it would be a pleasing ground of confidence to the people that no law or burden could be imposed on them by a few men. he reminded the movers that the constitution proposed to give such a discretion with regard to the number of representatives that a very inconvenient number was not to be apprehended. the inconveniency of secessions may be guarded ag^{st} by giving to each house an authority to require the attendance of absent members. m^r wilson concurred in the sentiments of m^r elseworth. m^r gerry seemed to think that some further precautions than merely fixing the quorum might be necessary. he observed that as w^d be a majority of a quorum of , and of , questions might by possibility be carried in the h. of rep^s by large states, and in the senate by the same states with the aid of two small ones.--he proposed that the number for a quorum in the h. of rep^s should not exceed , nor be less than , leaving the intermediate discretion to the legislature. m^r king. as the quorum could not be altered with^t the concurrence of the president by less than / of each house, he thought there could be no danger in trusting the legislature. m^r carrol. this would be no security ag^{st} a continuance of the quorums at & . when they ought to be increased. on question on m^r king's motion "that not less than in the h. of rep^s nor less than in the senate sh^d constitute a quorum which may be increased by a law, on additions of the members in either house. n. h. no. mass. ay. c^t no. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r randolph & m^r madison moved to add to the end of art. vi. sect. , "and may be authorized to compel the attendance of absent members in such manner & under such penalties as each house may provide." agreed to by all except pen^a which was divided. art. vi. sect. . agreed to as amended nem. con. sect. . } agreed to nem. con. sect. . } m^r madison observed that the right of expulsion (art. vi. sect. .) was too important to be exercised by a bare majority of a quorum: and in emergencies of faction might be dangerously abused. he moved that, "with the concurrence of / ," might be inserted between may & expel. m^r randolph & m^r mason approved the idea. m^r gov^r morris. this power may be safely trusted to a majority. to require more may produce abuses on the side of the minority. a few men from factious motives may keep in a member who ought to be expelled. m^r carrol thought that the concurrence of / at least ought to be required. on the question requiring / in cases of expelling a member. n. h. ay. mass. ay. c^t ay. n. j. ay. p^a div^d. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. art. vi. sect. . as thus amended agreed to nem. con. art: vi. sect. . taken up. m^r gov^r morris urged that if the yeas & nays were proper at all any individual ought to be authorized to call for them; and moved an amendment to that effect.--the small states may otherwise be under a disadvantage, and find it difficult to get a concurrence of / . m^r randolph ^{ded} y^e motion. m^r sherman had rather strike out the yeas & nays altogether. they never have done any good, and have done much mischief. they are not proper as the reasons governing the voter never appear along with them. m^r elseworth was of the same opinion. col. mason liked the section as it stood, it was a middle way between two extremes. m^r ghorum was opposed to the motion for allowing a single member to call the yeas & nays, and recited the abuses of it in mass^{ts}. in stuffing the journals with them on frivolous occasions. in misleading the people who never know the reasons determing the votes. the motion for allowing a single member to call the yeas & nays was disag^d to nem. con. m^r carrol. & m^r randolph moved to strike out the words, "each house" and to insert the words, "the house of representatives" in sect. . art. . and to add to the section the words "and any member of the senate shall be at liberty to enter his dissent." m^r gov^r morris & m^r wilson observed that if the minority were to have a right to enter their votes & reasons, the other side would have a right to complain, if it were not extended to them: & to allow it to both, would fill the journals, like the records of a court, with replications, rejoinders &c. question on m^r carrol's motion to allow a member to enter his dissent n. h. no. mass. no. con^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay. m^r gerry moved to strike out the words "when it shall be acting in its legislative capacity" in order to extend the provision to the senate when exercising its peculiar authorities and to insert "except such parts thereof as in their judgment require secrecy" after the words "publish them."--(it was thought by others that provision should be made with respect to these when that part came under consideration which proposed to vest those additional authorities in the senate.) on this question for striking out the words "when acting in its legislative capacity" n. h. div^d. mass. ay. c^t no. n. j. no. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. adjourned. saturday aug^{st} in convention m^r madison & m^r rutlidge moved "that each house shall keep a journal of its proceedings, & shall publish the same from time to time; except such part of the proceedings of the senate, when acting not in its legislative capacity as may be judged by that house to require secrecy." m^r mercer. this implies that other powers than legislative will be given to the senate which he hoped would not be given. m^r madison & m^r r's motion was disag^d to by all the states except virg^a. m^r gerry & m^r sherman moved to insert after the words "publish them" the following "except such as relate to treaties & military operations." their object was to give each house a discretion in such cases.--on this question n. h. no. mass. ay. c^t ay. n. j. no. p^a no. del. no. v^a no. n. c. no. s. c. no. geo. no. m^r elseworth. as the clause is objectionable in so many shapes, it may as well be struck out altogether. the legislature will not fail to publish their proceedings from time to time. the people will call for it if it should be improperly omitted. m^r wilson thought the expunging of the clause would be very improper. the people have a right to know what their agents are doing or have done, and it should not be in the option of the legislature to conceal their proceedings. besides as this is a clause in the existing confederation, the not retaining it would furnish the adversaries of the reform with a pretext by which weak & suspicious minds may be easily misled. m^r mason thought it would give a just alarm to the people, to make a conclave of their legislature. m^r sherman thought the legislature might be trusted in this case if in any. question on ^{st} part of the section down to "_publish them_" inclusive: agreed to nem. con. question on the words to follow, to wit "except such parts thereof as may in their judgment require secrecy." n. h. div^d. mass. ay. c^t ay. n. j. ay. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. ay. the remaining part as to yeas & nays,--agreed to nem. con. art vi. sect. . taken up. m^r king remarked that the section authorized the houses to adjourn to a new place. he thought this inconvenient. the mutability of place had dishonored the federal gov^t and would require as strong a cure as we could devise. he thought a law at least should be made necessary to a removal of the seat of gov^t. m^r madison viewed the subject in the same light, and joined with m^r king in a motion requiring a law. mr. govern^r morris proposed the additional alteration by inserting the words, "during the session" &c. m^r spaight. this will fix the seat of gov^t at n. y. the present congress will convene them there in the first instance, and they will never be able to remove, especially if the presid^t should be [a] northern man. m^r gov^r morris such a distrust is inconsistent with all gov^t. m^r madison supposed that a central place for the seat of gov^t was so just and w^d be so much insisted on by the h. of representatives, that though a law should be made requisite for the purpose, it could & would be obtained. the necessity of a central residence of the gov^t w^d be much greater under the new than old gov^t. the members of the new gov^t w^d be more numerous. they would be taken more from the interior parts of the states; they w^d not like members of y^e present cong^s come so often from the distant states by water. as the powers & objects of the new gov^t would be far greater y^e heretofore, more private individuals w^d have business calling them to the seat of it, and it was more necessary that the gov^t should be in that position from which it could contemplate with the most equal eye, and sympathize most equally with, every part of the nation. these considerations he supposed would extort a removal even if a law were made necessary. but in order to quiet suspicions both within & without doors, it might not be amiss to authorize the houses by a concurrent vote to adjourn at their first meeting to the most proper place, and to require thereafter, the sanction of a law to their removal. the motion was accordingly moulded into the following form: "the legislature shall at their first assembling determine on a place at which their future sessions shall be held; neither house shall afterwards, during the session of the house of rep^s without the consent of the other, adjourn for more than three days, nor shall they adjourn to any other place than such as shall have been fixt by law." m^r gerry thought it would be wrong to let the presid^t check the will of the houses on this subject at all. m^r williamson supported the ideas of m^r spaight. m^r carrol was actuated by the same apprehensions. m^r mercer, it will serve no purpose to require the two houses at their first meeting to fix on a place. they will never agree. after some further expressions from others denoting an apprehension that the seat of gov^t might be continued at an improper place if a law should be made necessary to a removal, and the motion above stated with another for recommitting the section had been negatived, the section was left in the shape in which it was reported as to this point. the words, "during the session of the legislature" were prefixed to the ^{th} section--and the last sentence "but this regulation shall not extend to the senate when it shall exercise the powers mentioned in the ---- article" struck out. the ^{th} section as amended was then agreed to. m^r randolph moved according to notice to reconsider art: iv. sect. . concerning money bills which had been struck out. he argued . that he had not wished for this privilege whilst a proportional representation in the senate was in contemplation, but since an equality had been fixed in that house, the large states would require this compensation at least. . that it would make the plan more acceptable to the people, because they will consider the senate as the more aristocratic body, and will expect that the usual guards ag^{st} its influence be provided according to the example in g. britain. . the privilege will give some advantage to the house of rep^s if it extends to the originating only--but still more if it restrains the senate from amend^g. . he called on the smaller states to concur in the measure, as the condition by which alone the compromise had entitled them to an equality in the senate. he signified that he should propose instead of the original section, a clause specifying that the bills in question should be for the purpose of revenue, in order to repel y^e objection ag^{st} the extent of the words, "_raising money_," which might happen incidentally, and that the senate should not so amend or alter as to increase or diminish the sum; in order to obviate the inconveniences urged ag^{st} a restriction of the senate to a simple affirmation or negative. m^r williamson ^{ded} the motion. m^r pinkney was sorry to oppose the opportunity gentlemen asked to have the question again opened for discussion, but as he considered it a mere waste of time he could not bring himself to consent to it. he said that notwithstanding what had been said as to the compromise, he always considered this section as making no part of it. the rule of representation in the ^{st} branch was the true condition of that in the ^d branch.--several others spoke for & ag^{st} the reconsideration, but without going into the merits.--on the question to reconsider n. h. ay. mass. ay. c^t ay. n. j.[ ] ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. div^d. geo. ay.--monday was then assigned-- [ ] in the printed journal n. jersey--no.--madison's note. adj^d.[ ] [ ] the next day being sunday, madison wrote to his father: "philad^a aug^{st} , . "hon^d sir "i wrote to you lately inclosing a few newspapers. i now send a few more, not because they are interesting but because they may supply the want of intelligence that might be more so. the convention reassembled at the time my last mentioned that they had adjourned to. it is not possible yet to determine the period to which the session will be spun out. it must be some weeks from this date at least, and possibly may be computed by months. eleven states are on the ground, and have generally been so since the second or third week of the session. rhode island is one of the absent states. she has never yet appointed deputies. n. h. till of late was the other. that state is now represented. but just before the arrival of her deputies, those of n. york left us.--we have till within a few days had very cool weather. it is now pleasant, after a fine rain. our acc^{ts} from virg^a give us but an imperfect idea of the prospects with you. in particular places the drouth we hear has been dreadful. gen^l washington's neighbourhood is among the most suffering of them. i wish to know how your neighbourhood is off. but my chief anxiety is to hear that your health is re-established. the hope that this may procure me that information is the principal motive for writing it, having as you will readily see not been led to it by any thing worth communicating. with my love to my mother & the rest of the family i remain dear sir "y^r aff^t son." (mad. mss.) edward carrington wrote to madison from new york, august , showing the solicitude of federalist members of congress: "... the president has been requested to write to the states unrepresented, pressing upon them the objects which require the attendance of their delegations, & urging them to come forward, amongst the objects is that of the report of the convention, which, it is supposed, is now in the state of parturition--this bantling must receive the blessing of congress this session, or, i fear, it will expire before the new one will assemble; every experiment has its critical stages which must be taken as they occur, or the whole will fail--the peoples expectations are rising with the progress of this work, but will desert it, should it remain long with congress--permit me to suggest one idea as to the mode of obtaining the accession of the states to the new plan of government--let the convention appoint _one_ day, say the ^{st} of may, upon which a convention appointed by the people shall be held in each state, for the purpose of accepting or rejecting in toto, the project--supposing an act of the ordinary legislatures to be equally authentic, which would not be true, yet many reasons present themselves in favor of--special conventions--many men would be admitted who are excluded from the legislatures--the business would be taken up unclogged with any other--and it would effectually call the attention of all the people to the object as seriously affecting them. all the states being in convention at the same time, opportunities of speculating upon the views of each other would be cut off--the project should be decided upon without an attempt to alter it--you have doubtless found it difficult to reconcile the different opinions in your body--will it not be impossible then, to reconcile those which will arise amongst numerous assemblies in the different states? it is possible there never may be a general consent to the project as it goes out; but it is absolutely certain there will never be an agreement in amendments. it is the lot of but few to be able to discern the remote principles upon which their happiness & prosperity essentially depend--."--(mad. mss.) monday, aug^{st} . in convention art. iv. sect. . reconsidered-- m^r wilson & m^r randolph moved to strike out " years" and insert " years," as the requisite term of citizenship to qualify for the house of rep^s. m^r wilson said it was very proper the electors should govern themselves by this consideration; but unnecessary & improper that the constitution should chain them down to it. m^r gerry wished that in future the eligibility might be confined to natives. foreign powers will intermeddle in our affairs, and spare no expence to influence them. persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purposes. every one knows the vast sums laid out in europe for secret services. he was not singular in these ideas. a great many of the most influential men in mass^{ts} reasoned in the same manner. m^r williamson moved to insert years instead of seven. he wished this country to acquire as fast as possible national habits. wealthy emigrants do more harm by their luxurious examples, than good, by the money, they bring with them. col. hamilton was in general ag^{st} embarrassing the gov^t with minute restrictions. there was on one side the possible danger that had been suggested. on the other side, the advantage of encouraging foreigners was obvious & admitted. persons in europe of moderate fortunes will be fond of coming here where they will be on a level with the first citizens. he moved that the section be so altered as to require merely citizenship & inhabitancy. the right of determining the rule of naturalization will then leave a discretion to the legislature on this subject which will answer every purpose. m^r madison seconded the motion. he wished to maintain the character of liberality which had been professed in all the constitutions & publications of america. he wished to invite foreigners of merit & republican principles among us. america was indebted to emigration for her settlement & prosperity. that part of america which had encouraged them most had advanced most rapidly in population, agriculture & the arts. there was a possible danger he admitted that men with foreign predilections might obtain appointments but it was by no means probable that it would happen in any dangerous degree. for the same reason that they would be attached to their native country, our own people w^d prefer natives of this country to them. experience proved this to be the case. instances were rare of a foreigner being elected by the people within any short space after his coming among us. if bribery was to be practised by foreign powers, it would not be attempted among the electors but among the elected, and among natives having full confidence of the people not among strangers who would be regarded with a jealous eye. m^r wilson cited pennsylv^a as a proof of the advantage of encouraging emigrations. it was perhaps the youngest (except georgia) settlem^t on the atlantic; yet it was at least among the foremost in population & prosperity. he remarked that almost all the gen^l officers of the pen^a line of the late army were foreigners. and no complaint had ever been made against their fidelity or merit. three of her deputies to the convention (m^r r. morris, m^r fitzsimons & himself) were also not natives. he had no objection to col. hamilton's motion & would withdraw the one made by himself. m^r butler was strenuous ag^{st} admitting foreigners into our public councils. question on col. hamilton's motion n. h. no. mass. no. c^t ay. n. j. no. p^a ay. del. no. md. ay. v^a ay. n. c. no. s. c. no. geo. no. question on m^r williamson's motion to insert years instead of seven. n. h. ay. mass^{ts} no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r wilson renewed the motion for years instead of ; & on question n. h. no. mass. no. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r gov^r morris moved to add to the end of the section (art iv. s. ) a proviso that the limitation of seven years should not affect the rights of any person now a citizen. m^r mercer ^{ded} the motion. it was necessary he said to prevent a disfranchisement of persons who had become citizens under and on the faith & according to the laws & constitution from being on a level in all respects with natives. m^r rutlidge. it might as well be said that all qualifications are disfranchisem^{ts} and that to require the age of years was a disfranchisement. the policy of the precaution was as great with regard to foreigners now citizens; as to those who are to be naturalized in future. m^r sherman. the u. states have not invited foreigners nor pledged their faith that they should enjoy equal privileges with native citizens. the individual states alone have done this. the former therefore are at liberty to make any discriminations they may judge requisite. m^r ghorum. when foreigners are naturalized it w^d seem as if they stand on an equal footing with natives. he doubted then the propriety of giving a retrospective force to the restriction. m^r madison animadverted on the peculiarity of the doctrine of m^r sherman. it was a subtilty by which every national engagement might be evaded. by parity of reason, whenever our public debts, or foreign treaties become inconvenient nothing more would be necessary to relieve us from them, than to new model the constitution. it was said that the _u. s._ as such have not pledged their faith to the naturalized foreigners, & therefore are not bound. be it so, & that the states alone are bound. who are to form the new constitution by which the condition of that class of citizens is to be made worse than the other class? are not the states y^e agents? will they not be the members of it? did they not appoint this convention? are not they to ratify its proceedings? will not the new constitution be their act? if the new constitution then violates the faith pledged to any description of people will not the makers of it, will not the states, be the violaters? to justify the doctrine it must be said that the states can get rid of their obligation by revising the constitution, though they could not do it by repealing the law under which foreigners held their privileges. he considered this a matter of real importance. it would expose us to the reproaches of all those who should be affected by it, reproaches which w^d soon be echoed from the other side of the atlantic; and would unnecessarily enlist among the adversaries of the reform a very considerable body of citizens: we should moreover reduce every state to the dilemma of rejecting it or of violating the faith pledged to a part of its citizens. m^r gov^r morris considered the case of persons under years, as very different from that of foreigners. no faith could be pleaded by the former in bar of the regulation. no assurance had ever been given that persons under that age should be in all cases on a level with those above it. but with regard to foreigners among us, the faith had been pledged that they should enjoy the privileges of citizens. if the restriction as to age had been confined to natives, & had left foreigners under years, eligible in this case, the discrimination w^d have been an equal injustice on the other side. m^r pinkney remarked that the laws of the states had varied much the terms of naturalization in different parts of america; and contended that the u. s. could not be bound to respect them on such an occasion as the present. it was a sort of recurrence to first principles. col. mason was struck not like (mr. madison) with the _peculiarity_, but the _propriety_ of the doctrine of m^r sherman. the states have formed different qualifications themselves, for enjoying different rights of citizenship. greater caution w^d be necessary in the outset of the gov^t than afterwards. all the great objects w^d then be provided for. every thing would be then set in motion. if persons among us attached to g. b. should work themselves into our councils, a turn might be given to our affairs & particularly to our commercial regulations which might have pernicious consequences. the great houses of british merchants will spare no pains to insinuate the instruments of their views into the gov^t. m^r wilson read the clause in the constitution of pen^a giving to foreigners after two years residence all the rights whatsoever of citizens. combined it with the article of confederation making the citizens of one state citizens of all, inferred the obligation pen^a was under to maintain the faith thus pledged to her citizens of foreign birth, and the just complaints which her failure would authorize: he observed likewise that the princes & states of europe would avail themselves of such breach of faith to deter their subjects from emigration to the u. s. m^r mercer enforced the same idea of a breach of faith. m^r baldwin could not enter into the force of the arguments ag^{st} extending the disqualification to foreigners now citizens. the discrimination of the place of birth, was not more objectionable than that of age which all had concurred in the propriety of. question on the proviso of m^r gov^r morris in favor of foreigners now citizens n. h. no. mass. no. c^t ay. n. j. ay. p^a ay. del. no. mary^d ay. v^t ay. n. c. no. s. c. no. geo. no. m^r carrol moved to insert " years" instead of "seven" in sect. ^d art: iv n. h. no. mass. no. c^t ay. n. j. no. p^a div^d. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. the section (art iv. sec. .) as formerly amended was then agreed to nem. con. m^r wilson moved that (in art: v. sect. .) years be reduced to seven, which was disag^d to and the ^d section (art. v.) confirmed by the following vote. n. h. ay. mass. ay. c^t no. n. j. ay. p^a no. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art. iv. sec. . being reconsidered. m^r randolph moved that the clause be altered so as to read--"bills for raising money for the _purpose of revenue_ or for appropriating the same shall originate in the house of representatives and shall not be so amended or altered by the senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the object of its appropriation."--he would not repeat his reasons, but barely remind the members from the smaller states of the compromise by which the larger states were entitled to this privilege. col. mason. this amendment removes all the objections urged ag^{st} the section as it stood at first. by specifying _purposes of revenue_, it obviated the objection that the section extended to all bills under which money might incidentally arise. by authorizing amendments in the senate it got rid of the objections that the senate could not correct errors of any sort, & that it would introduce into the house of rep^s the practice of tacking foreign matter to money bills. these objections being removed, the arguments in favor of the proposed restraint on the senate ought to have their full force. . the senate did not represent the _people_, but the _states_ in their political character. it was improper therefore that it should tax the people. the reason was the same ag^{st} their doing it; as it had been ag^{st} cong^s doing it. nor was it in any respect necessary in order to cure the evils of our republican system. he admitted that notwithstanding the superiority of the republican form over every other, it had its evils. the chief ones, were the danger of the majority oppressing the minority, and the mischievous influence of demagogues. the gen^l government of itself will cure them. as the states will not concur at the same time in their unjust & oppressive plans, the general gov^t will be able to check & defeat them, whether they result from the wickedness of the majority, or from the misguidance of demagogues. again, the senate is not like the h. of rep^s chosen frequently and obliged to return frequently among the people. they are to be chosen by the sts for years, will probably settle themselves at the seat of gov^t will pursue schemes for their own aggrandisement--will be able by weary^g out the h. of rep^s and taking advantage of their impatience at the close of a long session, to extort measures for that purpose. if they should be paid as he expected would be yet determined & wished to be so, out of the nat^l treasury, they will particularly extort an increase of their wages. a bare negative was a very different thing from that of originating bills. the practice in engl^d was in point. the house of lords does not represent nor tax the people, because not elected by the people. if the senate can originate, they will in the recess of the legislative sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried (to use a common phrase) for the meeting of the h. of rep^s. he compared the case to poyning's law--and signified that the house of rep^s might be rendered by degrees like the parliament of paris, the mere depository of the decrees of the senate. as to the compromise so much had passed on that subject that he would say nothing about it. he did not mean by what he had said to oppose the permanency of the senate. on the contrary he had no repugnance to an increase of it--nor to allowing it a negative, though the senate was not by its present constitution entitled to it. but in all events he would contend that the purse-strings should be in the hands of the representatives of the people. m^r wilson was himself directly opposed to the equality of votes granted to the senate by its present constitution. at the same time he wished not to multiply the vices of the system. he did not mean to enlarge on a subject which had been so much canvassed, but would remark that as an insuperable objection ag^{st} the proposed restriction of money bills to the h. of rep^s that it would be a source of perpetual contentions where there was no mediator to decide them. the presid^t here could not like the executive magistrate in england interpose by a prorogation, or dissolution. this restriction had been found pregnant with altercation in every state where the constitution had established it. the house of rep^s will insert other things in money bills, and by making them conditions of each other, destroy the deliberate liberty of the senate. he stated the case of a preamble to a money bill sent up by the house of commons in the reign of queen anne, to the h. of lords, in which the conduct of the displaced ministry, who were to be impeached before the lords, was condemned; the co[~m]ons thus extorting a premature judgm^t without any hearing of the parties to be tried, and the h. of lords being thus reduced to the poor & disgraceful expedient of opposing to the authority of a law, a protest on their journals ag^{st} its being drawn into precedent. if there was anything like poynings law in the present case, it was in the attempt to vest the exclusive right of originating in the h. of rep^s and so far he was ag^{st} it. he should be equally so if the right were to be exclusively vested in the senate. with regard to the purse strings, it was to be observed that the purse was to have two strings, one of which was in the hands of the h. of rep^s the other in those of the senate. both houses must concur in untying, and of what importance could it be which untied first, which last. he could not conceive it to be any objection to the senate's preparing the bills, that they would have leisure for that purpose and would be in the habits of business. war, commerce, & revenue were the great objects of the gen^l government. all of them are connected with money. the restriction in favor of the h. of represent^s would exclude the senate from originating any important bills whatever-- m^r gerry considered this as a part of the plan that would be much scrutinized. taxation & representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses. in short the acceptance of the plan will inevitably fail, if the senate be not restrained from originating money bills. m^r govern^r morris. all the arguments suppose the right to originate & to tax, to be exclusively vested in the senate.--the effects commented on may be produced by a negative only in the senate. they can tire out the other house, and extort their concurrence in favorite measures, as well by withholding their negative, as by adhering to a bill introduced by themselves. m^r madison thought if the substitute offered by m^r randolph for the original section is to be adopted it would be proper to allow the senate at least so to amend as to _diminish_ the sums to be raised. why should they be restrained from checking the extravagance of the other house? one of the greatest evils incident to republican gov^t was the spirit of contention & faction. the proposed substitute, which in some respects lessened the objections ag^{st} the section, had a contrary effect with respect to this particular. it laid a foundation for new difficulties and disputes between the two houses. the word _revenue_ was ambiguous. in many acts, particularly in the regulation of trade, the object would be twofold. the raising of revenue would be one of them. how could it be determined which was the primary or predominant one; or whether it was necessary that revenue sh^d be the sole object, in exclusion even of other incidental effects. when the contest was first opened with g. b. their power to regulate trade was admitted. their power to raise revenue rejected. an accurate investigation of the subject afterwards proved that no line could be drawn between the two cases. the words _amend or alter_ form an equal source of doubt & altercation. when an obnoxious paragraph shall be sent down from the senate to the house of rep^s, it will be called an origination under the name of an amendment. the senate may actually couch extraneous matter under that name. in these cases, the question will turn on the _degree_ of connection between the matter & object of the bill and the alteration or amendment offered to it. can there be a more fruitful source of dispute, or a kind of dispute more difficult to be settled? his apprehensions on this point were not conjectural. disputes had actually flowed from this source in virg^a where the senate can originate no bill. the words, "so as to _increase or diminish_ the sum to be raised," were liable to the same objections. in levying indirect taxes, which it seemed to be understood were to form the principal revenue of the new gov^t the sum to be raised, would be increased or diminished by a variety of collateral circumstances influencing the consumption, in general, the consumption of foreign or of domestic articles--of this or that particular species of articles and even by the mode of collection which may be closely connected with the productiveness of a tax.--the friends of the section had argued its necessity from the permanency of the senate. he could not see how this argum^t applied. the senate was not more permanent now than in the form it bore in the original propositions of m^r randolph and at the time when no objection whatever was hinted ag^{st} its originating money bills. or if in consequence of a loss of the present question, a proportional vote in the senate should be reinstated as has been urged as the indemnification the permanency of the senate will remain the same.--if the right to originate be vested exclusively in the house of rep^s either the senate must yield ag^{st} its judgment to that house, in which case the utility of the check will be lost--or the senate will be inflexible & the h. of rep^s must adapt its money bill to the views of the senate, in which case, the exclusive right will be of no avail.--as to the compromise of which so much had been said, he would make a single observation. there were states which had opposed the equality of votes in the senate, viz, mass^{ts}. penn^a virg^a n. carolina & south carol^a. as a compensation for the sacrifice extorted from them on this head, the exclusive origination of money bills in the other house had been tendered. of the five states a majority viz. penn^a virg^a & s. carol^a have uniformly voted ag^{st} the proposed compensation, on its own merits, as rendering the plan of gov^t still more objectionable. mass^{ts} has been divided. n. carolina alone has set a value on the compensation, and voted on that principle. what obligation then can the small states be under to concur ag^{st} their judgments in reinstating the section? m^r dickenson. experience must be our only guide. reason may mislead us. it was not reason that discovered the singular & admirable mechanism of the english constitution. it was not reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by jury. accidents probably produced these discoveries, and experience has given a sanction to them. this is then our guide. and has not experience verified the utility of restraining money bills to the immediate representatives of the people. whence the effect may have proceeded he could not say: whether from the respect with which this privilege inspired the other branches of gov^t to the h. of co[~m]ons, or from the turn of thinking it gave to the people at large with regard to their rights, but the effect was visible & could not be doubted--shall we oppose to this long experience, the short experience of years which we had ourselves, on this subject. as to disputes, they could not be avoided any way. if both houses should originate, each would have a different bill to which it would be attached, and for which it would contend.--he observed that all the prejudices of the people would be offended by refusing this exclusive privilege to the h. of repres^s and these prejudices sh^d never be disregarded by us when no essential purpose was to be served. when this plan goes forth it will be attacked by the popular leaders. aristocracy will be the watchword; the shiboleth among its adversaries. eight states have inserted in their constitutions the exclusive right of originating money bills in favor of the popular branch of the legislature. most of them however allowed the other branch to amend. this he thought would be proper for us to do. m^r randolph regarded this point as of such consequence, that as he valued the peace of this country, he would press the adoption of it. we had numerous & monstrous difficulties to combat. surely we ought not to increase them. when the people behold in the senate, the countenance of an aristocracy; and in the president, the form at least of a little monarch, will not their alarms be sufficiently raised without taking from their immediate representatives, a right which has been so long appropriated to them.--the executive will have more influence over the senate, than over the h. of rep^s allow the senate to originate in this case, & that influence will be sure to mix itself in their deliberations & plans. the declaration of war he conceived ought not to be in the senate composed of men only, but rather in the other house. in the other house ought to be placed the origination of the means of war. as to commercial regulations which may involve revenue, the difficulty may be avoided by restraining the definition to bills, for the _mere_ or _sole_, purpose of raising revenue. the senate will be more likely to be corrupt than the h. of rep^s and should therefore have less to do with money matters. his principal object however was to prevent popular objections against the plan, and to secure its adoption. m^r rutlidge. the friends of this motion are not consistent in their reasoning. they tell us that we ought to be guided by the long experience of g. b. & not our own experience of years; and yet they themselves propose to depart from it. the _h. of co[~m]ons_ not only have the exclusive right of originating, but the _lords_ are not allowed to alter or amend a money bill. will not the people say that this restriction is but a mere tub to the whale. they cannot but see that it is of no real consequence; and will be more likely to be displeased with it as an attempt to bubble them, than to impute it to a watchfulness over their rights. for his part, he would prefer giving the exclusive right to the senate, if it was to be given exclusively at all. the senate being more conversant in business, and having more leisure, will digest the bills much better, and as they are to have no effect, till examined & approved by the h. of rep^s there can be no possible danger. these clauses in the constitutions of the states had been put in through a blind adherence to the british model. if the work was to be done over now, they would be omitted. the experiment in s. carolina, where the senate can originate or amend money bills, has shewn that it answers no good purpose; and produces the very bad one of continually dividing & heating the two houses. sometimes indeed if the matter of the amendment of the senate is pleasing to the other house they wink at the encroachment; if it be displeasing, then the constitution is appealed to. every session is distracted by altercations on this subject. the practice now becoming frequent is for the senate not to make formal amendments; but to send down a schedule of the alterations which will procure the bill their assent. m^r carrol. the most ingenious men in mary^d are puzzled to define the case of money bills, or explain the constitution on that point, tho it seemed to be worded with all possible plainness & precision. it is a source of continual difficulty & squabble between the two houses. m^r mchenry[ ] mentioned an instance of extraordinary subterfuge, to get rid of the apparent force of the constitution. [ ] "mr. mchenry was bred a physician, but he afterwards turned soldier and acted as aid to gen^l washington and the marquis de la fayette. he is a man of specious talents, with nothing of genious to improve them. as a politician there is nothing remarkable in him, nor has he any of the graces of the orator. he is however, a very respectable young gentleman, and deserves the honor which his country has bestowed on him. mr. mchenry is about years of age."--pierce's notes, _am. hist. rev._, iii., . on question on the first part of the motion as to the exclusive originating of money bills in the h. of rep^s n. h. ay. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d no. virg^a ay. m^r blair & m^r m. no. m^r r, col. mason and gen^l washington[ ] ay. n. c. ay. s. c. no. geo. no. [ ] he disapproved & till now voted ag^{st} the exclusive privilege, he gave up his judgment he said because it was not of very material weight with him & was made an essential point with others who if disappointed, might be less cordial in other points of real weight.--madison's note. question on originating by h. of rep^s & _amending_ by senate, as reported art iv. sect. . n. h. ay. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d no. v^a[ ] ay. n. c. ay. s. c. no. geo. no. [ ] in the printed journ virg^a--no.--madison's note. question on the last clause of sect. , art: iv--viz "no money shall be drawn from the public treasury, but in pursuance of _appropriations_ that shall originate in the house of rep^s. it passed in the negative-- n. h. no. mas. ay. con. no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. adj^d. tuesday aug. [ ]. in convention [ ] general henry knox wrote to washington from new york under date of august th: "influenced by motives of delicacy i have hitherto forborne the pleasure my dear sir of writing to you since my return from philadelphia. "i have been apprehensive that the stages of the business of the convention, might leak out, and be made an ill use of, by some people. i have therefore been anxious that you should escape the possibility of imputation. but as the subjects seem now to be brought to a point, i take the liberty to indulge myself in communicating with you. "although i frankly confess that the existence of the state governments is an insuperable evil in a national point of view, yet i do not well see how in this stage of the business they could be annihilated--and perhaps while they continue the frame of government could not with propriety be much higher toned than the one proposed. it is so infinitely preferable to the present constitution, and gives such a bias to a proper line of conduct in future that i think all men anxious for a national government should zealously embrace it. "the education, genius, and habits of men on this continent are so various even at this moment, and of consequence their views of the same subject so different, that i am satisfied with the result of the convention, although it is short of my wishes and of my judgment. "but when i find men of the purest intentions concur in embracing a system which on the highest deliberation, seems to be the best which can be obtained, under present circumstances, i am convinced of the propriety of its being strenuously supported by all those who have wished for a national republic of higher and more durable powers. "i am persuaded that the address of the convention to accompany their proposition will be couched in the most persuasive terms. "i feel anxious that there should be the fullest representation in congress, in order that the propositions should receive their warmest concurrence and strongest impulse...."--wash. mss. article vi. sect. . taken up. m^r pinkney argued that the making the members ineligible to offices was _degrading_ to them, and the more improper as their election into the legislature implied that they had the confidence of the people; that it was _inconvenient_, because the senate might be supposed to contain the fittest men. he hoped to see that body become a school of public ministers, a nursery of statesmen: that it was _impolitic_, because the legislature would cease to be a magnet to the first talents and abilities. he moved to postpone the section in order to take up the following proposition viz--"the members of each house shall be incapable of holding any office under the u. s. for which they or any of others for their benefit receive any salary, fees, or emoluments of any kind--and the acceptance of such office shall vacate their seats respectively." gen^s mifflin[ ] ^{ded} the motion. [ ] "general mifflin is well known for the activity of his mind, and the brilliancy of his parts. he is well-informed and a graceful speaker. the general is about years of age and a very handsome man."--pierce's notes, _am. hist. rev._, iii., . col. mason ironically proposed to strike out the whole section, as a more effectual expedient for encouraging that exotic corruption which might not otherwise thrive so well in the american soil--for compleating that aristocracy which was probably in the contemplation of some among us, and for inviting into the legislative service, those generous & benevolent characters who will do justice to each other's merit, by carving out offices & rewards for it. in the present state of american morals & manners, few friends it may be thought will be lost to the plan, by the opportunity of giving premiums to a mercenary & depraved ambition. m^r mercer. it is a first principle in political science, that whenever the rights of property are secured, an aristocracy will grow out of it. elective governments also necessarily become aristocratic, because the rulers being few can & will draw emoluments for themselves from the many. the governments of america will become aristocracies. they are so already. the public measures are calculated for the benefit of the governors, not of the people. the people are dissatisfied & complain. they change their rulers, and the public measures are changed, but it is only a change of one scheme of emolument to the rulers, for another. the people gain nothing by it, but an addition of instability & uncertainty to their other evils.--governm^{ts} can only be maintained by _force_ or _influence_. the executive has not _force_, deprive him of influence by rendering the members of the legislature ineligible to executive offices, and he becomes a mere phantom of authority. the aristocratic part will not even let him in for a share of the plunder. the legislature must & will be composed of wealth & abilities, and the people will be governed by a junto. the executive ought to have a council, being members of both houses. without such an influence, the war will be between the aristocracy & the people. he wished it to be between the aristocracy & the executive. nothing else can protect the people ag^{st} those speculating legislatures which are now plundering them throughout the u. states. m^r gerry read a resolution of the legislature of mass^{ts} passed before the act of cong^s recommending the convention, in which her deputies were instructed not to depart from the rotation established in the ^{th} art: of confederation, nor to agree in any case to give to the members of cong^s a capacity to hold offices under the government. this he said was repealed in consequence of the act of cong^s with which the state thought it proper to comply in an unqualified manner. the sense of the state however was still the same. he could not think with m^r pinkney that the disqualification was degrading. confidence is the road to tyranny. as to ministers & ambassadors few of them were necessary. it is the opinion of a great many that they ought to be discontinued, on our part; that none may be sent among us, & that source of influence be shut up. if the senate were to appoint ambassadors as seemed to be intended, they will multiply embassies for their own sakes. he was not so fond of those productions as to wish to establish nurseries for them. if they are once appointed, the house of rep^s will be obliged to provide salaries for them, whether they approve of the measures or not. if men will not serve in the legislature without a prospect of such offices, our situation is deplorable indeed. if our best citizens are actuated by such mercenary views we had better chuse a single despot at once. it will be more easy to satisfy the rapacity of one than of many. according to the idea of one gentleman (m^r mercer) our government it seems is to be a gov^t of plunder. in that case it certainly would be prudent to have but one rather than many to be employed in it. we cannot be too circumspect in the formation of this system. it will be examined on all sides and with a very suspicious eye. the people who have been so lately in arms ag^{st} g. b. for their liberties, will not easily give them up. he lamented the evils existing at present under our governments, but imputed them to the faults of those in office, not to the people. the misdeeds of the former will produce a critical attention to the opportunities afforded by the new system to like or greater abuses. as it now stands it is as compleat an aristocracy as ever was framed. if great powers should be given to the senate we shall be governed in reality by a junto as has been apprehended. he remarked that it would be very differently constituted from cong^s. . there will be but deputies from each state, in cong^s there may be . and are generally .-- . they are chosen for six years, those of congress annually. . they are not subject to recall; those of cong^s are. . in congress _states_ are necessary for all great purposes, here _persons_ will suffice. is it to be presumed that the people will ever agree to such a system? he moved to render the members of the h. of rep^s as well as of the senate ineligible not only during, but for one year after the expiration of their terms.--if it should be thought that this will injure the legislature by keeping out of it men of abilities who are willing to serve in other offices it may be required as a qualification for other offices, that the candidate shall have served a certain time in the legislature. m^r gov^r morris. exclude the officers of the army & navy, and you form a band having a different interest from & opposed to the civil power: you stimulate them to despise & reproach those "talking lords who dare not face the foe." let this spirit be roused at the end of a war, before your troops shall have laid down their arms, and though the civil authority "be intrenched in parchment to the teeth" they will cut their way to it. he was ag^{st} rendering the members of the legislature ineligible to offices. he was for rendering them eligible ag^n after having vacated their seats by accepting office. why should we not avail ourselves of their services if the people chuse to give them their confidence. there can be little danger of corruption either among the people or the legislatures who are to be the electors. if they say, we see their merits, we honor the men, we chuse to renew our confidence in them, have they not a right to give them a preference; and can they be properly abridged of it. m^r williamson; introduced his opposition to the motion by referring to the question concerning "money bills." that clause he said was dead. its ghost he was afraid would notwithstanding haunt us. it had been a matter of conscience with him, to insist upon it as long as there was hope of retaining it. he had swallowed the vote of rejection, with reluctance. he could not digest it. all that was said on the other side was that the restriction was not _convenient_. we have now got a house of lords which is to originate money-bills.--to avoid another _inconveniency_, we are to have a whole legislature at liberty to cut out offices for one another. he thought a self-denying ordinance for ourselves would be more proper. bad as the constitution has been made by expunging the restriction on the senate concerning money bills he did not wish to make it worse by expunging the present section. he had scarcely seen a single corrupt measure in the legislature of n. carolina, which could not be traced up to office hunting. m^r sherman. the constitution sh^d lay as few temptations as possible in the way of those in power. men of abilities will increase as the country grows more populous and as the means of education are more diffused. m^r pinkney. no state has rendered the members of the legislature ineligible to offices. in s. carolina the judges are eligible into the legislature. it cannot be supposed then that the motion will be offensive to the people. if the state constitutions should be revised he believed restrictions of this sort w^d be rather diminished than multiplied. m^r wilson could not approve of the section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. he considered himself as acting & responsible for the welfare of millions not immediately represented in this house. he had also asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own judgment in a case where they authorized him to exercise it? were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of penn^a had not good sense enough to receive a good government? under this impression he should certainly follow his own judgment which disapproved of the section. he would remark in addition to the objections urged ag^{st} it, that as one branch of the legislature was to be appointed by the legislatures of the states, the other by the people of the states, as both are to be paid by the states, and to be appointable to state offices, nothing seemed to be wanting to prostrate the nat^l legislature, but to render its members ineligible to nat^l offices, & by that means take away its power of attracting those talents which were necessary to give weight to the govern^t and to render it useful to the people. he was far from thinking the ambition which aspired to offices of dignity and trust, an ignoble or culpable one. he was sure it was not politic to regard it in that light, or to withhold from it the prospect of those rewards, which might engage it in the career of public service. he observed that the state of penn^a which had gone as far as any state into the policy of fettering power, had not rendered the members of the legislature ineligible to offices of gov^t. m^r elsworth did not think the mere postponement of the reward would be any material discouragement of merit. ambitious minds will serve years or years in the legislature for the sake of qualifying themselves for other offices. this he thought a sufficient security for obtaining the services of the ablest men in the legislature, although whilst members they should be ineligible to public offices. besides, merit will be most encouraged, when most impartially rewarded. if rewards are to circulate only within the legislature, merit out of it will be discouraged. m^r mercer was extremely anxious on this point. what led to the appointment of this convention? the corruption & mutability of the legislative councils of the states. if the plan does not remedy these, it will not recommend itself; and we shall not be able in our private capacities to support & enforce it: nor will the best part of our citizens exert themselves for the purpose.--it is a great mistake to suppose that the paper we are to propose will govern the u. states. it is the men whom it will bring into the govern^t and interest in maintaining it that is to govern them. the paper will only mark out the mode & the form. men are the substance and must do the business. all gov^t must be by force or influence. it is not the king of france--but , janisaries of power that govern that kingdom. there will be no such force here; influence then must be substituted; and he would ask whether this could be done, if the members of the legislature should be ineligible to offices of state; whether such a disqualification would not determine all the most influential men to stay at home, & prefer appointments within their respective states. m^r wilson was by no means satisfied with the answer given by m^r elseworth to the argument as to the discouragement of merit. the members must either go a second time into the legislature, and disqualify themselves--or say to their constituents, we served you before only from the mercenary view of qualifying ourselves for offices, and have^g answered this purpose we do not chuse to be again elected. m^r gov^r morris put the case of a war, and the citizen the most capable of conducting it, happening to be a member of the legislature. what might have been the consequence of such a regulation at the commencement, or even in the course of the late contest for our liberties? on question for postponing in order to take up m^r pinkney's motion, it was lost, n. h. ay. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. div^d. m^r gov^r morris moved to insert, after "office," except offices in the army or navy: but in that case their offices shall be vacated. m^r broom ^{ds} him. m^r randolph had been & should continue uniformly opposed to the striking out of the clause; as opening a door for influence & corruption. no arguments had made any impression on him, but those which related to the case of war, and a co-existing incapacity of the fittest commanders to be employed. he admitted great weight in these, and would agree to the exception proposed by m^r gov^r morris. m^r butler & m^r pinkney urged a general postponem^t of . sect. art. vi. till it should be seen what powers would be vested in the senate, when it would be more easy to judge of the expediency of allowing the officers of state to be chosen out of that body.--a general postponement was agreed to nem. con. art: vi. sect. . taken up--"that members be paid by their respective states." m^r elseworth said that in reflecting on this subject he had been satisfied that too much dependence on the states would be produced by this mode of payment. he moved to strike it out and insert that they should "be paid out of the treasury of the u. s. an allowance not exceeding ([blank]) dollars per day or the present value thereof." m^r gov^r morris, remarked that if the members were to be paid by the states it would throw an unequal burden on the distant states, which would be unjust as the legislature, was to be a national assembly. he moved that the payment be out of the nat^l treasury; leaving the quantum to the discretion of the nat^l legislature. there could be no reason to fear that they would overpay themselves. m^r butler contended for payment by the states; particularly in the case of the senate, who will be so long out of their respective states, that they will lose sight of their constituents unless dependent on them for their support. m^r langdon was ag^{st} payment by the states. there would be some difficulty in fixing the sum; but it would be unjust to oblige the distant states to bear the expence of their members in travelling to and from the seat of gov^t. m^r madison. if the h. of rep^s is to be chosen _biennially_--and the senate to be _constantly_ dependent on the legislatures which are chosen _annually_, he could not see any chance for that stability in the gen^l gov^t the want of which was a principal evil in the state gov^{ts}. his fear was that the organization of the gov^t supposing the senate to be really independ^t for six years, would not effect our purpose. it was nothing more than a combination of the peculiarities of two of the state gov^{ts} which separately had been found insufficient. the senate was formed on the model of that of maryl^d. the revisionary check, on that of n. york. what the effect of a union of these provisions might be, could not be foreseen. the enlargement of the sphere of the government was indeed a circumstance which he thought would be favorable as he had on several occasions undertaken to show. he was however for fixing at least two extremes not to be exceeded by the nat^l legisl^{re} in the payment of themselves. m^r gerry. there are difficulties on both sides. the observation of m^r butler has weight in it. on the other side, the state legislatures may turn out the senators by reducing their salaries. such things have been practised. col. mason. it has not yet been noticed that the clause as it now stands makes the house of represent^s also dependent on the state legislatures: so that both houses will be made the instruments of the politics of the states whatever they may be. m^r broom could see no danger in trusting the gen^l legislature with the payment of themselves. the state legislatures had this power, and no complaint had been made of it. m^r sherman was not afraid that the legislature would make their own wages too high; but too low, so that men ever so fit could not serve unless they were at the same time rich. he thought the best plan would be to fix a moderate allowance to be paid out of the nat^l treas^y and let the states make such additions as they might judge fit. he moved that dollars per day be the sum, any further emoluments to be added by the states. m^r carrol had been much surprised at seeing this clause in the report. the dependence of both houses on the state legislatures is compleat; especially as the members of the former are eligible to state offices. the states can now say: if you do not comply with our wishes, we will starve you; if you do we will reward you. the new gov^t in this form was nothing more than a second edition of congress in two volumes, instead of one, and perhaps with very few amendments-- m^r dickenson took it for granted that all were convinced of the necessity of making the gen^l gov^t independent of the prejudices, passions, and improper views of the state legislatures. the contrary of this was effected by the section as it stands. on the other hand there were objections ag^{st} taking a permanent standard as wheat which had been suggested on a former occasion, as well as against leaving the matter to the pleasure of the nat^l legislature. he proposed that an act should be passed every years by the nat^l legisl^{re} settling the quantum of their wages. if the gen^l gov^t should be left dependent on the state legislatures, it would be happy for us if we had never met in this room. m^r elseworth was not unwilling himself to trust the legislature with authority to regulate their own wages, but well knew that an unlimited discretion for that purpose would produce strong, tho' perhaps not insuperable objections. he thought changes in the value of money, provided for by his motion in the words, "or the present value thereof." m^r l. martin. as the senate is to represent the states, the members of it ought to be paid by the states. m^r carrol. the senate was to represent & manage the affairs of the whole, and not to be the advocates of state interests. they ought then not to be dependent on nor paid by the states. on the question for paying the members of the legislature out of the nat^l treasury, n. h. ay. mass. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. m^r elseworth moved that the pay be fixed at doll^{rs} or the present value thereof per day during their attendance & for every thirty miles in travelling to & from congress. m^r strong preferred dollars, leaving the sts. at liberty to make additions. on question for fixing the pay at dollars. n. h. no. mass. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. m^r dickenson proposed that the wages of the members of both houses s^d be required to be the same. m^r broome seconded him. m^r ghorum. this would be unreasonable. the senate will be detained longer from home, will be obliged to remove their families, and in time of war perhaps to sit constantly. their allowance should certainly be higher. the members of the senates in the states are allowed more, than those of the other house. m^r dickenson withdrew his motion. it was moved & agreed to amend the section by adding--"to be ascertained by law." the section (art. vi. sect. ) as amended, agreed to nem. con. adj^d. wednesday august . in convention. art: vi. sect. . agreed to nem. con. art: vi. sect . taken up. m^r strong moved to amend the article so as to read--"each house shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same and for fixing the salaries of the officers of the gov^t which shall originate in the house of representatives; but the senate may propose or concur with amendments as in other cases". col. mason, ^{ds} the motion. he was extremely earnest to take this power from the senate, who he said could already sell the whole country by means of treaties. m^r ghorum urged the amendment as of great importance. the senate will first acquire the habit of preparing money bills, and then the practice will grow into an exclusive right of preparing them. m^r govern^r morris opposed it as unnecessary and inconvenient. m^r williamson, some think this restriction on the senate essential to liberty, others think it of no importance. why should not the former be indulged. he was for an efficient and stable gov^t: but many would not strengthen the senate if not restricted in the case of money bills. the friends of the senate would therefore lose more than they would gain by refusing to gratify the other side. he moved to postpone the subject till the powers of the senate should be gone over. m^r rutlidge ^{ds} the motion. m^r mercer should hereafter be ag^{st} returning to a reconsideration of this section. he contended (alluding to m^r mason's observations) that the senate ought not to have the power of treaties. this power belonged to the executive department; adding that treaties would not be final so as to alter the laws of the land, till ratified by legislative authority. this was the case of treaties in great britain; particularly the late treaty of co[~m]erce with france. col. mason, did not say that a treaty would repeal a law; but that the senate by means of treaty might alienate territory &c., without legislative sanction. the cessions of the british islands in w. indies by treaty alone were an example. if spain should possess herself of georgia therefore the senate might by treaty dismember the union. he wished the motion to be decided now, that the friends of it might know how to conduct themselves. on the question for postponing sect: . it passed in the affirmative. n. h. ay. mass. ay. c^t no. n. j. no. pen^a no. del: no. mary^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison moved that all acts before they become laws should be submitted both to the executive and supreme judiciary departments, that if either of these should object / of each house, if both should object, / of each house, should be necessary to overrule the objections and give to the acts the force of law.[ ] [ ] madison's note says: "see the motion at large in the journal of this date, page , and insert it here." the journal gives it as follows: "it was moved by mr. madison, and seconded, to agree to the following amendment of the thirteenth section of the sixth article: "every bill which shall have passed the two houses, shall, before it become a law, be severally presented to the president of the united states, and to the judges of the supreme court for the revision of each. if, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the president, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law." m^r wilson seconds the motion. m^r pinkney opposed the interference of the judges in the legislative business: it will involve them in parties, and give a previous tincture to their opinions. m^r mercer heartily approved the motion. it is an axiom that the judiciary ought to be separate from the legislative; but equally so that it ought to be independent of that department. the true policy of the axiom is that legislative usurpation and oppression may be obviated. he disapproved of the doctrine that the judges as expositors of the constitution should have authority to declare a law void. he thought laws ought to be well and cautiously made, and then to be uncontroulable. m^r gerry. this motion comes to the same thing with what has been already negatived. question on the motion of m^r madison n. h. no. mass. no. c^t no. n. j. no. p^a no. del. ay. mary^d ay. virg^a ay. n. c. no. s. c. no. geo. no. m^r gov^r morris regretted that something like the proposed check could not be agreed to. he dwelt on the importance of public credit, and the difficulty of supporting it without some strong barrier against the instability of legislative assemblies. he suggested the idea of requiring three fourths of each house to _repeal_ laws where the president should not concur. he had no great reliance on the revisionary power as the executive was now to be constituted (elected by congress.) the legislature will contrive to soften down the president. he recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects of such measures before their eyes. were the national legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against. the requiring / to repeal would, though not a compleat remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities. m^r dickenson was strongly impressed with the remark of m^r mercer as to the power of the judges to set aside the law. he thought no such power ought to exist. he was at the same time at a loss what expedient to substitute. the justiciary of arragon he observed became by degrees the lawgiver. m^r gov^r morris, suggested the expedient of an absolute negative in the executive. he could not agree that the judiciary which was part of the executive, should be bound to say that a direct violation of the constitution was law. a controul over the legislature might have its inconveniences. but view the danger on the other side. the most virtuous citizens will often as members of a legislative body concur in measures which afterwards in their private capacity they will be ashamed of. encroachments of the popular branch of the government ought to be guarded ag^{st}. the ephori at sparta became in the end absolute. the report of the council of censors in pennsylv^a points out the many invasions of the legislative department on the executive numerous as the latter[ ] is, within the short term of seven years, and in a state where a strong party is opposed to the constitution, and watching every occasion of turning the public resentments ag^{st} it. if the executive be overturned by the popular branch, as happened in england, the tyranny of one man will ensue. in rome where the aristocracy overturned the throne, the consequence was different. he enlarged on the tendency of the legislative authority to usurp on the executive and wished the section to be postponed, in order to consider of some more effectual check than requiring / only to overrule the negative of the executive. [ ] the executive consists at this time of ab^t members.--madison's note. m^r sherman. can one man be trusted better than all the others if they all agree? this was neither wise nor safe. he disapproved of judges meddling in politics and parties. we have gone far enough in forming the negative as it now stands. m^r carrol. when the negative to be overruled by / only was agreed to, the _quorum_ was not fixed. he remarked that as a majority was now to be the quorum, . in the larger, and in the smaller house might carry points. the advantage that might be taken of this seemed to call for greater impediments to improper laws. he thought the controuling power however of the executive could not be well decided, till it was seen how the formation of that department would be finally regulated. he wished the consideration of the matter to be postponed. m^r ghorum saw no end to these difficulties and postponements. some could not agree to the form of government before the powers were defined. others could not agree to the powers till it was seen how the government was to be formed. he thought a majority as large a quorum as was necessary. it was the quorum almost every where fixt in the u. states. m^r wilson; after viewing the subject with all the coolness and attention possible was most apprehensive of a dissolution of the gov^t from the legislature swallowing up all the other powers. he remarked that the prejudices ag^{st} the executive resulted from a misapplication of the adage that the parliament was the palladium of liberty. where the executive was really formidable, _king_ and _tyrant_, were naturally associated in the minds of people; not _legislature_ and _tyranny_. but where the executive was not formidable, the two last were most properly associated. after the destruction of the king in great britain, a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch. he insisted that we had not guarded ag^{st} the danger on this side by a sufficient self-defensive power either to the executive or judiciary department. m^r rutlidge was strenuous ag^{st} postponing; and complained much of the tediousness of the proceedings. m^r elseworth held the same language. we grow more & more sceptical as we proceed. if we do not decide soon, we shall be unable to come to any decision. the question for postponement passed in the negative: del: & mary^d only being in the affirmative. m^r williamson moved to change, " / of each house" into " / " as requisite to overrule the dissent of the president. he saw no danger in this, and preferred giving the power to the presid^t alone, to admitting the judges into the business of legislation. m^r wilson ^{ds} the motion; referring to and repeating the ideas of m^r carroll. on this motion for / , instead of two-thirds; it passed in the affirmative. n. h. no. mass. no. c^t ay. n. j. no. pen^a div^d. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. m^r madison, observing that if the negative of the president was confined to _bills_; it would be evaded by acts under the form and name of resolutions, votes &c., proposed that "or resolve" should be added after "_bill_" in the beginning of sect . with an exception as to votes of adjournment &c. after a short and rather confused conversation on the subject, the question was put & rejected, the states being as follows, n. h. no. mass. ay. c^t no. n. j. no. pen^a no. del. ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no. "_ten_ days (sundays excepted)" instead of "_seven_" were allowed to the president for returning bills with his objections n. h. & mas: only voting ag^{st} it. the sect: of art. vi as amended was then agreed to. adjourned. thursday. august . in convention. m^r randolph having thrown into a new form the motion putting votes, resolutions &c. on a footing with bills, renewed it as follows--"every order resolution or vote, to which the concurrence of the senate & house of rep^s may be necessary (except on a question of adjournment and in the cases hereinafter mentioned) shall be presented to the president for his revision; and before the same shall have force shall be approved by him, or being disapproved by him shall be repassed by the senate & house of rep^s according to the rules & limitations prescribed in the case of a bill." m^r sherman thought it unnecessary, except as to votes taking money out of the treasury which might be provided for in another place. on question as moved by m^r randolph n. h. ay. mass. not present. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. the amendment was made section . of art. vi. art: vii. sect. . taken up. m^r l. martin asked what was meant by the committee of detail in the expression,--"_duties_" and "_imposts_." if the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear. m^r wilson. _duties_ are applicable to many objects to which the word _imposts_ does not relate. the latter are appropriated to commerce; the former extend to a variety of objects, as stamp duties &c. m^r carroll reminded the convention of the great difference of interests among the states, and doubts the propriety in that point of view of letting a majority be a quorum. m^r mason urged the necessity of connecting with the power of levying taxes duties &c., the prohibition in sect. art. vi that no tax should be laid on exports. he was unwilling to trust to its being done in a future article. he hoped the north^n states did not mean to deny the southern this security. it would hereafter be as desirable to the former when the latter should become the most populous. he professed his jealousy for the productions of the southern or as he called them, the staple states. he moved to insert the following amendment: "provided that no tax duty or imposition shall be laid by the legislature of the u. states on articles exported from any state." m^r sherman had no objection to the proviso here, other than it would derange the parts of the report as made by the committee, to take them in such an order. m^r rutlidge. it being of no consequence in what order points are decided, he should vote for the clause as it stood, but on condition that the subsequent part relating to negroes should also be agreed to. m^r governeur morris considered such a proviso as inadmissible any where. it was so radically objectionable, that it might cost the whole system the support of some members. he contended that it would not in some cases be equitable to tax imports without taxing exports; and that taxes on exports would be often the most easy and proper of the two. m^r madison. . the power of laying taxes on exports is proper in itself, and as the states cannot with propriety exercise it separately, it ought to be vested in them collectively. . it might with particular advantage be exercised with regard to articles in which america was not rivalled in foreign markets, as tob^o &c. the contract between the french farmers gen^l and m^r morris stipulating that if taxes s^d be laid in america on the export of tob^o they s^d be paid by the farmers, shewed that it was understood by them, that the price would be thereby raised in america, and consequently the taxes be paid by the european consumer. . it would be unjust to the states whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. this was a grievance which had already filled n.h. con^t n. jer^y del: and n. carolina with loud complaints, as it related to imports, and they would be equally authorized by taxes by the states on exports. . the south^n states being most in danger and most needing naval protection, could the less complain if the burthen should be somewhat heaviest on them. . we are not providing for the present moment only, and time will equalize the situation of the states in this matter. he was for these reasons ag^{st} the motion. m^r williamson considered the clause proposed ag^{st} taxes on exports as reasonable and necessary. m^r elseworth was ag^{st} taxing exports; but thought the prohibition stood in the most proper place, and was ag^{st} deranging the order reported by the committee. m^r wilson was decidedly ag^{st} prohibiting general taxes on exports. he dwelt on the injustice and impolicy of leaving n. jersey connecticut &c. any longer subject to the exactions of their commercial neighbours. m^r gerry thought the legislature could not be trusted with such a power. it might ruin the country. it might be exercised partially, raising one and depressing another part of it. m^r gov^r morris. however the legislative power may be formed, it will if disposed be able to ruin the country. he considered the taxing of exports to be in many cases highly politic. virginia has found her account in taxing tobacco. all countries having peculiar articles tax the exportation of them; as france her wines and brandies. a tax here on lumber, would fall on the w. indies & punish their restrictions on our trade. the same is true of live stock and in some degree of flour. in case of a dearth in the west indies, we may extort what we please. taxes on exports are a necessary source of revenue. for a long time the people of america will not have money to pay direct taxes. seize and sell their effects and you push them into revolts. m^r mercer was strenuous against giving congress power to tax exports. such taxes are impolitic, as encouraging the raising of articles not meant for exportation. the states had now a right where their situation permitted, to tax both the imports and the exports of their uncommercial neighbours. it was enough for them to sacrifice one half of it. it had been said the southern states had most need of naval protection. the reverse was the case. were it not for promoting the carrying trade of the north^n states, the south^n states could let the trade go into foreign bottoms, where it would not need our protection. virginia by taxing her tobacco had given an advantage to that of maryland. m^r sherman. to examine and compare the states in relation to imports and exports will be opening a boundless field. he thought the matter had been adjusted, and that imports were to be subject, and exports not, to be taxed. he thought it wrong to tax exports except it might be such articles as ought not to be exported. the complexity of the business in america would render an equal tax on exports impracticable. the oppression of the uncommercial states was guarded ag^{st} by the power to regulate trade between the states. as to compelling foreigners, that might be done by regulating trade in general. the government would not be trusted with such a power. objections are most likely to be excited by considerations relating to taxes & money. a power to tax exports would shipwreck the whole. m^r carrol was surprised that any objection should be made to an exception of exports from the power of taxation. it was finally agreed that the question concerning exports sh^d lie over for the place in which the exception stood in the report: mary^d alone voting ag^{st} it. sect: . (art. vii) agreed to; m^r gerry alone answering, no. clause for regulating commerce with foreign nations &c. agreed to nem. con. for coining money. ag^d to nem. con. for regulating foreign coin. d^o d^o. for fixing standard of weights & measures. d^o d^o. "to establish post-offices," m^r gerry moved to add, and post-roads. m^r mercer ^{ded}. & on question n.h. no. mass. ay. c^t no. n.j. no. pen^a no. del. ay. m^d ay. v^a ay. n.c. no. s.c. ay. geo. ay. m^r gov^r morris moved to strike out "and emit bills on the credit of the u. states"--if the united states had credit such bills would be unnecessary; if they had not, unjust & useless. m^r butler, ^{ds} the motion. m^r madison, will it not be sufficient to prohibit the making them a _tender_? this will remove the temptation to emit them with unjust views. and promissory notes in that shape may in some emergencies be best. m^r gov^r morris, striking out the words will leave room still for notes of a _responsible_ minister which will do all the good without the mischief. the monied interest will oppose the plan of government, if paper emissions be not prohibited. m^r ghorum was for striking out, without inserting any prohibition, if the words stand they may suggest and lead to the measure. col. mason had doubts on the subject. cong^s he thought would not have the power unless it were expressed. though he had a mortal hatred to paper money, yet as he could not forsee all emergencies, he was unwilling to tie the hands of the legislature. he observed that the late war could not have been carried on, had such a prohibition existed. mr. ghorum. the power as far as it will be necessary or safe, is involved in that of borrowing. m^r mercer was a friend to paper money, though in the present state & temper of america, he should neither propose nor approve of such a measure. he was consequently opposed to a prohibition of it altogether. it will stamp suspicion on the government to deny it a discretion on this point. it was impolitic also to excite the opposition of all those who were friends to paper money. the people of property would be sure to be on the side of the plan, and it was impolitic to purchase their further attachment with the loss of the opposite class of citizens. m^r elseworth thought this a favorable moment to shut and bar the door against paper money. the mischiefs of the various experiments which had been made, were now fresh in the public mind and had excited the disgust of all the respectable part of america. by withholding the power from the new govern^t more friends of influence would be gained to it than by almost any thing else. paper money can in no case be necessary. give the government credit, and other resources will offer. the power may do harm, never good. m^r randolph, notwithstanding his antipathy to paper money, could not agree to strike out the words, as he could not foresee all the occasions that might arise. m^r wilson. it will have a most salutary influence on the credit of the u. states to remove the possibility of paper money. this expedient can never succeed whilst its mischiefs are remembered. and as long as it can be resorted to, it will be a bar to other resources. m^r butler remarked that paper was a legal tender in no country in europe. he was urgent for disarming the government of such a power. m^r mason was still averse to tying the hands of the legislature _altogether_. if there was no example in europe as just remarked it might be observed on the other side, that there was none in which the government was restrained on this head. m^r read, thought the words, if not struck out, would be as alarming as the mark of the beast in revelations. m^r langdon had rather reject the whole plan than retain the three words ("and emit bills"). on the motion for striking out n.h. ay. mass. ay. c^t ay. n.j. no. p^a ay. del. ay. m^d no. v^a ay.[ ] n.c. ay. s.c. ay. geo. ay. [ ] this vote in the affirmative by virg^a was occasioned by the acquiescence of m^r madison who became satisfied that striking out the words would not disable the gov^t from the use of public notes as far as they could be safe & proper; & would only cut off the pretext for a paper currency and particularly for making the bills a tender either for public or private debts.--madison's note. the clause for borrowing money, agreed to nem. con. adj^d. friday august . in convention art. vii. sect. . resumed, on the clause, "to appoint treasurer by ballot," m^r ghorum moved to insert "joint" before ballot, as more convenient as well as reasonable, than to require the separate concurrence of the senate. m^r pinkney ^{ds} the motion. m^r sherman opposed it as favoring the larger states. m^r read moved to strike out the clause, leaving the appointment of the treasurer as of other officers to the executive. the legislature was an improper body for appointments. those of the state legislatures were a proof of it. the executive being responsible would make a good choice. m^r mercer ^{ds} the motion of m^r read. on the motion for inserting the word "joint" before ballot n.h. ay. mass. ay. c^t no. n.j. no. p^a ay. m^d no. v^a ay. n.c. ay. s.c. ay. geo. ay. col. mason in opposition to m^r read's motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it. on striking out the clause as amended by inserting "joint" n.h. no. mass. no. c^t no. p^a ay. del. ay. m^d ay. v^a no. n.c. no. s.c. ay. geo. no. "to constitute inferior tribunals" agreed to nem. con. "to make rules as to captures on land & water" d^o d^o. "to declare the law and punishment of piracies and felonies &c &c." considered. m^r madison moved to strike out "and punishment &c." m^r mason doubts the safety of it, considering the strict rule of construction in criminal cases. he doubted also the propriety of taking the power in all these cases wholly from the states. m^r govern^r morris thought it would be necessary to extend the authority further, so as to provide for the punishment of counterfeiting in general. bills of exchange for example might be forged in one state and carried into another. it was suggested by some other member that _foreign_ paper might be counterfeited by citizens; and that it might be politic to provide by national authority for the punishment of it. m^r randolph did not conceive that expunging "the punishment" would be a constructive exclusion of the power. he doubted only the efficacy of the word "declare." m^r wilson was in favor of the motion. strictness was not necessary in giving authority to enact penal laws; though necessary in enacting & expounding them. on motion for striking out "and punishment" as moved by m^r madison n.h. no. mass. ay. c^t no. p^a ay. del. ay. m^d no. v^a ay. n.c. ay. s.c. ay. geo. ay. m^r gov^r morris moved to strike out "declare the law" and insert "punish" before "piracies," and on the question. n.h. ay. mass. ay. c^t no. p^a ay. del. ay. m^d ay. v^a no. n.c. no. s.c. ay. geo. ay. m^r madison & m^r randolph moved to insert "define &," before "punish." m^r wilson thought "felonies" sufficiently defined by common law. m^r dickenson concurred with m^r wilson. m^r mercer was in favor of the amendment. m^r madison. felony at common law is vague. it is also defective. one defect is supplied by stat: of anne as to running away with vessels which at co[~m]on law was a breach of trust only. besides no foreign law should be a standard farther than is expressly adopted. if the laws of the states were to prevail on this subject, the citizens of different states would be subject to different punishments for the same offence at sea. there would be neither uniformity nor stability in the law--the proper remedy for all these difficulties was to vest the power proposed by the term "define" in the nat^l legislature. m^r gov^r morris would prefer _designate_ to _define_, the latter being as he conceived, limited to the preexisting meaning. it was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies & of piracies. the motion of m^r m. & m^r r. was agreed to. m^r elseworth enlarged the motion so as to read "to define and punish piracies and felonies committed on the high seas, counterfeiting the securities and current coin of the u. states, and offences ag^{st} the law of nations" which was agreed to nem. con. "to subdue a rebellion in any state, on the application of its legislature" m^r pinkney moved to strike out, "on the application of its legislature". m^r gov^r morris ^{ds}. m^r l. martin opposed it as giving a dangerous & unnecessary power. the consent of the state ought to precede the introduction of any extraneous force whatever. m^r mercer supported the opposition of m^r martin. m^r elseworth proposed to add after "legislature," "or executive." m^r gov^r morris. the executive may possibly be at the head of the rebellion. the gen^l gov^t should enforce obedience in all cases where it may be necessary. m^r elseworth. in many cases the gen^l gov^t ought not to be able to interpose, unless called upon. he was willing to vary his motion so as to read "or without it when the legislature cannot meet." m^r gerry was ag^{st} letting loose the myrmidons of the u. states on a state without its own consent. the states will be the best judges in such cases. more blood would have been spilt in mass^{ts} in the late insurrection, if the gen^l authority had intermeddled. m^r langdon was for striking out as moved by m^r pinkney. the apprehension of the national force, will have a salutary effect in preventing insurrections. m^r randolph. if the nat^l legislature is to judge whether the state legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of m^r pinkney. m^r gov^r morris. we are acting a very strange part. we first form a strong man to protect us, and at the same time wish to tie his hands behind him. the legislature may surely be trusted with such a power to preserve the public tranquillity. on the motion to add, "or without it (application) when the legislature cannot meet" n.h. ay. mass. no. c^t ay. p^a div^d. del. no. m^d no. v^a ay. n.c. div^d. s. c. ay. geo. ay. so agreed to. m^r madison and m^r dickenson moved to insert as explanatory, after "state"--"against the government thereof". there might be a rebellion ag^{st} the u. states--which was agreed to nem. con. on the clause as amended n.h. ay. mass.[ ] abs^t. c^t ay. pen. abs^t. del. no. m^d no. v^a ay. n.c. no. s.c. no. georg. ay.--so it was lost. [ ] in the printed journal, mas. no.--madison's note. "to make war" m^r pinkney opposed the vesting this power in the legislature. its proceedings were too slow. it w^d meet but once a year, the h^s of rep^s would be too numerous for such deliberations. the senate would be the best depository, being more acquainted with foreign affairs, and most capable of proper resolutions. if the states are equally represented in the senate, so as to give no advantage to the large states, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large states. it would be singular for one authority to make war, and another peace. m^r butler. the objections ag^{st} the legislature lie in a great degree ag^{st} the senate. he was for vesting the power in the president, who will have all the requisite qualities, and will not make war but when the nation will support it. m^r madison and m^r gerry moved to insert "_declare_," striking out "_make_" war; leaving to the executive the power to repel sudden attacks. m^r sherman thought it stood very well. the executive sh^d be able to repel and not to commence war. "make" is better than "declare" the latter narrowing the power too much. m^r gerry never expected to hear in a republic a motion to empower the executive alone to declare war. m^r elsworth. there is a material difference between the cases of making _war_ and making _peace_. it sh^d be more easy to get out of war, than into it. war also is a simple and overt declaration, peace attended with intricate & secret negociations. m^r mason was ag^{st} giving the power of war to the executive because not safely to be trusted with it; or to the senate, because not so constructed as to be entitled to it. he was for clogging rather than facilitating war; but for facilitating peace. he preferred "_declare_" to "_make_." on the motion to insert "_declare_"--in place of "_make_," it was agreed to. n.h. no. mass, abs^t. con^t no.[ ] p^a ay. del. ay. m^d ay. v^a ay. n.c. ay. s.c. ay. geo. ay. [ ] on the remark by m^r king that "_make_" war might be understood to "conduct" it which was an executive function. m^r elsworth gave up his objection, and the vote of con. was changed to _ay_.--madison's note. m^r pinkney's motion to strike out whole clause, disag^d to without call of states. m^r butler moved to give the legislature the power of peace, as they were to have that of war. m^r gerry ^{ds} him. senators may possibly exercise the power if vested in that body, and if all should be present; and may consequently give up part of the u. states. the senate are more liable to be corrupted by an enemy than the whole legislature. on the motion for adding "and peace" after "war," n.h. no. mas. no. c^t no. p^a no. del. no. m^d no. v^a no. n.c. no. s.c. no. geo. no. adjourned. saturday august . in convention m^r madison submitted, in order to be referred to the committee of detail the following powers as proper to be added to those of the general legislature: "to dispose of the unappropriated lands of the u. states." "to institute temporary governments for new states arising therein." "to regulate affairs with the indians as well within as without the limits of the u. states." "to exercise exclusively legislative authority at the seat of the general government, and over a district around the same, not exceeding ---- square miles; the consent of the legislature of the state or states comprising the same, being first obtained." "to grant charters of incorporation in cases where the public good may require them, and the authority of a single state may be incompetent" "to secure to literary authors their copy rights for a limited time." "to establish an university." "to encourage by premiums & provisions, the advancement of useful knowledge and discoveries." "to authorize the executive to procure and hold for the use of the u. s. landed property for the erection of forts, magazines, and other necessary buildings." these propositions were referred to the committee of detail which had prepared the report and at the same time the following which were moved by m^r pinkney:--in both cases unanimously: "to fix and permanently establish the seat of government of the u. s. in which they shall possess the exclusive right of soil & jurisdiction." "to establish seminaries for the promotion of literature and the arts & sciences." "to grant charters of incorporation." "to grant patents for useful inventions." "to secure to authors exclusive rights for a certain time." "to establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades and manufactures." "that funds which shall be appropriated for the payment of public creditors, shall not during the time of such appropriation, be diverted or applied to any other purpose and that the committee prepare a clause or clauses for restraining the legislature of the u. s. from establishing a perpetual revenue." "to secure the payment of the public debt." "to secure all creditors under the new constitution from a violation of the public faith when pledged by the authority of the legislature." "to grant letters of mark and reprisal." "to regulate stages on the post roads." m^r mason introduced the subject of regulating the militia. he thought such a power necessary to be given to the gen^l government. he hoped there would be no standing army in time of peace, unless it might be for a few garrisons. the militia ought therefore to be the more effectually prepared for the public defence. thirteen states will never concur in any one system, if the disciplining of the militia be left in their hands. if they will not give up the power over the whole, they probably will over a part as a select militia. he moved as an addition to the propositions just referred to the comittee of detail, & to be referred in like manner, "a power to regulate the militia." m^r gerry remarked that some provision ought to be made in favor of public securities, and something inserted concerning letters of marque, which he thought not included in the power of war. he proposed that these subjects should also go to a committee. m^r rutlidge moved to refer a clause "that funds appropriated to public creditors should not be diverted to other purposes." m^r mason was much attached to the principle, but was afraid such a fetter might be dangerous in time of war. he suggested the necessity of preventing the danger of perpetual revenue which must of necessity subvert the liberty of any country. if it be objected to on the principle of m^r rutlidge's motion that public credit may require perpetual provisions, that case might be excepted; it being declared that in other cases, no taxes should be laid for a longer term than ---- years. he considered the caution observed in great britain on this point as the paladium of public liberty. m^r rutlidge's motion was referred--he then moved that a grand committee be appointed to consider the necessity and expediency of the u. states assuming all the state debts--a regular settlement between the union & the several states would never take place. the assumption would be just as the state debts were contracted in the common defence. it was necessary, as the taxes on imports the only sure source of revenue were to be given up to the union. it was politic, as by disburdening the people of the state debts it would conciliate them to the plan. m^r king and m^r pinkney seconded the motion. (col. mason interposed a motion that the committee prepare a clause for restraining perpetual revenue, which was agreed to nem. con.) m^r sherman thought it would be better to authorize the legislature to assume the state debts, than to say positively it should be done. he considered the measure as just and that it would have a good effect to say something about the matter. m^r elseworth differed from m^r sherman. as far as the state debts ought in equity to be assumed, he conceived that they might and would be so. m^r pinkney observed that a great part of the state debts were of such a nature that although in point of policy and true equity they ought, yet would they not be viewed in the light of federal expenditures. m^r king thought the matter of more consequence than m^r elseworth seemed to do; and that it was well worthy of commitment. besides the considerations of justice and policy which had been mentioned, it might be remarked that the state creditors an active and formidable party would otherwise be opposed to a plan which transferred to the union the best resources of the states without transferring the state debts at the same time. the state creditors had generally been the strongest foes to the impost-plan. the state debts probably were of greater amount than the federal. he would not say that it was practicable to consolidate the debts, but he thought it would be prudent to have the subject considered by a committee. on m^r rutlidge's motion, that a com^e be appointed to consider of the assumption &c. n. h. no. mass. ay. c^t ay. n. j. no. p^a div^d. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gerry's motion to provide for public securities, for stages on post roads, and for letters of marque & reprisal, were committed nem. con. m^r king suggested that all unlocated lands of particular states ought to be given up if state debts were to be assumed:--m^r williamson concurred in the idea. a grand committee was appointed consisting of m^r langdon, m^r king, m^r sherman, m^r livingston, m^r clymer, m^r dickenson, m^r m^chenry, m^r mason, m^r williamson, m^r c. c. pinkney, m^r baldwin. m^r rutlidge remarked on the length of the session, the probable impatience of the public and the extreme anxiety of many members of the convention to bring the business to an end; concluding with a motion that the convention meet henceforward precisely at oc a.m. and that precisely at oc p.m. the president adjourn the house without motion for the purpose, and that no motion to adjourn sooner be allowed. on this question n. h. ay. mass. ay. c^t ay. n. j. ay. p^a no. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r elseworth observed that a council had not yet been provided for the president. he conceived there ought to be one. his proposition was that it should be composed of the president of the senate, the chief justice, and the ministers as they might be estab^d for the departments of foreign & domestic affairs, war finance and marine, who should advise but not conclude the president. m^r pinkney wished the proposition to lie over, as notice had been given for a like purpose by m^r gov^r morris who was not then on the floor. his own idea was that the president sh^d be authorized to call for advice or not as he might chuse. give him an able council and it will thwart him; a weak one and he will shelter himself under their sanction. m^r gerry was ag^{st} letting the heads of the departments, particularly of finance have any thing to do in business connected with legislation. he mentioned the chief justice also as particularly exceptionable. these men will also be so taken up with other matters as to neglect their own proper duties. m^r dickenson urged that the great appointments should be made by the legislature in which case they might properly be consulted by the executive, but not if made by the executive himself--this subject by general consent lay over; & the house proceeded to the clause "to raise armies." m^r ghorum moved to add "and support" after "raise." agreed to nem. con. and then the clause was agreed to nem. con. as amended. m^r gerry took notice that there was no check here ag^{st} standing armies in time of peace. the existing cong^s is so constructed that it cannot of itself maintain an army. this w^d not be the case under the new system. the people were jealous on this head, and great opposition to the plan would spring from such an omission. he suspected that preparations of force were now making ag^{st} it. (he seemed to allude to the activity of the gov^r of n. york at this crisis in disciplining the militia of that state.) he thought an army dangerous in time of peace & could never consent to a power to keep up an indefinite number. he proposed that there shall not be kept up in time of peace more than ---- thousand troops. his idea was that the blank should be filled with two or three thousand. instead of "to build and equip fleets"--"to provide and maintain a navy" agreed to nem. con. as a more convenient definition of the power. "to make rules for the government and regulation of the land & naval forces," added from the existing articles of confederation. m^r l. martin and m^r gerry now regularly moved "provided that in time of peace the army shall not consist of more than ---- thousand men." gen^l pinkney asked whether no troops were ever to be raised untill an attack should be made on us? m^r gerry. if there be no restriction, a few states may establish a military gov^t. m^r williamson, reminded him of m^r mason's motion for limiting the appropriation of revenue as the best guard in this case. m^r langdon saw no room for m^r gerry's distrust of the representatives of the people. m^r dayton. preparations for war are generally made in peace; and a standing force of some sort may, for ought we know, become unavoidable. he should object to no restrictions consistent with these ideas. the motion of m^r martin and m^r gerry was disagreed to nem. con. m^r mason moved as an additional power "to make laws for the regulation and discipline of the militia of the several states, reserving to the states the appointment of the officers." he considered uniformity as necessary in the regulation of the militia throughout the union. gen^l pinkney mentioned a case during the war in which a dissimilarity in the militia of different states had produced the most serious mischiefs. uniformity was essential. the states would never keep up a proper discipline of their militia. m^r elseworth was for going as far in submitting the militia to the gen^l government as might be necessary, but thought the motion of m^r mason went too far. he moved that the militia should have the same arms & exercise and be under rules established by the gen^l gov^t when in actual service of the u. states and when states neglect to provide regulations for militia, it sh^d be regulated & established by the legislature of u. s. the whole authority over the militia ought by no means to be taken away from the states whose consequence would pine away to nothing after such a sacrifice of power. he thought the gen^l authority could not sufficiently pervade the union for such a purpose, nor could it accommodate itself to the local genius of the people. it must be vain to ask the states to give the militia out of their hands. m^r sherman ^{ds} the motion. m^r dickenson. we are come now to a most important matter, that of the sword. his opinion was that the states never would nor ought to give up all authority over the militia. he proposed to restrain the general power to one fourth part at a time, which by rotation would discipline the whole militia. m^r butler urged the necessity of submitting the whole militia to the general authority, which had the care of the general defence. m^r mason. had suggested the idea of a select militia. he was led to think that would be in fact as much as the gen^l gov^t could advantageously be charged with. he was afraid of creating insuperable objections to the plan. he withdrew his original motion, and moved a power "to make laws for regulating and disciplining the militia, not exceeding one tenth part in any one year, and reserving the appointment of officers to the states." gen^l pinkney, renewed m^r mason's original motion. for a part to be under the gen^l and a part under the state gov^{ts} w^d be an incurable evil. he saw no room for such distrust of the gen^l gov^t. m^r langdon ^{ds} general pinkney's renewal. he saw no more reason to be afraid of the gen^l gov^t than of the state gov^{ts}. he was more apprehensive of the confusion of the different authorities on this subject, than of either. m^r madison thought the regulation of the militia naturally appertaining to the authority charged with the public defence. it did not seem in its nature to be divisible between two distinct authorities. if the states would trust the gen^l gov^t with a power over the public treasure, they would from the same consideration of necessity grant it the direction of the public force. those who had a full view of the public situation w^d from a sense of the danger, guard ag^{st} it: the states would not be separately impressed with the general situation, nor have the due confidence in the concurrent exertions of each other. m^r elseworth, considered the idea of a select militia as impracticable; & if it were not it would be followed by a ruinous declension of the great body of the militia. the states would never submit to the same militia laws. three or four shillings as a penalty will enforce better obedience in new england, than forty lashes in some other places. m^r pinkney thought the power such an one as could not be abused, and that the states would see the necessity of surrendering it. he had however but a scanty faith in militia. there must be also a real military force. this alone can effectually answer the purpose. the united states had been making an experiment without it, and we see the consequence in their rapid approaches toward anarchy.[ ] [ ] this had reference to the disorders particularly that had occurred in massach^{ts} which had called for the interposition of the federal troops.--madison's note. m^r sherman, took notice that the states might want their militia for defence ag^{st} invasions and insurrections, and for enforcing obedience to their laws. they will not give up this point. in giving up that of taxation, they retain a concurrent power of raising money for their own use. m^r gerry thought this the last point remaining to be surrendered. if it be agreed to by the convention, the plan will have as black a mark as was set on cain. he had no such confidence in the gen^l gov^t as some gentlemen possessed, and believed it would be found that the states have not. col. mason, thought there was great weight in the remarks of m^r sherman, and moved an exception to his motion "of such part of the militia as might be required by the states for their own use." m^r read doubted the propriety of leaving the appointment of the militia officers in the states. in some states they are elected by the legislatures; in others by the people themselves. he thought at least an appointment by the state executives ought to be insisted on. on committing to the grand committee last appointed, the latter motion of col. mason, & the original one revived by ge^l pinkney n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. adjourned. monday august . in convention m^r pinkney submitted to the house, in order to be referred to the committee of detail, the following propositions--"each house shall be the judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same, or who, in the place where the legislature may be sitting and during the time of its session, shall threaten any of its members for any thing said or done in the house; or who shall assault any of them therefor--or who shall assault or arrest any witness or other person ordered to attend either of the houses in his way going or returning; or who shall rescue any person arrested by their order." "each branch of the legislature, as well as the supreme executive shall have authority to require the opinions of the supreme judicial court upon important questions of law, and upon solemn occasions." "the privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner; and shall not be suspended by the legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ---- months." "the liberty of the press, shall be inviolably preserved." "no troops shall be kept up in time of peace, but by consent of the legislature." "the military shall always be subordinate to the civil power, and no grants of money shall be made by the legislature for supporting military land forces, for more than one year at a time." "no soldier shall be quartered in any house in time of peace without consent of the owner." "no person holding the office of president of the u. s. a judge of their supreme court, secretary for the department of foreign affairs, of finance, of marine, of war, or of ----, shall be capable of holding at the same time any other office of trust or emolument under the u. s. or an individual state." "no religious test or qualification shall ever be annexed to any oath of office under the authority of the u. s." "the u. s. shall be forever considered as one body corporate and politic in law, and entitled to all the rights privileges and immunities, which to bodies corporate ought to or do appertain." "the legislature of the u. s. shall have the power of making the great seal which shall be kept by the president of the u. s. or in his absence by the president of the senate, to be used by them as the occasion may require.--it shall be called the great seal of the u. s. and shall be affixed to all laws." "all commissions and writs shall run in the name of the u.s." "the jurisdiction of the supreme court shall be extended to all controversies between the u. s. and an individual state, or the u. s. and the citizens of an individual state." these propositions were referred to the committee of detail without debate or consideration of them by the house. m^r gov^r morris ^{ded} by m^r pinkney, submitted the following propositions which were in like manner referred to the committee of detail. "to assist the president in conducting the public affairs there shall be a council of state composed of the following officers-- . the chief justice of the supreme court, who shall from time to time recommend such alterations of and additions to the laws of the u. s. as may in his opinion be necessary to the due administration of justice, and such as may promote useful learning and inculcate sound morality throughout the union: he shall be president of the council in the absence of the president. . the secretary of domestic affairs who shall be appointed by the president and hold his office during pleasure. it shall be his duty to attend to matters of general police, the state of agriculture and manufactures, the opening of roads and navigations, and the facilitating communications thro' the u. states; and he shall from time to time recommend such measures and establishments as may tend to promote those objects. . the secretary of commerce and finance who shall also be appointed by the president during pleasure. it shall be his duty to superintend all matters relating to the public finances, to prepare & report plans of revenue and for the regulation of expenditures, and also to recommend such things as may in his judgment promote the commercial interests of the u. s. . the secretary of foreign affairs who shall also be appointed by the president during pleasure. it shall be his duty to correspond with all foreign ministers, prepare plans of treaties, & consider such as may be transmitted from abroad, and generally to attend to the interests of the u. s. in their connections with foreign powers. . the secretary of war who shall also be appointed by the president during pleasure. it shall be his duty to superintend every thing relating to the war department, such as the raising and equipping of troops, the care of military stores, public fortifications, arsenals & the like--also in time of war to prepare & recommend plans of offence and defence. . the secretary of the marine who shall also be appointed during pleasure--it shall be his duty to superintend every thing relating to the marine department, the public ships, dock yards, naval stores & arsenals--also in the time of war to prepare and recommend plans of offence and defence. the president shall also appoint a secretary of state to hold his office during pleasure; who shall be secretary to the council of state, and also public secretary to the president. it shall be his duty to prepare all public dispatches from the president which he shall countersign. the president may from time to time submit any matter to the discussion of the council of state, and he may require the written opinions of any one or more of the members: but he shall in all cases exercise his own judgment, and either conform to such opinions or not as he may think proper; and every officer above mentioned shall be responsible for his opinion on the affairs relating to his particular department. each of the officers above mentioned shall be liable to impeachment & removal from office for neglect of duty malversation or corruption." m^r gerry moved "that the committee be instructed to report proper qualifications for the president, and a mode of trying the supreme judges in cases of impeachment." the clause "to call forth the aid of the militia &c. was postponed till report should be made as to the power over the militia referred yesterday to the grand committee of eleven. m^r mason moved to enable congress "to enact sumptuary laws." no government can be maintained unless the manners be made consonant to it. such a discretionary power may do good and can do no harm. a proper regulation of excises & of trade may do a great deal but it is best to have an express provision. it was objected to sumptuary laws that they were contrary to nature. this was a vulgar error. the love of distinction it is true is natural; but the object of sumptuary laws is not to extinguish this principle but to give it a proper direction. m^r elseworth. the best remedy is to enforce taxes & debts. as far as the regulation of eating & drinking can be reasonable, it is provided for in the power of taxation. m^r gov^r morris argued that sumptuary laws tended to create a landed nobility, by fixing in the great-landholders and their posterity their present possessions. m^r gerry, the law of necessity is the best sumptuary law. on motion of m^r mason "as to sumptuary laws" n. h. no. mas. no. c^t no. n. j. no. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. "and to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this constitution, in the government of the u. s. or any department or officer thereof." m^r madison and m^r pinkney moved to insert between "laws" and "necessary" "and establish all offices," it appearing to them liable to cavil that the latter was not included in the former. m^r gov^r morris, m^r wilson, m^r rutlidge and m^r elseworth urged that the amendment could not be necessary. on the motion for inserting "and establish all offices" n. h. no. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. the clause as reported was then agreed to nem. con. art: vii sect. . concerning treason which see. m^r madison, thought the definition too narrow. it did not appear to go as far as the stat. of edw^d iii. he did not see why more latitude might not be left to the legislature. it w^d be as safe as in the hands of state legislatures. and it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused. m^r mason was for pursuing the stat: of edw^d iii. m^r gov^r morris was for giving to the union an exclusive right to declare what sh^d be treason. in case of a contest between the u. s. and a particular state, the people of the latter must under the disjunctive terms of the clause, be traitors to one or other authority. m^r randolph thought the clause defective in adopting the words, "in adhering" only. the british stat: adds, "giving them aid and comfort" which had a more extensive meaning. m^r elseworth considered the definition as the same in fact with that of the statute. m^r gov^r morris "adhering" does not go so far as "giving aid and comfort" or the latter words may be restrictive of "adhering," in either case the statute is not pursued. m^r wilson held "giving aid and comfort" to be explanatory, not operative words; and that it was better to omit them. m^r dickenson, thought the addition of "giving aid and comfort" unnecessary & improper; being too vague and extending too far. he wished to know what was meant by the "testimony of two witnesses" whether they were to be witnesses to the same overt act or to different overt acts. he thought also that proof of an overt act ought to be expressed as essential in the case. doc^r johnson considered "giving aid & comfort" as explanatory of "adhering" & that something should be inserted in the definition concerning overt acts. he contended that treason could not be both ag^{st} the u. states--and individual states; being an offence ag^{st} the sovereignty which can be but one in the same community. m^r madison remarked that "and" before "in adhering" should be changed into "or" otherwise both offences viz. of "levying war," & of adhering to the enemy might be necessary to constitute treason. he added that, as the definition here was of treason against _the u. s._ it would seem that the individual states w^d be left in possession of a concurrent power so far as to define & punish treason particularly ag^{st} themselves; which might involve double punishm^t. it was moved that the whole clause be recommitted which was lost, the votes being equally divided. n. h. no. mas. no. c^t no. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. div^d. s. c. no. geo. ay. m^r wilson & doc^r johnson moved, that "or any of them," after "united states" be struck out in order to remove the embarrassment; which was agreed to nem. con. m^r madison. this has not removed the embarrassment. the same act might be treason ag^{st} the united states as here defined--and ag^{st} a particular state according to its laws. m^r elseworth. there can be no danger to the gen^l authority from this; as the laws of the u. states are to be paramount. doc^r johnson was still of opinion there could be no treason ag^{st} a particular state. it could not even at present, as the confederation now stands, the sovereignty being in the union; much less can it be under the proposed system. col. mason. the united states will have a qualified sovereignty only. the individual states will retain a part of the sovereignty. an act may be treason ag^{st} a particular state which is not so ag^{st} the u. states. he cited the rebellion of bacon in virginia as an illustration of the doctrine. doc^r johnson: that case would amount to treason ag^{st} the sovereign, the supreme sovereign, the united states. m^r king observed that the controversy relating to treason might be of less magnitude than was supposed; as the legislature might punish capitally under other names than treason. m^r gov^r morris and m^r randolph wished to substitute the words of the british statute and moved to postpone sect . art vii in order to consider the following substitute--"whereas it is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of treason, it is therefore ordained, declared & established, that if a man do levy war ag^{st} the u. s. within their territories, or be adherent to the enemies of the u. s. within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed by the people of his condition, he shall be adjudged guilty of treason." on this question n. h.--mas. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. it was then moved to strike out "ag^{st} united states" after "treason" so as to define treason generally, and on this question mass. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. it was then moved to insert after "two witnesses" the words "to the same overt act." doc^r franklin wished this amendment to take place. prosecutions for treason were generally virulent; and perjury too easily made use of against innocence. m^r wilson. much may be said on both sides. treason may sometimes be practised in such a manner, as to render proof extremely difficult--as in a traitorous correspondence with an enemy. on the question--as to some overt act n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. m^r king moved to insert before the word "power" the word "sole," giving the u. states the exclusive right to declare the punishment of treason. m^r broom ^{ds} the motion. m^r wilson in cases of a general nature, treason can only be ag^{st} the u-- states, and in such they sh^d have the sole right to declare the punishment--yet in many cases it may be otherwise. the subject was however intricate and he distrusted his present judgment on it. m^r king this amendment results from the vote defining treason generally by striking out ag^{st} the u. states, which excludes any treason ag^{st} particular states. these may however punish offences as high misdemeanors. on inserting the word "sole." it passed in the negative n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. no.-- m^r wilson. the clause is ambiguous now. "sole" ought either to have been inserted, or "against the u. s." to be re-instated. m^r king no line can be drawn between levying war and adhering to enemy ag^{st} the u. states and ag^{st} an individual state--treason ag^{st} the latter must be so ag^{st} the former. m^r sherman, resistance ag^{st} the laws of the u. states as distinguished from resistance ag^{st} the laws of a particular state, forms the line. m^r elseworth, the u. s. are sovereign on one side of the line dividing the jurisdictions--the states on the other--each ought to have power to defend their respective sovereignties. m^r dickenson, war or insurrection ag^{st} a member of the union must be so ag^{st} the whole body; but the constitution should be made clear on this point. the clause was reconsidered nem. con--& then m^r wilson & m^r elseworth moved to reinstate "ag^{st} the u. s." after "treason--" on which question n. h. no. mass. no. c^t ay. n. j. ay. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. m^r madison was not satisfied with the footing on which the clause now stood. as treason ag^{st} the u. states involves treason ag^{st} particular states, and vice versa, the same act may be twice tried & punished by the different authorities. m^r gov^r morris viewed the matter in the same light-- it was moved & ^{ded} to amend the sentence to read--"treason ag^{st} the u. s. shall consist only in levying war against them, or in adhering to their enemies" which was agreed to. col. mason moved to insert the words "giving them aid and comfort," as restrictive of "adhering to their enemies &c." the latter he thought would be otherwise too indefinite--this motion was agreed to: con^t: del: & georgia only being in the negative. m^r l. martin moved to insert after conviction &c.--"or on confession in open court"--and on the question (the negative states thinking the words superfluous) it was agreed to n. h. ay. mass. no. c^t ay. n. j. ay. p. ay. del. ay. m^d ay. v^a ay. n. c. div^d. s. c. no. geo. no. art: vii. sect. , as amended was then agreed to nem. con. sect. . taken up. "white & other" struck out nem. con. as superfluous. m^r elseworth moved to require the first census to be taken within "three" instead of "six" years from the first meeting of the legislature--and on question n. h. ay. mass. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. m^r king asked what was the precise meaning of _direct_ taxation? no one answ^d. m^r gerry moved to add to the ^d sect. art: vii. the following clause "that from the first meeting of the legislature of the u. s. until a census shall be taken all monies for supplying the public treasury by direct taxation shall be raised from the several states according to the number of their representatives respectively in the first branch". m^r langdon. this would bear unreasonably hard on n. h. and he must be ag^{st} it. m^r carrol opposed it. the number of rep^s did not admit of a proportion exact enough for a rule of taxation. before any question the house adjourned. tuesday august . in convention governour livingston[ ] from the committee of eleven to whom was referred the propositions respecting the debts of the several states and also the militia entered on the ^{th} inst: delivered the following report: [ ] "governor livingston is confessedly a man of the first rate talents, but he appears to me rather to indulge a sportiveness of wit, than a strength of thinking. he is however equal to anything, from the extensiveness of his education and genius. his writings teem with satyr and a neatness of style. but he is no orator, and seems little acquainted with the guiles of policy. he is about years old, and remarkably healthy."--pierce's notes, _am. hist. rev._, iii., . "the legislature of the u. s. shall have power to fulfil the engagements which have been entered into by congress, and to discharge as well the debts of the u. s. as the debts incurred by the several states during the late war, for the common defence and general welfare." "to make laws for organizing arming and disciplining the militia, and for governing such part of them as may be employed in the service of the u. s. reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by the u. states." m^r gerry considered giving the power only, without adopting the obligation, as destroying the security now enjoyed by the public creditors of the u-- states. he enlarged on the merit of this class of citizens, and the solemn faith which had been pledged under the existing confederation. if their situation should be changed as here proposed great opposition would be excited ag^{st} the plan. he urged also that as the states had made different degrees of exertion to sink their respective debts, those who had done most would be alarmed, if they were now to be saddled with a share of the debts of states which had done least. m^r sherman. it means neither more nor less than the confederation as it relates to this subject. m^r elseworth moved that the report delivered in by gov^r livingston should lie on the table.--agreed to nem. con. art: vii. sect. resumed.--m^r dickinson moved to postpone this in order to reconsider art: iv. sect. . and to _limit_ the number of representatives to be allowed to the large states. unless this were done the small states would be reduced to entire insignificancy, and encouragement given to the importation of slaves. m^r sherman would agree to such a reconsideration, but did not see the necessity of postponing the section before the house.--m^r dickenson withdrew his motion. art: vii. sect . then agreed to ays, delaware alone being no. m^r sherman moved to add to sect . the following clause "and all accounts of supplies furnished, services performed, and monies advanced by the several states to the u. states, or by the u. s. to the several states shall be adjusted by the same rule." m^r govern^r morris ^{ds} the motion. m^r ghorum, thought it wrong to insert this in the constitution. the legislature will no doubt do what is right. the present congress have such a power and are now exercising it. m^r sherman unless some rule be expressly given none will exist under the new system. m^r elseworth. though the contracts of congress will be binding, there will be no rule for executing them on the states; and one ought to be provided. m^r sherman withdrew his motion to make way for one of m^r williamson to add to sect. . "by this rule the several quotas of the states shall be determined in settling the expences of the late war." m^r carrol brought into view the difficulty that might arise on this subject from the establishment of the constitution as intended without the _unanimous_ consent of the states. m^r williamson's motion was postponed nem. con. art: vi sect. . which had been postponed of aug: . was now called for by col. mason, who wished to know how the proposed amendment as to money bills would be decided, before he agreed to any further points. m^r gerry's motion of yesterday that previous to a census, direct taxation be proportioned on the states according to the number of representatives, was taken up. he observed that the principal acts of government would probably take place within that period, and it was but reasonable that the states should pay in proportion to their share in them. m^r elseworth thought such a rule unjust. there was a great difference between the number of represent^s and the number of inhabitants as a rule in this case. even if the former were proportioned as nearly as possible to the latter, it would be a very inaccurate rule. a state might have one representative only that had inhabitants enough for - / or more, if fractions could be applied, &c.--. he proposed to amend the motion by adding the words, "subject to a final liquidation by the foregoing rule when a census shall have been taken." m^r madison. the last appointment of cong^s on which the number of representatives was founded, was conjectural and meant only as a temporary rule till a census should be established. m^r read. the requisitions of cong^s had been accommodated to the impoverishment produced by the war; and to other local and temporary circumstances. m^r williamson opposed m^r gerry's motion. m^r langdon was not here when n. h. was allowed three members. if it was more than her share; he did not wish for them. m^r butler contended warmly for m^r gerry's motion as founded in reason and equity. m^r elseworth's proviso to m^r gerry's motion was agreed to nem. con. m^r king thought the power of taxation given to the legislature rendered the motion of m^r gerry altogether unnecessary. on m^r gerry's motion as amended n. h. no. mass. ay. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. div^d. s. c. ay. geo. no. on a question, shall art: vi sect. . with the amendment to it proposed & entered on the instant, as called for by col. mason be now taken up? it passed in the negative. n. h. ay. mass. no. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. m^r l. martin. the power of taxation is most likely to be criticised by the public. direct taxation should not be used but in cases of absolute necessity; and then the states will be the best judges of the mode. he therefore moved the following addition to sect: : art vii "and whenever the legislature of the u. s. shall find it necessary that revenue should be raised by direct taxation, having apportioned the same, according to the above rule on the several states, requisitions shall be made of the respective states to pay into the continental treasury their respective quotas within a time in the said requisitions specified; and in case of any of the states failing to comply with such requisitions, then and then only to devise and pass acts directing the mode, and authorizing the collection of the same." m^r m^chenry ^{ded} the motion--there was no debate, and on the question n. h. no. c^t no. n. j. ay. pen^a no. del. no. m^d div^d. (jenifer & carol no) v^a no. n. c. no. s. c. no. geo. no. art. vii. sect. .--m^r langdon, by this section the states are left at liberty to tax exports. n. h. therefore with other non-exporting states, will be subject to be taxed by the states exporting its produce. this could not be admitted. it seems to be feared that the northern states will oppress the trade of the south^n. this may be guarded ag^{st} by requiring the concurrence of / or / of the legislature in such cases. m^r elseworth. it is best as it stands. the power of regulating trade between the states will protect them ag^{st} each other. should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves. there are solid reasons ag^{st} cong^s taxing exports. . it will discourage industry, as taxes on imports discourage luxury. . the produce of different states is such as to prevent uniformity in such taxes. there are indeed but a few articles that could be taxed at all; as tob^o rice & indigo, and a tax on these alone would be partial & unjust. . the taxing of exports would engender incurable jealousies. m^r williamson. tho' n. c. has been taxed by virg^a by a duty on hhs of her tob^o exported thro' virg^a yet he would never agree to this power. should it take place, it would destroy the last hope of an adoption of the plan. m^r gov^r morris. these local considerations ought not to impede the general interest. there is great weight in the argument, that the exporting states will tax the produce of their uncommercial neighbours. the power of regulating the trade between p^a & n. jersey will never prevent the former from taxing the latter. nor will such a tax force a direct exportation from n. jersey. the advantages possessed by a large trading city, outweigh the disadvantage of a moderate duty; and will retain the trade in that channel. if no tax can be laid on exports, an embargo cannot be laid though in time of war such a measure may be of critical importance. tobacco, lumber and live-stock are three objects belonging to different states, of which great advantage might be made by a power to tax exports. to these may be added genseng and masts for ships by which a tax might be thrown on other nations. the idea of supplying the west indies with lumber from nova scotia is one of the many follies of lord sheffield's pamphlets. the state of the country also will change, and render duties on exports, as skins, beaver & other peculiar raw materials, politic in the view of encouraging american manufactures. m^r butler was strenuously opposed to a power over exports, as unjust and alarming to the staple states. m^r langdon suggested a prohibition on the states from taxing the produce of other states exported from their harbours. m^r dickenson. the power of taxing exports may be inconvenient at present; but it must be of dangerous consequence to prohibit it with respect to all articles and for ever. he thought it would be better to except particular articles from the power. m^r sherman. it is best to prohibit the national legislature in all cases. the states will never give up all power over trade. an enumeration of particular articles would be difficult invidious and improper. m^r madison. as we ought to be governed by national and permanent views, it is a sufficient argument for giving y^e power over exports that a tax, tho' it may not be expedient at present, may be so hereafter. a proper regulation of exports may & probably will be necessary hereafter, and for the same purposes as the regulation of imports; viz, for revenue--domestic manufactures--and procuring equitable regulations from other nations. an embargo may be of absolute necessity, and can alone be effectuated by the gen^l authority. the regulation of trade between state and state cannot effect more than indirectly to hinder a state from taxing its own exports; by authorizing its citizens to carry their commodities freely into a neighbouring state which might decline taxing exports in order to draw into its channel the trade of its neighbours. as to the fear of disproportionate burthens on the more exporting states, it might be remarked that it was agreed on all hands that the revenue w^d principally be drawn from trade, and as only a given revenue would be needed, it was not material whether all should be drawn wholly from imports--or half from those, and half from exports. the imports and exports must be pretty nearly equal in every state--and relatively the same among the different states. m^r elseworth did not conceive an embargo by the congress interdicted by this section. m^r m^chenry conceived that power to be included in the power of war. m^r wilson. pennsylvania exports the produce of mary^d n. jersey, delaware & will by & by when the river delaware is opened, export for n. york. in favoring the general power over exports therefore, he opposed the particular interest of his state. he remarked that the power had been attacked by reasoning which could only have held good in case the gen^l gov^t had been _compelled_, instead of _authorized_, to lay duties on exports. to deny this power is to take from the common gov^t half the regulation of trade. it was his opinion that a power over exports might be more effectual than that over imports in obtaining beneficial treaties of commerce. m^r gerry was strenuously opposed to the power over exports. it might be made use of to compel the states to comply with the will of the gen^l government, and to grant it any new powers which might be demanded. we have given it more power already than we know how will be exercised. it will enable the gen^l gov^t to oppress the states as much as ireland is oppressed by great britain. m^r fitzimmons[ ] would be ag^{st} a tax on exports to be laid immediately; but was for giving a power of laying the tax when a proper time may call for it. this would certainly be the case when america should become a manufacturing country. he illustrated his argument by the duties in g. britain on wool &c. [ ] "mr. fitzsimons is a merchant of considerable talents, and speaks very well i am told, in the legislature of pennsylvania. he is about years old."--pierce's notes, _am. hist. rev._, iii., . col. mason. if he were for reducing the states to mere corporations as seemed to be the tendency of some arguments, he should be for subjecting their exports as well as imports to a power of general taxation. he went on a principle often advanced & in which he concurred, that "a majority when interested will oppress the minority." this maxim had been verified by our own legislature (of virginia). if we compare the states in this point of view the northern states have an interest different from the five south^n states; and have in one branch of the legislature votes ag^{st} . and in the other in the proportion of ag^{st} . the southern states had therefore ground for their suspicions. the case of exports was not the same with that of imports. the latter were the same throughout the states; the former very different. as to tobacco other nations do raise it, and are capable of raising it as well as virg^a &c. the impolicy of taxing that article had been demonstrated by the experiment of virginia. m^r clymer[ ] remarked that every state might reason with regard to its particular productions, in the same manner as the southern states. the middle states may apprehend an oppression of their wheat flour, provisions &c. and with more reason, as these articles were exposed to a competition in foreign markets not incident to tob^o rice &c. they may apprehend also combinations ag^{st} them between the eastern & southern states as much as the latter can apprehend them between the eastern & middle. he moved as a qualification of the power of taxing exports that it should be restrained to regulations of trade by inserting after the word "duty" sect art vii the words, "for the purpose of revenue." [ ] "mr. clymer is a lawyer of some abilities;--he is a respectable man and much esteemed. mr. clymer is about years old."--pierce's notes, _am. hist. rev._, iii., . on question on m^r clymer's motion n. h. no. mass. no. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r madison. in order to require / of each house to tax exports, as a lesser evil than a total prohibition moved to insert the words "unless by consent of two thirds of the legislature." m^r wilson ^{ds} and on this question, it passed in the negative. n. h. ay. mass. ay. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a no (col. mason, m^r randolph m^r blair no. gen^l washington & j. m. ay.) n. c. no. s. c. no. geo. no. question on sect: . art vii. as far as to "no tax sh^l be laid on exports"--it passed in the affirmative. n. h. no. mass. ay. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. (gen^l w. & j. m. no) n. c. ay. s. c. ay. geo. ay. m^r l. martin, proposed to vary the sect: . art vii so as to allow a prohibition or tax on the importation of slaves. . as five slaves are to be counted as free men in the apportionment of representatives; such a clause would leave an encouragement to this trafic. . slaves weakened one part of the union which the other parts were bound to protect; the privilege of importing them was therefore unreasonable. . it was inconsistent with the principles of the revolution and dishonorable to the american character to have such a feature in the constitution. m^r rutlidge did not see how the importation of slaves could be encouraged by this section. he was not apprehensive of insurrections and would readily exempt the other states from the obligation to protect the southern against them. religion & humanity had nothing to do with this question. interest alone is the governing principle with nations. the true question at present is whether the south^n states shall or shall not be parties to the union. if the northern states consult their interest, they will not oppose the increase of slaves which will increase the commodities of which they will become the carriers. m^r elseworth was for leaving the clause as it stands, let every state import what it pleases. the morality or wisdom of slavery are considerations belonging to the states themselves. what enriches a part enriches the whole, and the states are the best judges of their particular interest. the old confederation had not meddled with this point, and he did not see any greater necessity for bringing it within the policy of the new one. m^r pinkney. south carolina can never receive the plan if it prohibits the slave trade. in every proposed extension of the powers of congress, that state has expressly & watchfully excepted that of meddling with the importation of negroes. if the states be all left at liberty on this subject, s. carolina may perhaps by degrees do of herself what is wished, as virginia & maryland already have done. adjourned. wednesday august . in convention. art vii sect . resumed. m^r sherman was for leaving the clause as it stands. he disapproved of the slave trade; yet as the states were now possessed of the right to import slaves, as the public good did not require it to be taken from them, & as it was expedient to have as few objections as possible to the proposed scheme of government, he thought it best to leave the matter as we find it. he observed that the abolition of slavery seemed to be going on in the u. s. & that the good sense of the several states would probably by degrees compleat it. he urged on the convention the necessity of despatching its business. col. mason. this infernal traffic originated in the avarice of british merchants. the british gov^t constantly checked the attempts of virginia to put a stop to it. the present question concerns not the importing states alone but the whole union. the evil of having slaves was experienced during the late war. had slaves been treated as they might have been by the enemy, they would have proved dangerous instruments in their hands. but their folly dealt by the slaves, as it did by the tories. he mentioned the dangerous insurrections of the slaves in greece and sicily; and the instructions given by cromwell to the commissioners sent to virginia, to arm the servants & slaves, in case other means of obtaining its submission should fail. maryland & virginia he said had already prohibited the importation of slaves expressly. n. carolina had done the same in substance. all this would be in vain, if s. carolina & georgia be at liberty to import. the western people are already calling out for slaves for their new lands, and will fill that country with slaves if they can be got thro' s. carolina & georgia. slavery discourages arts & manufactures. the poor despise labor when performed by slaves. they prevent the immigration of whites, who really enrich & strengthen a country. they produce the most pernicious effect on manners. every master of slaves is born a petty tyrant. they bring the judgment of heaven on a country. as nations can not be rewarded or punished in the next world they must be in this. by an inevitable chain of causes & effects providence punishes national sins, by national calamities. he lamented that some of our eastern brethren had from a lust of gain embarked in this nefarious traffic. as to the states being in possession of the right to import, this was the case with many other rights, now to be properly given up. he held it essential in every point of view that the gen^l gov^t should have power to prevent the increase of slavery. m^r elseworth. as he had never owned a slave could not judge of the effects of slavery on character. he said however that if it was to be considered in a moral light we ought to go farther and free those already in the country.--as slaves also multiply so fast in virginia & maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps foreign supplies are necessary, if we go no farther than is urged, we shall be unjust towards s. carolina & georgia. let us not intermeddle. as population increases, poor laborers will be so plenty as to render slaves useless. slavery in time will not be a speck in our country. provision is already made in connecticut for abolishing it. and the abolition has already taken place in massachusetts. as to the danger of insurrections from foreign influence, that will become a motive to kind treatment of the slaves. m^r pinkney. if slavery be wrong, it is justified by the example of all the world. he cited the case of greece rome & other antient states; the sanction given by france england, holland & other modern states. in all ages one half of mankind have been slaves. if the s. states were let alone they will probably of themselves stop importations. he w^d himself as a citizen of s. carolina vote for it. an attempt to take away the right as proposed will produce serious objections to the constitution which he wished to see adopted. general pinkney declared it to be his firm opinion that if himself & all his colleagues were to sign the constitution & use their personal influence, it would be of no avail towards obtaining the assent of their constituents. s. carolina & georgia cannot do without slaves. as to virginia she will gain by stopping the importations. her slaves will rise in value, & she has more than she wants. it would be unequal to require s. c. & georgia to confederate on such unequal terms. he said the royal assent before the revolution had never been refused to s. carolina as to virginia. he contended that the importation of slaves would be for the interest of the whole union. the more slaves, the more produce to employ the carrying trade; the more consumption also, and the more of this, the more revenue for the common treasury. he admitted it to be reasonable that slaves should be dutied like other imports, but should consider a rejection of the clause as an exclusion of s. carol^a from the union. m^r baldwin had conceived national objects alone to be before the convention, not such as like the present were of a local nature. georgia was decided on this point. that state has always hitherto supposed a gen^l governm^t to be the pursuit of the central states who wished to have a vortex for every thing--that her distance would preclude her from equal advantage--& that she could not prudently purchase it by yielding national powers. from this it might be understood in what light she would view an attempt to abridge one of her favorite prerogatives. if left to herself, she may probably put a stop to the evil. as one ground for this conjecture, he took notice of the sect of ---- which he said was a respectable class of people, who carried their ethics beyond the mere _equality of men_, extending their humanity to the claims of the whole animal creation. m^r wilson observed that if s. c. & georgia were themselves disposed to get rid of the importation of slaves in a short time as had been suggested, they would never refuse to unite because the importation might be prohibited. as the section now stands all articles imported are to be taxed. slaves alone are exempt. this is in fact a bounty on that article. m^r gerry thought we had nothing to do with the conduct of the states as to slaves, but ought to be careful not to give any sanction to it. m^r dickenson considered it as inadmissible on every principle of honor & safety that the importation of slaves should be authorized to the states by the constitution. the true question was whether the national happiness would be promoted or impeded by the importation, and this question ought to be left to the national gov^t not to the states particularly interested. if eng^d & france permit slavery, slaves are at the same time excluded from both those kingdoms. greece and rome were made unhappy by their slaves. he could not believe that the south^n states would refuse to confederate on the account apprehended; especially as the power was not likely to be immediately exercised by the gen^l government. m^r williamson stated the law of n. carolina on the subject, to-wit that it did not directly prohibit the importation of slaves. it imposed a duty of £ on each slave imported from africa, £ on each from elsewhere, & £ on each from a state licensing manumission. he thought the s. states could not be members of the union if the clause sh^d be rejected, and that it was wrong to force any thing down not absolutely necessary, and which any state must disagree to. m^r king thought the subject should be considered in a political light only. if two states will not agree to the constitution as stated on one side, he could affirm with equal belief on the other, that great & equal opposition would be experienced from the other states. he remarked on the exemption of slaves from duty whilst every other import was subjected to it, as an inequality that could not fail to strike the commercial sagacity of the north^n & middle states. m^r langdon was strenuous for giving the power to the gen^l gov^t. he c^d not with a good conscience leave it with the states who could then go on with the traffic, without being restrained by the opinions here given that they will themselves cease to import slaves. gen^l pinkney thought himself bound to declare candidly that he did not think s. carolina would stop her importations of slaves in any short time, but only stop them occasionally as she now does. he moved to commit the clause that slaves might be made liable to an equal tax with other imports which he thought right & w^{ch} w^d remove one difficulty that had been started. m^r rutlidge. if the convention thinks that n. c. s. c. & georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. the people of those states will never be such fools as to give up so important an interest. he was strenuous ag^{st} striking out the section, and seconded the motion of gen^l pinkney for a commitment. m^r gov^r morris wished the whole subject to be committed including the clauses relating to taxes on exports & to a navigation act. these things may form a bargain among the northern & southern states. m^r butler declared that he never would agree to the power of taxing exports. m^r sherman said it was better to let the s. states import slaves than to part with them, if they made that a sine qua non. he was opposed to a tax on slaves imported as making the matter worse, because it implied they were _property_. he acknowledged that if the power of prohibiting the importation should be given to the gen^l government that it would be exercised. he thought it would be its duty to exercise the power. m^r read was for the commitment provided the clause concerning taxes on exports should also be committed. m^r sherman observed that that clause had been agreed to & therefore could not be committed. m^r randolph was for committing in order that some middle ground might, if possible, be found. he could never agree to the clause as it stands. he w^d sooner risk the constitution. he dwelt on the dilemma to which the convention was exposed. by agreeing to the clause, it would revolt the quakers, the methodists, and many others in the states having no slaves. on the other hand, two states might be lost to the union. let us then, he said, try the chance of a commitment. on the question for committing the remaining part of sect. & . of art: . n. h. no. mass. abt^t con^t ay. n. j. ay. p^a no. del. no. mary^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r pinkney & m^r langdon moved to commit sect. . as to navigation act by two thirds of each house. m^r gorham did not see the propriety of it. is it meant to require a greater proportion of votes? he desired it to be remembered that the eastern states had no motive to union but a commercial one. they were able to protect themselves. they were not afraid of external danger, and did not need the aid of the south^n states. m^r wilson wished for a commitment in order to reduce the proportion of votes required. m^r elseworth was for taking the plan as it is. this widening of opinions has a threatening aspect. if we do not agree on this middle & moderate ground he was afraid we should lose two states, with such others as may be disposed to stand aloof, should fly into a variety of shapes & directions, and most probably into several confederations and not without bloodshed. on question for committing sect. as to navigation act to a member from each state-- n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. the committee appointed were m^r langdon, king, johnson, livingston, clymer, dickenson, l. martin, madison, williamson, c. c. pinkney, & baldwin. to this committee were referred also the two clauses above mentioned, of the & . sect: of art. . m^r rutlidge from the committee to whom were referred on the & ^{th} instant the propositions of m^r madison & m^r pinkney made the report following:[ ] [ ] madison's note says: ("here insert report from journal of the convention of the date.") it is found on p. , , of the journal and is as above. "the committee report, that in their opinion the following additions should be made to the report now before the convention, namely, "at the end of the first clause of the first section of the seventh article add, 'for payment of the debts and necessary expenses of the united states; provided that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than ---- years.' "at the end of the second clause, second section, seventh article, add, 'and with indians, within the limits of any state, not subject to the laws thereof.' "at the end of the sixteenth clause of the second section, seventh article, add, 'and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the united states in such manner as shall not interfere with the governments of individual states, in matters which respect only their internal police, or for which their individual authority may be competent.' "at the end of the first section, tenth article, add, 'he shall be of the age of thirty-five years, and a citizen of the united states, and shall have been an inhabitant thereof for twenty-one years.' "after the second section of the tenth article, insert the following as a third section: "'the president of the united states shall have a privy council, which shall consist of the president of the senate, the speaker of the house of representatives, the chief justice of the supreme court, and the principal officer in the respective departments of foreign affairs, domestic affairs, war, marine, and finance, as such departments of office shall from time to time be established, whose duty it shall be to advise him in matters respecting the execution of his office, which he shall think proper to lay before them: but their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt.' "at the end of the second section of the eleventh article, add, 'the judges of the supreme court shall be triable by the senate, on impeachment by the house of representatives.' "between the fourth and fifth lines of the third section of the eleventh article, after the word 'controversies,' insert, 'between the united states and an individual state, or the united states and an individual person.'" a motion to rescind the order of the house respecting the hours of meeting & adjourning, was negatived: mass: p^a del. mar^d ay. n. h. con: n. j. v^a n. c. s. c. geo. no. m^r gerry and m^r m^chenry moved to insert after the ^d sect. art: , the clause following, to wit, "the legislature shall pass no bill of attainder nor any ex post facto law."[ ] [ ] the proceedings on this motion involving the two questions on "attainders and ex post facto laws," are not so fully stated in the printed journal.--madison's note. m^r gerry urged the necessity of this prohibition, which he said was greater in the national than the state legislature, because the number of members in the former being fewer, they were on that account the more to be feared. m^r gov^r morris thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder. m^r elseworth contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. it cannot then be necessary to prohibit them. m^r wilson was against inserting any thing in the constitution as to ex post facto laws. it will bring reflections on the constitution--and proclaim that we are ignorant of the first principles of legislation, or are constituting a government that will be so. the question being divided, the first part of the motion relating to bills of attainder was agreed to nem contradicente. on the second part relating to ex post facto laws-- m^r carrol remarked that experience overruled all other calculations. it had proved that in whatever light they might be viewed by civilians or others, the state legislatures had passed them, and they had taken effect. m^r wilson. if these prohibitions in the state constitutions have no effect, it will be useless to insert them in this constitution. besides, both sides will agree to the principle, and will differ as to its application. m^r williamson. such a prohibitory clause is in the constitution of n. carolina, and tho it has been violated, it has done good there & may do good here, because the judges can take hold of it. doc^r johnson thought the clause unnecessary, and implying an improper suspicion of the national legislature. m^r rutlidge was in favor of the clause. on the question for inserting the prohibition of ex post facto laws. n. h. ay. mas. ay. con^t no. n. j. no. p^a no. del. ay. m^d ay. virg^a ay. n. c. div^d. s. c. ay. geo. ay. the report of the committee of . made by m^r rutlidge, was taken up and then postponed that each member might furnish himself with a copy. the report of the committee of eleven delivered in & entered on the journal of the ^{st} inst. was then taken up, and the first clause containing the words "the legislature of the u. s. _shall have power_ to fulfil the engagements which have been entered into by congress" being under consideration, m^r elseworth argued that they were unnecessary. the u. s. heretofore entered into engagements by cong^s who were their agents. they will hereafter be bound to fulfil them by their new agents. m^r randolph thought such a provision necessary: for though the u. states will be bound, the new gov^t will have no authority in the case unless it be given to them. m^r madison thought it necessary to give the authority in order to prevent misconstruction. he mentioned the attempts made by the debtors to british subjects to shew that contracts under the old government, were dissolved by the revolution which destroyed the political identity of the society. m^r gerry thought it essential that some explicit provision should be made on this subject, so that no pretext might remain for getting rid of the public engagements. m^r gov^r morris moved by way of amendment to substitute--"the legislature _shall_ discharge the debts & fulfil the engagements of the u. states." it was moved to vary the amendment by striking out "discharge the debts" & to insert "liquidate the claims," which being negatived, the amendment moved by m^r gov^r morris was agreed to all the states being in the affirmative. it was moved & ^{ded} to strike the following words out of the ^d clause of the report "and the authority of training the militia according to the discipline prescribed by the u. s." before a question was taken the house adjourned. thursday in convention aug: , the report of the committee of eleven made aug: . being taken up, and the following clause being under consideration to wit "to make laws for organizing, arming & disciplining the militia, and for governing such parts of them as may be employed in the service of the u. s. reserving to the states respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed." m^r sherman moved to strike out the last member "and authority of training" &c. he thought it unnecessary. the states will have this authority of course if not given up. m^r elseworth doubted the propriety of striking out the sentence. the reason assigned applies as well to the other reservation of the appointment to offices. he remarked at the same time that the term discipline was of vast extent and might be so expounded as to include all power on the subject. m^r king, by way of explanation, said that by _organizing_, the committee meant, proportioning the officers & men--by _arming_, specifying the kind size & caliber of arms--& by _disciplining_, prescribing the manual exercise evolutions &c. m^r sherman withdrew his motion. m^r gerry. this power in the u. s. as explained is making the states drill-sergeants. he had as lief let the citizens of massachusetts be disarmed, as to take the command from the states, and subject them to the gen^l legislature. it would be regarded as a system of despotism. m^r madison observed that "_arming_" as explained did not extend to furnishing arms; nor the term "_disciplining_" to penalties & courts martial for enforcing them. m^r king added to his former explanation that _arming_ meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the state governments, or the national treasury; that _laws_ for disciplining, must involve penalties and every thing necessary for enforcing penalties. m^r dayton moved to postpone the paragraph, in order to take up the following proposition. "to establish an uniform & general system of discipline for the militia of these states, and to make laws for organizing, arming, disciplining & governing _such part of them as may be employed in the service of the u. s._, reserving to the states respectively the appointment of the officers, and all authority over the militia not herein given to the general government." on the question to postpone in favor of this proposition: it passed in the negative. n. h. no. mas. no. c^t no. n. j. ay. p. no. del. no. mary^d ay. v^a no. n. c. no. s. c. no. geo. ay. m^r elseworth & m^r sherman moved to postpone the ^d clause in favor of the following "to establish an uniformity of arms, exercise & organization for the militia, and to provide for the government of them when called into the service of the u. states." the object of this proposition was to refer the plan for the militia to the general gov^t but to leave the execution of it to the state gov^{ts}. mr. langdon said he could not understand the jealousy expressed by some gentlemen. the general & state gov^{ts} were not enemies to each other, but different institutions for the good of the people of america. as one of the people he could say, the national gov^t is mine, the state gov^t is mine. in transferring power from one to the other, i only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used. m^r gerry thought it was rather taking out of the right hand & putting it into the left. will any man say that liberty will be as safe in the hands of eighty or a hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single state. m^r dayton was against so absolute a uniformity. in some states there ought to be a greater proportion of cavalry than in others. in some places rifles would be most proper, in others muskets &c. gen^l pinkney preferred the clause reported by the committee, extending the meaning of it to the case of fines &c. m^r madison. the primary object is to secure an effectual discipline of the militia. this will no more be done if left to the states separately than the requisitions have been hitherto paid by them. the states neglect their militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepare its militia for that purpose; in like manner as the militia of a state would have been still more neglected than it has been if each county had been independently charged with the care of its militia. the discipline of the militia is evidently a _national_ concern, and ought to be provided for in the _national_ constitution. m^r l. martin was confident that the states would never give up the power over the militia; and that, if they were to do so, the militia would be less attended to by the gen^l than by the state governments. m^r randolph asked what danger there could be that the militia could be brought into the field and made to commit suicide on themselves. this is a power that cannot from its nature be abused, unless indeed the whole mass should be corrupted. he was for trammelling the gen^l gov^t whenever there was danger, but here there could be none. he urged this as an essential point; observing that the militia were every where neglected by the state legislatures, the members of which courted popularity too much to enforce a proper discipline. leaving the appointment of officers to the states protects the people ag^{st} every apprehension that could produce murmur. on question on m^r elsworth's motion n. h. no. mass. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. a motion was then made to recommit the ^d clause which was negatived. on the question to agree to the ^{st} part of the clause, namely "to make laws for organizing arming & disciplining the militia, and for governing such part of them as may be employed in the service of the u. s." n. h. ay. mas. ay. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison moved to amend the next part of the clause so as to read "reserving to the states respectively, the appointment of the officers, _under the rank of general officers_." m^r sherman considered this as absolutely inadmissible. he said that if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the gen^l government, every man of discernment would rouse them by sounding the alarm to them. m^r gerry. let us at once destroy the state gov^{ts} have an executive for life or hereditary, and a proper senate, and then there would be some consistency in giving full powers to the gen^l gov^t but as the states are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. he warned the convention ag^{st} pushing the experiment too far. some people will support a plan of vigorous government at every risk. others of a more democratic cast will oppose it with equal determination, and a civil war may be produced by the conflict. m^r madison. as the greatest danger is that of disunion of the states, it is necessary to guard ag^{st} it by sufficient powers to the common gov^t and as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good militia. on the question to agree to m^r madison's motion n. h. ay. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay.[ ] [ ] in the printed journal, geo: no.--madison's note. on the question to agree to the "reserving to the states the appointment of the officers." it was agreed to nem: contrad: on the question on the clause "and the authority of training the militia according to the discipline prescribed by the u. s."-- n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a no. n. c. ay. s. c. no. geo. no. on the question to agree to art. vii. sect. . as reported it passed nem: contrad. m^r pinkney urged the necessity of preserving foreign ministers & other officers of the u. s. independent of external influence and moved to insert, after art. vii sect . the clause following--"no person holding any office of profit or trust under the u. s. shall without the consent of the legislature, accept of any present, emolument, office or title of any kind whatever, from any king, prince or foreign state", which passed nem: contrad: m^r rutlidge moved to amend art: viii to read as follows, "this constitution & the laws of the u. s. made in pursuance thereof, and all the treaties made under the authority of the u. s. shall be the supreme law of the several states and of their citizens and inhabitants; and the judges in the several states shall be bound thereby in their decisions, any thing in the constitutions or laws of the several states, to the contrary notwithstanding." which was agreed to, nem: contrad: art: ix being next for consideration, m^r gov^r morris argued ag^{st} the appointment of officers by the senate. he considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility. if judges were to be tried by the senate according to a late report of a committee it was particularly wrong to let the senate have the filling of vacancies which its own decrees were to create. m^r wilson was of the same opinion & for like reasons. the art. ix. being waved, and art. vii. sect. . resumed, m^r gov^r morris moved to strike the following words out of the clause "enforce treaties" as being superfluous, since treaties were to be "laws"--which was agreed to nem: contrad: m^r gov^r morris moved to alter ^{st} part. of . clause sect. . art vii so as to read "to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions"--which was agreed to nem: contrad: on the question then to agree to the clause of sect. . art: . as amended it passed in the affirmative nem: contrad. m^r c. pinkney moved to add as an additional power to be vested in the legislature of the u. s. "to negative all laws passed by the several states interfering in the opinion of the legislature with the general interests and harmony of the union; provided that two thirds of the members of each house assent to the same." this principle he observed had formerly been agreed to. he considered the precaution as essentially necessary. the objection drawn from the predominance of the large states had been removed by the equality established in the senate.[ ] [ ] "richmond aug^t . . "dear sir, * * * * * "i have still some hope that i shall hear from you of y^e reinstatement of y^e _negative_--as it is certainly y^e only means by which the several legislatures can be restrained from disturbing y^e order & harmony of y^e whole, & y^e governm^t render'd properly _national_, & _one_. i should suppose y^t some of its former opponents must by this time have seen y^e necessity of advocating it, if they wish to support their own principles." (james mcclurg to madison--mad. mss.) m^r broome ^{ded} the proposition. m^r sherman thought it unnecessary; the laws of the general government being supreme & paramount to the state laws according to the plan, as it now stands. m^r madison proposed that it should be committed. he had been from the beginning a friend to the principle; but thought the modification might be made better. m^r mason wished to know how the power was to be exercised. are all laws whatever to be brought up? is no road nor bridge to be established without the sanction of the general legislature? is this to sit constantly in order to receive & revise the state laws?--he did not mean by these remarks to condemn the expedient, but he was apprehensive that great objections would lie ag^{st} it. m^r williamson thought it unnecessary, having been already decided, a revival of the question was a waste of time. m^r wilson considered this as the key-stone wanted to compleat the wide arch of government we are raising. the power of self-defence had been urged as necessary for the state governments. it was equally necessary for the general government. the firmness of judges is not of itself sufficient. something further is requisite. it will be better to prevent the passage of an improper law, than to declare it void when passed. m^r rutlidge. if nothing else, this alone would damn and ought to damn the constitution. will any state ever agree to be bound hand & foot in this manner. it is worse than making mere corporations of them whose bye laws would not be subject to this shackle. m^r elseworth observed that the power contended for w^d require either that all laws of the state legislatures should previously to their taking effect be transmitted to the gen^l legislature, or be repealable by the latter; or that the state executives should be appointed by the gen^l government, and have a controul over the state laws. if the last was meditated let it be declared. m^r pinkney declared that he thought the state executives ought to be so appointed with such a controul, & that it would be so provided if another convention should take place. m^r govern^r morris did not see the utility or practicability of the proposition of m^r pinkney, but wished it to be referred to the consideration of a committee. m^r langdon was in favor of the proposition. he considered it as resolvable into the question whether the extent of the national constitution was to be judged of by the gen^l or the state governments. on the question for commitment, it passed in the negative. n. h. ay. mass^{ts} no. con^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r pinkney then withdrew his proposition. the ^{st} sect. of art: vii being so amended as to read "the legislature _shall_ fulfil the engagements and discharge the debts of the u. s. & shall have the power to lay & collect taxes duties imposts & excises," was agreed to. m^r butler expressed his dissatisfaction lest it should compel payment as well to the blood-suckers who had speculated on the distresses of others, as to those who had fought & bled for their country. he would be ready he said to-morrow to vote for a discrimination between those classes of people, and gave notice that he should move for a reconsideration. art ix sect. . being resumed, to wit "the senate of the u. s. shall have power to make treaties, and to appoint ambassadors, and judges of the supreme court." m^r madison observed that the senate represented the states alone, and that for this as well as other obvious reasons it was proper that the president should be an agent in treaties. m^r gov^r morris did not know that he should agree to refer the making of treaties to the senate at all, but for the present w^d move to add, as an amendment to the section after "treaties"--"but no treaty shall be binding on the u. s. which is not ratified by a law." m^r madison suggested the inconvenience of requiring a legal _ratification_ of treaties of alliance for the purposes of war &c &c." m^r ghorum. many other disadvantages must be experienced if treaties of peace & all negotiations are to be previously ratified--and if not previously, the ministers would be at a loss how to proceed. what would be the case in g. britain if the king were to proceed in this manner. american ministers must go abroad not instructed by the same authority (as will be the case with other ministers) which is to ratify their proceedings. m^r gov^r morris. as to treaties of alliance, they will oblige foreign powers to send their ministers here the very thing we should wish for. such treaties could not be otherwise made, if his amendment sh^d succeed. in general he was not solicitious to multiply & facilitate treaties. he wished none to be made with g. britain, till she should be at war. then a good bargain might be made with her. so with other foreign powers. the more difficulty in making treaties, the more value will be set on them. m^r wilson. in the most important treaties, the king of g. britain being obliged to resort to parliament for the execution of them, is under the same fetters as the amendment of m^r morris' will impose on the senate. it was refused yesterday to permit even the legislature to lay duties on exports. under the clause without the amendment, the senate alone can make a treaty, requiring all the rice of s. carolina to be sent to some one particular port. m^r dickinson concurred in the amendment, as most safe and proper, tho' he was sensible it was unfavorable to the little states, w^{ch} would otherwise have an _equal_ share in making treaties. doc^r johnson thought there was something of solecism in saying that the acts of a minister with plenipotentiary powers from one body, should depend for ratification on another body. the example of the king of g. b. was not parallel. full & compleat power was vested in him. if the parliament should fail to provide the necessary means of execution, the treaty would be violated. m^r ghorum in answer to m^r gov^r morris, said that negotiations on the spot were not to be desired by us, especially if the whole legislature is to have any thing to do with treaties. it will be generally influenced by two or three men, who will be corrupted by the ambassadors here. in such a government as ours, it is necessary to guard against the government itself being seduced. m^r randolph observing that almost every speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject, that the motion of m^r gov^r morris should be postponed, and on this question it was lost the states being equally divided. mass^{ts} no. con^t no. n. j. ay. pen^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on m^r gov^r morris motion mass^{ts} no. con^t no. n. j. no. p^a ay. del. no. m^d no. v^a no. n. c. div^d. s. c. no. geo. no. the several clauses of sect: . art ix, were then separately postponed after inserting "and other public ministers" next after "ambassadors." m^r madison hinted for consideration, whether a distinction might not be made between different sorts of treaties--allowing the president & senate to make treaties eventual and of alliance for limited terms--and requiring the concurrence of the whole legislature in other treaties. the ^{st} sect art ix. was finally referred nem: con: to the committee of five, and the house then adjourned. friday august . . in convention governour livingston, from the committee of eleven, to whom were referred the two remaining clauses of the ^{th} sect & the & sect: of the ^{th}. art: delivered in the following report: "strike out so much of the ^{th} sect: as was referred to the committee and insert--'the migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the legislature prior to the year , but a tax or duty may be imposed on such migration or importation at a rate not exceeding the average of the duties laid on imports.'" "the sect: to remain as in the report." "the sect, to be stricken out." m^r butler, according to notice, moved that clause ^{st} sect. . of art vii, as to the discharge of debts, be reconsidered tomorrow. he dwelt on the division of opinion concerning the domestic debts, and the different pretensions of the different classes of holders. gen^l pinkney ^{ded} him. m^r randolph wished for a reconsideration in order to better the expression, and to provide for the case of the state debts as is done by congress. on the question for reconsidering n. h. no. mass. ay. con^t ay. n. j. ay. pen^a absent. del. ay. m^d no. v^a ay. n. c. absent. s. c. ay. geo. ay.--and tomorrow assigned for the reconsideration. sect: & of art: ix being taken up, m^r rutlidge said this provision for deciding controversies between the states was necessary under the confederation, but will be rendered unnecessary by the national judiciary now to be established, and moved to strike it out. doc^r johnson ^{ded} the motion. m^r sherman concurred: so did m^r dayton. m^r williamson was for postponing instead of striking out, in order to consider whether this might not be a good provision, in cases where the judiciary were interested or too closely connected with the parties. m^r ghorum had doubts as to striking out. the judges might be connected with the states being parties--he was inclined to think the mode proposed in the clause would be more satisfactory than to refer such cases to the judiciary. on the question for postponing the ^d & ^d section it passed in the negative. n. h. ay. mass^{ts} no. con^t no. n. j. no. pen^a abs^t. del. no. m^d no. v^a no. n. c. ay. s. c. no. geo. ay. m^r wilson urged the striking out, the judiciary being a better provision. on question for striking out & sections art: ix n. h. ay. mass. ay. c^t ay. n. j. ay. p^a abs^t. del. ay. m^d ay. v^a ay. n. c. no. s. c. ay. geo. no. art x. sect. . "the executive power of the u. s. shall be vested in a single person. his stile shall be "the president of the u. s. of america" and his title shall be "his excellency." he shall be elected by ballot by the legislature. he shall hold his office during the term of seven years; but shall not be elected a second time." on the question for vesting the power in a _single person_--it was agreed to nem: con: so also on the _stile_ and _title_. m^r rutlidge moved to insert "joint" before the word "ballot," as the most convenient mode of electing. m^r sherman objected to it as depriving the _states_ represented in the _senate_ of the negative intended them in that house. m^r ghorum said it was wrong to be considering at every turn whom the senate would represent. the public good was the true object to be kept in view. great delay and confusion would ensue if the two houses sh^d vote separately, each having a negative on the choice of the other. m^r dayton. it might be well for those not to consider how the senate was constituted, whose interest it was to keep it out of sight.--if the amendment should be agreed to, a _joint_ ballot would in fact give the appointment to one house. he could never agree to the clause with such an amendment. there could be no doubt of the two houses separately concurring in the same person for president. the importance & necessity of the case would ensure a concurrence. m^r carrol moved to strike out "by the legislature" and insert "by the people." m^r wilson ^{ded}. him & on the question n. h. no. mass^{ts} no. con^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r brearly was opposed to the motion for inserting the word "joint." the argument that the small states should not put their hands into the pockets of the large ones did not apply in this case. m^r wilson urged the reasonableness of giving the larger states a larger share of the appointment, and the danger of delay from a disagreement of the two houses. he remarked also that the senate had peculiar powers balancing the advantage given by a joint ballot in this case to the other branch of the legislature. m^r langdon. this general officer ought to be elected by the joint & general voice. in n. hampshire the mode of separate votes by the two houses was productive of great difficulties. the negative of the senate would hurt the feelings of the man elected by the votes of the other branch. he was for inserting "joint" tho' unfavorable to n. hampshire as a small state. m^r wilson remarked that as the president of the senate was to be the president of the u. s. that body in cases of vacancy might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required. m^r madison. if the amendment be agreed to the rule of voting will give to the largest state, compared with the smallest, an influence as to only, altho the population is as to . this surely cannot be unreasonable as the president is to act for the _people_ not for the _states_. the president of the _senate_ also is to be occasionally president of the u. s. and by his negative alone can make / of the other branch necessary to the passage of a law. this is another advantage enjoyed by the senate. on the question for inserting "joint," it passed in the affirmative. n. h. ay. mass^{ts} ay. c^t no. n. j. no. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. m^r dayton then moved to insert, after the word "legislatures" the words "each state having one vote." m^r brearly ^{ded} him, and on the question it passed in the negative. n. h. no. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. m^r pinkney moved to insert after the word "legislature" the words "to which election a majority of the votes of the members present shall be required" & on this question, it passed in the affirmative. n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r read moved "that in case the numbers for the two highest in votes should be equal, then the president of the senate shall have an additional casting vote," which was disagreed to by a general negative. m^r gov^r morris opposed the election of the president by the legislature. he dwelt on the danger of rendering the executive uninterested in maintaining the rights of his station, as leading to legislative tyranny. if the legislature have the executive dependent on them, they can perpetuate & support their usurpations by the influence of tax-gatherers & other officers, by fleets armies &c. cabal & corruption are attached to that mode of election: so also is ineligibility a second time. hence the executive is interested in courting popularity in the legislature by sacrificing his executive rights; & then he can go into that body, after the expiration of his executive office, and enjoy there the fruits of his policy. to these considerations he added that rivals would be continually intriguing to oust the president from his place. to guard against all these evils he moved that the president "shall be chosen by electors to be chosen by the people of the several states." m^r carrol ^{ded} him & on the question it passed in the negative n. h. no. mass. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no. m^r dayton moved to postpone the consideration of the two last clauses of sect. . art x. which was disagreed to without a count of the states. m^r broome moved to refer the two clauses to a committee of a member from each state, & on the question, it failed the states being equally divided. n. h. no. mas. no. c^t div^d. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on the question taken on the first part of m^r gov^r morris's motion to wit "shall be chosen by electors" as an abstract question, it failed the states being equally divided, n. h. no. mas. abs^t. c^t div^d. n. jersey ay. p^a ay. del. ay. m^d div^d. v^a ay. n. c. no. s. c. no. geo. no. the consideration of the remaining clauses of sect. . art. x. was then postponed till tomorrow at the instance of the deputies of new jersey. sect. . art: x being taken up, the word information was transposed & inserted after "legislature." on motion of m^r gov^r morris, "he may" was struck out, & "and" inserted before "recommend" in the clause ^d sect ^d art: x. in order to make it the _duty_ of the president to recommend, & thence prevent umbrage or cavil at his doing it. m^r sherman objected to the sentence "and shall appoint officers in all cases not otherwise provided for by this constitution." he admitted it to be proper that many officers in the executive department should be so appointed--but contended that many ought not, as general officers in the army in time of peace &c. herein lay the corruption in g. britain. if the executive can model the army, he may set up an absolute government; taking advantage of the close of a war and an army commanded by his creatures. james ^d was not obeyed by his officers because they had been appointed by his predecessors not by himself. he moved to insert "or by law" after the word "constitution." on motion of m^r madison "officers" was struck out and "to offices" inserted, in order to obviate doubts that he might appoint officers without a previous creation of the offices by the legislature. on the question for inserting "or by law" as moved by m^r sherman n. h. no. mas. no. c^t ay. n. j. no. pen^a no. del. no. m^d no. v^a no. n. c. absent. s. c. no. geo. no. m^r dickinson moved to strike out the words "and shall appoint to offices in all cases not otherwise provided for by this constitution" and insert--"and shall appoint to all offices established by this constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law." m^r randolph observed that the power of appointments was a formidable one both in the executive & legislative hands--and suggested whether the legislature should not be left at liberty to refer appointments in some cases, to some state authority. m^r dickenson's motion, it passed in the affirmative. n. h. no. mas. no. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. abs^t. s. c. no. geo. ay. m^r dickinson then moved to annex to his last amendment "except where by law the appointment shall be vested in the legislatures or executives of the several states." m^r randolph ^{ded} the motion. m^r wilson. if this be agreed to it will soon be a standing instruction from the state legislatures to pass no law creating offices, unless the app^{ts} be referred to them. m^r sherman objected to "legislatures" in the motion, which was struck out by consent of the movers. m^r gov^r morris. this would be putting it in the power of the states to say, "you shall be viceroys but we will be viceroys over you"-- the motion was negatived without a count of the states-- ordered unanimously that the order respecting the adjournment at oclock be repealed, & that in future the house assemble at oc. & adjourn at oc. adjourned. saturday august . . in convention the ^{st} clause of sect. of art: vii being reconsidered col. mason objected to the term "_shall_"--fullfil the engagements & discharge the debts &c. as too strong. it may be impossible to comply with it. the creditors should be kept in the same plight. they will in one respect be necessarily and properly in a better. the government will be more able to pay them. the use of the term _shall_ will beget speculations and increase the pestilent practice of stock-jobbing. there was a great distinction between original creditors & those who purchased fraudulently of the ignorant and distressed. he did not mean to include those who have bought stock in open market. he was sensible of the difficulty of drawing the line in this case, but he did not wish to preclude the attempt. even fair purchasers at . . . for did not stand on the same footing with the first holders, supposing them not to be blameable. the interest they receive even in paper, is equal to their purchase money. what he particularly wished was to leave the door open for buying up the securities, which he thought would be precluded by the term "shall" as requiring _nominal payment_, & which was not inconsistent with his ideas of public faith. he was afraid also the word "_shall_," might extend to all the old continental paper. m^r langdon wished to do no more than leave the creditors in statu quo. m^r gerry said that for himself he had no interest in the question being not possessed of more of the securities than would, by the interest, pay his taxes. he would observe however that as the public had received the value of the literal amount, they ought to pay that value to some body. the frauds on _the soldiers_ ought to have been foreseen. these poor & ignorant people could not but part with their securities. there are other creditors who will part with any thing rather than be cheated of the capital of their advances. the interest of the states he observed was different on this point, some having more, others less than their proportion of the paper. hence the idea of a scale for reducing its value had arisen. if the public faith would admit, of which he was not clear, he would not object to a revision of the debt so far as to compel restitution to the ignorant & distressed, who have been defrauded. as to stock-jobbers he saw no reason for the censures thrown on them. they keep up the value of the paper. without them there would be no market. m^r butler said he meant neither to increase nor diminish the security of the creditors. m^r randolph moved to postpone the clause in favor of the following "all debts contracted & engagements entered into, by or under the authority of cong^s shall be as valid ag^{st} the u. states under this constitution as under the confederation." doc^r johnson. the debts are debts of the u. s. of the great body of america. changing the government cannot change the obligation of the u. s. which devolves of course on the new government. nothing was in his opinion necessary to be said. if any thing, it should be a mere declaration as moved by m^r randolph. m^r gov^r morris, said he never had become a public creditor that he might urge with more propriety the compliance with public faith. he had always done so and always would, and preferr'd the term "_shall_" as the most explicit. as to _buying up_ the debt, the term "_shall_" was not inconsistent with it, if provision be first made for paying the interest: if not, such an expedient was a mere evasion. he was content to say nothing as the new government would be bound of course, but would prefer the clause with the term "_shall_," because it would create many friends to the plan. on m^r randolph's motion n. h. ay. mas. ay. c^t ay. n. j. ay. p^a no. del. ay. mary^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r sherman thought it necessary to connect with the clause for laying taxes duties &c. an express provision for the object of the old debts &c.--and moved to add to the ^{st} clause of ^{st} sect. art vii "for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare." the proposition, as being unnecessary was disagreed to, connecticut alone, being in the affirmative. the report of the committee of eleven (see friday the ^{th} instant) being taken up, gen^l pinkney moved to strike out the words, "the year eighteen hundred" as the year limiting the importation of slaves, and to insert the words "the year eighteen hundred and eight." m^r ghorum ^{ded} the motion. m^r madison. twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. so long a term will be more dishonourable to the national character than to say nothing about it in the constitution. on the motion; which passed in the affirmative, n. h. ay. mas. ay. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris was for making the clause read at once, "the importation of slaves into n. carolina, s. carolina & georgia shall not be prohibited &c." this he said would be most fair and would avoid the ambiguity by which, under the power with regard to naturalization, the liberty reserved to the states might be defeated. he wished it to be known also that this part of the constitution was a compliance with those states. if the change of language however should be objected to by the members from those states, he should not urge it. col. mason was not against using the term "slaves" but ag^{st} naming n. c. s. c. & georgia, lest it should give offence to the people of those states. m^r sherman liked a description better than the terms proposed, which had been declined by the old cong^s & were not pleasing to some people. m^r clymer concurred with m^r sherman. m^r williamson said that both in opinion & practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in s. c. & georgia on those terms, than to exclude them from the union. m^r gov^r morris withdrew his motion. m^r dickenson wished the clause to be confined to the states which had not themselves prohibited the importation of slaves, and for that purpose moved to amend the clause so as to read "the importation of slaves into such of the states as shall permit the same shall not be prohibited by the legislature of the u. s. until the year "--which was disagreed to nem: con:[ ] [ ] in the printed journals, con^t virg^a & georgia voted in the affirmative.--madison's note. the first part of the report was then agreed to, amended as follows. "the migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the legislature prior to the year ." n. h. mas. con. m^d n. c. s. c. geo: ay. n. j. p^a del. virg^a no. m^r baldwin in order to restrain & more explicitly define "the average duty" moved to strike out of the ^d part the words "average of the duties laid on imports" and insert "common impost on articles not enumerated" which was agreed to nem: cont: m^r sherman was ag^{st} this ^d part, as acknowledging men to be property, by taxing them as such under the character of slaves. m^r king & m^r langdon considered this as the price of the ^{st} part. gen^l pinkney admitted that it was so. col. mason. not to tax, will be equivalent to a bounty on the importation of slaves. m^r ghorum thought that m^r sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them. m^r gov^r morris remarked that as the clause now stands it implies that the legislature may tax freemen imported. m^r sherman in answer to m^r ghorum observed that the smallness of the duty shewed revenue to be the object, not the discouragement of the importation. m^r madison thought it wrong to admit in the constitution the idea that there could be property in men. the reason of duties did not hold, as slaves are not like merchandize, consumed, &c. col. mason (in answ^r to gov^r morris) the provision as it stands was necessary for the case of convicts in order to prevent the introduction of them. it was finally agreed nem. contrad: to make the clause read "but a tax or duty may be imposed on such importation not exceeding ten dollars for each person," and then the ^d part as amended was agreed to. sect . art. vii was agreed to nem: con: as reported. sect. . art. vii. in the report, was postponed. on motion of m^r madison ^{ded} by m^r gov^r morris article viii was reconsidered and after the words "all treaties made," were inserted nem: con: the words "or which shall be made." this insertion was meant to obviate all doubt concerning the force of treaties preexisting, by making the words "all treaties made" to refer to them, as the words inserted would refer to future treaties. m^r carrol and m^r l. martin expressed their apprehensions, and the probable apprehensions of their constituents, that under the power of regulating trade the general legislature, might favor the ports of particular states, by requiring vessels destined to or from other states to enter & clear thereat, as vessels belonging or bound to baltimore, to enter & clear at norfolk &c. they moved the following proposition "the legislature of the u. s. shall not oblige vessels belonging to citizens thereof, or to foreigners, to enter or pay duties or imposts in any other state than in that to which they may be bound, or to clear out in any other than the state in which their cargoes may be laden on board; nor shall any privilege or immunity be granted to any vessel on entering or clearing out, or paying duties or imposts in one state in preference to another." m^r ghorum thought such a precaution unnecessary; & that the revenue might be defeated, if vessels could run up long rivers, through the jurisdiction of different states without being required to enter, with the opportunity of landing & selling their cargoes by the way. m^r m^chenry & gen^l pinkney made the following propositions "should it be judged expedient by the legislature of the u. s. that one or more port for collecting duties or imposts other than those ports of entrance & clearance already established by the respective states, should be established, the legislature of the u. s. shall signify the same to the executives of the respective states, ascertaining the number of such ports judged necessary; to be laid by the said executives before the legislatures of the states at their next session; and the legislature of the u. s. shall not have the power of fixing or establishing the particular ports for collecting duties or imposts in any state, except the legislature of such state shall neglect to fix and establish the same during their first session to be held after such notification by the legislature of the u. s. to the executive of such state." "all duties imposts & excises, prohibitions or restraints laid or made by the legislature of the u. s. shall be uniform & equal throughout the u. s." these several propositions were referred nem: con: to a committee composed of a member from each state. the committee appointed by ballot were m^r langdon, m^r ghorum, m^r sherman, m^r dayton, m^r fitzimmons, m^r read, m^r carrol, m^r mason, m^r williamson, m^r butler, m^r few. on the question now taken on m^r dickinson's motion of yesterday, allowing appointments to offices, to be referred by the gen^l legislature to the executives of the several states as a further amendment to sect. . art. x, the votes were n. h. no. mas. no. c^t ay. p^a no. del. no. m^d divided. v^a ay. n. c. no. s. c. no. geo. ay. in amendment of the same section, "other public ministers" were inserted after "ambassadors." m^r gov^r morris moved to strike out of the section--"and may correspond with the supreme executives of the several states" as unnecessary and implying that he could not correspond with others. m^r broome ^{ded} him. on the question n. h. ay. mas. ay. c^t ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. "shall receive ambassadors & other public ministers," agreed to, nem. con. m^r sherman moved to amend the "power to grant reprieves & pardon" so as to read "to grant reprieves until the ensuing session of the senate, and pardons with consent of the senate." on the question n. h. no. mas. no. c^t ay. p^a no. m^d no. v^a no. n. c. no. s. c. no. geo. no. "except in cases of impeachment" inserted nem. con: after "pardon." on the question to agree to--"but his pardon shall not be pleadable in bar" n. h. ay. mas. no. c^t no. p^a no. del. no. m^d ay. v^a no. n. c. ay. s. c. ay. geo. no. adjourned. monday aug^{st} ^{th}. . in convention art x. sect . being resumed, m^r l. martin moved to insert the words "after conviction" after the words "reprieves and pardons." m^r wilson objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. he stated the case of forgeries in which this might particularly happen.--m^r l. martin withdrew his motion. m^r sherman moved to amend the clause giving the executive the command of the militia, so as to read "and of the militia of the several states, _when called into the actual service of the u. s._" and on the question n. h. ay. mas. abs^t. c^t ay. n. j. abs^t. p^a ay. del. no. m^d ay. v^a ay. n. c. abs^t. s. c. no. geo. ay. the clause for removing the president on impeachment by the house of rep^s and conviction in the supreme court, of treason, bribery or corruption, was postponed nem: con: at the instance of m^r gov^r morris, who thought the tribunal an improper one, particularly, if the first judge was to be of the privy council. m^r gov^r morris objected also to the president of the senate being provisional successor to the president, and suggested a designation of the chief justice. m^r madison added as a ground of objection that the senate might retard the appointment of a president in order to carry points whilst the revisionary power was in the president of their own body, but suggested that the executive powers during a vacancy, be administered by the persons composing the council to the president. m^r williamson suggested that the legislature ought to have power to provide for occasional successors, & moved that the last clause (of sect. x art:) relating to a provisional successor to the president, be postponed. m^r dickinson ^{ded} the postponement, remarking that it was too vague. what is the extent of the term "disability" and who is to be the judge of it? the postponement was agreed to nem: con: col: mason & m^r madison moved to add to the oath to be taken by the supreme executive "and will to the best of my judgment and power preserve protect and defend the constitution of the u. s." m^r wilson thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary.-- on the question n. h. ay. mas. abs^t. c^t ay. p^a ay. del. no. m^d ay. v^a ay. n. c. abs^t. s. c. ay. geo. ay. art: xi. being taken up. doc^r johnson suggested that the judicial power ought to extend to equity as well as law--and moved to insert the words, "both in law and equity" after the words "u. s." in the ^{st} line of sect . m^r read objected to vesting these powers in the same court. on the question n. h. ay. mas. absent. c^t ay. n. j. abs^t. p. ay. del. no. m^d no. virg^a ay. n. c. abs^t. s. c. ay. geo. ay. on the question to agree to sect. . art. xi. as amended n. h. ay. mas. abs^t. c^t ay. p^a ay. n. j. abs^t. del. no. m^d no. v^a ay. n. c. abs^t. s. c. ay. geo. ay. m^r dickinson moved as an amendment to sect. . art xi after the words "good behavior" the words "provided that they may be removed by the executive on the application by the senate and house of representatives." m^r gerry ^{ded} the motion. m^r gov^r morris thought it a contradiction in terms to say that the judges should hold their offices during good behavior, and yet be removeable without a trial. besides it was fundamentally wrong to subject judges to so arbitrary an authority. m^r sherman saw no contradiction or impropriety if this were made a part of the constitutional regulation of the judiciary establishment. he observed that a like provision was contained in the british statutes. m^r rutlidge. if the supreme court is to judge between the u. s. and particular states, this alone is an insuperable objection to the motion. m^r wilson considered such a provision in the british government as less dangerous than here, the house of lords & house of commons being less likely to concur on the same occasions. chief justice holt, he remarked, had _successively_ offended by his independent conduct, both houses of parliament. had this happened at the same time, he would have been ousted. the judges would be in a bad situation if made to depend on any gust of faction which might prevail in the two branches of our gov^t. m^r randolph opposed the motion as weakening too much the independence of the judges. m^r dickinson was not apprehensive that the legislature composed of different branches constructed on such different principles, would improperly unite for the purpose of displacing a judge. on the question for agreeing to m^r dickinson's motion n. h. no. mas. abs^t. c^t ay. n. j. abs^t. p^a no. del. no. m^d no. v^a no. n. c. abs^t. s. c. no. geo. no. m^r madison and m^r m^chenry moved to reinstate the words "increased or" before the word "diminished" in ^d sect, art. xi. m^r gov^r morris opposed it for reasons urged by him on a former occasion-- col: mason contended strenuously for the motion. there was no weight he said in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries so made as not to affect persons in office, and this was the only argument on which much stress seemed to have been laid. gen^l pinkney. the importance of the judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the u. s. can allow in the first instance. he was not satisfied with the expedient mentioned by col: mason. he did not think it would have a good effect or a good appearance, for new judges to come in with higher salaries than the old ones. m^r gov^r morris said the expedient might be evaded & therefore amounted to nothing. judges might resign, & then be re-appointed to increased salaries. on the question n. h. no. c^t no. p^a no. del. no. m^d div^d. v^a ay. s. c. no. geo. abs^t also mas^{ts}. & n. j. & n. c. m^r randolph & m^r madison then moved to add the following words to art. xi sect. . "nor increased by any act of the legislature which shall operate before the expiration of three years after the passing thereof." on the question n. h. no. c^t no. p^a no. del. no. m^d ay. v^a ay. s. c. no. geo. abs^t also mas. n. j. & n. c. sect. . art. xi. being taken up, the following clause was postponed viz, "to the trial of impeachments of officers of the u. s." by which the jurisdiction of the supreme court was extended to such cases. m^r madison & m^r gov^r morris moved to insert after the word "controversies" the words "to which the u. s. shall be a party," which was agreed to nem: con: doc^r johnson moved to insert the words "this constitution and the" before the word "laws." m^r madison doubted whether it was not going too far to extend the jurisdiction of the court generally to cases arising under the constitution & whether it ought not to be limited to cases of a judiciary nature. the right of expounding the constitution in cases not of this nature ought not to be given to that department. the motion of doc^r johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a judiciary nature. on motion of m^r rutlidge the words "passed by the legislature" were struck out, and after the words "u. s." were inserted nem. con: the words "and treaties made or which shall be made under their authority" conformably to a preceding amendment in another place. the clause "in cases of impeachment," was postponed. m^r gov^r morris wished to know what was meant by the words "in all the cases before-mentioned it (jurisdiction) shall be appellate with such exceptions &c.," whether it extended to matters of fact as well as law--and to cases of common law as well as civil law. m^r wilson. the committee he believed meant facts as well as law & common as well as civil law. the jurisdiction of the federal court of appeals had he said been so construed. m^r dickinson moved to add after the word "appellate" the words "both as to law & fact" which was agreed to nem: con: m^r madison & m^r gov^r morris moved to strike out the beginning of the ^d sect. "the jurisdiction of the supreme court" & to insert the words "the judicial power" which was agreed to nem: con: the following motion was disagreed to, to wit to insert "in all the other cases beforementioned the judicial power shall be exercised in such manner as the legislature shall direct" del. virg^a ay. n. h. con. p. m. s. c. g. no. on a question for striking out the last sentence of the sect. . "the legislature may assign &c." n. h. ay. c^t ay. p^a ay. del. ay. m^d ay. v^a ay. s. c. ay. geo. ay. m^r sherman moved to insert after the words "between citizens of different states" the words, "between citizens of the same state claiming lands under grants of different states"--according to the provision in the th art: of the confederation--which was agreed to nem: con: adjourned. tuesday august . in convention m^r sherman from the committee to whom were referred several propositions on the ^{th} instant, made the following report:-- that there be inserted after the clause of ^{th}. section "nor shall any regulation of commerce or revenue give preference to the ports of one state over those of another, or oblige vessels bound to or from any state to enter clear or pay duties in another and all tonnage, duties, imposts & excises laid by the legislature shall be uniform throughout the u. s." art xi sect. , it was moved to strike out the words "it shall be appellate" to insert the words "the supreme court shall have appellate jurisdiction,"--in order to prevent uncertainty whether "it" referred to the _supreme court_, or to the _judicial power_. on the question n. h. ay. mas. ay. c^t ay. n. j. abs^t. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. sect. . was so amended nem. con: as to read "the trial of all crimes (except in cases of impeachment) shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, then the trial shall be at such place or places as the legislature may direct." the object of this amendment was to provide for trial by jury of offences committed out of any state. m^r pinkney urged the propriety of securing the benefit of the habeas corpus in the most ample manner, moved "that it should not be suspended but on the most urgent occasions, & then only for a limited time not exceeding twelve months." m^r rutlidge was for declaring the habeas corpus inviolable. he did not conceive that a suspension could ever be necessary at the same time through all the states. m^r gov^r morris moved that "the privilege of the writ of habeas corpus shall not be suspended; unless where in cases of rebellion or invasion the public safety may require it." m^r wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with judges, in most important cases to keep in gaol or admit to bail. the first part of m^r gov^r morris' motion, to the word "unless" was agreed to nem: con:--on the remaining part; n. h. ay. mas. ay. c^t ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. sec. . of art: xi. was agreed to _nem_: con.[ ] [ ] the vote on this section as stated in the printed journal is not unanimous: the statement here is probably the right one.--madison's note. art: xii being taken up. m^r wilson & m^r sherman moved to insert after the words "coin money" the words "nor emit bills of credit, nor make any thing but gold & silver coin a tender in payment of debts" making these prohibitions absolute, instead of making the measures allowable (as in the xiii art:) _with the consent of the legislature of the u. s._ m^r ghorum thought the purpose would be as well secured by the provisions of art: xiii which makes the consent of the gen^l legislature necessary, and that in that mode no opposition would be excited; whereas an absolute prohibition of paper money would rouse the most desperate opposition from its partizans. m^r sherman thought this a favorable crisis for crushing paper money. if the consent of the legislature could authorize emissions of it, the friends of paper money would make every exertion to get into the legislature in order to license it. the question being divided; on the ^{st} part--"nor emit bills of credit" n. h. ay. mas. ay. c^t ay. p^a ay. del. ay. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. ay. the remaining part of m^r wilson's & sherman's motion was agreed to nem: con: m^r king moved to add, in the words used in the ordinance of cong^r establishing new states, a prohibition on the states to interfere in private contracts. m^r gov^r morris. this would be going too far. there are a thousand laws, relating to bringing actions--limitations, of actions & which affect contracts. the judicial power of the u. s. will be a protection in cases within their jurisdiction; and within the state itself a majority must rule, whatever may be the mischief done among themselves. m^r sherman. why then prohibit bills of credit? m^r wilson was in favor of m^r king's motion. m^r madison admitted that inconveniences might arise from such a prohibition but thought on the whole it would be overbalanced by the utility of it. he conceived however that a negative on the state laws could alone secure the effect. evasions might and would be devised by the ingenuity of the legislatures. col: mason. this is carrying the restraint too far. cases will happen that cannot be foreseen, where some kind of interference will be proper & essential. he mentioned the case of limiting the period for bringing actions on open account--that of bonds after a certain lapse of time--asking whether it was proper to tie the hands of the states from making provision in such cases? m^r wilson. the answer to these objections is that retrospective interferences only are to be prohibited. m^r madison. is not that already done by the prohibition of ex post facto laws, which will oblige the judges to declare such interferences null & void. m^r rutlidge moved instead of m^r king's motion to insert--"nor pass bills of attainder nor retrospective[ ] laws" on which motion n. h. ay. c^t no. n. j. ay. p^a ay. del. ay. m^d no. virg^a no. n. c. ay. s. c. ay. geo. ay. [ ] in the printed journal--ex post facto.--madison's note. m^r madison moved to insert after the word "reprisal" (art. xii) the words "nor lay embargoes." he urged that such acts by the states would be unnecessary--impolitic--and unjust. m^r sherman thought the states ought to retain this power in order to prevent suffering & injury to their poor. col: mason thought the amendment would be not only improper but dangerous, as the gen^l legislature would not sit constantly and therefore could not interpose at the necessary moments. he enforced his objection by appealing to the necessity of sudden embargoes during the war, to prevent exports, particularly in the case of a blockade. m^r gov^r morris considered the provision as unnecessary; the power of regulating trade between state & state already vested in the gen^l legislature, being sufficient. on the question n. h. no. mas. ay. c^t no. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. no. m^r madison moved that the words "nor lay imposts or duties on imports" be transferred from art: xiii where the consent of the gen^l legislature may license the act--into art: xii which will make the prohibition of the states absolute. he observed that as the states interested in this power by which they could tax the imports of their neighbors passing thro' their markets, were a majority, they could give the consent of the legislature, to the injury of n. jersey, n. carolina &c. m^r williamson ^{ded} the motion. m^r sherman thought the power might safely be left to the legislature of the u. states. col: mason observed that particular states might wish to encourage by impost duties certain manufactures for which they enjoyed natural advantages, as virginia, the manufacture of hemp &c. m^r madison. the encouragement of manufactures in that mode requires duties not only on imports directly from foreign countries, but from the other states in the union, which would revive all the mischiefs experienced from the want of a gen^l government over commerce.[ ] [ ] august , , new york, hamilton wrote to king: "i wrote to you some days since [august ] to request you to inform me when there was a prospect of your finishing, as i intended to be with you, for certain reasons, before the conclusion. "it is whispered here that some late changes in your scheme have taken place which give it a higher tone. is this the case?"--king's _life and correspondence of rufus king_, _i_, . on the question n. h. ay. mas. no. c^t no. n. j. ay. p^a no. del^a ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no. art: xii as amended agreed to nem: con: art: xiii being taken up. m^r king moved to insert after the word "imports" the words "or exports," so as to prohibit the states from taxing either, & on this question it passed in the affirmative. n. h. ay. mas. ay. c^t no. n. j. ay. p. ay. del. ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no. m^r sherman moved to add after the word "exports"--the words "nor with such consent but for the use of the u. s."--so as to carry the proceeds of all state duties on imports & exports, into the common treasury. m^r madison liked the motion as preventing all state imposts--but lamented the complexity we were giving to the commercial system. m^r gov^r morris thought the regulation necessary to prevent the atlantic states from endeavoring to tax the western states--& promote their interest by opposing the navigation of the mississippi which would drive the western people into the arms of g. britain. m^r clymer thought the encouragement of the western country was suicide on the old states. if the states have such different interests that they cannot be left to regulate their own manufactures without encountering the interests of other states, it is a proof that they are not fit to compose one nation. m^r king was afraid that the regulation moved by m^r sherman would too much interfere with the policy of states respecting their manufactures, which may be necessary. revenue he reminded the house was the object of the general legislature. on m^r sherman's motion n. h. ay. mas. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art xiii was then agreed to as amended. art. xiv was taken up. gen^l pinkney was not satisfied with it. he seemed to wish some provision should be included in favor of property in slaves. on the question on art: xiv. n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. divided. art: xv. being taken up, the words "high misdemesnor," were struck out, and "other crime" inserted, in order to comprehend all proper cases; it being doubtful whether "high misdemeanor" had not a technical meaning too limited. m^r butler and m^r pinkney moved "to require fugitive slaves and servants to be delivered up like criminals." m^r wilson. this would oblige the executive of the state to do it at the public expence. m^r sherman saw no more propriety in the public seizing and surrendering a slave or servant, than a horse. m^r butler withdrew his proposition in order that some particular provision might be made apart from this article. art xv as amended was then agreed to nem: con: adjourned. wednesday august ^{th}. . in convention art: xvi. taken up. m^r williamson moved to substitute in place of it, the words of the articles of confederation on the same subject. he did not understand precisely the meaning of the article. m^r wilson and doc^r johnson supposed the meaning to be that judgments in one state should be the ground of actions in other states, & that acts of the legislatures should be included, for the sake of acts of insolvency &c. m^r pinkney moved to commit art xvi with the following proposition "to establish uniform laws upon the subject of bankruptcies, and respecting the damages arising on the protest of foreign bills of exchange." m^r ghorum was for agreeing to the article, and committing the proposition. m^r madison was for committing both. he wished the legislature might be authorized to provide for the _execution_ of judgments in other states, under such regulations as might be expedient. he thought that this might be safely done, and was justified by the nature of the union. m^r randolph said there was no instance of one nation executing judgments of the courts of another nation. he moved the following proposition: executive or judiciary shall be attested & exemplified under the seal thereof, such attestation and exemplification, shall be deemed in other states as full proof of the existence of that act--and its operation shall be binding in every other state, in all cases to which it may relate, and which are within the cognizance and jurisdiction of the state, wherein the said act was done." on the question for committing art: xvi with m^r pinkney's motion n. h. no. mas. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. p^a ay. n. c. ay. s. c. ay. geo. ay. the motion of m^r randolph was also committed nem: con: m^r gov^r morris moved to commit also the following proposition on the same subject. "full faith ought to be given in each state to the public acts, records, and judicial proceedings of every other state; and the legislature shall by general laws, determine the proof and effect of such acts, records, and proceedings" and it was committed nem. contrad: the committee appointed for these references, were m^r rutlidge, m^r randolph, m^r gorham, m^r wilson, & m^r johnson. m^r dickenson mentioned to the house that on examining blackstone's commentaries, he found that the term "ex post facto" related to criminal cases only; that they would not consequently restrain the states from retrospective laws in civil cases, and that some further provision for this purpose would be requisite. art: vii sect. by y^e co[~m]ittee of eleven reported to be struck out (see the instant) being now taken up. m^r pinkney moved to postpone the report in favor of the following proposition--"that no act of the legislature for the purpose of regulating the commerce of the u. s. with foreign powers among the several states, shall be passed without the assent of two thirds of the members of each house." he remarked that there were five distinct commercial interests. . the fisheries & w. india trade, which belonged to the n. england states. . the interest of n. york lay in a free trade. . wheat & flour the staples of the two middle states (n. j. & penn^a). . tob^o the staple of maryl^d & virginia & partly of n. carolina. . rice & indigo, the staples of s. carolina & georgia. these different interests would be a source of oppressive regulations if no check to a bare majority should be provided. states pursue their interests with less scruple than individuals. the power of regulating commerce was a pure concession on the part of the s. states. they did not need the protection of the n. states at present. m^r martin ^{ded} the motion. gen^l pinkney said it was the true interest of the s. states to have no regulation of commerce; but considering the loss brought on the commerce of the eastern states by the revolution, their liberal conduct towards the views[ ] of south carolina, and the interest the weak south^n states had in being united with the strong eastern states, he thought it proper that no fetters should be imposed on the power of making commercial regulations, and that his constituents though prejudiced against the eastern states, would be reconciled to this liberality. he had himself, he said, prejudices ag^{st} the eastern states before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever. [ ] he meant the permission to import slaves. an understanding on the two subjects of _navigation_ and _slavery_, had taken place between those parts of the union, which explains the vote on the motion depending, as well as the language of gen^l pinkney & others.--madison's note. m^r clymer. the diversity of commercial interests of necessity creates difficulties, which ought not to be increased by unnecessary restrictions. the northern & middle states will be ruined, if not enabled to defend themselves against foreign regulations. m^r sherman, alluding to m^r pinkney's enumeration of particular interests, as requiring a security ag^{st} abuse of the power; observed that the diversity was of itself a security, adding that to require more than a majority to decide a question was always embarrassing as had been experienced in cases requiring the votes of nine states in congress. m^r pinkney replied that his enumeration meant the five minute interests. it still left the two great divisions of northern & southern interests. m^r gov^r morris, opposed the object of the motion as highly injurious. preferences to american ships will multiply them, till they can carry the southern produce cheaper than it is now carried.--a navy was essential to security, particularly of the s. states, and can only be had by a navigation act encouraging american bottoms & seamen. in those points of view then alone, it is the interest of the s. states that navigation acts should be facilitated. shipping he said was the worst & most precarious kind of property, and stood in need of public patronage. m^r williamson was in favor of making two thirds instead of a majority requisite, as more satisfactory to the southern people. no useful measure he believed had been lost in congress for want of nine votes. as to the weakness of the southern states, he was not alarmed on that account. the sickliness of their climate for invaders would prevent their being made an object. he acknowledged that he did not think the motion requiring / necessary in itself, because if a majority of the northern states should push their regulations too far the s. states would build ships for themselves: but he knew the southern people were apprehensive on this subject and would be pleased with the precaution. m^r spaight was against the motion. the southern states could at any time save themselves from oppression, by building ships for their own use. m^r butler differed from those who considered the rejection of the motion as no concession on the part of the s. states. he considered the interest of these and of the eastern states, to be as different as the interests of russia and turkey. being notwithstanding desirous of conciliating the affections of the east: states, he should vote ag^{st} requiring / instead of a majority. col: mason. if the gov^t is to be lasting, it must be founded in the confidence & affections of the people, and must be so constructed as to obtain these. the _majority_ will be governed by their interests. the southern states are the _minority_ in both houses. is it to be expected that they will deliver themselves bound hand & foot to the eastern states, and enable them to exclaim, in the words of cromwell on a certain occasion--"the lord hath delivered them into our hands." m^r wilson took notice of the several objections and remarked that if every peculiar interest was to be secured, _unanimity_ ought to be required. the majority he said would be no more governed by interest than the minority. it was surely better to let the latter be bound hand and foot than the former. great inconveniences had, he contended, been experienced in congress from the article of confederation requiring nine votes in certain cases. m^r madison went into a pretty full view of the subject. he observed that the disadvantage to the s. states from a navigation act, lay chiefly in a temporary rise of freight, attended however with an increase of south^n as well as northern shipping--with the emigration of northern seamen & merchants to the southern states--& with a removal of the existing & injurious retaliations among the states on each other. the power of foreign nations to obstruct our retaliating measures on them by a corrupt influence would also be less if a majority sh^d be made competent than if / of each house sh^d be required to legislative acts in this case. an abuse of the power would be qualified with all these good effects. but he thought an abuse was rendered improbable by the provision of branches--by the independence of the senate, by the negative of the executive, by the interest of connecticut & n. jersey which were agricultural, not commercial states; by the interior interest which was also agricultural in the most commercial states, by the accession of western states which w^d be altogether agricultural. he added that the southern states would derive an essential advantage in the general security afforded by the increase of our maritime strength. he stated the vulnerable situation of them all, and of virginia in particular. the increase of the coasting trade, and of seamen, would also be favorable to the s. states, by increasing, the consumption of their produce. if the wealth of the eastern should in a still greater proportion be augmented, that wealth w^d contribute the more to the public wants, and be otherwise a national benefit. m^r rutlidge was ag^{st} the motion of his colleague. it did not follow from a grant of the power to regulate trade, that it would be abused. at the worst a navigation act could bear hard a little while only on the s. states. as we are laying the foundation for a great empire, we ought to take a permanent view of the subject and not look at the present moment only. he reminded the house of the necessity of securing the west india trade to this country. that was the great object, and a navigation act was necessary for obtaining it. m^r randolph said that there were features so odious in the constitution as it now stands, that he doubted whether he should be able to agree to it. a rejection of the motion would compleat the deformity of the system. he took notice of the argument in favor of giving the power over trade to a majority, drawn from the opportunity foreign powers would have of obstructing retaliatory measures if two thirds were made requisite. he did not think there was weight in that consideration. the difference between a majority & two thirds did not afford room for such an opportunity. foreign influence would also be more likely to be exerted on the president who could require three fourths by his negative. he did not mean however to enter into the merits. what he had in view was merely to pave the way for a declaration which he might be hereafter obliged to make if an accumulation of obnoxious ingredients should take place, that he could not give his assent to the plan. m^r gorham. if the government is to be so fettered as to be unable to relieve the eastern states what motive can they have to join in it, and thereby tie their own hands from measures which they could otherwise take for themselves. the eastern states were not led to strengthen the union by fear for their own safety. he deprecated the consequences of disunion, but if it should take place it was the southern part of the continent that had most reason to dread them. he urged the improbability of a combination against the interest of the southern states, the different situations of the northern & middle states being a security against it. it was moreover certain that foreign ships would never be altogether excluded especially those of nations in treaty with us. on the question to postpone in order to take up m^r pinkney's motion n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. the report of the committee for striking out sect. . requiring two thirds of each house to pass a navigation act was then agreed to, nem: con: m^r butler moved to insert after art: xv. "if any person bound to service or labor in any of the u. states shall escape into another state, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the state to which they escape, but shall be delivered up to the person justly claiming their service or labor," which was agreed to nem: con: art: xvii being taken up, m^r gov^r morris moved to strike out the two last sentences, to wit "if the admission be consented to, the new states shall be admitted on the same terms with the original states. but the legislature may make conditions with the new states, concerning the public debt which shall be then subsisting."--he did not wish to bind down the legislature to admit western states on the terms here stated. m^r madison opposed the motion, insisting that the western states neither would nor ought to submit to a union which degraded them from an equal rank with the other states. col: mason. if it were possible by just means to prevent emigrations to the western country, it might be good policy. but go the people will as they find it for their interest, and the best policy is to treat them with that equality which will make them friends not enemies. m^r gov^r morris did not mean to discourage the growth of the western country. he knew that to be impossible. he did not wish however to throw the power into their hands. m^r sherman, was ag^{st} the motion & for fixing an equality of privileges by the constitution. m^r langdon was in favor of the motion, he did not know but circumstances might arise which would render it inconvenient to admit new states on terms of equality. m^r williamson was for leaving the legislature free. the existing _small_ states enjoy an equality now, and for _that_ reason are admitted to it in the senate. this reason is not applicable to new western states. on m^r gov^r morris's motion for striking out. n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. m^r l. martin & m^r gov^r morris moved to strike out of art xvii, "but to such admission the consent of two thirds of the members present shall be necessary." before any question was taken on this motion, m^r gov^r morris moved the following proposition as a substitute for the xvii art: "new states may be admitted by the legislature into this union; but no new state shall be erected within the limits of any of the present states, without the consent of the legislature of such state, as well as of the gen^l legislature." the first part to union inclusive was agreed to nem: con: m^r l. martin opposed the latter part. nothing he said would so alarm the limited states as to make the consent of the large states claiming the western lands, necessary to the establishment of new states within their limits. it is proposed to guarantee the states. shall vermont be reduced by force in favor of the states claiming it? frankland & the western county of virginia were in a like situation. on m^r gov^r morris's motion to substitute &c. it was agreed to. n. h. no. mass. ay. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art: xvii--before the house, as amended. m^r sherman was against it. he thought it unnecessary. the union cannot dismember a state without its consent. m^r langdon thought there was great weight in the argument of m^r luther martin, and that the proposition substituted by m^r gov^r morris would excite a dangerous opposition to the plan. m^r gov^r morris thought on the contrary that the small states would be pleased with the regulation, as it holds up the idea of dismembering the large states. m^r butler. if new states were to be erected without the consent of the dismembered states, nothing but confusion would ensue. whenever taxes should press on the people, demagogues would set up their schemes of new states. doc^r johnson agreed in general with the ideas of m^r sherman, but was afraid that as the clause stood, vermont would be subjected to n. york, contrary to the faith pledged by congress. he was of opinion that vermont ought to be compelled to come into the union. m^r langdon said his objections were connected with the case of vermont. if they are not taken in, & remain exempt from taxes, it would prove of great injury to n. hampshire and the other neighbouring states. m^r dickinson hoped the article would not be agreed to. he dwelt on the impropriety of requiring the small states to secure the large ones in their extensive claims of territory. m^r wilson. when the _majority_ of a state wish to divide they can do so. the aim of those in opposition to the article, he perceived was that the gen^l government should abet the _minority_, & by that means divide a state against its own consent. m^r gov^r morris. if the forced division of the states is the object of the new system, and is to be pointed ag^{st} one or two states, he expected the gentlemen from these would pretty quickly leave us. adjourned. thursday august th . in convention art xvii resumed for a question on it as amended by m^r gov^r morris's substitutes. m^r carrol moved to strike out so much of the article as requires the consent of the state to its being divided. he was aware that the object of this prerequisite might be to prevent domestic disturbances; but such was our situation with regard to the crown lands, and the sentiments of maryland on that subject, that he perceived we should again be at sea, if no guard was provided for the right of the u. states to the back lands. he suggested that it might be proper to provide that nothing in the constitution should affect the right of the u. s. to lands ceded by g. britain in the treaty of peace, and proposed a committment to a member from each state. he assured the house that this was a point of a most serious nature. it was desirable above all things that the act of the convention might be agreed to unanimously. but should this point be disregarded, he believed that all risks would be run by a considerable minority, sooner than give their concurrence. m^r l. martin ^{ded} the motion for a commitment. m^r rutlidge. is it to be supposed that the states are to be cut up without their own consent. the case of vermont will probably be particularly provided for. there could be no room to fear, that virginia or n. carolina would call on the u. states to maintain their government over the mountains. m^r williamson said that n. carolina was well disposed to give up her western lands, but attempts at compulsion was not the policy of the u. s. he was for doing nothing in the constitution in the present case, and for leaving the whole matter in statu quo. m^r wilson was against the commitment. unanimity was of great importance, but not to be purchased by the majority's yielding to the minority. he should have no objection to leaving the case of the new states as heretofore. he knew nothing that would give greater or juster alarm than the doctrine, that a political society is to be torn assunder without its own consent. on m^r carrol's motion for commitment n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r sherman moved to postpone the substitute for art: xvii agreed to yesterday in order to take up the following amendment the legislature shall have power to admit other states into the union, and new states to be formed by the division or junction of states now in the union, with the consent of the legislature of such states." (the first part was meant for the case of vermont to secure its admission.) on the question, it passed in the negative. n. h. ay. mas. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. no. doc^r johnson moved to insert the words "hereafter formed or" after the words "shall be" in the substitute for art: xvii (the more clearly to save vermont as being already formed into a state, from a dependence on the consent of n. york for her admission.) the motion was agreed to del. & m^d only dissenting. m^r gov^r morris moved to strike out the word "limits" in the substitute, and insert the word "jurisdiction". (this also was meant to guard the case of vermont, the jurisdiction of n. york not extending over vermont which was in the exercise of sovereignty, tho' vermont was within the asserted limits of new york.) on this question n. h. ay. mas. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r l. martin urged the unreasonableness of forcing & guaranteeing the people of virginia beyond the mountains, the western people of n. carolina & of georgia, & the people of maine, to continue under the states now governing them, without the consent of those states to their separation. even if they should become the _majority_, the majority of _counties_, as in virginia may still hold fast the dominion over them. again the majority may place the seat of government entirely among themselves & for their own conveniency, and still keep the injured parts of the states in subjection, under the guarantee of the gen^l government ag^{st} domestic violence. he wished m^r wilson had thought a little sooner of the value of _political_ bodies. in the beginning, when the rights of the small states were in question, they were phantoms, ideal beings. now when the great states were to be affected, political societies were of a sacred nature. he repeated and enlarged on the unreasonableness of requiring the small states to guarantee the western claims of the large ones.--it was said yesterday by m^r gov^r morris, that if the large states were to be split to pieces without their consent, their representatives here would take their leave. if the small states are to be required to guarantee them in this manner, it will be found that the representatives of other states will with equal firmness take their leave of the constitution on the table. it was moved by m^r l. martin to postpone the substituted article, in order to take up the following. "the legislature of the u. s. shall have power to erect new states within as well as without the territory claimed by the several states or either of them, and admit the same into the union: provided that nothing in this constitution shall be construed to affect the claim of the u. s. to vacant lands ceded to them by the late treaty of peace, which passed in the negative: n. j. del. & m^d only ay. on the question to agree to m^r gov^r morris's substituted article as amended in the words following. "new states may be admitted by the legislature into the union: but no new state shall be hereafter formed or erected within the jurisdiction of any of the present states without the consent of the legislature of such state as well as of the general legislature" n. h. ay. mas. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r dickinson moved to add the following clause to the last-- "nor shall any state be formed by the junction of two or more states or parts thereof, without the consent of the legislature of such states, as well as of the legislature of the u. states," which was agreed to without a count of the votes. m^r carrol moved to add--"provided nevertheless that nothing in this constitution shall be construed to affect the claim of the u. s. to vacant lands ceded to them by the treaty of peace." this he said might be understood as relating to lands not claimed by any particular states, but he had in view also some of the claims of particular states. m^r wilson was ag^{st} the motion. there was nothing in the constitution affecting one way or the other the claims of the u. s. & it was best to insert nothing, leaving every thing on that litigated subject in statu quo. m^r madison considered the claim of the u. s. as in fact favored by the jurisdiction of the judicial power of the u. s. over controversies to which they should be parties. he thought it best on the whole to be silent on the subject. he did not view the proviso of mr. carrol as dangerous; but to make it neutral & fair, it ought to go further & declare that the claims of particular states also should not be affected. m^r sherman thought the proviso harmless, especially with the addition suggested by m^r madison in favor of the claims of particular states. m^r baldwin did not wish any undue advantage to be given to georgia. he thought the proviso proper with the addition proposed. it should be remembered that if georgia has gained much by the cession in the treaty of peace, she was in danger during the war of a uti possidetis. m^r rutlidge thought it wrong to insert a proviso where there was nothing which it could restrain, or on which it could operate. m^r carrol withdrew his motion and moved the following. "nothing in this constitution shall be construed to alter the claims of the u. s. or of the individual states to the western territory, but all such claims shall be examined into & decided upon, by the supreme court of the u. states." m^r gov^r morris moved to postpone this in order to take up the following. "the legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the u. states; and nothing in this constitution contained, shall be so construed as to prejudice any claims either of the u. s. or of any particular state."--the postponem^t ag^d to nem. con. m^r l. martin moved to amend the proposition of m^r gov^r morris by adding--"but all such claims may be examined into & decided upon by the supreme court of the u. states." m^r gov^r morris. this is unnecessary, as all suits to which the u. s. are parties, are already to be decided by the supreme court. m^r l. martin. it is proper in order to remove all doubts on this point. question on m^r l. martin's amendatory motion n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. no. m^d ay. v^a no.--states not farther called the negatives being sufficient & the point given up. the motion of m^r gov^r morris was then agreed to, m^d alone dissenting. art: xviii being taken up,--the word "foreign" was struck out nem: con: as superfluous, being implied in the term "invasion." m^r dickinson moved to strike out "on the application of its legislature, against." he thought it of essential importance to the tranquility of the u. s. that they should in all cases suppress domestic violence, which may proceed from the state legislature itself, or from disputes between the two branches where such exist. m^r dayton mentioned the conduct of rho: island as shewing the necessity of giving latitude to the power of the u. s. on this subject. on the question n. h. no. mas. no. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. on a question for striking out "domestic violence" and insert^g "insurrections--" it passed in the negative. n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r dickinson moved to insert the words, "or executive" after the words "application of its legislature."--the occasion itself he remarked might hinder the legislature from meeting. on this question n. h. ay. mas. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. ay. m^r l. martin moved to subjoin to the last amendment the words "in the recess of the legislature." on which question n. h. no. mas. no. c^t no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. on question on the last clause as amended n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art: xix taken up. m^r gov^r morris suggested that the legislature should be left at liberty to call a convention, whenever they please. the art: was agreed to nem: con: art: xx. taken up.--"or affirmation" was added after "oath." m^r pinkney moved to add to the art:--"but no religious test shall ever be required as a qualification to any office or public trust under the authority of the u. states." m^r sherman thought it unnecessary, the prevailing liberality being a sufficient security ag^{st} such tests. m^r gov^r morris & gen^l pinkney approved the motion. the motion was agreed to nem: con: and then the whole article; n. c. only no--and m^d divided. art: xxi. taken up, viz: "the ratifications of the conventions of ---- states shall be sufficient for organizing this constitution." m^r wilson proposed to fill the blank with "seven" that being a majority of the whole number & sufficient for the commencement of the plan. m^r carrol moved to postpone the article in order to take up the report of the committee of eleven (see tuesday aug^{st} )--and on the question n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r gov^r morris thought the blank ought to be filled in a twofold way, so as to provide for the event of the ratifying states being contiguous which would render a smaller number sufficient, and the event of their being dispersed, which w^d require a greater number for the introduction of the government. m^r sherman observed that the states being now confederated by articles which require unanimity in changes, he thought the ratification in this case of ten states at least ought to be made necessary. m^r randolph was for filling the blank with "nine" that being a respectable majority of the whole, and being a number made familiar by the constitution of the existing congress. m^r wilson mentioned "eight" as preferable. m^r dickinson asked whether the concurrence of congress is to be essential to the establishment of the system, whether the refusing states in the confederacy could be deserted--and whether congress could concur in contravening the system under which they acted? m^r madison, remarked that if the blank should be filled with "seven" "eight," or "nine," the constitution as it stands might be put in force over the whole body of the people, tho' less than a majority of them should ratify it. m^r wilson. as the constitution stands, the states only which ratify can be bound. we must he said in this case go to the original powers of society. the house on fire must be extinguished, without a scrupulous regard to ordinary rights. m^r butler was in favor of "nine." he revolted at the idea, that one or two states should restrain the rest from consulting their safety. m^r carrol moved to fill the blank with "the thirteen," unanimity being necessary to dissolve the existing confederacy which had been unanimously established. m^r king thought this amend^t necessary, otherwise as the constitution now stands it will operate on the whole though ratified by a part only. adjourned. friday august ^{st} . in convention. m^r king moved to add to the end of art: xxi the words "between the said states" so as to confine the operation of the gov^t to the states ratifying it. on the question n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. m^d no. virg^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison proposed to fill the blank in the article with "any seven or more states entitled to thirty three members at least in the house of representatives according to the allotment made in the sect: of art: ." this he said would require the concurrence of a majority of both the states and the people. m^r sherman doubted the propriety of authorizing less than all the states to execute the constitution, considering the nature of the existing confederation. perhaps all the states may concur, and on that supposition it is needless to hold out a breach of faith. m^r clymer and m^r carrol moved to postpone the consideration of art: xxi in order to take up the reports of committees not yet acted on. on this question, the states were equally divided. n. h. ay. mas. no. c^t div^d. n. j. no. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. no. g. ay. m^r gov^r morris moved to strike out "conventions of the" after "ratifications" leaving the states to pursue their own modes of ratification. m^r carrol mentioned the mode of altering the constitution of maryland pointed out therein, and that no other mode could be pursued in that state. m^r king thought that striking out "conventions," as the requisite mode was equivalent to giving up the business altogether. conventions alone, which will avoid all the obstacles from the complicated formation of the legislatures, will succeed, and if not positively required by the plan its enemies will oppose that mode. m^r gov^r morris said he meant to facilitate the adoption of the plan, by leaving the modes approved by the several state constitutions to be followed. m^r madison considered it best to require conventions; among other reasons, for this, that the powers given to the gen^l gov^t being taken from the state gov^{ts} the legislatures would be more disinclined than conventions composed in part at least of other men; and if disinclined, they could devise modes apparently promoting, but really thwarting the ratification. the difficulty in maryland was no greater than in other states, where no mode of change was pointed out by the constitution, and all officers were under oath to support it. the people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. they could alter constitutions as they pleased. it was a principle in the bills of rights, that first principles might be resorted to. m^r m^chenry said that the officers of gov^t in maryland were under oath to support the mode of alteration prescribed by the constitution. m^r ghorum urged the expediency of "conventions" also m^r pinkney, for reasons formerly urged on a discussion of this question. m^r l. martin insisted on a reference to the state legislatures. he urged the danger of commotions from a resort to the people & to first principles, in which the governments might be on one side and the people on the other. he was apprehensive of no such consequences however in maryland, whether the legislature or the people should be appealed to. both of them would be generally against the constitution. he repeated also the peculiarity in the maryland constitution. m^r king observed that the constitution of massachusetts was made unalterable till the year , yet this was no difficulty with him. the state must have contemplated a recurrence to first principles before they sent deputies to this convention. m^r sherman moved to postpone art. xxi. & to take up art: xxii on which question, n. h. no. mas. no. c^t ay. n. j. no. p. ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. on m^r gov^r morris's motion to strike out "conventions of the," it was negatived. n. h. no. mas. no. c^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a no. s. c. no. geo. ay. on filling the blank in art: xxi with "thirteen" moved by mr. carrol & martin, n. h. no. mas. no. c^t no, all except maryland. m^r sherman & m^r dayton moved to fill the blank with "ten." m^r wilson supported the motion of m^r madison, requiring a majority both of the people and of states. m^r clymer was also in favor of it. col: mason was for preserving ideas familiar to the people. nine states had been required in all great cases under the confederation & that number was on that account preferable. on the question for "ten" n. h. no. mas. no. c^t ay. n. j. ay. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. on question for "nine" n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. art: xxi. as amended was then agreed to by all the states, maryland excepted, & m^r jenifer being ay. art. xxii taken up, to wit, "this constitution shall be laid before the u. s. in cong^s assembled for their approbation; and it is the opinion of this convention that it should be afterwards submitted to a convention chosen, in each state under the recommendation of its legislature, in order to receive the ratification of such convention." m^r gov^r morris & m^r pinkney moved to strike out the words "for their approbation." on this question n. h. ay. mas. no. c^t ay. n. j. ay.[ ] p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. [ ] in the printed journal n. jersey--no.--madison's note. m^r gov^r morris & m^r pinkney then moved to amend the art: so as to read "this constitution shall be laid before the u. s. in congress assembled; and it is the opinion of this convention that it should afterwards be submitted to a convention chosen in each state, in order to receive the ratification of such convention; to which end the several legislatures ought to provide for the calling conventions within their respective states as speedily as circumstances will permit." m^r gov^r morris said his object was to impress in stronger terms the necessity of calling conventions in order to prevent enemies to the plan, from giving it the go by. when it first appears, with the sanction of this convention, the people will be favorable to it. by degrees the state officers, & those interested in the state gov^{ts} will intrigue & turn the popular current against it. m^r l. martin believed m^r morris to be right, that after a while the people would be ag^{st} it, but for a different reason from that alledged. he believed they would not ratify it unless hurried into it by surprize. m^r gerry enlarged on the idea of m^r l. martin in which he concurred, represented the system as full of vices, and dwelt on the impropriety of destroying the existing confederation, without the unanimous consent of the parties to it. question on m^r gov^r morris's & m^r pinkney's motion n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r gerry moved to postpone art: xxii. col: mason ^{ded} the motion, declaring that he would sooner chop off his right hand than put it to the constitution as it now stands. he wished to see some points not yet decided brought to a decision, before being compelled to give a final opinion on this article. should these points be improperly settled, his wish would then be to bring the whole subject before another general convention. m^r gov^r morris was ready for a postponement. he had long wished for another convention, that will have the firmness to provide a vigorous government, which we are afraid to do. m^r randolph stated his idea to be, in case the final form of the constitution should not permit him to accede to it, that the state conventions should be at liberty to propose amendments to be submitted to another general convention which may reject or incorporate them, as may be judged proper. on the question for postponing n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. no. m^d ay. v^a no. n. c. ay. s. c. no. geo. no. on the question on art: xxii n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. art: xxiii being taken up, as far as the words "assigned by congress" inclusive, was agreed to nem: con: the blank having been first filled with the word "nine" as of course. on a motion for postponing the residue of the clause, concerning the choice of the president &c. n. h. no. mas. ay. c^t no. n. j. no. p^a no. del. ay. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r gov^r morris then moved to strike out the words "choose the president of the u. s. and"--this point, of choosing the president not being yet finally determined, & on this question n. h. no. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. ay.[ ] geo. ay. [ ] in printed journal--s. c.--no.--madison's note. art: xxiii as amended was then agreed to nem: con: the report of the grand committee of eleven made by m^r sherman was then taken up (see aug: ). on the question to agree to the following clause, to be inserted after sect. . art: vii. "nor shall any regulation of commerce or revenue give preference to the ports of one state over those of another." agreed to nem: con: on the clause "or oblige vessels bound to or from any state to enter clear or pay duties in another" m^r madison thought the restriction w^d be inconvenient, as in the river delaware, if a vessel cannot be required to make entry below the jurisdiction of pennsylvania. m^r fitzimmons admitted that it might be inconvenient, but thought it would be a greater inconvenience to require vessels bound to philad^a to enter below the jurisdiction of the state. m^r ghorum & m^r langdon, contended that the gov^t would be so fettered by this clause, as to defeat the good purpose of the plan. they mentioned the situation of the trade of mas. & n. hampshire, the case of sandy hook which is in the state of n. jersey, but where precautions ag^{st} smuggling into n. york, ought to be established by the gen^l government. m^r m^chenry said the clause would not screen a vessel from being obliged to take an officer on board as a security for due entry &c. m^r carrol was anxious that the clause should be agreed to. he assured the house, that this was a tender point in maryland. m^r jennifer urged the necessity of the clause in the same point of view. on the question for agreeing to it n. h. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. the word "tonnage" was struck out, nem: con: as comprehended in "duties." on question on the clause of the report "and all duties, imposts & excises, laid by the legislature shall be uniform throughout the u. s." it was agreed to nem: con:[ ] [ ] in printed journal n. h. and s. c. entered as in the negative.--madison's note. on motion of m^r sherman it was agreed to refer such parts of the constitution as have been postponed, and such parts of reports as have not been acted on, to a committee of a member from each state; the committee appointed by ballot, being, m^r gilman, m^r king, m^r sherman, m^r brearly, m^r gov^r morris, m^r dickinson, m^r carrol, m^r madison, m^r williamson, m^r butler, & m^r baldwin. the house adjourned. saturday sep^r . in convention. m^r brearley from the comm^e of eleven to which were referred yesterday the postponed part of the constitution, & parts of reports not acted upon, made the following partial report. that in lieu of the ^{th} sect: of art: . the words following be inserted viz "the members of each house shall be ineligible to any civil office under the authority of the u. s. during the time for which they shall respectively be elected, and no person holding an office under the u. s. shall be a member of either house during his continuance in office." m^r rutlidge from the committee to whom were referred sundry propositions (see aug: ), together with art: xvi reported that the following additions be made to the report--viz. after the word "states" in the last line on the margin of the ^d page (see the printed report),--add "to establish uniform laws on the subject of bankruptcies." and insert the following as art: xvi viz "full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings of every other state, and the legislature shall, by general laws prescribe the manner in which such acts, records, & proceedings shall be proved, and the effect which judgments obtained in one state, shall have in another." after receiving these reports the house adjourned to oc on monday next. monday sep^r . in convention m^r gov^r morris moved to amend the report concerning the respect to be paid to acts records &c. of one state, in other states (see sep^r .) by striking out "judgments obtained in one state shall have in another" and to insert the word "thereof" after the word "effect." col: mason favored the motion, particularly if the "effect" was to be restrained to judgments & judicial proceedings. m^r wilson remarked, that if the legislature were not allowed to _declare the effect_ the provision would amount to nothing more than what now takes place among all independent nations. doc^r johnson thought the amendment as worded would authorize the gen^l legislature to declare the effect of legislative acts of one state in another state. m^r randolph considered it as strengthening the general objection ag^{st} the plan, that its definition of the powers of the government was so loose as to give it opportunities of usurping all the state powers. he was for not going farther than the report, which enables the legislature to provide for the effect of _judgments_. on the amendment, as moved by m^r gov^r morris mas. ay. c^t ay. n. j. ay. p^a ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. on motion of m^r madison, "ought to" were struck out, and "shall" inserted; and "shall" between "legislature" & "by general laws" struck out, and "may" inserted, nem: con: on the question to agree to the report as amended viz "full faith & credit shall be given in each state to the public acts, records & judicial proceedings of every other state, and the legislature may by general laws prescribe the manner in which such acts records & proceedings shall be proved, and the effect thereof." agreed to with^t a count of sts. the clause in the report "to establish uniform laws on the subject of bankruptcies" being taken up. m^r sherman observed that bankruptcies were in some cases punishable with death by the laws of england, & he did not chuse to grant a power by which that might be done here. m^r gov^r morris said this was an extensive & delicate subject. he would agree to it because he saw no danger of abuse of the power by the legislature of the u. s. on the question to agree to the clause n. h. ay. mas. ay. c^t no. n. j. ay. p^a ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r pinkney moved to postpone the report of the committee of eleven (see sep^r .) in order to take up the following, "the members of each house shall be incapable of holding any office under the u. s. for which they or any other for their benefit, receive any salary, fees or emoluments of any kind, and the acceptance of such office shall vacate their seats respectively." he was strenuously opposed to an ineligibility of members to office, and therefore wished to restrain the proposition to a mere incompatibility. he considered the eligibility of members of the legislature to the honourable offices of government, as resembling the policy of the romans, in making the temple of virtue the road to the temple of fame. on this question n. h. no. mas. no. c^t no. n. j. no. p^a ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no. m^r king moved to insert the word "created" before the word "during" in the report of the committee. this he said would exclude the members of the first legislature under the constitution, as most of the offices w^d then be created. m^r williamson ^{ded} the motion. he did not see why members of the legislature should be ineligible to _vacancies_ happening during the term of their election. m^r sherman was for entirely incapacitating members of the legislature. he thought their eligibility to offices would give too much influence to the executive. he said the incapacity ought at least to be extended to cases where salaries should be _increased_, as well as _created_, during the term of the member. he mentioned also the expedient by which the restriction could be evaded to wit: an existing officer might be translated to an office created, and a member of the legislature be then put into the office vacated. m^r gov^r morris contended that the eligibility of members to office w^d lessen the influence of the executive. if they cannot be appointed themselves, the executive will appoint their relations & friends, retaining the service & votes of the members for his purposes in the legislature. whereas the appointment of the members deprives him of such an advantage. m^r gerry, thought the eligibility of members would have the effect of opening batteries ag^{st} good officers, in order to drive them out & make way for members of the legislature. m^r gorham was in favor of the amendment. without it we go further than has been done in any of the states, or indeed any other country. the experience of the state governments where there was no such ineligibility, proved that it was not necessary; on the contrary that the eligibility was among the inducements for fit men to enter into the legislative service. m^r randolph was inflexibly fixed against inviting men into the legislature by the prospect of being appointed to offices. m^r baldwin remarked that the example of the states was not applicable. the legislatures there are so numerous that an exclusion of their members would not leave proper men for offices. the case would be otherwise in the general government. col: mason. instead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters. m^r wilson considered the exclusion of members of the legislature as increasing the influence of the executive as observed by m^r gov^r morris at the same time that it would diminish, the general energy of the government. he said that the legal disqualification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction. m^r pinkney. the first legislature will be composed of the ablest men to be found. the states will select such to put the government into operation. should the report of the committee or even the amendment be agreed to, the great offices, even those of the judiciary department which are to continue for life, must be filled while those most capable of filling them will be under a disqualification. on the question on m^r king's motion n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. the amendment being thus lost by the equal division of the states, m^r williamson moved to insert the words "created or the emoluments whereof shall have been increased" before the word "during" in the report of the committee. m^r king ^{ded} the motion, & on the question n. h. ay. mas. ay. c^t no. n. j. no. pa. ay. m^d no. v^a ay. n. c. ay. s. c. no. geo. divided. the last clause rendering a seat in the legislature & an office incompatible was agreed to nem. con: the report as amended & agreed to is as follows. "the members of each house shall be ineligible to any civil office under the authority of the u. states, created, or the emoluments whereof shall have been increased during the time for which they shall respectively be elected--and no person holding any office under the u. s. shall be a member of either house during his continuance in office." adjourned. tuesday sep^r . . in convention m^r brearly from the committee of eleven made a further partial report as follows "the committee of eleven to whom sundry resolutions &c. were referred on the ^{st} of august, report that in their opinion the following additions and alterations should be made to the report before the convention, viz.[ ] [ ] this is an exact copy. the variations in that in the printed journal are occasioned by its incorporation of subsequent amendments. this remark is applicable to other cases.--madison's note. the report was copied by the secretary of the convention, william jackson, into the journal, after it had been read. afterwards two sentences were altered by interlining with lead pencil. the alterations (indicated by italics) are as follows: paragraph , "the person having the greatest number of votes ... if such number be a majority of _the whole number_ of the electors _appointed_." paragraph , "but no treaty, _except treaties of peace_, shall be made," etc. the changes in paragraph are unimportant: the change in paragraph was an amendment offered by madison september th, and adopted.--const. mss.--_journal of federal convention_, p. , _et seq._ ( .) the first clause of sect: . art. . to read as follows--'the legislature shall have power to lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare of the u. s.' ( .) at the end of the ^d clause of sect. . art. . add 'and with the indian tribes.' ( .) in the place of the ^{th} art. sect. . to be inserted 'the senate of the u. s. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present.' ( .) after the word 'excellency' in sect. . art. . to be inserted. 'he shall hold his office during the term of four years, and together with the vice-president, chosen for the same term, be elected in the following manner, viz. each state shall appoint in such manner as its legislature may direct, a number of electors equal to the whole number of senators and members of the house of representatives, to which the state may be entitled in the legislature. the electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify and transmit sealed to the seat of the gen^l government, directed to the president of the senate--the president of the senate shall in that house open all the certificates, and the votes shall be then & there counted. the person having the greatest number of votes shall be the president, if such number be a majority of that of the electors; and if there be more than one who have such a majority, and have an equal number of votes, then the senate shall immediately choose by ballot one of them for president: but if no person have a majority, then from the five highest on the list, the senate shall choose by ballot the president, and in every case after the choice of the president, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the senate shall choose from them the vice-president. the legislature may determine the time of choosing and assembling the electors, and the manner of certifying and transmitting their votes.' ( ) 'sect. . no person except a natural born citizen or a citizen of the u. s. at the time of the adoption of this constitution shall be eligible to the office of president; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the u. s.' ( ) 'sect. . the vice-president shall be ex officio president of the senate, except when they sit to try the impeachment of the president, in which case the chief justice shall preside, and excepting also when he shall exercise the powers and duties of president, in which case & in case of his absence, the senate shall chuse a president pro tempore--the vice president when acting as president of the senate shall not have a vote unless the house be equally divided.' ( ) 'sect. . the president by and with the advice and consent of the senate, shall have power to make treaties; and he shall nominate and by and with the advice and consent of the senate shall appoint ambassadors, and other public ministers, judges of the supreme court, and all other officers of the u.s. whose appointments are not otherwise herein provided for. but no treaty shall be made without the consent of two thirds of the members present.' ( ) after the words--'into the service of the u. s.' in sect. . art: . add 'and may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.' the latter part of sect. . art: . to read as follows. ( ) 'he shall be removed from his office on impeachment by the house of representatives, and conviction by the senate, for treason, or bribery, and in case of his removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the vice-president shall exercise those powers and duties until another president be chosen, or until the inability of the president be removed.'" the ( ^{st}) clause of the report was agreed to, nem. con. the ( ) clause was also agreed to nem: con: the ( ) clause was postponed in order to decide previously on the mode of electing the president. the ( ) clause was accordingly taken up. m^r gorham disapproved of making the next highest after the president, the vice-president, without referring the decision to the senate in case the next highest should have less than a majority of votes. as the regulation stands a very obscure man with very few votes may arrive at that appointment. m^r sherman said the object of this clause of the report of the committee was to get rid of the ineligibility, which was attached to the mode of election by the legislature, & to render the executive independent of the legislature. as the choice of the president was to be made out of the five highest, obscure characters were sufficiently guarded against in that case; and he had no objection to requiring the vice-president to be chosen in like manner, where the choice was not decided by a majority in the first instance. m^r madison was apprehensive that by requiring both the president & vice president to be chosen out of the five highest candidates, the attention of the electors would be turned too much to making candidates instead of giving their votes in order to a definitive choice. should this turn be given to the business, the election would, in fact be consigned to the senate altogether. it would have the effect at the same time, he observed, of giving the nomination of the candidates to the largest states. m^r gov^r morris concurred in, & enforced the remarks of m^r madison. m^r randolph & m^r pinkney wished for a particular explanation & discussion of the reasons for changing the mode of electing the executive. m^r gov^r morris said he would give the reasons of the committee and his own. the ^{st} was the danger of intrigue & faction if the appointm^t should be made by the legislature. . the inconveniency of an ineligibility required by that mode in order to lessen its evils. . the difficulty of establishing a court of impeachments, other than the senate which would not be so proper for the trial nor the other branch for the impeachment of the president, if appointed by the legislature. . nobody had appeared to be satisfied with an appointment by the legislature. . many were anxious even for an immediate choice by the people. . the indispensable necessity of making the executive independent of the legislature.--as the electors would vote at the same time throughout the u. s. and at so great a distance from each other, the great evil of cabal was avoided. it would be impossible also to corrupt them. a conclusive reason for making the senate instead of the supreme court the judge of impeachments, was that the latter was to try the president after the trial of the impeachment. col: mason confessed that the plan of the committee had removed some capital objections, particularly the danger of cabal and corruption. it was liable however to this strong objection, that nineteen times in twenty the president would be chosen by the senate, an improper body for the purpose. m^r butler thought the mode not free from objections, but much more so than an election by the legislature, where as in elective monarchies, cabal faction & violence would be sure to prevail. m^r pinkney stated as objections to the mode . that it threw the whole appointment in fact into the hands of the senate. . the electors will be strangers to the several candidates and of course unable to decide on their comparative merits. . it makes the executive reeligible which will endanger the public liberty. . it makes the same body of men which will in fact elect the president his judges in case of an impeachment. m^r williamson had great doubts whether the advantage of reeligibility would balance the objection to such a dependence of the president on the senate for his reappointment. he thought at least the senate ought to be restrained to the _two_ highest on the list. m^r gov^r morris said the principal advantage aimed at was that of taking away the opportunity for cabal. the president may be made if thought necessary ineligible on this as well as on any other mode of election. other inconveniences may be no less redressed on this plan than any other. m^r baldwin thought the plan not so objectionable when well considered, as at first view: the increasing intercourse among the people of the states, would render important characters less & less unknown; and the senate would consequently be less & less likely to have the eventual appointment thrown into their hands. m^r wilson. this subject has greatly divided the house, and will also divide the people out of doors. it is in truth the most difficult of all on which we have had to decide. he had never made up an opinion on it entirely to his own satisfaction. he thought the plan on the whole a valuable improvement on the former. it gets rid of one great evil, that of cabal & corruption; & continental characters will multiply as we more & more coalesce, so as to enable the electors in every part of the union to know & judge of them. it clears the way also for a discussion of the question of re-eligibility on its own merits which the former mode of election seemed to forbid. he thought it might be better however to refer the eventual appointment to the legislature than to the senate, and to confine it to a smaller number than five of the candidates. the eventual election by the legislature w^d not open cabal anew, as it would be restrained to certain designated objects of choice, and as these must have had the previous sanction of a number of the states; and if the election be made as it ought as soon as the votes of the electors are opened & it is known that no one has a majority of the whole there can be little danger of corruption. another reason for preferring the legislature to the senate in this business was that the house of rep^s will be so often changed as to be free from the influence & faction to which the permanence of the senate may subject that branch. m^r randolph preferred the former mode of constituting the executive, but if the change was to be made, he wished to know why the eventual election was referred to the _senate_ and not to the _legislature_? he saw no necessity for this and many objections to it. he was apprehensive also that the advantage of the eventual appointment would fall into the hands of the states near the seat of government. m^r gov^r morris said the _senate_ was preferred because fewer could then say to the president, you owe your appointment to us. he thought the president would not depend so much on the senate for his reappointment as on his general good conduct. the further consideration of the report was postponed that each member might take a copy of the remainder of it. the following motion was referred to the committee of eleven--to wit,--"to prepare & report a plan for defraying the expences of the convention." [ ]m^r pinkney moved a clause declaring "that each house should be judge of the privilege of its own members." m^r gov^r morris ^{ded} the motion. [ ] this motion not contained in the printed journal--madison's note. m^r randolph & m^r madison expressed doubts as to the propriety of giving such a power, & wished for a postponement. m^r gov^r morris thought it so plain a case that no postponement could be necessary. m^r wilson thought the power involved, and the express insertion of it needless. it might beget doubts as to the power of other public bodies, as courts &c. every court is the judge of its own privileges. m^r madison distinguished between the power of judging of privileges previously & duly established, and the effect of the motion which would give a discretion to each house as to the extent of its own privileges. he suggested that it would be better to make provision for ascertaining by _law_, the privileges of each house, than to allow each house to decide for itself. he suggested also the necessity of considering what privileges ought to be allowed to the executive. adjourned. wednesday sep^r . . in convention. m^r brearley from the committee of eleven made a farther report as follows, ( ) to add to the clause "to declare war" the words "and grant letters of marque and reprisal." ( ) to add to the clause "to raise and support armies" the words "but no appropriation of money to that use shall be for a longer term than two years." ( ) instead of sect: . art . say--"all bills for raising revenue shall originate in the house of representatives, and shall be subject to alterations and amendments by the senate: no money shall be drawn from the treasury, but in consequence of appropriations made by law." ( ) immediately before the last clause of sect. . art. . insert "to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of the legislature become the seat of the government of the u. s. and to exercise like authority over all places purchased for the erection of forts, magazines, arsenals, dock yards, and other needful buildings." ( ) "to promote the progress of science and useful arts by securing for limited times to authors & inventors, the exclusive right to their respective writings and discoveries." this report being taken up,--the ( ) clause was agreed to nem: con: to the ( ) clause m^r gerry objected that it admitted of appropriations to an army, for two years instead of one, for which he could not conceive a reason, that it implied that there was to be a standing army which he inveighed against as dangerous to liberty, as unnecessary even for so great an extent of country as this, and if necessary, some restriction on the number & duration ought to be provided: nor was this a proper time for such an innovation. the people would not bear it. m^r sherman remarked that the appropriations were permitted only, not required to be for two years. as the legislature is to be biennially elected, it would be inconvenient to require appropriations to be for one year, as there might be no session within the time necessary to renew them. he should himself he said like a reasonable restriction on the number and continuance of an army in time of peace. the ( ) clause was then agreed to nem: con: the ( ) clause, m^r gov^r morris moved to postpone. it had been agreed to in the committee on the ground of compromise, and he should feel himself at liberty to dissent to it, if on the whole he should not be satisfied with certain other parts to be settled.--m^r pinkney ^{ded} the motion. m^r sherman was for giving immediate ease to those who looked on this clause as of great moment, and for trusting to their concurrence in other proper measures. on the question for postponing n. h. ay. mas. no. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. so much of the ( ) clause as related to the seat of government was agreed to nem: con: on the residue to wit, "to exercise like authority over all places purchased for forts" &c. m^r gerry contended that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the gen^l government. m^r king thought himself the provision unnecessary, the power being already involved: but would move to insert after the word "purchased" the words "by the consent of the legislature of the state." this would certainly make the power safe. m^r gov^r morris ^{ded} the motion, which was agreed to nem: con: as was then the residue of the clause as amended. the ( ) clause was agreed to nem: con: the following resolution & order being reported from the committee of eleven, to wit, "resolved that the u. s. in congress be requested to allow and cause to be paid to the secretary and other officers of this convention such sums in proportion to their respective times of service, as are allowed to the secretary & similar officers of congress." "ordered that the secretary make out & transmit to the treasury office of the u. s. an account for the said services & for the incidental expences of this convention." the resolution & order were separately agreed to nem: con: m^r gerry gave notice that he should move to reconsider articles xix. xx. xxi. xxii. m^r williamson gave like notice as to the article fixing the number of representatives, which he thought too small. he wished also to allow rho: island more than one, as due to her probable number of people, and as proper to stifle any pretext arising from her absence on the occasion. the report made yesterday as to the appointment of the executive being then taken up. m^r pinkney renewed his opposition to the mode, arguing . that the electors will not have sufficient knowledge of the fittest men, & will be swayed by an attachment to the eminent men of their respective states. hence ^{dly} the dispersion of the votes would leave the appointment with the senate, and as the president's reappointment will thus depend on the senate he will be the mere creature of that body. . he will combine with the senate ag^{st} the house of representatives. . this change in the mode of election was meant to get rid of the ineligibility of the president a second time, whereby he will become fixed for life under the auspices of the senate. m^r gerry did not object to this plan of constituting the executive in itself, but should be governed in his final vote by the powers that may be given to the president. m^r rutlidge was much opposed to the plan reported by the committee. it would throw the whole power into the senate. he was also against a re-eligibility. he moved to postpone the report under consideration & take up the original plan of appointment by the legislature, to wit. "he shall be elected by joint ballot by the legislature to which election a majority of the votes of the members present shall be required: he shall hold his office during the term of seven years; but shall not be elected a second time." on this motion to postpone n. h. div^d. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. col. mason admitted that there were objections to an appointment by the legislature as originally planned. he had not yet made up his mind, but would state his objections to the mode proposed by the committee. . it puts the appointment in fact into the hands of the senate; as it will rarely happen that a majority of the whole votes will fall on any one candidate: and as the existing president will always be one of the highest, his reappointment will of course depend on the senate. . considering the powers of the president & those of the senate, if a coalition should be established between these two branches, they will be able to subvert the constitution--the great objection with him would be removed by depriving the senate of the eventual election. he accordingly moved to strike out the words "if such number be a majority of that of the electors." m^r williamson ^{ded} the motion. he could not agree to the clause without some such modification. he preferred making the highest tho' not having a majority of the votes, president, to a reference of the matter to the senate. referring the appointment to the senate lays a certain foundation for corruption & aristocracy. m^r gov^r morris thought the point of less consequence than it was supposed on both sides. it is probable that a majority of the votes will fall on the same man. as each elector is to give two votes, more than / will give a majority. besides as one vote is to be given to a man out of the state, and as this vote will not be thrown away, / the votes will fall on characters eminent & generally known. again if the president shall have given satisfaction, the votes will turn on him of course, and a majority of them will reappoint him, without resort to the senate: if he should be disliked, all disliking him, would take care to unite their votes so as to ensure his being supplanted. col. mason those who think there is no danger of there not being a majority for the same person in the first instance, ought to give up the point to those who think otherwise. m^r sherman reminded the opponents of the new mode proposed that if the small states had the advantage in the senate's deciding among the five highest candidates the large states would have in fact the nomination of these candidates. on the motion of col: mason n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d ay.[ ] v^a no. n. c. ay. s. c. no. geo. no. [ ] in printed journal maryland--no--madison's note. m^r wilson moved to strike out "senate" and insert the word "legislature." m^r madison considered it as a primary object to render an eventual resort to any part of the legislature improbable. he was apprehensive that the proposed alteration would turn the attention of the large states too much to the appointment of candidates, instead of aiming at an effectual appointment of the officer, as the large states would predominate in the legislature which would have the final choice out of the candidates. whereas if the senate in which the small states predominate should have the final choice, the concerted effort of the large states would be to make the appointment in the first instance conclusive. m^r randolph. we have in some revolutions of this plan made a bold stroke for monarchy. we are now doing the same for an aristocracy. he dwelt on the tendency of such an influence in the senate over the election of the president in addition to its other powers, to convert that body into a real & dangerous aristocracy. m^r dickinson was in favor of giving the eventual election to the legislature, instead of the senate. it was too much influence to be superadded to that body. on the question moved by m^r wilson n. h. div^d. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. ay. geo. no. m^r madison & m^r williamson moved to strike out the word "majority" and insert "one-third" so that the eventual power might not be exercised if less than a majority, but not less than / of the electors should vote for the same person. m^r gerry objected that this would put it in the power of three or four states to put in whom they pleased. m^r williamson. there are seven states which do not contain one third of the people. if the senate are to appoint, less than one sixth of the people will have the power. on the question n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r gerry suggested that the eventual election should be made by six senators and seven representatives chosen by joint ballot of both houses. m^r king observed that the influence of the small states in the senate was somewhat balanced by the influence of the large states in bringing forward the candidates,[ ] and also by the concurrence of the small states in the committee in the clause vesting the exclusive origination of money bills in the house of representatives. [ ] this explains the compromise mentioned above by m^r gov^r morris. col. mason, m^r gerry & other members from large states set great value on this privilege of originating money bills. of this the members from the small states, with some from the large states who wished a high mounted gov^t endeavored to avail themselves, by making that privilege, the price of arrangements in the constitution favorable to the small states, and to the elevation of the government.--madison's note. col: mason moved to strike out the word "five" and insert the word "three" as the highest candidates for the senate to choose out of. m^r gerry ^{ded} the motion. m^r sherman would sooner give up the plan. he would prefer seven or thirteen. on the question moved by col: mason & m^r gerry n. h. no. mas. no. c^t no. n. j. no. p^a no. delaware [and] m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r spaight and m^r rutlidge moved to strike out "five" and insert "thirteen"--to which all the states disagreed--except n. c. & s. c. m^r madison & m^r williamson moved to insert after "electors" the words "who shall have balloted" so that the non voting electors not being counted might not increase the number necessary as a majority of the whole to decide the choice without the agency of the senate. on this question n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. m^r dickinson moved, in order to remove ambiguity from the intention of the clause as explained by the vote, to add, after the words "if such number be a majority of the whole number of the electors" the word "appointed." on this motion n. h. ay. mas. ay. con. ay. n. j. ay. p^a ay. delaware [and] m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. col: mason. as the mode of appointment is now regulated, he could not forbear expressing his opinion that it is utterly inadmissible. he would prefer the government of prussia to one which will put all power into the hands of seven or eight men, and fix an aristocracy worse than absolute monarchy. the words "and of their giving their votes" being inserted on motion for that purpose, after the words "the legislature may determine the time of chusing and assembling the electors." the house adjourned. thursday sep^r . . in convention m^r king and m^r gerry moved to insert in the ( )[ ] clause of the report (see sep^r ) after the words "may be entitled in the legislature" the words following--"but no person shall be appointed an elector who is a member of the legislature of the u. s. or who holds any office of profit or trust under the u. s." which passed nem: con: [ ] this is a mistake and should be fourth clause. see p. . m^r gerry proposed as the president was to be elected by the senate out of the five highest candidates, that if he should not at the end of his term be re-elected by a majority of the electors, and no other candidate should have a majority, the eventual election should be made by the legislature. this he said would relieve the president from his particular dependence on the senate for his continuance in office. m^r king liked the idea, as calculated to satisfy particular members and promote unanimity & as likely to operate but seldom. m^r read opposed it, remarking that if individual members were to be indulged, alterations would be necessary to satisfy most of them. m^r williamson espoused it as a reasonable precaution against the undue influence of the senate. m^r sherman liked the arrangement as it stood, though he should not be averse to some amendments. he thought he said that if the legislature were to have the eventual appointment instead of the senate, it ought to vote in the case by states, in favor of the small states, as the large states would have so great an advantage in nominating the candidates. m^r gov^r morris thought favorably of m^r gerry's proposition. it would free the president from being tempted in naming to offices, to conform to the will of the senate, & thereby virtually give the appointments to office, to the senate. m^r wilson said that he had weighed carefully the report of the committee for remodelling the constitution of the executive; and on combining it with other parts of the plan, he was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the senate. they will have in fact, the appointment of the president, and through his dependence on them, the virtual appointment to offices; among others the officers of the judiciary department. they are to make treaties; and they are to try all impeachments. in allowing them thus to make the executive & judiciary appointments, to be the court of impeachments, and to make treaties which are to be laws of the land, the legislative, executive & judiciary powers are all blended in one branch of the government. the power of making treaties involves the case of subsidies, and here as an additional evil, foreign influence is to be dreaded. according to the plan as it now stands, the president will not be the man of the people as he ought to be, but the minion of the senate. he cannot even appoint a tide-waiter without the senate. he had always thought the senate too numerous a body for making appointments to office. the senate will moreover in all probability be in constant session. they will have high salaries. and with all those powers, and the president in their interest, they will depress the other branch of the legislature, and aggrandize themselves in proportion. add to all this, that the senate sitting in conclave, can by holding up to their respective states various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the president ultimately before themselves. upon the whole, he thought the new mode of appointing the president, with some amendments, a valuable improvement; but he could never agree to purchase it at the price of the ensuing parts of the report, nor befriend a system of which they make a part. m^r gov^r morris expressed his wonder at the observations of m^r wilson so far as they preferred the plan in the printed report to the new modification of it before the house, and entered into a comparative view of the two, with an eye to the nature of m^r wilsons objections to the last. by the first the senate he observed had a voice in appointing the president out of all the citizens of the u. s: by this they were limited to five candidates previously nominated to them, with a probability of being barred altogether by the successful ballot of the electors. here surely was no increase of power. they are now to appoint judges nominated to them by the president. before they had the appointment without any agency whatever of the president. here again was surely no additional power. if they are to make treaties as the plan now stands, the power was the same in the printed plan. if they are to try impeachments, the judges must have been triable by them before. wherein then lay the dangerous tendency of the innovations to establish an aristocracy in the senate? as to the appointment of officers, the weight of sentiment in the house, was opposed to the exercise of it by the president alone; though it was not the case with himself. if the senate would act as was suspected, in misleading the states into a fallacious disposition of their votes for a president, they would, if the appointment were withdrawn wholly from them, make such representations in their several states where they have influence, as would favor the object of their partiality. m^r williamson, replying to m^r morris, observed that the aristocratic complexion proceeds from the change in the mode of appointing the president which makes him dependent on the senate. m^r clymer said that the aristocratic part to which he could never accede was that in the printed plan, which gave the senate the power of appointing to offices. m^r hamilton said that he had been restrained from entering into the discussions by his dislike of the scheme of gov^t in general; but as he meant to support the plan to be recommended, as better than nothing, he wished in this place to offer a few remarks. he liked the new modification, on the whole, better than that in the printed report. in this the president was a monster elected for seven years, and ineligible afterwards; having great powers, in appointments to office, & continually tempted by this constitutional disqualification to abuse them in order to subvert the government. although he should be made re-eligible, still if appointed by the legislature, he would be tempted to make use of corrupt influence to be continued in office. it seemed peculiarly desirable therefore that some other mode of election should be devised. considering the different views of different states, & the different districts northern middle & southern, he concurred with those who thought that the votes would not be concentered, and that the appointment would consequently in the present mode devolve on the senate. the nomination to offices will give great weight to the president. here then is a mutual connexion & influence, that will perpetuate the president, and aggrandize both him & the senate. what is to be the remedy? he saw none better than to let the highest number of ballots, whether a majority or not, appoint the president. what was the objection to this? merely that too small a number might appoint. but as the plan stands, the senate may take the candidate having the smallest number of votes, and make him president. m^r spaight & m^r williamson moved to insert "seven" instead of "four" years for the term of the president[ ]-- [ ] an ineligibility w^d have followed (tho' it would seem from the vote not in the opinion of all) this prolongation of the term.--madison's note. on this motion n. h. ay. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r spaight & m^r williamson, then moved to insert "six," instead of "four". on which motion n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. on the term "four" all the states were ay, except n. carolina, no. on the question (clause . in the report) for appointing president by electors---down to the words,--"entitled in the legislature" inclusive n. h. ay. mas: ay. con^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo.--ay. it was moved that the electors meet at the seat of the gen^l gov^t which passed in the negative n. c. only being ay. it was moved to insert the words "under the seal of the state" after the word "transmit" in the ^{th}. clause of the report which was disagreed to; as was another motion to insert the words "and who shall have given their votes" after the word "appointed" in the ^{th} clause of the report as added yesterday on motion of m^r dickinson. on several motions, the words "in presence of the senate and house of representatives" were inserted after the word "counted" and the word "immediately" before the word "choose;" and the words "of the electors" after the word "votes." m^r spaight said if the election by electors is to be crammed down, he would prefer their meeting altogether and deciding finally without any reference to the senate and moved "that the electors meet at the seat of the general government." m^r williamson ^{ded} the motion, on which all the states were in the negative except n: carolina. on motion the words "but the election shall be on the same day throughout the u. s." were added after the words "transmitting their votes" n. h. ay. mas. no. c^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo.--ay. on a question on the sentence in clause ( ) "if such number be a majority of that of the electors appointed" n. h. ay. mas. ay. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n.c. no. s. c. ay. geo. ay. on a question on the clause referring the eventual appointment of the president to the senate n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. v^a ay. n. c. no. here the call ceased. m^r madison made a motion requiring / at least of the senate to be present at the choice of a president. m^r pinkney ^{ded} the motion. m^r gorham thought it a wrong principle to require more than a majority in any case. in the present case it might prevent for a long time any choice of a president. on the question moved by m^r m. and m^r p. n. h. ay. mas. abs^t. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r williamson suggested as better than an eventual choice by the senate, that this choice should be made by the legislature, voting by _states_ and not _per capita_. m^r sherman suggested the "house of rep^s" as preferable to the legislature, and moved accordingly, to strike out the words "the senate shall immediately choose &c." and insert "the house of representatives shall immediately choose by ballot one of them for president, the members from each state having one vote." col: mason liked the latter mode best as lessening the aristocratic influence of the senate. on the motion of m^r sherman n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris suggested the idea of providing that in all cases, the president in office, should not be one of the five candidates; but be only re-eligible in case a majority of the electors should vote for him. (this was another expedient for rendering the president independent of the legislative body for his continuance in office.) m^r madison remarked that as a majority of members w^d make a quorum in the h. of rep^s it would follow from the amendment of m^r sherman giving the election to a majority of states, that the president might be elected by two states only, virg^a & pen^a which have members, if these states alone should be present. on a motion that the eventual election of presid^t in case of _an equality_ of the votes of the electors be referred to the house of rep^s n. h. ay. mas. ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r king moved to add to the amendment of m^r sherman "but a quorum for this purpose shall consist of a member or members from two thirds of the states, and also of a majority of the whole number of the house of representatives." col: mason liked it as obviating the remark of m^r madison--the motion as far as "states" inclusive was ag^d to. on the residue to wit, "and also of a majority of the whole number of the house of reps^s." it passed in the negative. n. h. no. mas. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. the report relating to the appointment of the executive stands as amended, as follows. "he shall hold his office during the term of four years, and together with the vice-president, chosen for the same term, be elected in the following manner. each state shall appoint in such manner as its legislature may direct, a number of electors equal to the whole number of senators and members of the house of representatives, to which the state may be entitled in the legislature: but no person shall be appointed an elector who is a member of the legislature of the u. s. or who holds any office of profit or trust under the u. s. the electors shall meet in their respective states and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the general government, directed to the president of the senate. the president of the senate shall in the presence of the senate and house of representatives open all the certificates & the votes shall then be counted. the person having the greatest number of votes shall be the president (if such number be a majority of the whole number of electors appointed) and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately choose by ballot one of them for president, the representation from each state having one vote. but if no person have a majority, then from the five highest on the list, the house of representatives shall in like manner choose by ballot the president. in the choice of a president by the house of representatives, a quorum shall consist of a member or members from two thirds of the states, ([ ]and the concurrence of a majority of all the states shall be necessary to such choice.)--and in every case after the choice of the president, the person having the greatest number of votes of the electors shall be the vice-president: but, if there should remain two or more who have equal votes, the senate shall choose from them the vice-president.[ ] [ ] note.--this clause was not inserted on this day, but on the ^{th}. of sep^r--see friday the ^{th}.--madison's note. [ ] september madison wrote to jefferson (cipher represented by italics): "... as the convention will shortly rise i should feel little scruple in disclosing what will be public here, before it could reach you, were it practicable for me to guard by cypher against an intermediate discovery. but i am deprived of this resource by the shortness of the interval between the receipt of your letter of june and the date of this. this is the first day which has been free from committee service, both before & after the hours of the house, and the last that is allowed me by the time advertised for the sailing of the packet. "the convention consists now as it has generally done of eleven states. there has been no intermission of its sessions since a house was formed, except an interval of about ten days allowed a committee appointed to detail the general propositions agreed on in the house. the term of its dissolution cannot be more than one or two weeks distant. a gover^{mt} will probably be submitted to the _people of_ the _states_, consisting of a _president_, _cloathed_ with _executive power_; a _senate chosen_ by the _legislatures_, and another _house chosen_ by the _people of the states_, jointly _possessing_ the _legislative_ power; and a regular _judiciary_ establishment. the mode of constituting the _executive_ is among the few points not yet finally settled. the _senate_ will consist of two _members_ from each _state_, and _appointed sexennially_. the other, of _members_, _appointed biennially_ by the _people of the states_, in proportion to their number. the legislative power will _extend to taxation_, trade, and sundry other general matters. the powers of congress will be _distributed_, according to their _nature_, _among the several departments_. the states will be _restricted from paper money_ and in a _few other instances_. these are _the outlines_. the extent of them may perhaps surprize you. i hazard an opinion nevertheless that the _plan_, _should it be adopted_, will neither effectually _answer_ its _national object_, nor prevent the local _mischiefs_ which everywhere _excite disgusts_ ag^{st} the _state governments_. the grounds of this opinion will be the subject of a future letter. "i have written to a friend in cong^s intimating in a covert manner the necessity of deciding & notifying the intentions of cong^s with regard to their foreign ministers after may next, and have dropped a hint on the communications of dumas. "congress have taken some measures for disposing of the public land, and have actually sold a considerable tract. another bargain i learn is on foot for a further sale. "nothing can exceed the universal anxiety for the event of the meeting here. reports and conjectures abound concerning the nature of the plan which is to be proposed. the public however is certainly in the dark with regard to it. the convention is equally in the dark as to the reception w^{ch} may be given to it on its publication. all the prepossessions are on the right side, but it may well be expected that certain characters will wage war against any reform whatever. my own idea is that the public mind will now or in a very little time receive anything that promises stability to the public councils & security to private rights, and that no regard ought to be had to local prejudices or temporary considerations. if the present moment be lost, it is hard to say what may be our fate. "our information from virginia is far from being agreeable. in many parts of the country the drought has been extremely injurious to the corn. i fear, tho' i have no certain information, that orange & albemarle share in the distress. the people also are said to be generally discontented. a paper emission is again a topic among them, so is an instalment of all debts in some places and the making property a tender in others. the taxes are another source of discontent. the weight of them is complained of, and the abuses in collecting them still more so. in several counties the prisons & court houses & clerks' offices have been wilfully burnt. in green briar the course of justice has been mutinously stopped, and associations entered into ag^{st} the payment of taxes. no other county has yet followed the example. the approaching meeting of the assembly will probably allay the discontents on one side by measures which will excite them on another. "mr. wythe has never returned to us. his lady whose illness carried him away, died some time after he got home. the other deaths, in virg^a are col. a. cary and a few days ago, mrs. harrison, wife of benj^n harrison, jun^r, & sister of j. f. mercer. wishing you all happiness. "i remain, dear sir, y^{rs} affect^{ly}. "give my best wishes to mazzei. i have rec^d his letter & book and will write by the next packet to him. dorhman is still in v^a cong^s have done nothing for him in his affair. i am not sure that st^s have been assembled of late. at present, it is doubtful whether there are seven."--mad. mss. the legislature may determine the time of choosing the electors, and of their giving their votes; and the manner of certifying and transmitting their votes--but the election shall be on the same day through-out the u. states." adjourned. friday sep^r [ ] . in convention [ ] the following letter was received on this day from jonas phillips, a jew in philadelphia: "sires "with leave and submission i address myself to those in whome there is wisdom understanding and knowledge. they are the honourable personages appointed and made overseers of a part of the terrestrial globe of the earth, namely the united states of america in convention assembled, the lord preserve them amen-- "i the subscriber being one of the people called jews of the city of philadelphia, a people scattered and despersed among all nations do behold with concern that among the laws in the constitution of pennsylvania their is a clause sect. to viz--i do belive in one god the creature and governour of the universe the rewarder of the good and the punisher of the wicked--and i do acknowledge the scriptures of the old and new testement to be given by a devine inspiration--to swear and believe that the new testement was given by devine inspiration is absolutly against the religious principle of a jew and is against his conscience to take any such oath--by the above law a jew is deprived of holding any publick office or place of government which is a contridectory to the bill of right sect . viz "that all men have a natural and unalienable right to worship almighty god according to the dectates of their own conscience and understanding, and that no man aught or of right can be compelled to attend any religious worship or erect or support any place of worship or maintain any minister contrary to or against his own free will and consent nor can any man who acknowledges the being of a god be justly deprived or abridged of any civil right as a citizen on account of his religious sentiments or peculiar mode of religious worship, and that no authority can or aught to be vested in or assumed by any power what ever that shall in any case interfere or in any manner controul the right of conscience in the free exercise of religious worship-- "it is well known among all the citizens of the united states that the jews have been true and faithfull whigs, and during the late contest with england they have been foremost in aiding and assisting the states with their lifes and fortunes, they have supported the cause, have bravely faught and bleed for liberty which they can not enjoy-- therefore if the honourable convention shall in ther wisdom think fit and alter the said oath and leave out the words to viz--and i do acknowledge the scripture of the new testeraent to be given by devine inspiration then the israeletes will think them self happy to live under a government where all religious societys are on an eaquel footing--i solecet this favour for my self my childreen and posterity and for the benefit of all the israeletes through the united states of america. "my prayers is unto the lord. may the people of this states rise up as a great and young lion, may they prevail against their enemies, may the degrees of honour of his excellencey the president of the convention george washington, be extollet and raise up. may every one speak of his glorious exploits. may god prolong his days among us in this land of liberty--may he lead the armies against his enemys as he has done hereuntofore--may god extend peace unto the united states--may they get up to the highest prosperetys--may god extend peace to them and their seed after them so long as the sun and moon endureth--and may the almighty god of our father abraham isaac and jacob endue this noble assembly with wisdom judgement and unamity in their councells, and may they have the satisfaction to see that their present toil and labour for the wellfair of the united states may be approved of, through all the world and perticular by the united states of america is the ardent prayer of sires. "your most devoted obe^d servant "jonas phillips "philadelphia ^{th} ellul or sep^r ^{th}. "--const. mss. the mode of constituting the executive being resumed, m^r randolph moved, to insert in the first section of the report made yesterday "the legislature may declare by law what officer of the u. s. shall act as president in case of the death, resignation, or disability of the president and vice-president; and such officer shall act accordingly until the time of electing a president shall arrive." m^r madison observed that this, as worded, would prevent a supply of the vacancy by an intermediate election of the president, and moved to substitute--"until such disability be removed, or a president shall be elected.[ ] m^r gov^r morris ^{ded} the motion, which was agreed to. [ ] in the printed journal this amendment is put into the original motion.--madison's note. it seemed to be an objection to the provision with some, that according to the process established for chusing the executive, there would be difficulty in effecting it at other than the fixed periods; with others, that the legislature was restrained in the temporary appointment to "_officers_" of the u. s.: they wished it to be at liberty to appoint others than such. on the motion of m^r randolph as amended, it passed in the affirmative. n. h. divided. mas. no. c^t no. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay. m^r gerry moved "that in the election of president by the house of representatives, no state shall vote by less than three members, and where that number may not be allotted to a state, it shall be made up by its senators; and a concurrence of a majority of all the states shall be necessary to make such choice." without some such provision five individuals might possibly be competent to an election; these being a majority of two thirds of the existing number of states; and two thirds being a quorum for this business. m^r madison ^{ded} the motion. m^r read observed that the states having but one member only in the house of rep^s would be in danger of having no vote at all in the election: the sickness or absence either of the representative or one of the senators would have that effect. m^r madison replied that, if one member of the house of representatives should be left capable of voting for the state, the states having one representative only would still be subject to that danger. he thought it an evil that so small a number at any rate should be authorized to elect. corruption would be greatly facilitated by it. the mode itself was liable to this further weighty objection that the representatives of a _minority_ of the people, might reverse the choice of a _majority_ of the _states_ and of the _people_. he wished some cure for this inconveniency might yet be provided. m^r gerry withdrew the first part of his motion; and on the, question on the ^d part viz: "and a concurrence of a majority of all the states shall be necessary to make such choice" to follow the words "a member or members from two thirds of the states"--it was agreed to nem: con: the section . (see sep^r ) requiring that the president should be a natural-born citizen &c., & have been resident for fourteen years, & be thirty five years of age, was agreed to nem: con: section (see sep^r ). "the vice president shall be ex-officio president of the senate" m^r gerry opposed this regulation. we might as well put the president himself at the head of the legislature. the close intimacy that must subsist between the president & vice-president makes it absolutely improper. he was ag^{st} having any vice president. m^r gov^r morris. the vice president then will be the first heir apparent that ever loved his father. if there should be no vice president, the president of the senate would be temporary successor, which would amount to the same thing. m^r sherman saw no danger in the case. if the vice-president were not to be president of the senate, he would be without employment, and some member by being made president must be deprived of his vote, unless when an equal division of votes might happen in the senate, which would be but seldom. m^r randolph concurred in the opposition to the clause. m^r williamson, observed that such an officer as vice-president was not wanted. he was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time. col: mason, thought the office of vice-president an encroachment on the rights of the senate; and that it mixed too much the legislative & executive, which as well as the judiciary departments, ought to be kept as separate as possible. he took occasion to express his dislike of any reference whatever of the power to make appointments, to either branch of the legislature. on the other hand he was averse to vest so dangerous a power in the president alone. as a method for avoiding both, he suggested that a privy council of six members to the president should be established; to be chosen for six years by the senate, two out of the eastern two out of the middle, and two out of the southern quarters of the union, & to go out in rotation two every second year; the concurrence of the senate to be required only in the appointment of ambassadors, and in making treaties, which are more of a legislative nature. this would prevent the constant sitting of the senate which he thought dangerous, as well as keep the departments separate & distinct. it would also save the expence of constant sessions of the senate. he had he said always considered the senate as too unwieldy & expensive for appointing officers, especially the smallest, such as tide waiters &c. he had not reduced his idea to writing, but it could be easily done if it should be found acceptable. on the question shall the vice president be ex officio president of the senate? n. h. ay. mas. ay. c^t ay. n. j. no. p^a ay. del. ay. mar. no. v^a ay. n. c. abs^t. s. c. ay. geo. ay. the other parts of the same section ( ) were then agreed to. the section .--to wit. "the president by & with the advice and consent of the senate shall have power to make treaties &c." m^r wilson moved to add after the word "senate" the words, "and house of representatives." as treaties he said are to have the operation of laws, they ought to have the sanction of laws also. the circumstance of secrecy in the business of treaties formed the only objection; but this he thought, so far as it was inconsistent with obtaining the legislative sanction, was outweighed by the necessity of the latter. m^r sherman thought the only question that could be made was whether the power could be safely trusted to the senate. he thought it could; and that the necessity of secrecy in the case of treaties forbade a reference of them to the whole legislature. m^r fitzimmons ^{ded} the motion of m^r wilson, & on the question n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. the first sentence as to making treaties was then agreed to; nem: con: "he shall nominate &c. appoint ambassadors &c." m^r wilson objected to the mode of appointing, as blending a branch of the legislature with the executive. good laws are of no effect without a good executive; and there can be no good executive without a responsible appointment of officers to execute. responsibility is in a manner destroyed by such an agency of the senate. he would prefer the council proposed by col: mason, provided its advice should not be made obligatory on the president. m^r pinkney was against joining the senate in these appointments, except in the instances of ambassadors who he thought ought not to be appointed by the president. m^r gov^r morris said that as the president was to nominate, there would be responsibility, and as the senate was to concur, there would be security. as congress now make appointments there is no responsibility. m^r gerry. the idea of responsibility in the nomination to offices is chimerical. the president cannot know all characters, and can therefore always plead ignorance. m^r king. as the idea of a council proposed by col. mason has been supported by m^r wilson, he would remark that most of the inconveniences charged on the senate are incident to a council of advice. he differed from those who thought the senate would sit constantly. he did not suppose it was meant that all the minute officers were to be appointed by the senate, or any other original source, but by the higher officers of the departments to which they belong. he was of opinion also that the people would be alarmed at an unnecessary creation of new corps which must increase the expence as well as influence of the government. on the question on these words in the clause viz--"he shall nominate & by & with the advice and consent of the senate, shall appoint ambassadors, and other public ministers (and consuls) judges of the supreme court". agreed to nem: con: the insertion of "and consuls" having first taken place. on the question on the following words "and all other officers of u.s." n. h. ay. mas. ay. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. on motion of m^r spaight--"that the president shall have power to fill up all vacancies that may happen during the recess of the senate by granting commissions which shall expire at the end of the next session of the senate." it was agreed to nem: con: section . "the president by and with the advice and consent of the senate shall have power to make treaties,--_but no treaty shall be made without the consent of two thirds of the members present_"--this last clause being before the house. m^r wilson thought it objectionable to require the concurrence of / which puts it into the power of a minority to controul the will of a majority. m^r king concurred in the objection; remarking that as the executive was here joined in the business, there was a check which did not exist in congress where the concurrence of / was required. m^r madison moved to insert after the word "treaty" the words "except treaties of peace" allowing these to be made with less difficulty than other treaties--it was agreed to nem: con: m^r madison then moved to authorize a concurrence of two thirds of the senate to make treaties of peace, without the concurrence of the president.--the president he said would necessarily derive so much power and importance from a state of war that he might be tempted if authorized, to impede a treaty of peace. m^r butler ^{ded} the motion. m^r gorham thought the precaution unnecessary as the means of carrying on the war would not be in the hands of the president, but of the legislature. m^r gov^r morris thought the power of the president in this case harmless; and that no peace ought to be made without the concurrence of the president, who was the general guardian of the national interests. m^r butler was strenuous for the motion, as a necessary security against ambitious & corrupt presidents. he mentioned the late perfidious policy of the statholder in holland; and the artifices of the duke of marlbro' to prolong the war of which he had the management. m^r gerry was of opinion that in treaties of peace a greater rather than less proportion of votes was necessary, than in other treaties. in treaties of peace the dearest interests will be at stake, as the fisheries, territory &c. in treaties of peace also there is more danger to the extremities of the continent of being sacrificed, than on any other occasions. m^r williamson thought that treaties of peace should be guarded at least by requiring the same concurrence as in other treaties. on the motion of m^r madison & m^r butler n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. ay. geo. ay. on the part of the clause concerning treaties amended by the exception as to treaties of peace, n. h. ay. mas. ay. c^t ay. n. j. no. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. "and may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices," being before the house col: mason[ ] said that in rejecting a council to the president we were about to try an experiment on which the most despotic government had never ventured. the grand signor himself had his divan. he moved to postpone the consideration of the clause in order to take up the following. [ ] in the printed journal, m^r madison is erroneously substituted for col: mason.--madison's note. "that it be an instruction to the committee of the states to prepare a clause or clauses for establishing an executive council, as a council of state for the president of the u. states, to consist of six members, two of which from the eastern, two from the middle, and two from the southern states, with a rotation and duration of office similar to those of the senate; such council to be appointed by the legislature or by the senate." doctor franklin ^{ded} the motion. we seemed he said too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons. experience shewed that caprice, the intrigues of favorites & mistresses, were nevertheless the means most prevalent in monarchies. among instances of abuse in such modes of appointment, he mentioned the many bad governors appointed in g. b. for the colonies. he thought a council would not only be a check on a bad president but be a relief to a good one. m^r gov^r morris. the question of a council was considered in the committee, where it was judged that the presid^t by persuading his council to concur in his wrong measures, would acquire their protection for them. m^r wilson approved of a council in preference to making the senate a party to appointm^{ts}. m^r dickinson was for a council. it w^d be a singular thing if the measures of the executive were not to undergo some previous discussion before the president. m^r madison was in favor of the instruction to the committee proposed by col: mason. the motion of m^r mason was negatived. may^d ay. s. c. ay. geo. ay.--n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. v^a no. n. c. no. on the question, "authorizing the president to call for the opinions of the heads of departments, in writing": it passed in the affirmative n. h. only being no.[ ] [ ] not so stated in the printed journal; but conformable to the result afterwards appearing.--madison's note. the clause was then unanimously agreed to-- m^r williamson & m^r spaight moved "that no treaty of peace affecting territorial rights sh^d be made without the concurrence of two thirds of the members of the senate present." m^r king. it will be necessary to look out for securities for some other rights, if this principle be established; he moved to extend the motion--"to all present rights of the u. states." adjourned. saturday september ^{th} in convention the last report of the committee of eleven (see sep^r ) was resumed. m^r king moved to strike out the "exception of treaties of peace" from the general clause requiring two thirds of the senate for making treaties. m^r wilson wished the requisition of two thirds to be struck out altogether. if the majority cannot be trusted, it was a proof, as observed by m^r ghorum, that we were not fit for one society. a reconsideration of the whole clause was agreed to. m^r gov^r morris was ag^{st} striking out the "exception of treaties of peace." if two thirds of the senate should be required for peace, the legislature will be unwilling to make war for that reason, on account of the fisheries or the mississippi, the two great objects of the union. besides, if a majority of the senate be for peace, and are not allowed to make it, they will be apt to effect their purpose in the more disagreeable mode, of negativing the supplies for the war. m^r williamson remarked that treaties are to be made in the branch of the gov^t where there may be a majority of the states without a majority of the people. eight men may be a majority of a quorum, & should not have the power to decide the conditions of peace. there would be no danger, that the exposed states, as s. carolina or georgia, would urge an improper war for the western territory. m^r wilson. if two thirds are necessary to make peace, the minority may perpetuate war, against the sense of the majority. m^r gerry enlarged on the danger of putting the essential rights of the union in the hands of so small a number as a majority of the senate, representing perhaps, not one fifth of the people. the senate will be corrupted by foreign influence. m^r sherman was ag^{st} leaving the rights established by the treaty of peace, to the senate, & moved to annex a proviso that no such rights sh^d be ceded without the sanction of the legislature. m^r gov^r morris seconded the ideas of m^r sherman. m^r madison observed that it had been too easy in the present congress, to make treaties altho' nine states were required for the purpose. on the question for striking "except treaties of peace" n. h. ay. mass. ay. c^t ay. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r wilson & m^r dayton move to strike out the clause requiring two thirds of the senate for making treaties; on which, n. h. no. mas. no. c^t div^d. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r rutlidge & m^r gerry moved that "no treaty be made without the consent of / of all the members of the senate"--according to the example in the present cong^s. m^r ghorum. there is a difference in the case, as the president's consent will also be necessary in the new gov^t. on the question n. h. no. mass. no. (m^r gerry ay.) c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. m^r sherman mov^d that no treaty be made without a majority of the whole number of the senate. m^r gerry seconded him. m^r williamson. this will be less security than / as now required. m^r sherman. it will be less embarrassing. on the question, it passed in the negative. n. h. no. mass. ay. c^t ay. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r madison moved that a quorum of the senate consist of / of all the members. m^r gov^r morris--this will put it in the power of one man to break up a quorum. m^r madison. this may happen to any quorum. on the question it passed in the negative. n. h. no. mass. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r williamson & m^r gerry mov^d "that no treaty sh^d be made with^t previous notice to the members, & a reasonable time for their attending." on the question all the states no; except n. c. s. c. & geo. ay. on a question on clause of the report of the com^e of eleven relating to treaties by / of the senate. all the states were ay.--except p^a n. j. & geo. no. m^r gerry mov^d that "no officer be app^d but to offices created by the constitution or by law."--this was rejected as unnecessary by six no's & five ays: the ayes. mass. c^t n. j. n. c. geo.--noes. n. h. p^a del. m^d v^a s. c. the clause referring to the senate, the trial of impeachments ag^{st} the president, for treason & bribery, was taken up. col. mason. why is the provision restrained to treason & bribery only? treason as defined in the constitution will not reach many great and dangerous offences. hastings is not guilty of treason. attempts to subvert the constitution may not be treason as above defined. as bills of attainder which have saved the british constitution are forbidden, it is the more necessary to extend the power of impeachments. he mov^d to add, after "bribery" "or maladministration." m^r gerry seconded him. m^r madison. so vague a term will be equivalent to a tenure during pleasure of the senate. m^r gov^r morris, it will not be put in force & can do no harm. an election of every four years will prevent maladministration. col. mason withdrew "maladministration" & substitutes "other high crimes & misdemesnors ag^{st} the state." on the question thus altered n. h. ay. mass. ay. c^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay.[ ] geo. ay. [ ] in the printed journal, s. carolina, no.--madison's note. m^r madison objected to a trial of the president by the senate, especially as he was to be impeached by the other branch of the legislature, and for any act which might be called a misdemesnor. the president under these circumstances was made improperly dependent. he would prefer the supreme court for the trial of impeachments, or rather a tribunal of which that should form a part. m^r gov^r morris thought no other tribunal than the senate could be trusted. the supreme court were too few in number and might be warped or corrupted. he was ag^{st} a dependence of the executive on the legislature, considering the legislative tyranny the great danger to be apprehended; but there could be no danger that the senate would say untruly on their oaths that the president was guilty of crimes or facts, especially as in four years he can be turned out. m^r pinkney disapproved of making the senate the court of impeachments, as rendering the president too dependent on the legislature. if he opposes a favorite law, the two houses will combine ag^{st} him, and under the influence of heat and faction throw him out of office. m^r williamson thought there was more danger of too much lenity than of too much rigour towards the president, considering the number of cases in which the senate was associated with the president. m^r sherman regarded the supreme court as improper to try the president, because the judges would be appointed by him. on motion of m^r madison to strike out the words--"by the senate" after the word "conviction" n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. in the amendment of col: mason just agreed to, the word "state" after the words "misdemeanors against," was struck out, and the words "united states," inserted unanimously, in order to remove ambiguity. on the question to agree to clause as amended, n. h. ay. mas. ay. cont. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. on motion "the vice-president and other civil officers of the u. s. shall be removed from office on impeachment and conviction as aforesaid" was added to the clause on the subject of impeachments. the clause of the report made on the ^{th} sep^r & postponed was taken up to wit--"all bills for raising revenue shall originate in the house of representatives; and shall be subject to alterations and amendments by the senate. no money shall be drawn from the treasury but in consequence of appropriations made by law." it was moved to strike out the words "and shall be subject to alterations and amendments by the senate" and insert the words used in the constitution of massachusetts on the same subject--"but the senate may propose or concur with amendments as in other bills" which was agreed too nem: con: on the question on the first part of the clause--"all bills for raising revenue shall originate in the house of representatives"[ ] [ ] this was a conciliatory vote, the effect of the compromise formerly alluded to. see note wednesday sep^r .--madison's note. n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gov^r morris moved to add to clause ( ) of the report made on sep^r . the words "and every member shall be on oath" which being agreed to, and a question taken on the clause so amended viz--"the senate of the u. s. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present; and every member shall be on oath" n. h. ay. mas. ay. c^t ay. n. j. ay. p^a no. del.--ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. m^r gerry repeated his motion above made on this day, in the form following: "the legislature shall have the sole right of establishing offices not heretofore provided for" which was again negatived: mas. con^t & geo. only being ay. m^r m^chenry observed that the president had not yet been any where authorized to convene the senate, and moved to amend art x. sect. . by striking out the words "he may convene them (the legislature) on extraordinary occasions," & insert, "he may convene both or either of the houses on extraordinary occasions." this he added would also provide for the case of the senate being in session, at the time of convening the legislature. m^r wilson said he should vote ag^{st} the motion, because it implied that the senate might be in session, when the legislature was not, which he thought improper. on the question n. h. ay. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. ay. a committee was then appointed by ballot to revise the stile of and arrange the articles which had been agreed to by the house. the committee consisted of m^r johnson, m^r hamilton, m^r gov^r morris, m^r madison and m^r king. m^r williamson moved that, previous to this work of the committee the clause relating to the number of the house of representatives sh^d be reconsidered for the purpose of increasing the number. m^r madison ^{ded} the motion. m^r sherman opposed it he thought the provision on that subject amply sufficient. col: hamilton expressed himself with great earnestness and anxiety in favor of the motion. he avowed himself a friend to a vigorous government, but would declare at the same time, that he held it essential that the popular branch of it should be on a broad foundation. he was seriously of opinion that the house of representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties. he remarked that the connection between the president & senate would tend to perpetuate him, by corrupt influence. it was the more necessary on this account that a numerous representation in the other branch of the legislature should be established. on the motion of m^r williamson to reconsider, it was negatived[ ] n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. [ ] this motion & vote are entered on the printed journal of the ensuing morning.--madison's note. adj^d. monday sep^r . in convention[ ] [ ] "there is said to be a disposition generally prevalent thro' this state to comply with y^e plan of y^e convention without much scrutiny, hervey, who has been in albemarle lately, says y^t nicholas is determined to support it however contrary it may be to his own opinions. i am persuaded that those who sacrifice solid and permanent advantages in this plan, to their idea of the transitory disposition of the people, will condemn themselves hereafter."--james mcclurg to madison, september , .--mad. mss. m^r gerry moved to reconsider art xix. viz. "on the application of the legislatures of two thirds of the states in the union, for an amendment of this constitution, the legislature of the u. s. shall call a convention for that purpose," (see aug ). this constitution he said is to be paramount to the state constitutions. it follows hence, from this article that two thirds of the states may obtain a convention, a majority of which can bind the union to innovations that may subvert the state constitutions altogether. he asked whether this was a situation proper to be run into. m^r hamilton ^{ded} the motion, but he said with a different view from m^r gerry. he did not object to the consequences stated by m^r gerry. there was no greater evil in subjecting the people of the u.s. to the major voice than the people of a particular state. it had been wished by many and was much to have been desired that an easier mode of introducing amendments had been provided by the articles of the confederation. it was equally desirable now that an easy mode should be established for supplying defects which will probably appear in the new system. the mode proposed was not adequate. the state legislatures will not apply for alterations but with a view to increase their own powers. the national legislature will be the first to perceive and will be most sensible to the necessity of amendments, and ought also to be empowered, whenever two thirds of each branch should concur to call a convention. there could be no danger in giving this power, as the people would finally decide in the case. m^r madison remarked on the vagueness of the terms, "call a convention for the purpose," as sufficient reason for reconsidering the article. how was a convention to be formed? by what rule decide? what the force of its acts? on the motion of m^r gerry to reconsider n. h. div^d. mas. ay. c^t ay. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r sherman moved to add to the article "or the legislature may propose amendments to the several states for their approbation, but no amendments shall be binding until consented to by the several states." m^r gerry ^{ded} the motion. m^r wilson moved to insert, "two thirds of" before the words "several states"--on which amendment to the motion of m^r sherman n. h. ay. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r wilson then moved to insert "three fourths of" before "the several sts." which was agreed to nem: con: m^r madison moved to postpone the consideration of the amended proposition in order to take up the following, "the legislature of the u. s. whenever two thirds of both houses shall deem necessary, or on the application of two thirds of the legislatures of the several states, shall propose amendments to this constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the legislatures of the several states, or by conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the legislature of the u.s:" m^r hamilton ^{ded} the motion. m^r rutlidge said he never could agree to give a power by which the articles relating to slaves might be altered by the states not interested in that property and prejudiced against it. in order to obviate this objection, these words were added to the proposition:[ ] "provided that no amendments which may be made prior to the year shall in any manner affect the & sections of the vii article."--the postponement being agreed to, [ ] the printed journal makes the succeeding proviso as to sections & , of the art: vii moved by m^r rutlidge, part of the proposition of m^r madison.--madison's note. on the question on the proposition of m^r madison & m^r hamilton as amended n. h. div^d. mas. ay. c^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gerry moved to reconsider art: xxi and xxii. from the latter of which "for the approbation of cong^s" had been struck out. he objected to proceeding to change the government without the approbation of congress, as being improper and giving just umbrage to that body: he repeated his objections also to an annulment of the confederation with so little scruple or formality. m^r hamilton concurred with m^r gerry as to the indecorum of not requiring the approbation of congress. he considered this as a necessary ingredient in the transaction. he thought it wrong also to allow nine states as provided by art xxi. to institute a new government on the ruins of the existing one. he w^d propose as a better modification of the two articles (xxi & xxii) that the plan should be sent to congress in order that the same if approved by them, may be communicated to the state legislatures, to the end that they may refer it to state conventions; each legislature declaring that if the convention of the state should think the plan ought to take effect among nine ratifying states, the same sh^d take effect accordingly. m^r gorham. some states will say that nine states shall be sufficient to establish the plan, others will require unanimity for the purpose. and the different and conditional ratifications will defeat the plan altogether. m^r hamilton. no convention convinced of the necessity of the plan will refuse to give it effect on the adoption by nine states. he thought this mode less exceptionable than the one proposed in the article, while it would attain the same end. m^r fitzimmons remarked that the words "for their approbation" had been struck out in order to save congress from the necessity of an act inconsistent with the articles of confederation under which they held their authority. m^r randolph declared, if no change should be made in this part of the plan, he should be obliged to dissent from the whole of it. he had from the beginning he said been convinced that radical changes in the system of the union were necessary. under this conviction he had brought forward a set of republican propositions as the basis and outline of a reform. these republican propositions had however, much to his regret, been widely, and, in his opinion, irreconcileably departed from. in this state of things it was his idea and he accordingly meant to propose, that the state conventions sh^d be at liberty to offer amendments to the plan; and that these should be submitted to a second general convention, with full power to settle the constitution finally. he did not expect to succeed in this proposition, but the discharge of his duty in making the attempt, would give quiet to his own mind. m^r wilson was against a reconsideration for any of the purposes which had been mentioned. m^r king thought it would be more respectful to congress to submit the plan generally to them; than in such a form as expressly and necessarily to require their approbation or disapprobation. the assent of nine states he considered as sufficient; and that it was more proper to make this a part of the constitution itself, than to provide for it by a supplemental or distinct recommendation. m^r gerry urged the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the articles of confederation. if nine out of thirteen can dissolve the compact. six out of nine will be just as able to dissolve the new one hereafter. m^r sherman was in favor of m^r king's idea of submitting the plan generally to congress. he thought nine states ought to be made sufficient: but that it would be best to make it a separate act and in some such form as that intimated by col: hamilton, than to make it a particular article of the constitution. on the question for reconsidering the two articles, xxi & xxii-- n. h. div^d. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. m^r hamilton then moved to postpone art xxi in order to take up the following, containing the ideas he had above expressed, viz resolved that the foregoing plan of a constitution be transmitted to the u. s. in congress assembled, in order that if the same shall be agreed to by them, it may be communicated to the legislatures of the several states, to the end that they may provide for its final ratification by referring the same to the consideration of a convention of deputies in each state to be chosen by the people thereof, and that it be recommended to the said legislatures in their respective acts for organizing such convention to declare, that if the said convention shall approve of the said constitution, such approbation shall be binding and conclusive upon the state, and further that if the said convention should be of opinion that the same upon the assent of any nine states thereto, ought to take effect between the states so assenting, such opinion shall thereupon be also binding upon such a state, and the said constitution shall take effect between the states assenting thereto. m^r gerry ^{ded} the motion. m^r wilson. this motion being seconded, it is necessary now to speak freely. he expressed in strong terms his disapprobation of the expedient proposed, particularly the suspending the plan of the convention on the approbation of congress. he declared it to be worse than folly to rely on the concurrence of the rhode island members of cong^s in the plan. maryland has voted on this floor; for requiring the unanimous assent of the states to the proposed change in the federal system. n. york has not been represented for a long time past in the convention. many individual deputies from other states have spoken much against the plan. under these circumstances can it be safe to make the assent of congress necessary. after spending four or five months in the laborious & arduous task of forming a government for our country, we are ourselves at the close throwing insuperable obstacles in the way of its success. m^r clymer thought that the mode proposed by m^r hamilton would fetter & embarrass cong^s as much as the original one, since it equally involved a breach of the articles of confederation. m^r king concurred with m^r clymer. if congress can accede to one mode, they can to the other. if the approbation of congress be made necessary, and they should not approve, the state legislatures will not propose the plan to conventions; or if the states themselves are to provide that nine states shall suffice to establish the system, that provision will be omitted, every thing will go into confusion, and all our labor be lost. m^r rutlidge viewed the matter in the same light with m^r king. on the question to postpone in order to take up col: hamilton's motion n. h. no. mas. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. a question being then taken on the article xxi. it was agreed to unanimously. col: hamilton withdrew the remainder of the motion to postpone art. xxii, observing that his purpose was defeated by the vote just given. m^r williamson & m^r gerry moved to re-instate the words "for the approbation of congress" in art: xxii. which was disagreed to nem: con: m^r randolph took this opportunity to state his objections to the system. they turned on the senate's being made the court of impeachment for trying the executive--on the necessity of / instead of / of each house to overrule the negative of the president--on the smallness of the number of the representative branch,--on the want of limitation to a standing army--on the general clause concerning necessary and proper laws--on the want of some particular restraint on navigation acts--on the power to lay duties on exports--on the authority of the general legislature to interpose on the application of the _executives_ of the states--on the want of a more definite boundary between the general & state legislatures--and between the general and state judiciaries--on the unqualified power of the president to pardon treasons--on the want of some limit to the power of the legislature in regulating their own compensations. with these difficulties in his mind, what course he asked was he to pursue? was he to promote the establishment of a plan which he verily believed would end in tyranny? he was unwilling he said to impede the wishes and judgment of the convention, but he must keep himself free, in case he should be honored with a seat in the convention of his state, to act according to the dictates of his judgment. the only mode in which his embarrassments could be removed, was that of submitting the plan to cong^s to go from them to the state legislatures, and from these to state conventions having power to adopt reject or amend; the process to close with another general convention with full power to adopt or reject the alterations proposed by the state conventions, and to establish finally the government. he accordingly proposed a resolution to this effect. doc^r franklin ^{ded} the motion. col: mason urged & obtained that the motion should lie on the table for a day or two to see what steps might be taken with regard to the parts of the system objected to by m^r randolph. m^r pinkney moved "that it be an instruction to the committee for revising the stile and arrangement of the articles agreed on, to prepare an address to the people, to accompany the present constitution, and to be laid with the same before the u. states in congress." [ ]the motion itself was referred to the committee nem: con: [ ]m^r randolph moved to refer to the committee also a motion relating to pardons in cases of treason--which was agreed to nem: con: [ ] these motions are not entered in the printed journal.--madison's note. adjourned. tuesday sep^r . . in convention the report of the committee of stile & arrangement not being made & being waited for, the house adjourned. wednesday sep^r . . in convention doc^r johnson from the committee of stile &c. reported a digest of the plan, of which printed copies were ordered to be furnished to the members. he also reported a letter to accompany the plan, to congress.[ ] [ ] a note by madison in the text says: "(here insert a transcript of the former from the annexed sheet as _printed_ and of the latter from the draft as finally agreed to,)" and his footnote says: "this is a literal copy of the printed report. the copy in the printed journal contains some of the alterations subsequently made in the house." no transcript of the report was, however, made by madison, but the printed copy is among his papers. it is a large folio of four pages printed on one side of each page, and is accurately reproduced here. madison's copy is marked by him: "as reported by com^e of revision, or stile and arrangement sep^r ." the report is, in fact, correctly printed in the _journal of the federal convention_, , _et seq._, madison's statement to the contrary being an error. general bloomfield furnished brearley's copy to john quincy adams, and he printed it without the alterations and amendments which brearley had made. the extent of brearley's alterations and amendments may be seen in the copy printed in the _documentary history of the constitution_, i., , _et seq._ we, the people of the united states, in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america. article i. _sect._ . all legislative powers herein granted shall be vested in a congress of the united states, which shall consist of a senate and house of representatives. _sect._ . the house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. no person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to servitude for a term of years, and excluding indians not taxed, three-fifths of all other persons. the actual enumeration shall be made within three years after the first meeting of the congress of the united states, and within every subsequent term of ten years, in such manner as they shall by law direct. the number of representatives shall not exceed one for every forty thousand, but each state shall have at least one representative: and until such enumeration shall be made, the state of new-hampshire shall be entitled to chuse three, massachusetts eight, rhode-island and providence plantations one, connecticut five, new-york, six, new-jersey four, pennsylvania eight, delaware one, maryland six, virginia ten, north-carolina five, south-carolina five, and georgia three. when vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. the house of representatives shall choose their speaker and other officers; and they shall have the sole power of impeachment. _sect._ . the senate of the united states shall be composed of two senators from each state, chosen by the legislature thereof, for six years: and each senator shall have one vote. immediately after they shall be assembled in consequence of the first election, they shall be divided[ ] as equally as may be into three classes. the seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year: and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature. [ ] the words, "by lot," were not in the report as printed; but were inserted in manuscript, as a typographical error, departing from the text of the report referred to the committee of style & arrangement.--marginal note by madison. no person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. the vice-president of the united states shall be, ex officio,[ ] president of the senate, but shall have no vote, unless they be equally divided. [ ] ex officio struck out in madison's copy. the senate shall choose their other officers, and also a president pro tempore, in the absence of the vice-president, or when he shall exercise the office of president of the united states. the senate shall have the sole power to try all impeachments. when sitting for that purpose, they shall be on oath. when the president of the united states is tried, the chief justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present. judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the united states: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. _sect._ . the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof: but the congress may at any time by law make or alter such regulations. the congress shall assemble at least once in every year, and such meeting shall be on the first monday in december, unless they shall by law appoint a different day. _sect._ . each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business: but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide. each house may determine the rules of its proceedings; punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal. neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. _sect._ . the senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the united states. they shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the united states, which shall have been created, or the emoluments whereof shall have been encreased during such time; and no person holding any office under the united states, shall be a member of either house during his continuance in office. _sect._ . the enacting stile of the laws shall be, "be it enacted by the senators and representatives in congress assembled." all bills for raising revenue shall originate in the house of representatives: but the senate may propose or concur with amendments as on other bills. every bill which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the united states. if he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. if after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. but in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the congress by their adjournment prevent its return, in which case it shall not be a law. every order, resolution, or vote to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to the president of the united states; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by[ ] three-fourths[ ] of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill. [ ] in the entry of this report in the printed journal "two-thirds" are substituted for "three-fourths." this change was made after the report was received.--madison's note. this is a mistake. the printed journal has it "three fourths." [ ] a marginal note says "two thirds." _sect._ . the congress may by joint ballot appoint a treasurer. they shall have power to lay and collect taxes, duties, imposts and excises; to pay the debts and provide for the common defence and general welfare of the united states.[ ] [ ] "but all duties imposts & excises shall be uniform throughout the u. states," interlined by madison. to borrow money on the credit of the united states. to regulate commerce with foreign nations, among the several states, and with the indian tribes. to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the united states. to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. to provide for the punishment of counterfeiting the securities and current coin of the united states. to establish post offices and post roads. to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. to constitute tribunals inferior to the supreme court. to define and punish piracies and felonies committed on the high seas, and[ ] offences against the law of nations. [ ] (punish) a typographical omission.--madison's note. to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. to raise and support armies: but no appropriations of money to that use shall be for a longer term than two years. to provide and maintain a navy. to make rules for the government and regulation of the land and naval forces. to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress. to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the united states, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings--and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof. _sect._ . the migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. no bill of attainder shall be passed, nor any ex post facto law. no capitation tax shall be laid, unless in proportion to the census herein before directed to be taken.[ ] [ ] "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another--nor shall vessels bound to or from one state be obliged to enter, clear or pay duties in another," interlined by madison. no tax or duty shall be laid on articles exported from any state. no money shall be drawn from the treasury, but in consequence of appropriations made by law. no title of nobility shall be granted by the united states. and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. _sect._ . no state shall coin money, nor emit bills of credit, nor make anything but gold or silver coin a tender in payment of debts, nor pass any bill of attainder, nor ex post facto laws, nor laws altering or impairing the obligation of contracts; nor grant letters of marque and reprisal, nor enter into any treaty, alliance, or confederation, nor grant any title of nobility. no state shall, without the consent of congress, lay imposts or duties on imports or exports, nor with such consent, but to the use of the treasury of the united states.[ ][ ] nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another state, nor with any foreign power. nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so iminent, as not to admit of delay until the congress can be consulted. [ ] provided that no state shall be restrained from imposing the usual duties on produce exported from such state for the sole purpose of defraying the charges of inspecting packing storing & indemnifying the losses on such produce while in the custody of public officers. but all such regulations shall in case of abuse be subject to the revision & controul of congress.--marginal note by madison. [ ] "no state shall without the consent of congress," interlined by madison. ii. _sect._ . the executive power shall be vested in a president of the united states of america. he shall hold his office during the term of four years, and, altogether with the vice-president, chosen for the same term, be elected in the following manner: each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in congress: but no senator or representative shall be appointed an elector, nor any person holding an office of trust or profit under the united states. the electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. and they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the general government, directed to the president of the senate. the president of the senate shall in the presence of the senate and house of representatives open all the certificates, and the votes shall then be counted. the person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately chuse by ballot one of them for president; and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. but in choosing the president, the votes shall be taken by states and not per capita,[ ] the representation from each state having one vote. a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. in every case, after the choice of the president by the representatives,[ ] the person having the greatest number of votes of the electors shall be the vice-president. but if there should remain two or more who have equal votes, the senate shall choose from them by ballot the vice-president. [ ] "and not per capita" struck out by madison. [ ] "by the representatives" struck out by madison. the congress may determine the time of chusing the electors, and the time in[ ] which they shall give their votes; but the election shall be on the same day[ ] throughout the united states. [ ] the words "day on" substituted by madison. [ ] "but the election shall be on the same day" struck out & "which day shall be the same" inserted by madison. no person except a natural born citizen, or a citizen of the united states, at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the united states. in case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or the period for chusing another president arrive.[ ] [ ] "the period for chusing another president arrive" struck out and "a president be chosen" inserted by madison. the president shall, at stated times, receive a fixed compensation for his services, which shall neither be encreased nor diminished during the period for which he shall have been elected. before he enter on the execution of his office, he shall take the following oath or affirmation: "i ----, do solemnly swear (or affirm) that i will faithfully execute the office of president of the united states, and will to the best of my judgment and power, preserve, protect and defend the constitution of the united states." _sect._ . the president shall be commander in chief of the army and navy of the united states, and of the militia of the several states: he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, when called into the actual service of the united states,[ ] and he shall have power to grant reprieves and pardons for offences against the united states, except in cases of impeachment. [ ] it so appears in the printed copy, but the clause "when called into the actual service of the united states" was intended to follow immediately after "militia of the several states." he shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states, whose appointments are not herein otherwise provided for. the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. _sect._ . he shall from time to time give to the congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient: he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper: he shall receive ambassadors and other public ministers: he shall take care that the laws be faithfully executed, and shall commission all the officers of the united states. _sect._ . the president, vice-president and all civil officers of the united states, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors. iii. _sect._ . the judicial power of the united states, both in law and equity, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. _sect._ . the judicial power shall extend to all cases, both in law and equity, arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority. to all cases affecting ambassadors, other public ministers and consuls. to all cases of admiralty and maritime jurisdiction. to controversies to which the united states shall be a party. to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. in cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. in all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make. the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed. _sect._ . treason against the united states, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. the congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood nor forfeiture, except during the life of the person attainted. iv. _sect._ . full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. and the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. _sect._ . the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled be delivered up, and removed to the state having jurisdiction of the crime. no person legally held to service or labour in one state, escaping into another, shall in consequence of regulations subsisting therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due. _sect._ . new states may be admitted by the congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the congress. the congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states: and nothing in this constitution shall be so construed as to prejudice any claims of the united states, or of any particular state. _sect._ . the united states shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature or executive, against domestic violence. v. the congress, whenever two-thirds of both houses shall deem necessary, or on the application of two-thirds[ ] of the legislatures[ ] of the several states, shall propose amendments to this constitution, which shall be valid to all intents and purposes, as part thereof, when the same shall have been ratified by three-fourths at least of[ ] the legislatures[ ] of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the congress: provided, that no amendment which may be made prior to the year shall in any manner affect the ----[ ] and[ ] ---- section[ ] of[ ] article. [ ] "of two thirds" struck out by madison. [ ] "of two-thirds" inserted by madison. [ ] "three-fourths at least of" struck out by madison. [ ] "of three-fourths" inserted by madison. [ ] " & clauses in the " inserted by madison. [ ] "and" struck out by madison. [ ] changed to "sections" by madison. [ ] "the first" inserted by madison. vi. all debts contracted and engagements entered into before the adoption of this constitution shall be as valid against the united states under this constitution as under the confederation. this constitution, and the laws of the united states which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. the senators and representatives beforementioned, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the united states. vii. the ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same. letter.[ ] [ ] the draft of the letter accompanied the draft of the constitution, but was not printed with it. the journal says (sept. ): "the draft of a letter to congress being at the same time reported, was read once throughout; and afterwards agreed to by paragraphs." (_const. mss. and journal_, p. .) the draft is in the handwriting of gouverneur morris and was undoubtedly prepared by him. it was turned over to washington by jackson with the other papers of the convention. the draft of the constitution must have been among those papers he destroyed. probably it too was written by morris. the letter having been accepted september , was printed with the final constitution september . it does not appear to have caused debate. we have now the honor to submit to the consideration of the united states in congress assembled that constitution which has appeared to us the most advisable. the friends of our country have long seen and desired that the power of making war peace and treaties, that of levying money & regulating commerce and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the union. but the impropriety of delegating such extensive trust to one body of men is evident. hence results the necessity of a different organization. it is obviously impracticable in the foederal government of these states to secure all rights of independent sovereignty to each and yet provide for the interest and safety of all. individuals entering into society must give up a share of liberty to preserve the rest. the magnitude of the sacrifice must depend as well on situation and circumstances as on the object to be obtained. it is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved. and on the present occasion this difficulty was increased by a difference among the several states as to their situation extent habits and particular interests. in all our deliberations on this subject we kept steadily in our view that which appears to us the greatest interest of every true american the consolidation of our union in which is involved our prosperity felicity safety perhaps our national existence. this important consideration seriously and deeply impressed on our minds led each state in the convention to be less rigid in points of inferior magnitude than might have been otherwise expected. and thus the constitution which we now present is the result of a spirit of amity and of that mutual deference & concession which the peculiarity of our political situation rendered indispensable. that it will meet the full and entire approbation of every state is not perhaps to be expected. but each will doubtless consider that had her interests been alone consulted the consequences might have been particularly disagreable or injurious to others. that it is liable to as few exceptions as could reasonably have been expected we hope and believe. that it may promote the lasting welfare of that country so dear to us all and secure her freedom and happiness is our most ardent wish-- m^r williamson moved to reconsider the clause requiring three fourths of each house to overrule the negative of the president, in order to strike out / and insert / . he had he remarked himself proposed / instead of / , but he had since been convinced that the latter proportion was the best. the former puts too much in the power of the president. m^r sherman was of the same opinion; adding that the states would not like to see so small a minority and the president, prevailing over the general voice. in making laws regard should be had to the sense of the people, who are to be bound by them, and it was more probable that a single man should mistake or betray this sense than the legislature. m^r gov^r morris. considering the difference between the two proportions numerically, it amounts in one house to two members only; and in the others to not more than five; according to the numbers of which the legislature is at first to be composed. it is the interest moreover of the distant states to prefer / as they will be oftenest absent and need the interposing check of the president. the excess rather than the deficiency, of laws was to be dreaded. the example of n. york shews that / is not sufficient to answer the purpose. m^r hamilton added his testimony to the fact that / in n. york had been ineffectual either where a popular object, or a legislative faction operated; of which he mentioned some instances. m^r gerry. it is necessary to consider the danger on the other side also. / will be a considerable, perhaps a proper security. / puts too much in the power of a few men. the primary object of the revisionary check in the president is not to protect the general interest, but to defend his own department. if / be required, a few senators having hopes from the nomination of the president to offices, will combine with him and impede proper laws. making the vice-president speaker increases the danger. m^r williamson was less afraid of too few than of too many laws. he was most of all afraid that the repeal of bad laws might be rendered too difficult by requiring / to overcome the dissent of the president. col: mason had always considered this as one of the most exceptionable parts of the system. as to the numerical argument of m^r gov^r morris, little arithmetic was necessary to understand that / was more than / , whatever the numbers of the legislature might be. the example of new york depended on the real merits of the laws. the gentlemen citing it, had no doubt given their own opinions. but perhaps there were others of opposite opinions who could equally paint the abuses on the other side. his leading view was to guard against too great an impediment to the repeal of laws. m^r gov^r morris dwelt on the danger to the public interest from the instability of laws, as the most to be guarded against. on the other side there could be little danger. if one man in office will not consent where he ought, every fourth year another can be substituted. this term was not too long for fair experiments. many good laws are not tried long enough to prove their merit. this is often the case with new laws opposed to old habits. the inspection laws of virginia & maryland to which all are now so much attached were unpopular at first. m^r pinkney was warmly in opposition to / as putting a dangerous power in the hands of a few senators headed by the president. m^r madison. when / was agreed to, the president was to be elected by the legislature and for seven years. he is now to be elected by the people and for four years. the object of the revisionary power is two fold. . to defend the executive rights . to prevent popular or factious injustice. it was an important principle in this & in the state constitutions to check legislative injustice and encroachments. the experience of the states had demonstrated that their checks are insufficient. we must compare the danger from the weakness of / with the danger from the strength of / . he thought on the whole the former was the greater. as to the difficulty of repeals it was probable that in doubtful cases the policy would soon take place of limiting the duration of laws so as to require renewal instead of repeal. the reconsideration being agreed to. on the question to insert / in place of / . n. h. div^d. mas. no. c^t ay. n. j. ay. p^a no. del. no. m^d ay. m^r mchenry no. v^a no. gen^l washington m^r blair, m^r madison no. col. mason, m^r randolph ay. n. c. ay. s. c. ay. geo. ay. m^r williamson, observed to the house that no provision was yet made for juries in civil cases and suggested the necessity of it. m^r gorham. it is not possible to discriminate equity cases from those in which juries are proper. the representatives of the people may be safely trusted in this matter. m^r gerry urged the necessity of juries to guard ag^{st} corrupt judges. he proposed that the committee last appointed should be directed to provide a clause for securing the trial by juries. col: mason perceived the difficulty mentioned by m^r gorham. the jury cases cannot be specified. a general principle laid down on this and some other points would be sufficient. he wished the plan had been prefaced with a bill of rights, & would second a motion if made for the purpose. it would give great quiet to the people; and with the aid of the state declarations, a bill might be prepared in a few hours. m^r gerry concurred in the idea & moved for a committee to prepare a bill of rights. col: mason ^{ded} the motion. m^r sherman, was for securing the rights of the people where requisite. the state declarations of rights are not repealed by this constitution; and being in force are sufficient. there are many cases where juries are proper which cannot be discriminated. the legislature may be safely trusted. col: mason. the laws of the u. s. are to be paramount to state bills of rights. on the question for a com^e to prepare a bill of rights n. h. no. mas. abs^t. c^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. the clause relating to exports being reconsidered, at the instance of col: mason, who urged that the restriction on the states would prevent the incidental duties necessary for the inspection & safekeeping of their produce, and be ruinous to the staple states, as he called the five southern states, he moved as follows--"provided nothing herein contained shall be construed to restrain any state from laying duties upon exports for the sole purpose of defraying the charges of inspecting, packing, storing and indemnifying the losses in keeping the commodities in the care of public officers, before exportation." in answer to a remark which he anticipated, to wit, that the states could provide for these expences, by a tax in some other way, he stated the inconveniency of requiring the planters to pay a tax before the actual delivery for exportation. m^r madison ^{ded} the motion. it would at least be harmless; and might have the good effect of restraining the states to bona fide duties for the purpose, as well as of authorizing explicitly such duties; tho' perhaps the best guard against an abuse of the power of the states on this subject, was the right in the gen^l government to regulate trade between state & state. m^r gov^r morris saw no objection to the motion. he did not consider the dollar per hhd laid on tob^o in virg^a as a duty on exportation, as no drawback would be allowed on tob^o taken out of the warehouse for internal consumption. m^r dayton was afraid the proviso w^d enable pennsylv^a to tax n. jersey under the idea of inspection duties of which pen^a would judge. m^r gorham & m^r langdon, thought there would be no security if the proviso sh^d be agreed to, for the states exporting thro' other states, ag^{st} these oppressions of the latter. how was redress to be obtained in case duties should be laid beyond the purpose expressed? m^r madison. there will be the same security as in other cases. the jurisdiction of the supreme court must be the source of redress. so far only had provision been made by the plan ag^{st} injurious acts of the states. his own opinion was, that this was sufficient. a negative on the state laws alone could meet all the shapes which these could assume. but this had been overruled. m^r fitzimmons. incidental duties on tob^o & flour never have been & never can be considered as duties on exports. m^r dickinson. nothing will save the states in the situation of n. hampshire n. jersey delaware &c. from being oppressed by their neighbors, but requiring the assent of cong^s to inspection duties. he moved that this assent sh^d accordingly be required. m^r butler ^{ded} the motion. adjourned. thursday sep^r . . in convention col. mason.[ ] he had moved without success for a power to make sumptuary regulations. he had not yet lost sight of his object. after descanting on the extravagance of our manners, the excessive consumption of foreign superfluities, and the necessity of restricting it, as well with oeconomical as republican views, he moved that a committee be appointed to report articles of association for encouraging by the advice the influence and the example of the members of the convention, oeconomy frugality and american manufactures. [ ] the dissensions among the virginia delegates had leaked out, for joseph jones, fredericksburg, september , , wrote to madison that a rumor of their disagreement was current in virginia.--chicago historical society mss. doc^r johnson ^{ded} the motion which was without debate agreed to, nem: con: and a committee appointed, consisting of col: mason, doc^r franklin, m^r dickenson, doc^r johnson and m^r livingston.[ ] [ ] this motion, & appointment of the co[~m]ittee, not in the printed journal. no report was made by the com^e--madison's note. col: mason renewed his proposition of yesterday on the subject of inspection laws, with an additional clause giving to congress a controul over them in case of abuse--as follows: "provided that no state shall be restrained from imposing the usual duties on produce exported from such state, for the sole purpose of defraying the charges of inspecting, packing, storing, and indemnifying the losses on such produce, while in the custody of public officers: but all such regulations shall in case of abuse, be subject to the revision and controul of congress." there was no debate & on the question n. h. ay. mas. ay. c^t ay. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. the report from the committee of stile & arrangement, was taken up, in order to be compared with the articles of the plan as agreed to by the house & referred to the committee, and to receive the final corrections and sanction of the convention. art: , sect. . on motion of m^r randolph the word "servitude" was struck out, and "service" unanimously[ ] inserted, the former being thought to express the condition of slaves, & the latter the obligations of free persons. [ ] see page of the printed journal.--madison's note. m^r dickenson & m^r wilson moved to strike out, "and direct taxes," from sect. , art. , as improperly placed in a clause relating merely to the constitution of the house of representatives. m^r gov^r morris. the insertion here was in consequence of what had passed on this point; in order to exclude the appearance of counting the negroes in _the representation_. the including of them may now be referred to the object of direct taxes, and incidentally only to that of representation. on the motion to strike out "and direct taxes" from this place n. h. no. mas. no. c^t no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. art. , sect. .--"if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him &c." m^r madison moved to insert between "after" and "it" in sect. , art. the words "the day on which," in order to prevent a question whether the day on which the bill be presented ought to be counted or not as one of the ten days. m^r randolph ^{ded} the motion. m^r governe^r morris. the amendment is unnecessary. the law knows no fractions of days. a number of members being very impatient & calling for the question n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. no.-- doc^r johnson made a further report from the committee of stile &c. of the following resolutions to be substituted for & articles. "resolved that the preceding constitution be laid before the u. states in congress assembled, and that it is the opinion of this convention, that it should afterwards be submitted to a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent & ratification; & that each convention assenting & ratifying the same should give notice thereof to the u. s. in cong^s assembled. "resolved that it is the opinion of this convention that as soon as the conventions of nine states, shall have ratified this constitution, the u. s. in cong^s assembled should fix a day on which electors should be appointed by the states which shall have ratified the same; and a day on which the electors should assemble to vote for the president; and the time and place for commencing proceedings under this constitution--that after such publication the electors should be appointed, and the senators and representatives elected: that the electors should meet on the day fixed for the election of the president, and should transmit their votes certified signed, sealed and directed, as the constitution requires, to the secretary of the u. states in cong^s assembled: that the senators and representatives should convene at the time & place assigned: that the senators should appoint a president for the sole purpose of receiving, opening, and counting the votes for president, and that after he shall be chosen, the congress, together with the president should without delay proceed to execute this constitution." adjourned. friday sep^r ^{th}. . in convention the report of the committee of stile & arrangement being resumed, m^r williamson moved to reconsider in order to increase the number of representatives fixed for the first legislature. his purpose was to make an addition of one half generally to the number allotted to the respective states; and to allow two to the smallest states. on this motion n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. art. i. sect. . the words "by lot"[ ] were struck out nem: con: on motion of m^r madison, that some rule might prevail in the rotation that would prevent both the members from the same state from going out at the same time. [ ] "by lot" had been reinstated from the report of five aug. . as a correction of the printed report by the com^e of stile & arrangement.--madison's note. "ex officio" struck out of the same section as superfluous; nem: con; and "or affirmation" after "oath" inserted also unanimously. m^r rutlidge and m^r gov^r morris moved "that persons impeached be suspended from their office until they be tried and acquitted." m^r madison. the president is made too dependent already on the legislature by the power of one branch to try him in consequence of an impeachment by the other. this intermediate suspension, will put him in the power of one branch only. they can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate. m^r king concurred in the opposition to the amendment. on the question to agree to it n. h. no. mas. no. c^t ay. n. j. no. p^a no. del.no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. art. i. sect. . "except as to the places of choosing senators" was added nem: con: to the end of the first clause, in order to exempt the seats of gov^t in the states from the power of congress. art. i. sect. . "each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy." col: mason & m^r gerry moved to insert after the word "parts," the words "of the proceedings of the senate" so as to require publication of all the proceedings of the house of representatives. it was intimated on the other side that cases might arise where secrecy might be necessary in both houses. measures preparatory to a declaration of war in which the house of rep^s was to concur, were instanced. on the question, it passed in the negative. n. h. no. (rh. i. abs.) mas. no. con: no,(n. y. abs.) n. j. no. pen. ay. del. no. mary. ay. virg. no. n. c. ay. s. c. div^d. geor. no. m^r baldwin observed that the clause, art. i. sect. . declaring that no member of cong^s "during the time for which he was elected, shall be appointed to any civil office under the authority of the u. s. which shall have been created, or the emoluments whereof shall have been increased during such time," would not extend to offices _created by the constitution_; and the salaries of which would be created, _not increased_ by cong^s at their first session. the members of the first cong^s consequently might evade the disqualification in this instance.--he was neither seconded nor opposed; nor did any thing further pass on the subject. art. i. sect. . the congress "may by joint ballot appoint a treasurer" m^r rutlidge moved to strike out this power, and let the treasurer be appointed in the same manner with other officers. m^r gorham & m^r king said that the motion, if agreed to, would have a mischievous tendency. the people are accustomed & attached to that mode of appointing treasurers, and the innovation will multiply objections to the system. m^r gov^r morris remarked that if the treasurer be not appointed by the legislature, he will be more narrowly watched, and more readily impeached. m^r sherman. as the two houses appropriate money, it is best for them to appoint the officer who is to keep it; and to appoint him as they make the appropriation, not by joint but several votes. gen^l pinkney. the treasurer is appointed by joint ballot in south carolina. the consequence is that bad appointments are made, and the legislature will not listen to the faults of their own officer. on the motion to strike out n. h. ay. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay. art i sect. . "but all such duties imposts & excises, shall be uniform throughout the u. s." were unanimously annexed to the power of taxation. to define & punish piracies and felonies on the high seas, and "punish" offences against the law of nations. m^r gov^r morris moved to strike out "punish" before the words "offences ag^{st} the law of nations," so as to let these be _definable_ as well as punishable, by virtue of the preceding member of the sentence. m^r wilson hoped the alteration would by no means be made. to pretend to _define_ the law of nations which depended on the authority of all the civilized nations of the world, would have a look of arrogance, that would make us ridiculous. m^r gov^r morris. the word _define_ is proper when applied to _offences_ in this case; the law of nations being often too vague and deficient to be a rule. on the question to strike out the word "punish" it passed in the affirmative n. h. ay. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. no. doc^r franklin moved[ ] to add after the words "post roads" art. i. sect. . "a power to provide for cutting canals where deemed necessary." [ ] this motion by d^r franklin not stated in the printed journal, as are some other motions.--madison's note. wilson ^{ded} the motion. m^r sherman objected. the expence in such cases will fall on the u. states, and the benefit accrue to the places where the canals may be cut. m^r wilson. instead of being an expence to the u. s. they may be made a source of revenue. m^r madison suggested an enlargement of the motion into a power "to grant charters of incorporation where the interest of the u. s. might require & the legislative provisions of individual states may be incompetent." his primary object was however to secure an easy communication between the states which the free intercourse now to be opened, seemed to call for. the political obstacles being removed, a removal of the natural ones as far as possible ought to follow. m^r randolph ^{ded} the proposition. m^r king thought the power unnecessary. m^r wilson. it is necessary to prevent _a state_ from obstructing the _general_ welfare. m^r king. the states will be prejudiced and divided into parties by it. in philad^a & new york. it will be referred to the establishment of a bank, which has been a subject of contention in those cities. in other places it will be referred to mercantile monopolies. m^r wilson mentioned the importance of facilitating by canals, the communication with the western settlements. as to banks he did not think with m^r king that the power in that point of view would excite the prejudices & parties apprehended. as to mercantile monopolies they are already included in the power to regulate trade. col: mason was for limiting the power to the single case of canals. he was afraid of monopolies of every sort, which he did not think were by any means already implied by the constitution as supposed by m^r wilson. the motion being so modified as to admit a distinct question specifying & limited to the case of canals, n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. ay. the other part fell of course, as including the power rejected. m^r madison & m^r pinkney then moved to insert in the list of powers vested in congress a power--"to establish an university, in which no preferences or distinctions should be allowed on account of religion." m^r wilson supported the motion. m^r gov^r morris. it is not necessary. the exclusive power at the seat of government, will reach the object. on the question n. h. no. mas. no. con^t div^d. d^r johnson ay. m^r sherman no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. col: mason, being sensible that an absolute prohibition of standing armies in time of peace might be unsafe, and wishing at the same time to insert something pointing out and guarding against the danger of them, moved to preface the clause (art. sect. ) "to provide for organizing, arming and disciplining the militia &c." with the words "and that the liberties of the people may be better secured against the danger of standing armies in time of peace." m^r randolph ^{ded} the motion. m^r madison was in favor of it. it did not restrain congress from establishing a military force in time of peace if found necessary; and as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the constitution, as far as will consist with the essential power of the gov^t on that head. m^r gov^r morris opposed the motion as setting a dishonorable mark of distinction on the military class of citizens. m^r pinkney & m^r bedford concurred in the opposition. on the question n. h. no. mas. no. c^t no. n. j. no. p^a no. mar^d no. v^a ay. n. c. no. s. c. no. geo. ay. col: mason moved to strike out from the clause (art. sect .) "no bill of attainder nor any ex post facto law shall be passed" the words "nor any ex post facto law." he thought it not sufficiently clear that the prohibition meant by this phrase was limited to cases of a criminal nature, and no legislature ever did or can altogether avoid them in civil cases. m^r gerry ^{ded} the motion but with a view to extend the prohibition to "civil cases," which he thought ought to be done. on the question; all the states were--no. m^r pinkney & m^r gerry, moved to insert a declaration "that the liberty of the press should be inviolably observed." m^r sherman. it is unnecessary. the power of congress does not extend to the press. on the question, it passed in the negative n. h.[ ] no. mas. ay. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. no. [ ] in the printed journal n. hampshire ay.--madison's note. art . sect. . "no capitation tax shall be laid, unless &c." m^r read moved to insert after "capitation" the words, "or other direct tax." he was afraid that some liberty might otherwise be taken to saddle the states, with a readjustment by this rule, of past requisitions of cong^s--and that his amendment by giving another cast to the meaning would take away the pretext. m^r williamson ^{ded} the motion which was agreed to. on motion of col: mason "or enumeration" inserted after, as explanatory of "census" con. & s. c. only, no.[ ] [ ] the words "con. & s. c. only no" are in the handwriting of john c. payne, madison's brother-in-law. at the end of the clause "no tax or duty shall be laid on articles exported from any state" was added the following amendment conformably to a vote on the [ ] of [august] viz--no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to or from one state, be obliged to enter, clear or pay duties in another. col. mason moved a clause requiring "that an account of the public expenditures should be annually published" m^r gerry ^{ded} the motion, m^r gov^r morris urged that this w^d be impossible in many cases. m^r king remarked, that the term expenditures went to every minute shilling. this would be impracticable. cong^s might indeed make a monthly publication, but it would be in such general statements as would afford no satisfactory information. m^r madison proposed to strike out "annually" from the motion & insert "from time to time," which would enjoin the duty of frequent publications and leave enough to the discretion of the legislature. require too much and the difficulty will beget a habit of doing nothing. the articles of confederation require halfyearly publications on this subject. a punctual compliance being often impossible, the practice has ceased altogether. m^r wilson ^{ded}. & supported the motion. many operations of finance cannot be properly published at certain times. m^r pinkney was in favor of the motion. m^r fitzimmons. it is absolutely impossible to publish expenditures in the full extent of the term. m^r sherman thought "from time to time" the best rule to be given. "annual" was struck out--& those words--inserted nem: con: the motion of col: mason so amended was then agreed to nem: con: and added after--"appropriations by law" as follows--"and a regular statement and account of the receipts & expenditures of all public money shall be published from time to time." the first clause of art. sect. --was altered so as to read--"no state shall enter into any treaty alliance or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold & silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility." m^r gerry entered into observations inculcating the importance of public faith, and the propriety of the restraint put on the states from impairing the obligation of contracts, alledging that congress ought to be laid under the like prohibitions, he made a motion to that effect. he was not ^{ded}. adjourned. saturday sep^r ^{th}. . in convention m^r carrol reminded the house that no address to the people had yet been prepared. he considered it of great importance that such an one should accompany the constitution. the people had been accustomed to such on great occasions, and would expect it on this. he moved that a committee be appointed for the special purpose of preparing an address. m^r rutlidge objected on account of the delay it would produce and the impropriety of addressing the people before it was known whether congress would approve and support the plan. congress if an address be thought proper can prepare as good a one. the members of the convention can also explain the reasons of what has been done to their respective constituents. m^r sherman concurred in the opinion that an address was both unnecessary and improper. on the motion of m^r carrol n. h. no. mas. no. c^t no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c.[ ] abs^t. s. c.[ ] no. geo. no. [ ] in the printed journal n. carolina no--s. carol: omitted.--madison's note. m^r langdon. some gentlemen have been very uneasy that no increase of the number of representatives has been admitted. it has in particular been thought that one more ought to be allowed to n. carolina. he was of opinion that an additional one was due both to that state and to rho: island, & moved to reconsider for that purpose. m^r sherman. when the committee of eleven reported the apportionment--five representatives were thought the proper share of n. carolina. subsequent information however seemed to entitle that state to another. on the motion to reconsider n. h. ay. mas. no. c^t ay. n. j. no. pen. div^d. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r langdon moved to add member to each of the representations of n. carolina & rho: island.[ ] [ ] the ms. official journal says: "it was moved and seconded to"----and here finally ends, and the minutes for september are crossed out (const. mss.). they are given in the printed journal, and a note says the journal for that day and monday was completed from minutes furnished by madison (p. ). october , , adams wrote to madison asking him to complete the journal. he replied from montpelier, november : "i have received your letter of ult: and enclose such extracts from my notes relating to the two last days of the constitution, as may fill in the chasm in the journals, according to the mode in which the proceedings are recorded."--state dept. mss., miscl. letters. later (june , ) adams sent him lists of yeas and nays, and he replied (montpelier, june , ): "i return the list of yeas & nays in the convention, with the blanks filled in according to your request, as far as i could do it by tracing the order of the yeas & nays & their coincidency with those belonging to successive questions in my papers."--mad. mss. m^r king was ag^{st} any change whatever as opening the door for delays. there had been no official proof that the numbers of n. c. are greater than before estimated, and he never could sign the constitution if rho: island is to be allowed two members that is one fourth of the number allowed to massts., which will be known to be unjust. m^r pinkney urged the propriety of increasing the number of rep^s allotted to n. carolina. m^r bedford contended for an increase in favor of rho: island, and of delaware also it passed in the negative. on the question for allowing two rep^s to rho: island, it passed in the negative. n. h. ay. mas. no. c^t no. n. j. no. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. ay. on the question for allowing six to n. carolina, it passed in the negative n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. art . sect. . (paragraph ) "no state shall, without the consent of congress lay imposts or duties on imports or exports; nor with such consent, but to the use of the treasury of the u. states." in consequence of the proviso moved by col: mason; and agreed to on the sep^r, this part of the section was laid aside in favor of the following substitute viz: "no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the nett produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the u. s.; and all such laws shall be subject to the revision and controul of the congress" on a motion to strike out the last part "and all such laws shall be subject to the revision and controul of the congress" it passed in the negative. n. h. no. mas. no. c^t no. n. j. no. p^a div^d. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. ay. the substitute was then agreed to; virg^a alone being in the negative. the remainder of the paragraph being under consideration--viz--"nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another state, nor with any foreign power. nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of delay, until congress can be consulted." m^r m^chenry & m^r carrol moved that "no state shall be restrained from laying duties of tonnage for the purpose of clearing harbours and erecting lighthouses." col. mason in support of this explained and urged the situation of the chesapeak which peculiarly required expences of this sort. m^r gov^r morris. the states are not restrained from laying tonnage as the constitution now stands. the exception proposed will imply the contrary, and will put the states in a worse condition than the gentleman (col. mason) wishes. m^r madison. whether the states are now restrained from laying tonnage duties, depends on the extent of the power "to regulate commerce." these terms are vague, but seem to exclude this power of the states. they may certainly be restrained by treaty. he observed that there were other objects for tonnage duties as the support of seamen &c. he was more & more convinced that the regulation of commerce was in its nature indivisible and ought to be wholly under one authority. m^r sherman. the power of the u. states to regulate trade being supreme can controul interferences of the state regulations when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction. m^r langdon insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the states ought to have nothing to do with it. on motion "that no state shall lay any duty on tonnage without the consent of congress." n. h. ay. mas. ay. c^t div^d. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. ay. geo. no. the remainder of the paragraph was then remoulded and passed as follows viz--"no state shall without the consent of congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." art ii. sect. . (paragraph ) "or the period for chusing another president arrive" were changed into "or a president shall be elected" conformably to a vote of the ---- of ----. m^r rutlidge and doc^r franklin moved to annex to the end of paragraph . sect. . art ii--"and he (the president) shall not receive, within that period, any other emolument from the u. s. or any of them." on which question n. h. ay. mas. ay. c^t no. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo.--ay. art: ii. sect. . "he shall have power to grant reprieves and pardons for offences against the u. s. &c." m^r randolph moved to except "cases of treason." the prerogative of pardon in these cases was too great a trust. the president may himself be guilty. the traitors may be his own instruments. col: mason supported the motion. m^r gov^r morris had rather there should be no pardon for treason, than let the power devolve on the legislature. m^r wilson. pardon is necessary for cases of treason, and is best placed in the hands of the executive. if he be himself a party to the guilt he can be impeached and prosecuted. m^r king thought it would be inconsistent with the constitutional separation of the executive & legislative powers to let the prerogative be exercised by the latter. a legislative body is utterly unfit for the purpose. they are governed too much by the passions of the moment. in massachusetts, one assembly would have hung all the insurgents in that state: the next was equally disposed to pardon them all. he suggested the expedient of requiring the concurrence of the senate in acts of pardon. m^r madison admitted the force of objections to the legislature, but the pardon of treasons was so peculiarly improper for the president that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. he would prefer to either an association of the senate as a council of advice, with the president. m^r randolph could not admit the senate into a share of the power. the great danger to liberty lay in a combination between the president & that body. col: mason. the senate has already too much power. there can be no danger of too much lenity in legislative pardons, as the senate must concur, & the president moreover can require / of both houses. on the motion of m^r randolph n. h. no.--mas. no. c^t div^d. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. ay. art ii. sect. . (paragraph ) to the end of this, m^r govern^r morris moved to annex "but the congress may by law vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments." m^r sherman ^{ded} the motion. m^r madison. it does not go far enough if it be necessary at all. superior officers below heads of departments ought in some cases to have the appointment of the lesser offices. m^r gov^r morris. there is no necessity. blank commissions can be sent-- on the motion n. h. ay. mas. no. c^t ay. n. j. ay. p^a ay. del. no. m^d div^d. v^a no. n. c. ay. s. c. no. geo. no. the motion being lost by an equal division of votes. it was urged that it be put a second time some such provision being too necessary to be omitted, and on a second question it was agreed to nem: con. art. ii. sect. . the words "and not per capita" were struck out as superfluous and the words "by the representatives" also--as improper, the choice of president being in another mode as well as eventually by the house of rep^s. art ii. sect. . after "officers of the u. s. whose appointments are not otherwise provided for," were added the words "and which shall be established by law." art iii. sect. . parag: . m^r pinkney & m^r gerry moved to annex to the end, "and a trial by jury shall be preserved as usual in civil cases." m^r gorham. the constitution of juries is different in different states and the trial itself is _usual_ in different cases in different states. m^r king urged the same objections. gen^l pinkney also. he thought such a clause in the constitution would be pregnant with embarrassments. the motion was disagreed to nem: con: art. iv. sect. . parag: . the term "legally" was struck out, and "under the laws thereof" inserted after the word "state" in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view. art. iv. sect . "new states may be admitted by the congress into this union: but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the cong^s." m^r gerry moved to insert after "or parts of states" the words "or a state and part of a state" which was disagreed to by a large majority; it appearing to be supposed that the case was comprehended in the words of the clause as reported by the committee. art. iv. sect. . after the word "executive" were inserted the words "when the legislature cannot be convened." art. v. "the congress, whenever two thirds of both houses shall deem necessary, or on the application of two thirds of the legislatures of the several states shall propose amendments to this constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the legislatures of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress: provided that no amendment which may be made prior to the year shall in any manner affect the & clauses in the . section of article ." m^r sherman expressed his fears that three fourths of the states might be brought to do things fatal to particular states, as abolishing them altogether or depriving them of their equality in the senate. he thought it reasonable that the proviso in favor of the states importing slaves should be extended so as to provide that no state should be affected in its internal police, or deprived of its equality in the senate. col: mason thought the plan of amending the constitution exceptionable & dangerous. as the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on congress, no amendments of the proper kind would ever be obtained by the people, if the government should become oppressive, as he verily believed would be the case. m^r gov^r morris & m^r gerry moved to amend the article so as to require a convention on application of / of the sts. m^r madison did not see why congress would not be as much bound to propose amendments applied for by two thirds of the states as to call a convention on the like application. he saw no objection however against providing for a convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in constitutional regulations ought to be as much as possible avoided. the motion of m^r gov^r morris & m^r gerry was agreed to nem: con: (see the first part of the article as finally past). m^r sherman moved to strike out of art. v. after "legislatures" the words "of three fourths" and so after the word "conventions" leaving future conventions to act in this matter, like the present conventions according to circumstances. on this motion n. h. div^d. mas. ay. c^t ay. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo--no. m^r gerry moved to strike out the words "or by conventions in three fourths thereof." on this motion n. h. no. mas. no. c^t ay. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r sherman moved according to his idea above expressed to annex to the end of the article a further proviso "that no state shall without its consent be affected in its internal police, or deprived of its equal suffrage in the senate." m^r madison. begin with these special provisos, and every state will insist on them, for their boundaries, exports &c. on the motion of m^r sherman n. h. no. mas. no. c^t ay. n. j. ay. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r sherman then moved to strike out art. v altogether. m^r brearley ^{ded} the motion, on which n. h. no. mas. no. c^t ay. n. j. ay. p^a no. del div^d. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r gov^r morris moved to annex a further proviso--"that no state, without its consent shall be deprived of its equal suffrage in the senate." this motion being dictated by the circulating murmurs of the small states was agreed to without debate, no one opposing it, or on the question, saying no. col: mason expressing his discontent at the power given to congress by a bare majority to pass navigation acts, which he said would not only enhance the freight, a consequence he did not so much regard--but would enable a few rich merchants in philad^a n. york & boston, to monopolize the staples of the southern states & reduce their value perhaps per c^t moved a further proviso that no law in the nature of a navigation act be passed before the year , without the consent of / of each branch of the legislature. on this motion n. h. no. mas. no. c^t no. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. abs^t. s. c. no. geo. ay. m^r randolph animadverting on the indefinite and dangerous power given by the constitution to congress, expressing the pain he felt at differing from the body of the convention, on the close of the great & awful subject of their labours, and anxiously wishing for some accommodating expedient which would relieve him from his embarrassments, made a motion importing "that amendments to the plan might be offered by the state conventions, which should be submitted to and finally decided on by another general convention." should this proposition be disregarded, it would he said be impossible for him to put his name to the instrument. whether he should oppose it afterwards he would not then decide but he would not deprive himself of the freedom to do so in his own state, if that course should be prescribed by his final judgment. col: mason ^{ded} & followed m^r randolph in animadversions on the dangerous power and structure of the government, concluding that it would end either in monarchy, or a tyrannical aristocracy; which, he was in doubt, but one or other, he was sure. this constitution had been formed without the knowledge or idea of the people. a second convention will know more of the sense of the people, and be able to provide a system more consonant to it. it was improper to say to the people, take this or nothing. as the constitution now stands, he could neither give it his support or vote in virginia; and he could not sign here what he could not support there. with the expedient of another convention as proposed, he could sign. m^r pinkney. these declarations from members so respectable at the close of this important scene, give a peculiar solemnity to the present moment. he descanted on the consequences of calling forth the deliberations & amendments of the different states on the subject of government at large. nothing but confusion & contrariety could spring from the experiment. the states will never agree in their plans, and the deputies to a second convention coming together under the discordant impressions of their constituents, will never agree. conventions are serious things, and ought not to be repeated. he was not without objections as well as others to the plan. he objected to the contemptible weakness & dependence of the executive. he objected to the power of a majority only of cong^s over commerce. but apprehending the danger of a general confusion, and an ultimate decision by the sword, he should give the plan his support. m^r gerry stated the objections which determined him to withhold his name from the constitution. . the duration and re-eligibility of the senate. . the power of the house of representatives to conceal their journals. . the power of congress over the places of election. . the unlimited power of congress over their own compensation. . massachusetts has not a due share of representatives allotted to her. . / of the blacks are to be represented as if they were freemen. . under the power over commerce, monopolies may be established. . the vice president being made head of the senate. he could however he said get over all these, if the rights of the citizens were not rendered insecure . by the general power of the legislature to make what laws they may please to call necessary and proper. . raise armies and money without limit. . to establish a tribunal without juries, which will be a star-chamber as to civil cases. under such a view of the constitution, the best that could be done he conceived was to provide for a second general convention. on the question on the proposition of m^r randolph. all the states answered no. on the question to agree to the constitution as amended. all the states ay. the constitution was then ordered to be engrossed. and the house adjourned. monday sep^r . . in convention the engrossed constitution being read. doc^r franklin rose with a speech in his hand, which he had reduced to writing for his own conveniency, and which m^r wilson read in the words following. m^r president i confess that there are several parts of this constitution which i do not at present approve, but i am not sure i shall never approve them: for having lived long, i have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which i once thought right, but found to be otherwise. it is therefore that the older i grow, the more apt i am to doubt my own judgment, and to pay more respect to the judgment of others. most men indeed as well as most sects in religion think themselves in possession of all truth, and that wherever others differ from them it is so far error. steele a protestant in a dedication tells the pope, that the only difference between our churches in their opinions of the certainty of their doctrines is, the church of rome is infallible and the church of england is never in the wrong. but though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "i don't know how it happens, sister but i meet with nobody but myself, that is always in the right--_il n'y a que moi qui a toujours raison_." in these sentiments, sir, i agree to this constitution with all its faults, if they are such; because i think a general government necessary for us, and there is no form of government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. i doubt too whether any other convention we can obtain may be able to make a better constitution. for when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. from such an assembly can a perfect production be expected? it therefore astonishes me, sir, to find this system approaching so near to perfection as it does; and i think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of babel; and that our states are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. thus i consent, sir, to this constitution because i expect no better, and because i am not sure, that it is not the best. the opinions i have had of its errors, i sacrifice to the public good. i have never whispered a syllable of them abroad. within these walls they were born, and here they shall die. if every one of us in returning to our constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign nations as well as among ourselves, from our real or apparent unanimity. much of the strength & efficiency of any government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the government, as well as of the wisdom and integrity of its governors. i hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this constitution (if approved by congress & confirmed by the conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administered. on the whole, sir, i cannot help expressing a wish that every member of the convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.--he then moved that the constitution be signed by the members and offered the following as a convenient form viz: "done in convention by the unanimous consent of _the states_ present the ^{th} of sep^r &c.--in witness whereof we have hereunto subscribed our names." this ambiguous form had been drawn up by m^r g. m. in order to gain the dissenting members, and put into the hands of doc^r franklin that it might have the better chance of success. m^r gorham said if it was not too late he could wish, for the purpose of lessening objections to the constitution, that the clause declaring "the number of representatives shall not exceed one for every forty thousand" which had produced so much discussion, might be yet reconsidered, in order to strike out , & insert "thirty thousand." this would not he remarked establish that as an absolute rule, but only give congress a greater latitude which could not be thought unreasonable. m^r king & m^r carrol seconded & supported the ideas of m^r gorham. when the president rose, for the purpose of putting the question, he said that although his situation had hitherto restrained him from offering his sentiments on questions depending in the house, and it might be thought, ought now to impose silence on him, yet he could not forbear expressing his wish that the alteration proposed might take place. it was much to be desired that the objections to the plan recommended might be made as few as possible. the smallness of the proportion of representatives had been considered by many members of the convention an insufficient security for the rights & interests of the people. he acknowledged that it had always appeared to himself among the exceptionable parts of the plan, and late as the present moment was for admitting amendments, he thought this of so much consequence that it would give much satisfaction to see it adopted.[ ] [ ] this was the only occasion on which the president entered at all into the discussions of the convention.--madison's note. no opposition was made to the proposition of m^r gorham and it was agreed to unanimously. on the question to agree to the constitution enrolled in order to be signed. it was agreed to all the states answering ay. m^r randolph then rose and with an allusion to the observations of doc^r franklin apologized for his refusing to sign the constitution notwithstanding the vast majority & venerable names that would give sanction to its wisdom and its worth. he said however that he did not mean by this refusal to decide that he should oppose the constitution without doors. he meant only to keep himself free to be governed by his duty as it should be prescribed by his future judgment. he refused to sign, because he thought the object of the convention would be frustrated by the alternative which it presented to the people. nine states will fail to ratify the plan and confusion must ensue. with such a view of the subject he ought not, he could not, by pledging himself to support the plan, restrain himself from taking such steps as might appear to him most consistent with the public good. m^r gov^r morris said that he too had objections, but considering the present plan as the best that was to be attained, he should take it with all its faults. the majority had determined in its favor, and by that determination he should abide. the moment this plan goes forth all other considerations will be laid aside, and the great question will be, shall there be a national government or not? and this must take place or a general anarchy will be the alternative. he remarked that the signing in the form proposed related only to the fact that the _states_ present were unanimous. m^r williamson suggested that the signing should be confined to the letter accompanying the constitution to congress, which might perhaps do nearly as well, and would be found satisfactory to some members[ ] who disliked the constitution. for himself he did not think a better plan was to be expected and had no scruples against putting his name to it. [ ] he alluded to m^r blount for one.--madison's note. m^r hamilton expressed his anxiety that every member should sign. a few characters of consequence, by opposing or even refusing to sign the constitution, might do infinite mischief by kindling the latent sparks which lurk under an enthusiasm in favor of the convention which may soon subside. no man's ideas were more remote from the plan than his own were known to be; but is it possible to deliberate between anarchy and convulsion on one side, and the chance of good to be expected from the plan on the other. m^r blount[ ] said he had declared that he would not sign, so as to pledge himself in support of the plan, but he was relieved by the form proposed and would without committing himself attest the fact that the plan was the unanimous act of the states in convention. [ ] "mr. blount is a character strongly marked for integrity and honor. he has been twice a member of congress, and in that office discharged his duty with ability and faithfulness. he is no speaker, nor does he possess any of those talents that make men shine;--he is plain, honest, and sincere. mr. blount is about years of age."--pierce's notes, _amer. hist. rev._, iii., . doc^r franklin expressed his fears from what m^r randolph had said, that he thought himself alluded to in the remarks offered this morning to the house. he declared that when drawing up that paper he did not know that any particular member would refuse to sign his name to the instrument, and hoped to be so understood. he possessed a high sense of obligation to m^r randolph for having brought forward the plan in the first instance, and for the assistance he had given in its progress, and hoped that he would yet lay aside his objections, and by concurring with his brethren, prevent the great mischief which the refusal of his name might produce. m^r randolph could not but regard the signing in the proposed form, as the same with signing the constitution. the change of form therefore could make no difference with him. he repeated that in refusing to sign the constitution he took a step which might be the most awful of his life, but it was dictated by his conscience, and it was not possible for him to hesitate, much less, to change. he repeated also his persuasion, that the holding out this plan with a final alternative to the people, of accepting or rejecting it in toto, would really produce the anarchy & civil convulsions which were apprehended from the refusal of individuals to sign it. m^r gerry described the painful feelings of his situation, and the embarrassments under which he rose to offer any further observations on the subject w^{ch}. had been finally decided. whilst the plan was depending, he had treated it with all the freedom he thought it deserved. he now felt himself bound as he was disposed to treat it with the respect due to the act of the convention. he hoped he should not violate that respect in declaring on this occasion his fears that a civil war may result from the present crisis of the u.s. in massachusetts, particularly he saw the danger of this calamitous event--in that state there are two parties, one devoted to democracy, the worst he thought of all political evils, the other as violent in the opposite extreme. from the collision of these in opposing and resisting the constitution, confusion was greatly to be feared. he had thought it necessary, for this & other reasons that the plan should have been proposed in a more mediating shape, in order to abate the heat and opposition of parties. as it had been passed by the convention, he was persuaded it would have a contrary effect. he could not therefore by signing the constitution pledge himself to abide by it at all events. the proposed form made no difference with him. but if it were not otherwise apparent, the refusals to sign should never be known from him. alluding to the remarks of doc^r franklin, he could not he said but view them as levelled at himself and the other gentlemen who meant not to sign. gen^l pinkney. we are not likely to gain many converts by the ambiguity of the proposed form of signing. he thought it best to be candid and let the form speak the substance. if the meaning of the signers be left in doubt, his purpose would not be answered. he should sign the constitution with a view to support it with all his influence, and wished to pledge himself accordingly. doc^r franklin. it is too soon to pledge ourselves before congress and our constituents shall have approved the plan. m^r ingersol[ ] did not consider the signing, either as a mere attestation of the fact, or as pledging the signers to support the constitution at all events; but as a recommendation, of what, all things considered, was the most eligible. [ ] "mr. ingersol is a very able attorney and possesses a clear legal understanding. he is well educated in the classic's, and is a man of very extensive reading. mr. ingersol speaks well, and comprehends his subject fully. there is modesty in his character that keeps him back. he is about years old."--pierce's notes, _amer. hist. rev._, iii., . on the motion of doc^r franklin n. h. ay. mas. ay. c^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. div^d.[ ] geo. ay. [ ] gen^l pinkney & m^r butler disliked the equivocal form of the signing, and on that account voted in the negative.--madison's note. m^r king suggested that the journals of the convention should be either destroyed, or deposited in the custody of the president. he thought if suffered to be made public, a bad use would be made of them by those who would wish to prevent the adoption of the constitution. m^r wilson preferd the second expedient, he had at one time liked the first best; but as false suggestions may be propagated it should not be made impossible to contradict them. a question was then put on depositing the journals and other papers of the convention in the hands of the president, on which, n. h. ay. m^{tts} ay. c^t ay. n. j. ay. pen^a ay. del. ay. m^d no.[ ] v^a ay. n. c. ay. s. c. ay. geo. ay.[ ] [ ] this negative of maryland was occasioned by the language of the instructions to the deputies of that state, which required them to report to the state, the _proceedings_ of the convention.--madison's note. [ ] "major jackson presents his most respectful compliments to general washington-- "he begs leave to request his signature to forty diplomas intended for the rhode island society of the cincinnati. "major jackson, after burning all the loose scraps of paper which belong to the convention, will this evening wait upon the general with the journals and other papers which their vote directs to be delivered to his excellency. "monday evening" endorsed in washington's hand: "maj^r w^m jackson ^{th} sep. ."--wash. mss. the president having asked what the convention meant should be done with the journals &c. whether copies were to be allowed to the members if applied for. it was resolved nem. con: "that he retain the journal and other papers, subject to the order of congress, if ever formed under the constitution." the members then proceeded to sign the instrument. whilst the last members were signing it doct^r franklin looking towards the president's chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to distinguish in their art a rising from a setting sun. i have said he, often and often in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the president without being able to tell whether it was rising or setting: but now at length i have the happiness to know that it is a rising and not a setting sun. the constitution being signed by all the members except m^r randolph, m^r mason and m^r gerry, who declined giving it the sanction of their names, the convention dissolved itself by an adjournment sine die[ ]-- [ ] the few alterations and corrections made in these debates which are not in my handwriting, were dictated by me and made in my presence by john c. payne. james madison.--madison's note. * * * * * [following is a literal copy of the engrossed constitution as signed. it is in four sheets, with an additional sheet containing the resolutions of transmissal. the note indented at the end is in the original precisely as reproduced here.] we the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america. article. i. section. . all legislative powers herein granted shall be vested in a congress of the united states, which shall consist of a senate and house of representatives. section. . the house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. no person shall be a representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding indians not taxed, three fifths of all other persons. the actual enumeration shall be made within three years after the first meeting of the congress of the united states, and within every subsequent term of ten years, in such manner as they shall by law direct. the number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumeration shall be made, the state of new hampshire shall be entitled to chuse three, massachusetts eight, rhode-island and providence plantations one, connecticut five, new-york six, new jersey four, pennsylvania eight, delaware one, maryland six, virginia ten, north carolina five, south carolina five, and georgia three. when vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. the house of representatives shall chuse their speaker and other officers; and shall have the sole power of impeachment. section. . the senate of the united states shall be composed of two senators from each state, chosen by the legislature thereof, for six years; and each senator shall have one vote. immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. the seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. no person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the united states, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. the vice president of the united states shall be president of the senate, but shall have no vote, unless they be equally divided. the senate shall chuse their other officers, and also a president pro tempore, in the absence of the vice president, or when he shall exercise the office of president of the united states. the senate shall have the sole power to try all impeachments. when sitting for that purpose, they shall be on oath or affirmation. when the president of the united states ^{is tried,} the chief justice shall preside: and no person shall be convicted without the concurrence of two thirds of the members present. judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the united states: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. section. . the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the congress may at any time by law make or alter such regulations, except as to the places of chusing senators. the congress shall assemble at least once in every year, and such meetings shall be on the first monday in december, unless they shall by law appoint a different day. section. . each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide. each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member. each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal. neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. section. . the senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the united states. they shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the united states, which shall have been created, or the emoluments whereof shall have been encreased during such time; and no person holding any office under the united states, shall be a member of either house during his continuance in office. section. . all bills for raising revenue shall originate in the house of representatives; but the senate may propose or concur with amendments as on other bills. every bill which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the united states; if he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. if after such reconsideration two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house, it shall become a law. but in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the congress by their adjournment prevent its return, in which case it shall not be a law. every order, resolution, or vote to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to the president of the united states; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill. section. . the congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the united states; but all duties, imposts and excises shall be uniform throughout the united states; to borrow money on the credit of the united states; to regulate commerce with foreign nations, and among the several states, and with the indian tribes; to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the united states; to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; to provide for the punishment of counterfeiting the securities and current coin of the united states; to establish post offices and post roads; to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; to constitute tribunals inferior to the supreme court; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress; to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the united states, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings;--and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof. section. . the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. no bill of attainder or ex post facto law shall be passed. no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken. no tax or duty shall be laid on articles exported from any state. no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another. no money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. no title of nobility shall be granted by the united states: and no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. section. . no state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. no state shall, without the consent of ^{the} congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the united states; and all such laws shall be subject to the revision and controul of ^{the} congress. no state shall, without the consent of congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. article. ii. section. . the executive power shall be vested in a president of the united states of america. he shall hold his office during the term of four years, and, together with the vice president, chosen for the same term, be elected, as follows. each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the congress: but no senator or representative, or person holding an office of trust or profit under the united states, shall be appointed an elector. the electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. and they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the united states, directed to the president of the senate. the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. the person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately chuse by ballot one of them for president; and if no person have a majority, then from the five highest on the list the said house shall in like manner chuse the president. but in chusing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. in every case, after the choice of the president, the person having the greatest number of votes of the electors shall be the vice president. but if there should remain two or more who have equal votes, the senate shall chuse from them by ballot the vice president. the congress may determine the time of chusing the electors, and the day on which they shall give their votes; which day shall be the same throughout the united states. no person except a natural born citizen, or a citizen of the united states, at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen years a resident within the united states. in case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected. the president shall, at stated times, receive for his services, a compensation, which shall neither be encreased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the united states, or any of them. before he enter on the execution of his office, he shall take the following oath or affirmation:--"i do solemnly swear (or affirm) that i will faithfully execute the office of president of the united states, and will to the best of my ability, preserve, protect and defend the constitution of the united states." section. . the president shall be commander in chief of the army and navy of the united states, and of the militia of the several states, when called into the actual service of the united states; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the united states, except in cases of impeachment. he shall have power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states, whose appointments are not herein otherwise provided for, and which shall be established by law: but the congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments. the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. section. . he shall from time to time give to the congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the united states. section. . the president, vice president and all civil officers of the united states, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. article. iii. section. . the judicial power of the united states, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. section. . the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the united states shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states,--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. in all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make. the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed. section. . treason against the united states, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. the congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. article. iv. section. . full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. and the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. section. . the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. no person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due. section. . new states may be admitted by the congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the congress. the congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states; and nothing in this constitution shall be so construed as to prejudice any claims of the united states, or of any particular state. section. . the united states shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. article. v. the congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of it's equal suffrage in the senate. article. vi. all debts contracted and engagements entered into, before the adoption of this constitution, shall be as valid against the united states under this constitution, as under the confederation. this constitution, and the laws of the united states which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. the senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the united states. article. vii. the ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same. the word, "the," being interlined done in convention by the between the seventh and eighth unanimous consent of the lines of the first page, the word states present the seventeenth "thirty" being partly written on an day of september in the year erazure in the fifteenth line of of our lord one thousand seven the first page, the words "is hundred and eighty seven and tried" being interlined between the of the independence of the thirty second and thirty third united states of america the lines of the first page and the twelfth in witness whereof we word "the" being interlined between have hereunto subscribed our the forty third and forty fourth names, lines of the second page. attest william jackson secretary g^o washington--presid^t and deputy from virginia new hampshire {john langdon } {nicholas gilman} massachusetts { nathaniel gorham { rufus king connecticut { w^m: sam^l johnson { roger sherman new york alexander hamilton new jersey { wil: livingston { david brearley { w^m paterson { jona: dayton pennsylvania { b franklin { thomas mifflin { rob^t morris { geo. clymer { tho^s fitzsimons { jared ingersoll { james wilson { gouv morris delaware { geo: read { gunning bedford jun { john dickinson { richard bassett { jaco: broom maryland { james m^chenry { dan of s^t tho^s jenifer { dan^l carroll virginia { john blair-- { james madison jr. north carolina { w^m blount { rich^d dobbs spaight { hu williamson south carolina { j. rutledge { charles cotesworth pinckney { charles pinckney { pierce butler georgia { william few { abr baldwin [illustration: first page of the constitution (reduced)] in convention monday september ^{th}. . present the states of new hampshire, massachusetts, connecticut, m^r hamilton from new york, new jersey, pennsylvania, delaware, maryland, virginia, north carolina, south carolina and georgia. resolved, that the preceeding constitution be laid before the united states in congress assembled, and that it is the opinion of this convention, that it should afterwards be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and that each convention assenting to, and ratifying the same, should give notice thereof to the united states in congress assembled. resolved, that it is the opinion of this convention, that as soon as the conventions of nine states shall have ratified this constitution, the united states in congress assembled should fix a day on which electors should be appointed by the states which shall have ratified the same, and a day on which the electors should assemble to vote for the president, and the time and place for commencing proceedings under this constitution. that after such publication the electors should be appointed, and the senators and representatives elected: that the electors should meet on the day fixed for the election of the president, and should transmit their votes certified, signed, sealed and directed, as the constitution requires, to the secretary of the united states in congress assembled, that the senators and representatives should convene at the time and place assigned; that the senators should appoint a president of the senate, for the sole purpose of receiving, opening and counting the votes for president; and, that after he shall be chosen, the congress, together with the president, should, without delay, proceed to execute this constitution. by the unanimous order of the convention g^o: washington presid^t. w. jackson secretary. index a accounts of expenditures. _see_ expenditures of government. acts, originating of. _see_ legislature, national, acts of. address to accompany constitution, moved, ii., ; considered, . adjournment of legislature. _see_ legislature, national, power of. age, of executive. _see_ executive, national, age of. of representatives. _see_ legislature, national, house of representatives. of senators. _see_ legislature, national, senate. allen, paul, signs address from rhode island, i., , n. amendments to constitution, provision for, debated, i., , , ii., ; postponed, i., ; debated, , ; agreed to, , ii., ; motion to reconsider clause, ; moved that states agree to, . appointment, power of. _see_ executive, national, power of; judiciary, national, supreme; legislature, national. senate. appropriations, originating of, _see_ legislature, national, money bills; accounts of, _see_ expenditures of government. aristocracy, fear of, expressed by mason, i., ; defended by g. morris, , ii., ; probability of, . armies, power to raise and support. _see_ legislature, national, power of. arnold, welcome, signs address from rhode island, i., , n. arsenals, forts, etc. _see_ forts, arsenals, etc. articles of confederation, amendments to, proposed by dickinson, i., . b baldwin, abraham, ga., attends convention, i., ; favors representation in senate by wealth of states, ; pierce's sketch of, , n.; on compromise committee on representation, ; thinks foreigners should be excluded from government, ii., ; thinks provisions on citizenship should not extend to those already citizens, ; appointed on grand committee, ; thinks slave trade not a national question, ; on committee on navigation acts, ; moves that duty on slaves be uniform, ; thinks public lands should be guaranteed to states, ; on committee of august , ; thinks members of legislature should be ineligible to other offices, ; approves plan of electing executive by electors, ; moves to exclude from new offices members of first legislature, . bankruptcy, uniform law of. _see_ legislature, national, power of; house of representatives. barton, william, signs address from rhode island, i., , n. bassett, richard, del., attends convention, i., ; pierce's sketch of, , n. bedford, gunning, del., attends convention, i., ; favors short term for executive, ; pierce's sketch of, , n.; opposes absolute veto in executive, ; opposes negative of state laws by legislature, ; threatens foreign alliance of small states, ; on compromise committee on representation, ; explains threat of foreign alliance, ; moves that national legislature make laws when harmony would be interrupted by state legislation, ; prefers appointment of judges by senate, ; opposes provision against standing army, ii., ; favors increase in representation of rhode island and delaware, . bill of rights, inclusion of, debated, ii., . bills of attainder. _see_ legislature, national, power of. bills of credit, power to emit. _see_ legislature, national, power of. blair, john, va., attends convention, i., ; pierce's sketch of, , n. blount, william, n. c., attends convention, i., ; announces he will sign constitution, ii., ; pierce's sketch of, , n. bowen, jabez, signs address from rhode island, i., , n. brearley, david, n. j., attends convention, i., ; favors equal vote of states in national legislature, ; pierce's sketch of, , n.; moves that new hampshire delegates be sent for, ; opposes election of executive by joint ballot, ii., ; seconds motion to elect executive by states, ; on committee of august , ; reports from committee, , , ; seconds motion against amendments, . broome, jacob, del., attends convention, i., ; favors nine years' term for senators, ; insists upon equal representation for new jersey in senate, ; opposes adjournment on question of representation, ; opposes seven years' term for executive, ; pierce's sketch of, ii., , n.; seconds motion to postpone clause fixing term of executive, ; seconds motion to except army and navy from disqualification from legislature, ; thinks legislature can fix their own compensation, ; favors same compensation for both houses of legislature, ; thinks national government should punish for treason, ; seconds motion in favor of national negative of state laws, ; moves reference of question of term of executive, . brown, john, signs address from rhode island, i., , n. brown, nicholas, signs address from rhode island, i., , n. butler, pierce, s. c., attends convention, i., ; moves secrecy of proceedings, ; pierce's sketch of, , n.; moves debate on national government, ; wants explanation of personnel of senate, ; fears deprivation of state powers, ; favors single executive, ; opposes absolute negative in executive, ; proposes power of suspending legislation for executive, ; opposed to institution of inferior judiciary, , ; opposes indefinite negative of state laws by legislature, ; favors wealth as basis of representation, , , , ; thinks senators should have no compensation, ; thinks senate should have power to originate money bills, ; moves vote on compensation of legislature, ; favors ineligibility to all other offices of representatives, ; opposes ineligibility of representatives to offices created during their term, ; thinks candidates for office will not be wanting, ; moves question of representation in senate, ; opposes ineligibility of senators to state offices, ; opposes report of compromise committee on representation, ; moves increase in representation of south carolina, ; insists upon inclusion of blacks in representation, ; thinks slave labor as productive as free labor, ; favors representation by population, ; demands security for slavery, ; thinks powers of legislature loosely defined, ; opposes frequent elections of executive, ii., ; favors election of executive by electors chosen by state legislatures, ; opposes re-eligibility of executive, ; moves to refer question of executive to committee of detail, ; favors fixing plan for national capital, ; thinks question of suffrage should be left to states, ; moves three years' inhabitancy for representatives, ; thinks money bills should originate in house, ; favors long inhabitancy for senators, ; urges postponement of clause concerning eligibility of members of legislature to other offices, ; favors state compensation for members of legislature, ; opposes power to emit bills of credit, , ; thinks president should have power to declare war, ; moves that legislature have power to declare peace, ; thinks militia should be under national control, ; favors adjustment of taxation to representation, ; opposes federal power over exports, , ; moves discrimination in paying creditors, ; moves reconsideration of question of discharging debts, ; thinks creditors should stand where they are, ; on committee of august , ; moves that fugitive slaves and servants be surrendered, , ; favors commercial regulations to be made by two-thirds vote, ; thinks new states should not be made without consent of old states, ; thinks nine states may ratify constitution, ; on committee of august , ; thinks election of executive by electors objectionable, ; favors making treaties of peace without president, ; thinks congress must sanction state export duties, ; dislikes form of signing, , n. c canals, provision for, proposed. _see_ legislature, national, power of. capital, national. _see_ seat of government. capitation tax. _see_ taxation, capitation. captures. _see_ legislature, national, power of. carrington, edward, to jefferson, on progress of convention, i., , n.; to madison, , n.; to monroe, ii., , n.; to madison, , n. carroll, daniel, md., attends convention, i., ; favors national power to suppress insurrection, ; pierce's sketch of, ii., , n.; doubts propriety of per capita voting in senate, ; favors election of executive by electors chosen by lot from national legislature, ; thinks direct taxation should depend on census, ; opposes disqualification from legislature of persons having unsettled government accounts, ; thinks number for quorum cannot be fixed, ; thinks right of expulsion should be with two-thirds of legislature, ; moves senators be permitted to enter dissent to measures, ; fears new york will be capital, ; moves five years' citizenship for representatives, ; explains provision as to money bills in maryland, ; favors national compensation for members of legislature, , ; thinks greater checks to bad laws necessary, ; thinks a quorum should be more than a majority, ; thinks exports should not be taxed, ; opposes taxation by congressional representation, ; thinks prohibition of _ex post facto_ laws necessary, ; moves election of executive by the people, , ; moves provision to prevent favoring ports of entry, ; on committee of august , ; objects to requiring consent of states to dismemberment, ; moves that right of u. s. to public lands be confirmed, ; moves that land question go to supreme court, ; moves to postpone question of ratification, , ; thinks all the states must ratify, ; thinks maryland must ratify as required by maryland law, ; thinks vessels should enter and clear in their own states, ; on committee of august , ; proposes an address to the people, ; moves states have power to lay tonnage taxes, ; urges larger representation, . census, taking of, debated, i., , ; every fifteen years, vote on, ; two years after meeting of legislature, ; ordered within six years after meeting of legislature, ; every ten years, ; every twenty years, ; first to be in three years, ii., . charters, power to grant, proposed. _see_ legislature, national, power of. citizenship, of representatives, _see_ legislature, national, house of representatives, senate; uniformity of, in the several states, agreed to, ii., . clymer, george, pa., attends convention, i., ; appointed on grand committee, ii., ; thinks power to tax exports should exist for revenue only, ; pierce's sketch of, , n.; on committee on navigation acts, ; disapproves slave-trade arrangement, ; thinks states should regulate their own manufactures, ; favors commercial regulations, ; moves to postpone ratification question, ; favors ratification by a majority of the people and the states, ; objects to senate's power, ; thinks old congress need not sanction constitution, . commercial regulations. _see_ navigation acts. committee, grand, appointed, ii., . committee of the whole, convention goes into, i., ; reports, ; last session, . committee on detail, resolutions referred to, ii., ; report of, ; debated, . committee on plan of compromise, appointed, i., ; reports, . committee on rules, appointed, i., ; reports, . committee on style and arrangement, appointed, ii., ; report of, , ; debated, , . committee on sumptuary legislation, appointed, ii., . compensation of executive. _see_ executive, national, compensation of. compensation of judiciary. _see_ judiciary, national, compensation of. compensation of legislature. _see_ legislature, national, compensation of. compromise on representation, debate on, i., ; report of committee on, . confederation, articles of. _see_ articles of confederation. congress. _see_ legislature, national. constitution, engrossed, read, ii., ; text of, . continental congress, continuance of, till constitution goes into effect, proposed, i., ; agreed to, ; debate on, . contracts, impairment of, prohibited, ii., . copyright law. _see_ legislature, national, power of. council, executive. _see_ executive council. council of revision of laws, debate on, i., ; ii., . counterfeiting, power to punish, debated, ii., . courts. _see_ judiciary. credentials of delegates read, i., . d davie, william richardson, n. c., attends convention, i., ; pierce's sketch of, , n.; opposes unequal representation in senate, ; on committee on compromise on representation, ; insists that blacks be included in basis of representation, ; favors impeachability of executive, ii., ; proposes eight years' term for executive, . dayton, jonathan, n. j., attends convention, i., ; opposes compensation of senators by state legislatures, ; pierce's sketch of, , n.; favors voting in house by states, ; favors equal representation in senate, ; insists on equality of small states, ; favors representation by free inhabitants, ii., ; thinks a standing army necessary, ; proposes mixed control of militia, , ; thinks judiciary will decide controversies between states, ; opposes election of executive by joint ballot, ; moves election of executive by states, ; on committee of august , ; thinks tranquillity of states should be guaranteed, ; moves ratification by ten states, ; moves that treaties be made without two-thirds of senate, ; objects to state export duties, . debt, national, report on, ii., ; debate on, ; proposition for settling, ; provision for payment of, , ; reconsideration of, proposed, ; motion to make payment obligatory, debated, . _see_ legislature, national, power of. delaware, increase in representation of, moved, ii., . detail, committee on. _see_ committee on detail. dickinson, john, del., attends convention, i., ; moves removability of executive by state legislatures, ; pierce's sketch of, , n.; favors separation of branches of government, ; favors institution of inferior judiciary, ; favors election of representatives by people, ; favors negative over laws by executive, ; moves that senators be elected by legislatures, ; thinks senate should resemble house of lords, ; thinks preservation of states necessary, ; favors negative by legislature over state laws, ; favors representation by wealth, ; proposes postponement of jersey plan, ; proposes amendment of articles of confederation, ; favors three years' term for representatives, ; favors election of executive by the people, ii., ; opposes property qualification for legislature, ; favors restriction of suffrage to freeholders, ; proposes ---- years' residency for representatives, ; thinks provision as to money bills should stand, ; proposes fixed payment for members of legislature every twelve years, ; moves both branches of legislature receive the same pay, ; thinks judiciary should not have power to set a law aside, ; moves that rebellion against government be suppressed, ; appointed on grand committee, ; thinks great appointments should be made by legislature, ; thinks treason should be defined, ; thinks war against one state the same as against all, ; moves that representation of large states be limited, ; favors power over exports, ; on committee on navigation acts, ; thinks president should share in treaty-making power, ; moves executive have power to appoint to future offices, ; moves executive appoint officers not to be appointed by states, ; moves to permit slave trade in states permitting it, ; favors postponement of question of executive succession, ; thinks legislature will not improperly ask removal of judges, ; moves that judiciary have equity power, ; explains meaning of _ex post facto_ laws, ; thinks small states should not secure claims of large states, ; moves that legislatures consent to formation of new states, ; thinks tranquillity of states should be guaranteed, , ; asks if congress is to concur in constitution, ; on committee of august , ; thinks eventual election of president should be with whole legislature, ; moves that vote of presidential electors be from all who are appointed, ; favors an executive council, ; objects to state export duties, ; on committee on sumptuary legislation, ; moves to strike out "direct taxes," . duties on exports. _see_ exports. imports. _see_ imports. e election, of executive. _see_ executive, national, election of. of representatives. _see_ legislature, national, house of representatives, election of. of senators. _see_ legislature, national, senate, election of. electors. _see_ executive, national, election of. ellsworth, oliver, conn., attends convention, i., ; pierce's sketch of, , n.; opposes ratification by conventions, ; favors one-year term for representatives, ; favors payment of representatives by states, ; favors payment of senators by states, ; favors election of senators by legislatures, ; favors equal state representation in senate, , , ; on committee on compromise on representation, ; favors compromise on representation, ; opposes increase in representation, ; favors free inhabitants and three-fifths of slaves as basis of taxation, ; favors representation by free inhabitants and three-fifths slaves, ; opposes adjustment of taxation and representation after census, ; insists upon state equality in senate, ; moves election of executive by electors appointed by legislatures, ii., ; favors six years' term for executive, ; moves increase in electors of new hampshire and georgia, ; favors inclusion of judiciary in revisionary power, ; favors appointment of judges by senate with power negative of appointment by executive, ; favors ratification of constitution by state legislatures, , ; favors voting per capita in senate, ; favors re-eligibility of executive, ; on committee to report constitution, ; moves election of executive by legislature and re-election by electors named by state legislatures, ; opposes election of executive by the people, ; opposes disqualification of public debtors from legislature, ; thinks time of meeting of legislature ought to be fixed, ; thinks legislature ought to meet in winter, ; thinks question of suffrage should be left to states, ; thinks suffrage should be liberal, ; thinks representatives should reside in their states, ; moves that representatives be residents of their states for a year, ; thinks ratio of representatives to inhabitants may change, ; thinks originating money bills in house unimportant, , ; thinks state executives should fill vacancies in senate, ; opposes fourteen years' citizenship for senators, ; thinks property qualification for members of government should not be fixed, , ; thinks number for quorum should not be small, ; thinks no provision necessary for yeas and nays, ; thinks provision for journal unnecessary, ; favors ineligibility of members of legislature to other offices, ; favors national compensation for members of legislature, ; thinks members of legislature may fix their pay, ; moves $ per day as payment for legislature, ; urges necessity of reaching a decision, ; thinks exports should not be taxed, ; opposes power to emit bills of credit, ; moves to enlarge power over piracies, felonies, etc., ; thinks executive should have power to suppress rebellion in a state, ; defines power of making war and peace, ; thinks state debts may be assumed by nation, ; urges consideration of president's council, ; thinks states should have partial control over militia, , ; thinks power of taxation includes sumptuary power, ; thinks treason sufficiently defined, , , ; moves census in three years, ; moves report on state debts lie on table, ; thinks adjustment of debts necessary, ; thinks taxation by representation unjust, ; thinks states may tax exports, ; thinks an embargo permissible, ; thinks slave trade a question for the states, , ; favors accepting constitution as it stands, ; thinks prohibition of _ex post facto_ laws unnecessary, ; thinks requirement of fulfilment of old government's engagements unnecessary, ; favors national power to train militia, ; proposes mixed control of militia, ; opposes national negative of state laws, . emancipation. _see_ slavery. embargo, power to lay, debated, ii., , ; by states, debated, . executive council, proposed, i., ; debated, ii., , , . executive, national, debate on, i., ; provisions reconsidered, ii., ; referred to committee on detail, ; vote on, . age, nativity, and residence of, agreed to, ii., . compensation of, franklin proposes no salary, i., , ii., ; mode of payment, . correspondence of, with states, debated, ii., . election of, proposed by district electors, i., , ; by national legislature for seven years, proposed, ; mode of, reconsidered, , , , , ii., , , , , , ; by state conventions, proposed, i., ; by national legislature, , , , ii., , , , ; by electors chosen by state legislatures, i., , ii., ; ratio of electors considered, ; electors not to be officials, ; by electors, debated, , , , , , , ; term of electors debated, ; re-election of electors considered, ; regulations as to age and residence debated, ; by states, proposed, ; by electors, defeated, ; when to take place, proposed, ; to be at seat of government, proposed, ; how vote is to be counted, debated, ; to fill vacancy, considered, ; verbal amendment of clause, . eligibility of, to re-election, debated, i., , , , ii., , , , . exclusion from, of those indebted to government, considered, ii., . foreign ambassadors to be received by, ii., . impeachability of, agreed to, i., ; method of, debated, , , ii., , , , , ; moved to postpone question, ; house to have power of, . militia to be commanded by, when in active service, ii., . native citizens only to be eligible, ii., . negative of, on national legislation, debated, i., , , , , ii., , , ; qualified, agreed to, i., , ii., ; inclusion of judiciary in, proposed, i., ; absolute, debated, ii., ; ten days allowed for, ; agreed to, ; moved to extend to resolutions, . oath of, prescribed, ii., . power of, debated, i., , , , , , ii., , , , ; to make appointments, i., , ii., , , , , ; to revise legislation, , , ; to pardon criminals, , ; to make treaties, , ; to demand opinions of heads of departments, ; to convene either house of legislature, . removability of, on request of state legislatures, debated, i., , ; question postponed, ii., , ; debated, . single, proposed, i., , , ; agreed to, , ii., ; debate on, . succession in, debated and postponed, ii., . term of, debated, i., , , , ii., , , , , ; seven years', proposed, i., , , , ii., , ; during good behavior, proposed, i., ; six years', proposed, ii., , ; six years in twelve, proposed, . expenditures of government, moved that an account of be published, ii., , . expenses of convention, provision for, ii., , . exports, tax on, debated, ii., , , ; state power to tax, debated, , . _ex post facto_ laws. _see_ legislature, national, power of. expulsion from legislature. _see_ legislature, national, expulsion from. f federal or national government, debate on, i., . felonies. _see_ piracies and felonies. few, william, ga., attends convention, i., ; pierce's sketch of, , n.; on committee of august , ii., . fitzsimmons, thomas, pa., attends convention, i., ; favors restriction of suffrage to freeholders, ii., ; opposes power to tax exports, ; on committee of august , ; admits inconvenience to require vessels to enter and clear in their own state, ; seconds motion to include house of representatives in treaty-making power, ; thinks old congress need not sanction constitution, ; favors incidental state export duties, ; thinks publication expenditures impossible, . forts, arsenals, etc., provision for acquisition of, ii., . franklin, benj., pa., attends convention, i., ; pierce's sketch of, , n.; moves that executive receive no salary, ; opposes negative in executive, ; favors executive council, ; opposes single executive, ; suggests method for choosing judges, ; appeals for harmony in convention, ; favors proportional representation, ; objects to liberal compensation for legislature, ; favors no salary for senators, ; thinks voting in senate not a separate question, ; proposes prayers in convention, ; favors compromise on representation, ; on committee on compromise on representation, ; thinks money bills should originate in house, ; favors power to increase judges' salaries, ; favors impeachability of executive, ii., , ; thinks executive returning to private life no degradation, ; favors general suffrage, ; thinks compromise on representation should stand, ; opposes long residence in the states for senators, ; thinks new citizens will not be elected to senate, ; opposes property qualification for officers of government, ; thinks two witnesses necessary in treason cases, ; favors executive council, ; seconds motion for second convention, ; on committee on sumptuary legislation, ; moves legislature have power to cut canals, ; moves to limit president's emoluments, ; proposes plan for signing constitution, ; disclaims personal reflections on non-signatories, ; thinks members cannot pledge themselves, ; remarks on signing, . franklin, william temple, nominated for secretary of convention, i., . g general-welfare clause. _see_ legislature, national, power of. georgia, increase in representation of, moved, i., . gerry, elbridge, mass., attends convention, i., ; doubts if convention can form national government, ; pierce's sketch of, , n.; opposes election of representatives by the people, , , ; favors an executive council, ; opposes election of executive by national legislature, ; opposes inclusion of judiciary in council of revision, , ; favors single executive, ; favors qualified negative on legislation by executive, ; favors provision for amendments, ; opposes ratification of constitution by the people, ; favors election of senators by state legislatures, , ; moves reconsideration of question of choosing executive, ; moves indefinite negative on state laws by national legislature, ; moves election of executive by state executives, , ii., ; favors representation based on free population, i., ; opposes requiring oath to national government from state officers, ; favors one-year term for representatives, ; proposes that senate shall not originate money bills, ; thinks maximum and minimum for quorum should be fixed, ; favors ineligibility of representatives to other offices, , ; opposed to monarchy, ; favors four or five years' term for senators, ; opposes equal state representation, ; favors committee to compromise representation, ; on committee to arrange compromise on representation, ; offers report of committee of compromise on representation, ; favors compromise on representation, ; favors representation on basis of population and wealth, ; thinks originating money bills in house a concession, ; moves to postpone question of voting in senate, ; favors increase in representation, ; thinks three-fifths of blacks sufficient proportion as basis of representation, ; thinks taxation and representation cannot be arranged, ; favors direct taxation according to representation, , ; favors originating money bills in house, ; favors compromise on representation in senate, ; opposes adjournment on question of representation, ; opposes re-eligibility of executive, ii., , , ; favors election of executive by electors appointed by state legislatures, ; moves ratio for electors for executive, ; favors impeachability of executive, ; moves that electors for executive be not officials, ; opposes inclusion of judiciary in revisionary power, , ; favors appointment of judges by senate, ; moves that officers take oath of allegiance, ; thinks constitution should be ratified by legislatures, ; moves appointment of committee to report constitution, ; moves election of executive by legislatures, ; suggests fifteen years' term for executive, ; proposes referring term of executive to committee, , ; opposes election of executive by electors chosen by lot from national legislatures, ; favors election of executive for not more than six years in twelve, ; opposes popular election of executive, ; favors exclusion from office of those indebted to government, , ; favors exclusion from legislature of pensioners, ; favors prohibiting state and national capital at same place, ; thinks quorum should be fixed, ; moves to permit senate to publish journal, , ; thinks executive should not influence place of meeting of legislature, ; thinks none but natives should be representatives, ; declares his state opposes members of legislature holding any other offices, ; points out objections to both national and state legislatures, ; thinks exports should not be taxed, ; moves to include post roads in power of legislature, ; thinks rebellion should be suppressed on state application, ; moves legislature have power to declare war, ; favors giving legislature power to make peace, ; thinks letters of marque should be considered, ; thinks executive should not interfere in legislation, ; favors provision against large army in time of peace, , , ; moves committee be instructed to report on qualifications for executive and impeachment of judges, ; opposes power to make sumptuary laws, ; moves that taxation be by congressional representation, , ; thinks states should pay their debts, ; opposes power to tax exports, ; thinks slave trade should not be sanctioned, ; moves prohibition of _ex post facto_ laws and bills of attainder, ; thinks government should have power to fulfil engagements of old government, ; thinks national government should not control militia, ; thinks liberty will not be as safe in national as state government, ; warns convention against depriving states of their powers, ; thinks actual debts should be paid, ; seconds motion to remove judges on application of legislature, ; moves to postpone question of ratification, ; thinks members of legislature should not hold other offices, ; objects to appropriations for army for more than one year, ; objects to power to buy forts, etc., ; moves to reconsider four articles, ; objects to powers given president, ; objects to less than majority electing president, ; suggests eventual election of president by six senators and seven representatives, ; seconds motion to permit senate to choose president from three candidates, ; moves that electors be not office-holders, ; moves change of clause for re-electing president, ; moves that states vote for president in legislature with at least three members, ; withdraws motion, ; objects to vice-president being president of senate, ; thinks president will not be responsible for his appointments, ; thinks treaties of peace must be carefully guarded, ; thinks it dangerous to put too much power in senate, ; moves two-thirds vote of senate for treaties, ; seconds motion for majority for treaties of whole number of senators, ; proposes that notice of treaties to senators be required, ; moves no appointments be allowed except as authorized by law, ; thinks impeachability of president should be extended, ; moves legislature have sole right to create offices, ; moves reconsideration of provision for amendments, ; seconds motion for states' consent to amendments, ; moves sanction of old congress to constitution be asked, ; thinks ratification should be made difficult, , ; seconds a plan of ratification, ; favors two-thirds vote to override president's negative, ; urges clause requiring jury trials, ; moves bill of rights be prepared, ; moves that all proceedings of house be published, ; approves prohibition of _ex post facto_ laws, ; moves liberty of press be guaranteed, ; seconds motion for annual publication of accounts, ; moves prohibition of violation of contracts, ; moves jury trial be preserved in civil cases, ; moves verbal amendment relative to admission of states, ; moves convention be required to make amendments, ; favors a second constitutional convention, ; defends action in not signing constitution, ; refuses to sign, . gilman, nicholas, n. h., attends convention, ii., ; pierce's sketch of, , n. gorham, nathaniel, mass., attends convention, i., ; elected chairman of committee of the whole, ; favors national payment of representatives, ; pierce's sketch of, , n.; opposed to ineligibility of representatives to other offices, ; favors compromise on representation, ; opposes readjustment of land cession, ; favors four years' term for senators, ; moves six years' term and rotation for senators, ; thinks small states equally interested with large states in union, ; favors representation by population, ; on committee to arrange representation, ; defends report on representation, ; thinks standard of representation should be fixed, ; favors population as basis of representation, ; opposes defining legislature's powers, ; favors appointment of judges by senate, ; favors appointment of judges by the people, ; favors appointment of judges by executive, ; moves appointment of judges by executive with consent of senate, ; favors institution of inferior judicial tribunals, ; favors power to suppress insurrections, ; opposes inclusion of judiciary in revisionary power, ii., , ; thinks oath of allegiance no bar to amendments to constitution, ; opposed to ratification of constitution by legislatures, ; favors two senators from each state, ; on committee to report constitution, ; favors prohibition of national capital at state capital, ; thinks constitution should fix time of meeting of legislature, ; favors voting by non-freeholders, ; thinks the new government will not last, ; thinks senate should not originate money bills, ; thinks mode of electing representatives should not be left to state legislatures, ; thinks less than a majority may be a quorum of legislature, ; thinks yeas and nays need not be required, ; thinks provision concerning citizenship need not be retroactive, ; thinks senate should be paid more than house, ; insists that money bills originate in house, ; urges necessity for action, ; opposes power to emit bills of credit, , ; moves appointment of treasurer by joint ballot of legislature, ; favors national support of army, ; thinks adjustment of debts may be left to national legislature, ; thinks union only of commercial advantage, ; suggests difficulties of ratifying treaties by legislature, ; thinks treaties should be negotiated in this country, ; doubts if judiciary can impartially decide controversies between states, ; favors election of executive by joint ballot of legislature, ; seconds motion to extend period of slave trade, ; thinks duty on slaves may discourage importation, ; thinks precaution against discrimination in ports of entry unnecessary, ; on committee of august , ; thinks prohibition of paper money dangerous, ; favors article providing for validity of state acts, ; on committee on interstate acts, ; thinks new england's motive for union dependent on commercial arrangements, ; favors convention for ratification, ; thinks vessels should not be obliged to enter and clear in their own states, ; thinks members of legislature may be eligible to other offices, ; thinks majority of senate may elect president, ; thinks separate provision for treaties of peace unnecessary, ; thinks treaties need not require two-thirds of senate, ; opposes conditional ratification, ; thinks jury question need not be included, ; objects to state export duties, ; thinks legislature should choose treasurer, ; thinks provision as to jury trials unnecessary, ; urges additional representation, . grand committee. _see_ committee, grand. grayson, william, to madison, i., , n.; to monroe, , n. h habeas corpus, necessity for preserving right of, debated, ii., . hall, levi, signs address from rhode island, i., , n. halsey, thomas lloyd, signs address from rhode island, i., , n. hamilton, alexander, n. y., attends convention, i., ; nominates william jackson for secretary of the convention, ; pierce's sketch of, , n.; on committee on rules, ; moves representation by free inhabitants, ; favors absolute negative of executive on legislation, ; moves proportional voting in senate, ; presents his plan of government, ; explains views on powers of the states, , ; opposes election of representatives by state legislatures, ; favors three years' term for representatives, ; opposes fixing compensation for representatives, ; opposes ineligibility of representatives to other offices, , ; favors centralized government, ; opposes prayers in convention, ; writes to washington about public sentiment, , n.; thinks citizenship and inhabitancy alone necessary for representatives, iv., ; thinks president may be elected by a plurality of electors, ; appointed on committee on style and arrangement, ; favors increase in representation, ; favors easily made amendments, , ; thinks old congress should sanction constitution, ; thinks constitution will be effective if ratified by nine states, ; moves a plan for ratification, ; withdraws it, ; favors two-thirds vote to override president's negative, ; urges members to sign constitution, . hamilton plan, presented, i., ; provisions of, ; text of, , n. house of representatives. _see_ legislature, national, house of representatives. houston, william, ga., attends convention, i., ; moves increase in representation of georgia, ; opposes continuance of existing state constitutions, ; favors additional representation of electors for new hampshire and georgia, ii., ; moves consideration of appointment of executive by electors, ; pierce's sketch of, , n.; moves election of executive by national legislature, . houstoun, william churchill, n.j., attends convention, i., . i impeachment, of executive. _see_ executive, national, impeachability of; legislature, national, senate. of judiciary. _see_ judiciary, national, impeachment of. of national officers, provision for, struck out, i., ; to be suspended during trial, ii., . trials of, debated, i., , , ii., , , , . imports, power of states to tax, debated, ii., , ; duties on, uniformity of, agreed to, , . indians, power to legislate for, proposed, ii., . ingersoll, jared, pa., attends convention, i., ; considers signing to be recommending constitution, ii., ; pierce's sketch of, , n. insurrections, power to suppress. _see_ republican government, guaranty of. j jackson, william, nominated for secretary of convention, i., ; elected, . jay, john, writes washington against foreigners, ii., , n. jefferson, thomas, monroe to, ii., , n.; madison to, , n., , n. jenckes, john, signs address from rhode island, i., , n. jenifer, daniel, of st. thomas, md., attends convention, i., ; favors three years' term for representatives, ; pierce's sketch of, , n.; favors ineligibility of representatives to other offices, ; moves postponement of question of voting in senate, ; favors requirement that vessels must enter and clear in their own states, . jersey plan, the, submitted, i., ; text of, ; vote on, . jews, letter of, i., , n. johnson, william samuel, conn., attends convention, i., ; suggests compromise between virginia and jersey plans, ; pierce's sketch of, , n.; favors elections to senate by state legislatures, ; favors representation by states in senate, ; favors inclusion of blacks in basis of representation, ; thinks treason should be defined, ii., ; thinks there can be no treason against a state, ; on committee on navigation acts, ; thinks prohibition of _ex post facto_ laws unnecessary, ; thinks double control of treaties difficult, ; thinks judiciary will decide controversies between states, ; thinks obligations of old government binding on new, ; suggests judiciary have power over equity cases, ; moves extension of judicial power to cases arising under the constitution, ; thinks acts of one state valid in courts of another state, ; on committee on interstate acts, ; thinks states cannot be dismembered, ; moves admission of states hereafter formed, ; thinks legislature may declare effect of state acts in states, ; appointed on committee on style and arrangement, ; submits report, ; favors provision for sumptuary legislation, ; on committee on sumptuary legislation, ; offers further report of committee on style and arrangement, . jones, joseph, writes to madison, ii., , n. journal of legislature's proceedings. _see_ legislature, national, journal of, house of representatives, senate. journals of convention, disposition of, ii., , . judiciary, national, supreme, agreed to, i., ; consideration of, postponed, ; debated, . appointment to, debated, i., , , , , ii., ; by legislature, vote on, i., ; by senate, agreed to, ; by executive, vote on, , ii., ; by executive with consent of senate, debate on, i., ; exclusion from, of those indebted to government, ii., , . compensation of, fixed, agreed to, i., ; power to increase, vote on, ; debated, ii., . impeachment of, trial by senate proposed, ii., . impeachment, power of, struck out, i., ; debated, ii., . inferior tribunals, debate on instituting, i., , , , , , ii., ; power of legislature to refer cases to, struck out, . jurisdiction of, debated, i., , , , , ii., ; over controversies between states, debated, ; to cases in equity proposed, ; over controversies in which united states is a party, debated, ; to cases arising under the constitution, debated, ; appellate, debated, , ; to be directed by legislature, proposed, ; extension of, to land grants proposed, ; to land claims, , ; to impeachment trials proposed, , . negative of, inclusion with executive proposed, i., , , , ; over state laws, debated, ; debated, ii., , . revisionary power of, debated, i., , ii., , . state, power of, over national laws, debate on, ; will be bound by national laws, . tenure of, i., , , ii., . jury trial, right of, provided for, ii., ; in civil cases debated, ; motion to preserve, . k king, rufus, mass., attends convention, i., ; objects to report of committee on rules, ; pierce's sketch of, , n.; opposes representation by quotas of contributions, , ; notes of proceedings of convention, , n.; opposes election of senators by state legislatures, ; opposes inclusion of judiciary in council of revision, ; favors ratification of constitution by conventions, ; moves question of proportional representation, ; thinks senate should have power to originate money bills, ; opposes sovereignty of the states, , ; insists upon election of representatives by the people, ; favors national compensation for representatives, ; opposes ineligibility of representatives to other offices, , ; thinks new hampshire deputies will attend, ; favors proportional representation in senate, , ; thinks representation cannot be permanently fixed, ; on committee on question of representation, ; thinks slaves should count in representation, ; brings in report of committee on representation, ; thinks representation of the south too large, ; defends report on representation, ; opposes inclusion of three-fifths of blacks in representation, ; opposes representation by population, ; opposes ineligibility of executive to re-election, ii., , ; opposes short term for executive, ; opposes impeachability of executive, , ; favors ratification of constitution by legislatures, ; moves voting in senate per capita, ; favors election of executive by state legislatures, ; proposes term of twenty years for executive, ; opposes election of executive by electors chosen by lot from legislature, ; opposes freehold qualification for electors, ; thinks legislature need not meet annually, ; thinks representation should exclude slaves, ; opposes leaving time and mode of election of representatives to state legislatures, ; thinks less than a majority should be a quorum of legislature, ; thinks lowest number for a quorum may be fixed, , ; thinks legislature should not have power to change place of meeting, ; thinks state debts should be assumed by nation, , ; thinks state lands ought to be given up, ; appointed on grand committee, ; thinks states may punish treason under a different name, ; thinks national government should punish for treason, ; thinks treason against a state same as against nation, ; thinks slaves should be taxed, ; on committee on navigation acts, ; explains provisions as to militia, ; admits duty on slaves part of compromise agreement, ; moves to prohibit states from violating private contracts, ; moves to prohibit states from taxing exports, ; thinks states should regulate their own manufactures, ; thinks all the states must ratify constitution, ; moves that only states ratifying be operated on by constitution, ; thinks constitution must be ratified by conventions, ; thinks state constitution no bar to ratification, ; on committee of august , ; moves ineligibility of members of legislature to offices created during their term, , ; moves to obtain consent of state legislatures to purchases of lands for national purposes, ; thinks eventual election of president will be with senate, ; moves that electors be not office-holders, ; favors change of clause relative to re-election of president, ; moves increase of number necessary to elect president, ; thinks senate may share in appointments, ; objects to participation of two-thirds of senate in treaties, ; opposes special provision for treaties of peace, ; moves special provision for treaties affecting national rights, ; thinks old congress should consider constitution, ; on committee of style and arrangement, ; thinks old congress need not sanction constitution, ; thinks president ought not to be suspended if impeached, ; thinks legislature should choose treasurer, ; thinks power to grant charters unnecessary, ; thinks publication of public expenditures impossible, ; opposes change in representation, ; thinks executive may pardon for treason, ; thinks guaranty of jury trials not necessary, ; urges additional representation, ; proposes journals of convention be disposed of, . knox, general henry, writes to washington on prospects of convention, ii., , n. l land cession, question of, i., . lands, public. _see_ legislature, national, power of. langdon, john, n. h., attends convention, ii., ; opposes disqualification from legislature of persons having unsettled accounts, ; pierce's sketch of, , n.; opposes prohibition against placing national capital at state capital, ; favors national compensation of legislature, ; opposes power to emit bills of credit, ; favors suppression of rebellion without state's consent, ; appointed on grand committee, ; thinks representatives must be trusted, ; thinks national control of militia necessary, ; opposes taxation by congressional representation, ; asks only fair representation for new hampshire, ; objects to state power to tax exports, , ; opposes leaving slave trade to states, ; moves to commit question of navigation acts, ; on committee on navigation acts, ; thinks state and national governments need not be jealous, ; favors national power of negative on state laws, ; thinks executive should be elected by joint ballot of legislature, ; thinks creditors of government should not be disturbed, ; admits duty on slaves is part of compromise agreement, ; on committee of august , ; doubts if new states should be admitted on an equality with old, ; thinks new states may be created, ; thinks vermont should be brought into the union, ; thinks vessels should not be made to enter and clear in their state, ; objects to export duties by states, ; moves increase in representation of north carolina and rhode island, ; thinks commercial regulations should be national, . lansing, john, n. y., attends convention, i., ; pierce's sketch of, , n.; supports jersey plan, ; opposes virginia plan, ; opposes legislature of two branches, ; favors voting in house by states, ; leaves convention, , n. legislature, national, acts of, may originate in both houses, i., , ii., ; enacting style, . compensation of members, considered, i., , , , ; to be fixed, ; and eligibility to re-election, debated, ; to be ascertained by members, ; by state legislatures, ; vote on, ; agreed to, ; debated, ii., , . constitution of, considered, ii., ; agreed to, . disqualification of debtors from, debated, ii., , , ; of pensioners from, ; of persons having unsettled accounts with, ; of members from other offices, , , , . elections to, by popular vote, debated, i., ; mode of, debated, , ; eligibility to re-election, debated, ; eligibility of state officers to, . expulsion from, debated, ii., , . journal of proceedings, debate on, ii., , , . money bills in, originating of, debated, i., , , ii., , , , , . negative of, on state laws, considered, i., , , , , ; on acts of executive, vote on, ii., ; debated, ; verbal amendment offered, . place of meeting, debated, ii., . power of, debated, i., , , , ii., ; coercion on delinquent states, i., ; to legislate where states not competent, i., , , ; over state police, , ; over state judiciary, , ; members of, in debate, ii., ; expulsion of members of, ii., ; to compel attendance of members, ii., ; to judge of elections of members, ii., ; to adjourn, ; limits of, debated, , ; to regulate captures, debated, ; over indians, debated, ; over general welfare, proposed, ; to pass _ex post facto_laws and bills of attainder, prohibited, , ; to fulfil engagements of old congress, debated, , ; over militia, debated, , ; to enforce treaties, debated, ; negative on state laws, debated, ; to pass tax laws, debated, , ; to pay public debts, debated, , ; to regulate ports of entry, ; to refer appointments to state legislatures, ; to pay debts with anything but coin, debated, ; report of committee of eleven taken up, ; over public lands, proposed, , ; to make national bankruptcy law, debated, ; to judge privileges of members, ; to grant letters of marque and reprisal, ; to govern seat of government, ; to grant copyrights, ; to create offices, proposed, ; to appoint treasurer, debated, ; to punish piracies, etc., debated, ; to make canals, proposed, ; to grant charters, proposed, ; to establish a university, proposed, ; to be limited in providing for standing army, . property qualifications for members of, debated, ii., , , , , . qualifications for members of, debated, i., , ii., . quorum in, debated, ii., , , . representation in, debated, i., , , , , , , , , , , , , ii., , ; compromise proposed, i., ; enumeration of blacks and whites, debated, , , , , , , ; question postponed, ; referred to committee, ; report of committee, ; motion to increase, debated, ; census for, debated, , , , ; taxation as basis of, debated, , , , ; moved that, of large states be limited, ; increase of, debated, ii., , , . rules to be regulated by each house, ii., . term of members of, debated, i., . time of meeting, debated, ii., , , . two branches of, agreed to, i., , ; debate on, , , . house of representatives, mode of election to, debated, i., , , , , , , ; classification of states to determine representation in, proposed, ; term of members, debated, , ; age for members, debated, , , ; elections to, by state legislatures, proposed, , ; three years' term in, proposed, , ; eligibility of members to other offices debated, , , , , , ii., ; committee report on representation in, i., , ; constitution of, debated, ii., , ; who may vote for members of, debated, ; seven years' citizenship for members of, proposed, , , ; qualifications for members of, debated, ; clause relative to, agreed to, ; money bills to originate in, debate on, , , ; power of impeachment of, agreed to, ; time and mode of election to, debate on, , ; power of, over elections in states, debated, ; citizenship and residence for members, debated, , ; four years' citizenship for members of, proposed, ; nine years' citizenship for members of, proposed, ; citizenship requirements not to apply to those already citizens, , ; five years' citizenship for members of, proposed, ; clause for citizenship and age of members agreed to, ; representation by direct taxation, debate on, ; power to make bankruptcy laws, proposed, ; power of, to make treaties, proposed, ; increase in representation in, proposed, ; moved to strike out apportionment by "direct taxes," ; proposed that all journals of, be printed, . senate, mode of election to, debated, i., , , ii., ; to be a check on democracy, i., ; election to, by state legislatures, debated, i., , , , ; elections to, by the people, debated, ; mode of voting in, debated, , , , , , ; age for members of, debated, , ; term of members of, debated, , , , , ; compensation of members of, debated, , , , ; originating money bills in, debated, , , ; representation in, debated, , , , , , , , ii., , ; property qualification for members of, debated, i., ; eligibility of members of, to state offices, considered, ; eligibility of members of, to any offices, considered, ; voting in, by states, debated, ; citizenship for members of, debated, ii., , ; age and citizenship for members of, debated, , ; moved that members of, be permitted to enter dissent to measures, ; moved that journal of, be published, ; choosing officers of, agreed to, ; power of appointment by, , ; treaty-making power of, debated, , ; power of, to appoint ambassadors, etc., considered, ; power of, in controversies between states, considered, ; power to try impeachments, proposed, ; power of, objected to, ; to vote on president, ; power of, in treaty making, debated, , ; in appointments, ; quorum of, debated, ; power of, in impeachment of president, debated, , ; power of, to amend money bills, ; to be under oath in impeachment trials, . letters of marque, power to issue, debated, ii., . liberty of the press, guaranty of, proposed, ii., . livingston, william, n. j., attends convention, i., ; appointed on grand committee, ii., ; pierce's sketch of, , n.; delivers report on state debts and militia, ; on committee on navigation acts, ; submits report on slave importation and navigation acts, ; on committee on sumptuary legislation, . m madison, james, va., attends convention, i., ; moves question of representation in legislature, ; pierce's sketch of, , n.; favors proportional representation, , , ; favors election to house by popular vote, , ; opposes district elections to senate, ; opposes defining powers of national legislature, ; opposes use of force against recalcitrant states, ; moves consideration of powers of executive, ; opposes removability of executive on motion of state legislatures, ; favors qualified negative of executive on legislation, ; favors inclusion of judiciary with executive in negative on legislation, , ; opposes appointment of judges by legislature, , ; favors ratification of constitution by popular vote, , ii., ; favors creation of inferior judicial tribunals, i., ; opposes elections to senate by state legislatures, ; favors a small senate elected by the people, ; favors negative by national legislature of state laws, , , ; favors three years' term for representatives, ; favors national compensation of members of national legislature, , ; favors seven years' term for senators, ; moves to define jurisdiction of judiciary, ; thinks senate should have power to originate money bills, ; opposes jersey plan, ; thinks national government in danger from state governments, ; opposes annual elections of representatives, ; favors compensation of representatives by fixed standard, ; favors ineligibility of representatives to other offices, ; favors partial ineligibility of representatives to other offices, ; moves debate on mode of voting in senate, ; sets forth objects of senate, ; opposes compensation of senators by state legislatures, ; opposes equal state representation, , , , ; would preserve state rights, ; opposes compromise committee on representation in senate, , ; thinks question of representation vital, ; suggests representation by free population in house and by free and slaves in senate, ; moves increase in representation of all states, ; thinks basis of representation should be fixed, ; favors census at least every fifteen years, ; favors adjustment of taxation to representation, ; favors independence of executive, ; thinks tendency is to give executive too little power, ; favors appointment of judges by executive and one-third of senate, ; moves appointment of judges by executive and two-thirds of senate, ; objects to power to increase judges' salaries, ; favors continuance of old congress to prevent interregnum, ; favors national guaranty against domestic violence, ; favors election of executive by the people, ii., ; favors varying ratio for electors to choose executive, ; favors impeachability of executive, ; seconds motion to include judiciary in revisionary power, , ; moves appointment of judges by executive and senate, ; is willing to allow a majority of senate to reject appointment of judges, ; speaks on mode of election of executive, ; thinks each voter may vote for two persons for executive, ; thinks persons indebted to government should be excluded from legislature, ; moves that property qualification be not confined to landed property, ; opposes mutual negative of each branch of legislature over acts of the other, ; suggests that time of meeting of legislature be not fixed in constitution, , ; favors fixing time of meeting of legislature provisionally, ; favors changing time of meeting of legislature from december to may, ; favors power of suffrage by freeholders, ; views on suffrage, , n.; favors requiring representatives to be inhabitants of their states, ; opposes proposition that representatives be required to reside seven years in their states, ; objects to fixed ratio of representatives to inhabitants, ; moves representation of not more than to , inhabitants, ; opposed to originating money bills in house, ; moves that vacancies in senate must happen by refusals, resignations, etc., ; thinks provision as to money bills valueless to large states, ; opposes fourteen years' citizenship as necessary for senators, ; opposes leaving time and mode of electing representatives wholly to state legislatures, ; writes to jefferson on progress of the convention, , n.; thinks property qualification for members of government should be fixed in constitution, , ; moves that expulsion from legislature be by two-thirds vote, ; moves legislature have power to compel attendance, ; moves that senate shall publish its legislative journal, ; insists upon central location for capital, ; thinks legislature should not have power to change place of meeting, ; writes to his father, , n.; thinks citizenship and inhabitancy alone necessary for representatives, ; thinks government responsible for what states have done, ; thinks senate may decrease money bills, ; thinks constitution should regulate compensation of legislature, ; moves that laws be revised by executive and judiciary, ; thinks power to tax exports desirable, ; opposes power to emit bills of credit, ; thinks punishment of piracies, etc., ought not to be fixed by legislature, ; moves that legislature define piracies, etc., ; moves that rebellion to be suppressed be against government, ; moves to give legislature power to declare war, ; submits power over public lands, indians, seat of government, charters, copyrights, university, forts, ; favors national control of militia, ; moves power to create offices in legislature, ; thinks treason should be broadly defined, , ; thinks treason may be against nation and a state, ; thinks treason should not be twice punishable, ; thinks present representation temporary, ; favors power to tax exports, ; favors taxation of exports by two-thirds legislature, ; on committee on navigation acts, ; thinks new government should have power to fulfil engagements of old government, ; explains provisions as to militia, ; favors national control of militia, ; proposes states appoint militia officers under rank of general, ; thinks disunion the greatest danger, ; moves to commit question of negative of state laws, ; moves to include president in treaty-making power, ; suggests inconvenience of legal ratification of treaties, ; suggests varying participation of legislature in different treaties, ; thinks larger states should have larger vote in election of executive, ; moves extension of appointing power of executive, ; opposes slave-trade extension, ; opposes admitting property in men in constitution, ; moves that treaties be supreme law, ; thinks president of senate should not be in executive succession, ; moves amendment to oath of executive, ; favors fixed salaries for judges, ; proposes salaries of judges be not changed for three years, ; moves judiciary have jurisdiction over cases in which u. s. is a party, ; thinks judicial power should not extend to all cases under constitution, ; moves verbal change in judiciary clause, ; thinks states should not have power to interfere in private contracts, ; thinks retrospective laws are prohibited, ; moves states be forbidden to pass embargoes, ; moves to forbid states to lay imposts, , ; objects to imposts by states, ; favors committing clause on state acts, ; thinks commercial regulations not injurious to south, ; thinks western states entitled to an equality with others, ; opposes guaranty of public lands, ; thinks constitution may go into operation without a majority in favor, ; moves ratification by seven states and thirty-three representatives, ; thinks ratification conventions necessary, ; thinks it inconvenient if vessels must enter and clear at their own ports, ; on committee of august , ; offers amendment strengthening interstate validity of state acts, ; fears election of president will be thrown on senate, ; doubts if legislature should judge of privileges of its members, ; thinks legislature should not participate in electing president, ; proposes that election of president may be by one-third of whole number of electors, ; moves that electors not voting be not counted, ; moves that two-thirds senate be present when voting for president, ; shows president may be elected by two states, ; moves that election of president by legislature when vice-president also dies be temporary, ; seconds motion that no state vote for president in legislature by less than three representatives, ; thinks some cure required to prevent minority in legislature electing president, ; proposes treaties of peace be by majority of senate, ; proposes two-thirds senate make treaties of peace without president, ; favors executive council, ; thinks treaties have been too easily made in past, ; moves quorum of senate be two-thirds, ; thinks impeachment of president should not be on vague grounds, ; moves supreme court try president, ; seconds motion to increase representation, ; thinks clause relative to amendments should be reconsidered, , ; favors three-quarter vote to override president's negative, ; favors state export duties, ; thinks supreme court can negative state laws, ; moves verbal amendment to clause relative to negative of bills, ; moves words "by lot" be struck out for classifying senators, ; thinks president ought not to be suspended when impeached, ; favors national charters where states are incompetent, ; moves power to establish university, ; favors limiting standing army, ; moves public accounts be published from time to time, ; writes to j. q. adams, , n.; favors national control of commercial regulations, ; thinks senate may participate in pardons for treason, ; thinks superior officers may make appointments, ; thinks legislature may propose amendments, ; opposes special provisos in constitution, . madison, rev. james, of william and mary, writes to james madison on prospects of convention, ii., , n. manufactures, encouragement of, by imposts, debate on. ii., , ; regulation of, debated, . marque and reprisal, letters of, power to grant, proposed, iv., . martin, alexander, n. c., attends convention, i., ; insists upon equal power of states, ; favors elections of representatives regulated by state legislatures, ; favors ineligibility of representatives to other offices, ; pierce's sketch of, , n.; on compromise committee on representation, ; moves increase in representation of north carolina, ; opposes fixing national capital at same place with a state capital, ii., ; seconds motion for commercial regulations, . martin, luther, md., attends convention, i., ; opposes oath from state officers to national government, ; pierce's sketch of, ; opposes legislature of two branches, ; wishes to preserve state governments, , ; insists on state sovereignty, , ; favors two confederacies if states cannot have equal vote in senate, ; opposes national negative on state laws, ; moves that national laws be binding on state judiciary, ; favors election of executive by electors chosen by state legislatures, ; moves to consider question of re-eligibility of executive, ; favors appointment of judges by senate, ; opposes creation of inferior judicial tribunals, ; opposes power in national government to suppress rebellion in states, ; moves ineligibility of executive to re-election, , ; opposes inclusion of judiciary in revisionary power, ; opposes voting in senate per capita, ; favors disqualification from legislature of debtors to government, ; moves eleven years' term for executive, ; favors state compensation of senate, ; asks definition of "duties" and "imposts," ; opposes power to subdue rebellion in a state without its consent, ; favors provision against large army in time of peace, ; moves treason be punishable on confession, ; proposes direct taxation by quotas from states, ; moves that states be permitted to tax migration of slaves, ; on committee on navigation acts, ; favors state control of militia, ; moves clause to prevent discrimination in ports of entry, ; moves to restrict executive power of pardoning, ; withdraws motion, ; opposes requiring large states to consent to forming new states, ; opposes admission of new states by two-thirds vote, ; favors committing motion to require consent of states to dismemberment, ; thinks new states should be formed without consent of old states, ; moves that land claims be examined by supreme court, ; moves guaranty of domestic tranquillity on state executive's application, ; insists upon ratification by state legislatures, ; thinks the people will not vote for constitution, . mason, george, va., attends convention, i., ; objects to report of committee on rules, ; pierce's sketch of, , n.; thinks government should operate on individuals, ; favors seven years' term for executive, ; favors election of executive by the people, ; opposes subordinating executive to legislature, ; opposes single executive, ; favors election of representatives by the people, , ; favors separation of purse from sword, ; favors election of senators by state legislatures, ; favors provision for amendments to constitution, ; favors national compensation of representatives, ; favors two branches of legislature, ; favors biennial elections of representatives, ; moves that representatives be at least twenty-five years of age, ; favors ineligibility of representatives to other offices, , ; opposes ineligibility of representatives to other offices, ; favors representation in senate by states, ; favors property qualification for senate, ; on compromise committee on representation, ; supports report of compromise committee on representation, ; moves to refer question of voting in senate to committee, ; thinks money bills should originate in house, , ii., , ; favors an increase in representation, i., ; favors representation based on population, ; thinks slaves should have proportion in representation, ; thinks legislature ought not to fix representation, ; thinks constitution ought to fix representation, ; thinks taxation should be according to representation, ; opposed to direct taxation proportioned to number of representatives, ; opposes election of executive by the people, ; opposes election of executive to serve during good behavior, ; opposes appointment of judges by executive, , ii., ; favors institution of inferior judicial tribunals, i., ; favors guaranty of republican government to the states, ; favors impeachability of executive, ii., ; favors inclusion of judiciary in revisionary power, , ; thinks constitution should be ratified by the people, ; opposes three senators from each state, ; favors election by legislature of executive for not more than six years in twelve, ; moves seven years' term and ineligibility for executive, ; proposes property qualification for legislature, ; moves to exclude from legislature debtors to united states, ; moves that national capital be not at a state capital, ; withdraws the motion, ; doubts propriety of mutual negative of each branch of legislature on the other, , ; thinks time of meeting of legislature should not be fixed by constitution, ; thinks suffrage question should be left to the states, ; favors free general suffrage, ; thinks seven years' citizenship should be required of representatives, ; moves that representatives be required to be inhabitants of their states for one year, ; favors postponing question of voting in senate, ; favors postponing question of originating money bills, ; thinks aliens should not be in legislature, ; thinks quorum in legislature should be a majority, ; approves expulsion from legislature by two-thirds vote, ; thinks yeas and nays should be required, ; thinks publication of journal of legislature necessary, ; thinks government not bound by state laws on naturalization, ; thinks first money bills should originate in house, ; moves to allow members of legislature to hold any office, ; thinks representatives should be independent of state legislatures, ; thinks revenue bills should originate in house, ; thinks senate may alienate territory, ; moves that no tax be laid on exports, ; favors power to emit bills of credit, , ; favors appointment of treasurer by legislature, ; thinks punishment may be fixed in cases of piracy, etc., ; opposes giving power of war to executive, ; thinks general government should regulate militia, ; thinks funds may be diverted in time of war, ; appointed on grand committee, ; favors partial national control of militia, , ; favors power to make sumptuary laws, ; thinks treason may be against a state, ; thinks treason should be defined, ; calls up amendment as to money bills, ; thinks states should retain power over exports, ; denounces slavery and slave trade, ; asks how legislature can negative state laws, ; objects to compelling settlement of old debts, ; opposes naming slave-importing states, ; thinks tax on importation of men necessary, ; on committee of august , ; moves amendment to executive's oath, ; thinks judges' salaries should be fixed, ; thinks states may interfere in private contracts, ; thinks states may lay embargoes, ; thinks states may wish to encourage industries by imposts, ; thinks two-thirds vote necessary for commercial regulations, ; thinks western people should be treated with equality, ; thinks nine states may ratify constitution, ; declares he will not sign constitution, ; approves amendment relative to interstate validity of state acts, ; thinks members of legislature should not hold other offices, ; thinks president will usually be chosen by senate, ; thinks election of president by electors objectionable, ; thinks president may be elected by minority, ; moves that senate choose president from three highest candidates, ; thinks system of electors autocratic, ; prefers eventual election of president by house of representatives, ; approves increasing number for quorum to elect president, ; thinks vice-president will encroach on senate's rights, ; favors an executive council, ; moves to extend reasons for impeaching president, ; moves to postpone motion for second convention, ; thinks two-thirds vote may override president's negative, ; thinks bill of rights necessary, ; moves states may levy export duties, ; moves clause for sumptuary laws, ; on committee on sumptuary legislation, ; favors state tax on exports, ; moves publication of all proceedings of house, ; favors power to cut canals, ; opposed to standing armies, ; moves to strike out prohibition of _ex post facto_ laws, ; moves verbal amendment to capitation tax clause, ; moves annual publication of expenditures, ; thinks states may lay tonnage dues, ; thinks president should not have power to pardon for treason, ; thinks legislature should have pardoning power for treason, ; disapproves provision for amendments, ; objects to navigation acts by majority, ; announces he cannot sign constitution, ; refuses to sign, . mcclurg, james, va., attends convention, i., ; moves that term of executive be for good behavior, ; insists upon necessity for independence of executive, ; pierce's sketch of, ii., , n.; suggests ascertaining how executive is to act, ; writes to madison, , n., , n., , n., . n. mchenry, james, md., attends convention, i., ; pierce's sketch of, ii., , n.; appointed on grand committee, ; thinks direct taxation should be by quotas from states, ; thinks embargo power embraced in war power, ; moves prohibition of _ex post facto_ laws or bills of attainder, ; proposes plan for choosing ports of entry, ; moves judges receive fixed salaries, ; thinks maryland must ratify according to her law, ; thinks vessels will take officers as security of entry dues, ; moves president have power to convene either house of legislature, ; moves states may lay tonnage dues, . mercer, john francis, md., attends convention, ii., ; opposes election of representatives by the people, ; opposes whole plan of constitution, ; thinks the people ought to be guided in their voting, ; suggests that candidates for representatives be nominated by state legislatures, ; opposes requirement of seven years' residence of representatives in their states, , ; thinks senate should have power to originate money bills, ; thinks less than a majority should be quorum of legislature, ; seconds motion to fix quorum at few, ; thinks senate should have only legislative power, ; thinks two houses will not agree on place of meeting, ; thinks provisions as to citizenship should not apply to those now citizens, ; thinks government bound by state laws on naturalization, ; thinks aristocracies will arise, ; fears good men will not serve in legislature, ; thinks senate ought not to make treaties, ; thinks judiciary should not be included in revisionary power, ; opposes taxing exports, ; declares himself friendly to paper money, ; favors appointment of treasurer by executive, ; favors defining of piracies, felonies, etc., ; opposes power to subdue rebellion without request of state legislature, . mifflin, thomas, pa., attends convention, i., ; seconds motion that acceptance of other office shall vacate seat in legislature, ii., ; pierce's sketch of, , n. militia, power of regulating, debated, ii., , ; report on, command of, debated, . _see_ legislature, national, power of. money bills, originating of. _see_ legislature, national, money bills, house of representatives, senate. monroe, james, to jefferson, on prospects of the convention, ii., . n. morris, gouverneur, pa., attends convention, i., ; offers address from citizens of rhode island, ; pierce's sketch of, , n.; objects to committee on minutes, ; moves question of federal or national government, ; explains difference between federal and national government, ; favors compromise committee on question of representation, ; favors election of senators for life, ; opposes report of compromise committee on representation, ; thinks representation should be according to wealth, , ; thinks representation should not be definitely fixed, , ; on committee on representation question, ; favors originating money bills in both houses, , ; opposes equal representation of small states, ; submits report on representation in house, ; favors referring question of representation to committee, ; moves consideration of question of fixing representation, ; favors property and population as basis of representation, ; thinks southern states sufficiently represented, ; objects to requiring legislature to take census, ; fears preponderance of western states, ; opposes inclusion of slaves in basis of representation, , , ; moves that taxation be according to representation, , , ; thinks legislature should adjust basis of representation, ; moves reconsideration of question of representation in senate, ; opposes taxation by quotas, ; opposes forbidding national government to interfere with state police, ; favors power in legislature where harmony would be disturbed by state legislation, ; opposes negative of state laws by legislature, , ; thinks judiciary will have power to set aside laws, ; favors election of executive by the people, , ; opposes ineligibility of executive, ; favors election of executive during good behavior, ; disclaims friendliness to monarchy, ; favors appointment of judges by executive, ; thinks impeachment trials should not be before the judges, ; favors appointment of judges by executive with consent of senate, ; favors power to increase judges' salaries, , ; favors institution of inferior judicial tribunals, ; opposes continuance of old congress, ; opposes guaranteeing existing laws to the states, ; favors a vigorous executive, ii., ; favors re-eligibility of executive, , ; favors short term for executive, ; thinks executive ought not to be impeachable, ; admits executive ought to be impeachable in some cases, , ; moves that electors for executive be not officials, ; thinks revisionary power requires more than the executive, ; thinks judiciary and executive may exercise revisionary power jointly, ; favors appointment of judges by executive, ; favors ratification of constitution by the people, ; moves that voting in senate be per capita, ; moves ratification of constitution by a general convention, ; moves that there be three senators from each state, ; opposes election of executive by members of national legislature chosen by lot, ; opposes election of executive by national legislature, ; opposes apportionment of direct taxation by representation, ; favors election of executive by the people, ; thinks each voter for executive may vote for two persons, ; opposes property qualification for members of legislature, ; thinks debtors of government need not be excluded from legislature, , ; seconds motion to strike out "landed" property as requirement in executive, ; opposes prohibiting national capital at state capital, ; moves to restrict mutual negative of each branch of legislature on the other to legislative acts, ; thinks treaties are not laws, ; moves to strike out provision for time of meeting of legislature, ; moves to change time of meeting of legislature from december to may, ; favors absolute negative in executive on legislature, ; moves restriction of suffrage to freeholders, ; thinks suffrage should be fixed by legislature, ; thinks general suffrage will produce aristocracy, ; favors seven years' citizenship for representatives, ; opposes requirement that representatives be residents of their states, ; moves that representation be by free population, ; opposes slavery and the slave trade, ; thinks senate should have right to originate money bills, , ; agrees that vacancies in senate must be by refusals, resignations, etc., ; favors equal vote in senate, ; moves fourteen years' citizenship for senators, ; opposes admission of aliens into government, ; moves that state legislatures fix time and mode of electing representatives, ; opposes leaving time and mode of electing representatives exclusively to state legislatures, ; moves to strike out property qualification, ; moves to fix quorum at few, ; thinks any member may call for yeas and nays, ; thinks majority may expel from legislature, ; thinks citizenship requirements ought not to apply to those already citizens, , ; thinks members of legislature may hold some other offices, , ; thinks members of legislature may serve in army and navy, ; favors national compensation of legislature, ; thinks revenue bills need not be confined to house, ; thinks some check on legislative acts necessary, ; moves that executive power of negative extend to resolutions, ; thinks exports may be taxed, , ; opposes power to emit bills of credit, ; thinks legislature should punish counterfeiting, ; moves that legislature punish piracies, etc., ; thinks legislature should designate piracies, etc., ; thinks legislature should have power to subdue rebellions, ; opposes inclusion of executive in power to subdue rebellions in states, ; thinks power to subdue rebellions necessary, ; submits propositions for committee of the whole, ; opposes power to make sumptuary laws, ; thinks treason should be defined, , ; moves british statute for treason, ; thinks treason should not be twice punishable, ; thinks debts should be adjusted with taxation, ; favors power to tax exports, ; moves slave-trade question be committed, ; thinks prohibition of _ex post facto_ laws unnecessary, ; favors prohibiting bills of attainder, ; moves new government discharge engagements of old government, ; moves that senate shall not have power of appointment, ; moves that power to enforce treaties be not specified, ; moves clause giving power over militia, ; thinks national appointment of state executives should be committed, ; doubts if treaties should be referred to senate, ; suggests that treaties will be negotiated in this country, ; opposes election of executive by legislature, ; moves election of executive by electors, ; moves executive be required to make recommendations to legislature, ; objects to state power to appoint federal officers, ; thinks debts of old government should be paid by new government, ; moves that slave-importing states be named, ; withdraws motion, ; thinks freemen may be taxed, ; seconds motion to make treaties supreme law, ; moves that executive have power to correspond with states, ; moves chief justice succeed as executive, ; objects to removability of judges upon legislature's application, ; moves judicial power extend to cases in which u. s. is party, ; asks what is appellate power of judiciary, ; moves verbal change in judiciary clause, ; opposes power to suspend habeas corpus except in emergency, ; opposed to forbidding states to interfere in private contracts, ; thinks prohibiting embargoes by states unnecessary, ; thinks states should not tax exports, ; favors commercial regulations, ; moves interstate validity of acts of states, ; opposes admission of western states on an equality, ; does not wish power to pass to western states, ; proposes method of admitting new states, ; opposes admission of new states by two-thirds vote, ; thinks states must consent to division, ; thinks question of new states is one of jurisdiction rather than limits, ; moves that legislature control public lands, ; thinks supreme court has jurisdiction in land cases, ; thinks legislatures may call convention to amend constitution, ; approves motion prohibiting religious test for office, ; thinks contiguous states must ratify, ; thinks states may choose method of ratification, ; moves congress be not required to approve constitution, ; favors a second convention, ; on committee of august , ; moves amendment on the subject of interstate validity of state acts, ; favors national bankruptcy laws, ; thinks members of legislature may hold other offices, ; fears election of president will devolve on senate, ; defends system of electors, , ; thinks election of president should be free from cabal, ; prefers eventual election of president by senate to whole legislature, ; thinks each house should be judge of privileges of its own members, ; moves postponement of clause relative to revenue bills, ; seconds motion to require state legislature's consent to national purchase of forts, etc., ; does not think senate will elect president, ; favors separate provision for re-election of president, , ; thinks vice-president will not be in accord with president, ; thinks president must concur in treaties of peace, ; thinks executive council unnecessary, ; opposes special provision for treaties of peace, ; thinks whole legislature should participate in treaties of peace, ; objects to two-thirds of senate being a quorum, ; favors impeachment for maladministration, ; thinks senate should try impeachments, , ; on committee on style and arrangement, ; favors three-quarters vote to override president's negative, ; points out danger from unstable laws, ; favors state power to collect export duties, ; explains words "direct taxes" in report, ; approves verbal amendment on negative of bills, ; moves suspension from office of persons impeached, ; thinks legislature may appoint treasurer, ; moves offences against law of nations be definable, ; thinks government can establish university, ; opposes provision against standing army, ; thinks publication of expenditures impossible, ; thinks states may lay tonnage dues, ; opposes power of legislature to pardon for treason, ; moves executive and others have power of appointment, ; moves amendments by general convention, ; moves states have equal suffrage in senate, ; announces he will sign constitution, . morris, robert, pa., attends convention, i., ; pierce's sketch of, , n.; moves washington's election as president of convention, ; thinks senate should be chosen by the people, ; favors life term for senators, . n national government of three branches agreed to, i., . "national" in virginia plan, word struck out, i., . naturalized citizens, rights of debated, ii., . navigation acts, question of, committed, ii., ; postponed, ; agreed to, ; considered, ; debated, , . navy, provision for, debated, ii., . negative on legislative acts. _see_ executive, national, negative of; judiciary, national, supreme, negative of. negative on state laws. _see_ legislature, national, negative of. new hampshire, moved that governor of, be requested to send delegates, i., ; representation of, , ; delegates from, attend convention, ii., . new jersey plan. _see_ jersey plan. nightingale, jos., signs address from rhode island, i., , n. north carolina, representation of, i., , ii., . o oath to support national government from state officers, debated, i., , , , , ii., ; to support constitution, affirmation permitted, . olney, jeremiah, signs address from rhode island, i., , n. p pardons and reprieves. _see_ executive, national, power of. patents and copyrights. _see_ legislature, national, power of. patterson plan. _see_ jersey plan. patterson, william, n. j., attends convention, i., ; pierce's sketch of, , n.; moves to consider mode of voting in legislature, ; favors equal vote by states in legislature, , ; offers plan of government, ; on committee on representation, ; defends small states, ; opposes inclusion of blacks in representation, ; favors adjournment to consider representation in senate, ; opposes ineligibility of executive, ii., . peace, power to declare, debated, ii., . pensioners, disqualification of, from legislature, proposed, ii., . phillips, jonas, letter of, ii., , n. pierce, william, ga., notes of convention, i., , n.; sketch of yates, , n.; sketch of robert morris, , n.; sketch of few, , n.; sketch of blair, , n.; sketch of bassett, , n.; sketch of washington, , n.; sketch of wilson, , n.; sketch of hamilton, , n.; sketch of wythe, , n.; sketch of king, , n.; sketch of mason, , n.; sketch of gouverneur morris, , n.; sketch of butler, , n.; sketch of spaight, , n.; sketch of charles pinckney, , n.; sketch of randolph, , n.; sketch of charles cotesworth pinckney, , n.; sketch of gerry, , n.; sketch of sherman, , n.; sketch of read, , n.; sketch of madison, , n.; attends convention, ; sketch of rutledge, , n.; sketch of franklin, , n.; sketch of bedford, , n.; sketch of williamson, , n.; sketch of dickinson, , n.; sketch of davey, , n.; sketch of patterson, , n.; favors election of representatives by people and to senate by legislatures, ; sketch of pierce, , n.; sketch of brearley, , n.; sketch of ellsworth, , n.; proposes three years' term for senators, ; sketch of jenifer, , n.; sketch of lansing, , n.; sketch of johnson, , n.; sketch of strong, , n.; sketch of gorham, , n.; sketch of alexander martin, , n.; sketch of dayton, , n.; opposes equal state representation, ; sketch of baldwin, , n.; sketch of broome, ii., , n.; sketch of mcclurg, , n.; sketch of gilman, , n.; sketch of houston, , n.; sketch of carroll, , n.; sketch of langdon, , n.; sketch of mchenry, , n.; sketch of mifflin, , n.; sketch of livingston, , n.; sketch of blount, , n.; sketch of ingersoll, . pinckney, charles, s. c., attends convention, i., ; appointed on committee on rules, ; moves a committee on minutes, ; pierce's sketch of, , n.; submits plan of constitution, ; letters of concerning draft, , n.; asks if state governments are to be abolished, ; favors enumerating powers of national legislature, ; favors vigorous executive, ; favors seven years' term for national executive, ; favors single executive, ; favors appointment of judiciary by executive, ; opposes provision for amendments of constitution, ; favors ratification by nine states, ; moves election of representatives by state legislatures, ; opposes inclusion of judiciary in revisionary power, ; moves consideration of negative on state laws, ; favors election of senators by state legislatures, ; favors negative by legislature on all laws, ; moves classification of states to determine representation, ; favors representation by free population, ; proposes selection of judges by legislature, ; favors election of representatives by the people, ; opposes equal state representation in senate, ; favors representation by population, ; thinks originating money bills in house no concession, ; favors representation of blacks equal with whites, ; proposes proportional representation in senate, ; favors negative by legislature of state laws, ; favors election of executive by the people, ; opposes impeachability of executive, ii., , ; favors appointment of judges by senate, ; moves that executive be elected by legislature for not more than six years in twelve, ; moves exclusion from executive and judiciary of debtors of government, ; opposes disqualification of debtors from legislature, ; thinks national capital ought not to be at state capital, ; moves reference to committee of whole of report of committee of detail, ; thinks time of meeting of legislature need not be fixed in constitution, ; moves increase in representation of south carolina, ; thinks fisheries and western frontier more burdensome than slavery, ; moves to strike out requirement as to money bills, ; favors fourteen years' citizenship for senators, ; thinks no strangers should be in legislature, ; moves that time and mode of election of representatives be fixed by state legislatures, ; insists on property qualification for officers of government, ; opposes considering question of money bills, ; thinks government not bound to respect state laws on naturalization, ; opposes ineligibility of members of legislature to other offices, , ; moves that acceptance of other office shall vacate seat in legislature, ; favors postponement of clause relating to eligibility of members of legislature to other offices, ; thinks judiciary should not be included in revisionary power, ; favors appointment of treasurer by joint ballot, ; moves legislature subdue rebellions without application to state legislatures, ; thinks senate should have power to declare war, ; thinks state debts may be assumed by government, ; opposes executive council, ; favors national control of militia, ; submits propositions for committee of detail, ; seconds morris's propositions for committee of detail, ; moves power to create necessary offices, ; declares constitution will fail if slave trade is prohibited, ; defends slavery, ; moves to commit question of navigation acts, ; moves officers be forbidden to accept presents from foreign states, , ; moves national power to negative state laws, ; thinks state executives should be appointed by national government, ; moves election of executive by majority of legislature, ; thinks rights of habeas corpus should be assured, ; proposes that fugitive slaves be surrendered, ; moves to recommit question of interstate validity of state acts, ; favors commercial regulations, ; moves that no religious test be required for office, ; moves that congress be not required to approve constitution, ; moves ineligibility of members of legislature to other offices with emoluments, ; thinks they should be eligible to other offices, ; asks why mode of electing president is to be changed, ; thinks electors objectionable, , ; moves each house of legislature judge privileges of its own members, ; agrees to postponement of clause relative to revenue bills, ; seconds motion that two-thirds of senate be present when electing president, ; thinks senate should not share in appointments, except of ambassadors, ; opposes power of impeaching president, ; moves an address to accompany constitution, ; opposes three-quarter vote to override president's negative, ; moves power to establish a university, ; thinks legislature should not name treasurer, ; opposes provision against standing armies, ; moves guaranty of liberty of the press, ; favors publication of accounts from time to time, ; favors increase of north carolina representation, ; moves preservation of jury trials in civil cases, ; announces he will sign constitution, ; urges unequivocal signing, . pinckney, charles cotesworth, s. c., attends convention, i., ; pierce's sketch of, , n.; opposes election of representatives by the people, ; thinks senate should have power to originate money bills, ; favors election of representatives by state legislatures, , ; opposes ineligibility of representatives to state offices, ; favors four years' term for senators, , ; favors no salary for senators, ; thinks senate should be dependent on states, ; favors compromise on representation, ; thinks originating money bills in house no concession, ; favors equality of representation for southern states, ; favors greater representation for southern states, ; moves increase of representation for north and south carolina, and georgia, ; insists upon inclusion of blacks in basis of representation, ; opposes tax on exports, ; thinks slave property should be protected, ; favors first census as basis of representation, ; opposes adjournment on representation question, ; insists constitution must provide against emancipation, ii., ; moves exclusion from judiciary and executive of public debtors, ; seconds motion to strike out provision for mutual negative of one branch of government over another, ; moves that representation of south carolina be increased, ; moves ten years' citizenship for senators, ; asks whether there is to be no army, ; favors national control of militia, , ; declares constitution will fail if it interferes with slavery, ; declares south carolina will not soon stop slave trade, ; on committee on navigation acts, ; favors effective control of militia, ; seconds motion to reconsider question of discharge of debts, ; favors extension of slave trade, ; proposes plan for selecting ports of entry, ; thinks judges' salaries may be raised, ; favors compromise on commercial regulations, ; praises new england men, ; approves motion that no religious test be required for office, ; opposes clause as to juries in civil cases, ; dislikes form of signing, , n. pinckney plan, real date of, i., xvi.; letters concerning, i., , n; submitted, ; facsimile of, ; referred to committee of detail, ii., , . piracies and felonies, power to declare, debated, ii., . ports of entry, method of choosing, debate on, ii., . post-offices, power to establish. _see_ legislature, national, power of. prayers in convention proposed by franklin, i., , . presents, acceptance of, from foreign states, by officers, forbidden, ii., . president, the. _see_ executive, national. president of the convention, washington elected, i., . property qualification. _see_ executive, national, compensation of; judiciary, national, compensation of; legislature, national, property qualification for; senate. proportional representation. _see_ legislature, national, representation in. q quorum. _see_ legislature, national, quorum in. r randolph, edmund, va., attends convention, i., ; offers virginia plan, ; pierce's sketch of, , n.; explains design of senate, ; opposes indefinite power of legislature, ; opposes single executive, , ; opposes election of executive by state executives, ; favors provision for amendment of constitution, ; favors oath of allegiance to national government from state officers, ; favors seven years' term for senators, ; moves extent of supreme court's jurisdiction, ; opposes jersey plan, ; favors two years' term for representatives, ; favors national compensation for representatives, ; favors rotation in personnel of senate, ; moves that sermon be preached to convention, ; favors committee of compromise on representation, ; on committee of compromise on representation, ; objects to submitting question of voting in senate to committee of small states, ; opposes reduction of representation of new hampshire, ; moves that census be required, , , ; moves representation by free inhabitants and three-fifths slaves, - ; favors adjournment on representation in senate, , ; opposes power to legislate where state legislation would interrupt harmony, ; favors appointment of judges by senate, ; favors guaranty of republican government to states, ; favors ineligibility to re-election of executive, ii., ; favors impeachability of executive, ; favors appointment of judges by executive, ; thinks constitution should be ratified by the people, ; favors fixing time of meeting of legislature provisionally, ; thinks it unimportant when legislature meets, ; revives question of money bills originating, ; thinks state executives may safely fill vacancies in senate, ; moves to postpone question of voting in senate, , ; favors postponement of question of originating money bills, ; opposes fourteen years' residence for senators, ; favors nine years' citizenship for senators, ; moves legislature have power to compel attendance of members, ; approves expulsion from legislature by two-thirds vote, ; thinks yeas and nays may be ordered by any member of legislature, ; moves senators may dissent from any measure, ; thinks originating money bills ought to be reconsidered, ; moves four years' citizenship for representatives, ; moves bills to raise revenue shall originate in house without power of amendment in senate, ; thinks provision as to money bills should stand, ; favors disqualification of members of legislature from other offices, , ; moves that power of negative extend to resolutions, ; favors power to emit bills of credit, ; doubts whether legislature may declare law of piracies, ; moves that legislature define piracies, etc., ; opposes suppression of rebellion without request of state, ; favors extended definition of treason, ; moves british statute on treason, ; favors commitment of question of slave trade, ; thinks power to fulfil engagements or old government unnecessary, ; favors national control of militia, ; moves postponement of question of treaty-making, ; favors reconsideration of question of discharge of debts, ; suggests states appoint some federal officers, ; moves obligations of old government be binding on new, ; opposed to removability of judges on application of legislature, ; moves judges' salaries be fixed for three years, ; on committee on interstate validity of state acts, ; favors interstate validity of state acts, ; announces objection to features of constitution, ; moves that ratification from nine states be required, ; favors second convention to consider amendments, ; thinks declaration as to state acts defective, ; asks why the mode of electing president is to be changed, ; thinks eventual election of executive should be by whole legislature, ; doubts whether each house should judge of the privileges of its members, ; thinks mode of choosing president aristocratic, ; moves that legislature name president when both president and vice-president die, ; thinks vice-president should not be president of senate, ; thinks state conventions may offer amendments to constitution, ; states his objections to the constitution, ; proposes second convention, ; moves pardons in treason cases be considered, ; moves use of word "service" for "servitude," ; seconds verbal amendment to clause on negative of bills, ; moves suspension of officers impeached, ; favors power to grant charters, ; seconds motion against standing armies, ; moves to except treason from president's power to pardon, ; thinks president and senate should not combine, ; announces he cannot sign constitution, ; proposes second federal convention, ; thinks second convention feasible, ; does not sign, . ratification of constitution, method of, debated, i., , ii., , , , ; by conventions, proposed, i., ; by people of states, , , ; by assemblies chosen by the people, debated, ii, ; resolutions concerning, offered, . read, george, del., attends convention, i., ; moves debate on three branches of government, ; pierce's sketch of, ; moves to postpone question of representation, ; favors national government, ; moves senate be named by executive, ; opposes guaranty of territory to the states, ; favors forbidding senate from originating money bills, ; thinks injustice was done small states in land cession, ; supports small states on question of representation, ; favors life term for senators, ; moves nine years' term for senators, ; thinks the united states ought to be one people, ; favors abolishing states, ; favors increase in representation, ; thinks representation ought to be fixed by legislature, ; thinks taxation and representation may be adjusted, ; moves absolute negative by executive on legislature, ii., ; opposes requirement that representatives live in the states they represent, ; opposes provision as to money bills, ; moves that national legislature have power over elections if states make no provision, ; opposes power to emit bills of credit, ; moves that treasurer be appointed by executive, ; doubts national control of militia, ; thinks requisitions were accommodated to poverty of states, ; favors commitment of question of taxing exports, ; moves president of senate have additional casting vote for executive, ; on committee of august , ; objects to same court having equity and law jurisdiction, ; opposed to separate provision for re-election of president, ; thinks small states should have vote for president in legislature, ; moves prohibition of direct tax, . rebellion in states, power to subdue, debated, ii., . representation in legislature. _see_ legislature, national, representation in, house of representatives, senate. republican government, guaranty of, to states, debate on, i., , , , , ii., ; amendment adopted, . rhode island, address from citizens of, i., , n.; moved representation of, be increased, ii., . rules, of convention, committee on, appointed, i., ; adopted, ; additional, adopted, . of legislature. _see_ legislature, national, rules of. russell, william, signs address from rhode island; i., , n. rutledge, john, s. c., attends convention, i., ; seconds motion for washington's election as president, ; wants enumeration of powers of legislature, ; pierce's sketch of, , n.; favors single executive, ; opposes appointment of judges by executive, ; opposes inferior judicial tribunals, ; moves classification of states to determine representation, ; favors representation according to wealth, , , ; favors two years' term for representatives, ; thinks senators should receive no compensation, ; favors election of representatives by state legislatures, ; favors ineligibility of representatives to other offices, , ; opposes sending for new hampshire delegates, ; on committee on compromise on representation, , ; moves fixing representation, ; opposes increase in representation, ; moves that representation be by wealth and population, ; proposes to reconsider originating of money bills, ; thinks powers of legislature loosely defined, ; opposes adjournment to consider representation, ; opposes guaranteeing republican government to states, ; favors election of executive by state legislatures, ii., ; opposes inclusion of judiciary in revisionary power, ; on committee to report constitution according to resolutions, ; submits report of committee, ; moves annual meeting of legislature, ; opposes confining suffrage to freeholders, ; favors seven years' residence in their states of representatives, ; favors three years' residence in their states of representatives, ; insists on longer than seven years' citizenship for senators, ; moves mode of election of representatives be left to state legislatures, ; insists on property qualification for officers of government, , ; moves publication of senate journals, ; thinks provision as to citizenship should apply to those already citizens, ; opposes provision as to money bills, ; seconds motion to postpone provision as to money bills, ; urges progress, ; opposes tax on exports, ; moves that funds for public creditors be not diverted, ; moves that state debts be assumed by government, ; urges expedition, ; defends slavery, ; declares south carolina and georgia will not accept constitution if it prohibits slave trade, ; submits report on madison and pinckney propositions, ; thinks prohibition of _ex post facto_ laws unnecessary, ; reports constitution according to resolutions, ; moves constitution be the supreme law, ; opposes power of negative of state laws, ; thinks judiciary will decide controversies between states, ; moves election of executive by joint ballot of legislature, ; opposed to removability of judges on legislature's application, ; moves judiciary have power over treaties, ; thinks rights of habeas corpus should be inviolable, ; moves to prohibit bills of attainder and retrospective laws, ; on committee on interstate validity of state acts, ; favors commercial regulations, ; thinks there is no danger of dismemberment of states, ; thinks it unnecessary to guarantee public lands, ; presents committee report, ; opposes plan for executive, ; moves senate choose president from thirteen candidates, ; moves two-thirds of whole senate concur in treaties, ; objects to general power against slavery, ; opposes legislature appointing treasurer, ; opposes address to people, ; moves to limit president's emoluments, . s seat of government, not to be at same place with state capital, ii., ; at central point proposed, ; provisions for, . second branch of legislature. _see_ legislature, national, senate. senate. _see_ legislature, national, senate. sermon for members of convention agreed to, i., . sherman, roger, conn., attends convention, i., ; favors conservative course toward states, ; pierce's sketch of, , n.; opposes election of representatives by the people, ; favors election of one senator from each state, ; favors election of executive by state legislatures, , , ; favors three years' term for executive, ; thinks legislature should have power to remove executive, ; favors an executive council, ; opposes negative by executive, ; opposes ratification of constitution by conventions, ; opposes creation of inferior judiciary tribunals, ; favors election of representatives by state legislatures, ; favors elections to senate by state legislatures, , ; favors limiting power of negative on state laws, ; proposes proportional representation in house and by states in senate, ; proposes each state have one vote in senate, ; opposes oath to national government by state officers, ; proposes one-year term for representatives, ; proposes five years' term for senators, ; opposes leaving time and mode or electing representatives to state legislatures, ; proposes election of judges by national legislature, ; thinks money bills may originate in senate, ; opposes two branches of legislature, ; favors election of representatives by state legislatures, ; consents to two years' term for representatives, ; favors compensation of representatives by states, ; opposes ineligibility of representatives to state offices, , , ; favors six years' term for senators, ; favors six or four years' term for senators, ; favors rights of small states, ; proposes committee on representation, , ; favors vote by states in senate, ; moves to postpone question of representation, ; opposes increase in representation, , ; opposes periodical census, ; thinks representation should be fixed by census, ; thinks representation fairly apportioned, ; favors leaving question of taxation to state legislatures, ; thinks senators may vote per capita, ; thinks government should have coercive power over states, ; thinks government will act on states in requiring tax quotas, ; moves that government should not interfere with internal policy of states, ; opposes direct taxation by national government, ; thinks state courts will consider state laws contravening national authority invalid, ; opposes negative by legislature of state laws, ; opposes ineligibility of executive to second term, ; opposes tenure of executive for good behavior, ; favors appointment of judges by senate, ; favors appointment of judges by executive with consent of senate, ; opposes creation of inferior judicial tribunals, ; favors negative of each branch of legislature on the other, ii., ; thinks time of meeting of legislature should be specified, ; moves representatives be inhabitants of their states, ; thinks representation should stand, ; moves that representation not exceed to , , ; thinks slaves should be included in representation, ; thinks yeas and nays may not be required, ; moves publication of journal of legislature, ; thinks general government can make any regulations as to citizenship, ; thinks those in power should be free from temptation, ; favors payment of legislature partly by states and partly by nation, ; thinks power of negative should not be extended, ; thinks revision of acts by president unnecessary, ; favors no tax on exports, , ; opposes appointment of treasurer by joint ballot, ; thinks executive should not have power to commence war, ; thinks state debts may be assumed by government, ; appointed on grand committee, ; thinks states should partially control militia, , ; thinks resistance to national laws treason, ; thinks report on state debts meaningless, ; favors limiting representation of large states, ; moves settlement of debts on basis of taxation, ; thinks provision as to slave trade may stand, , ; thinks question of taxing exports settled, ; moves that states have power to train militia, ; withdraws motion, ; proposes mixed control of militia, ; thinks states should appoint militia officers, ; thinks negative of state laws by general government unnecessary, ; thinks judiciary will decide controversies between states, ; opposes election of executive by joint ballot of legislature, ; objects to executive appointing all officers, ; objects to legislatures of states appointing federal officers, ; moves express provision for paying debts, ; opposed to taxing men as property, ; thinks revenue the object of import tax on slaves, ; on committee of august , ; moves amendment to pardoning power, ; moves militia be under executive when in active service, ; favors removability of judges on application of legislature, ; moves judicial power extend to land grants, ; reports amendments on commercial regulations and judicial power, ; moves to prohibit bills of credit or payments in anything but coin, ; wishes to crush paper money, , ; thinks states should have power to lay embargoes, ; thinks state legislatures may deal with impost question, ; moves that states may tax exports for national treasury, ; opposes surrender of fugitive slaves and servants, ; desires commercial regulations by majority vote, ; declare all should have equal privileges, ; thinks union cannot dismember a state, ; moves admission of new states by consent of state legislatures, ; thinks constitution may guarantee public lands, ; thinks no religious test will be applied for office, ; thinks ratification should be from ten states, , ; thinks ratification should be by all states, ; moves to postpone ratification question, ; moves to take up report of committee of eleven, ; moves to refer draft of constitution to committee, ; on committee, ; opposes national bankruptcy law, ; favors ineligibility of members of legislature to other offices, ; does not object to election of vice-president by majority, ; thinks army in time of peace should be restricted, ; willing to defer to those who think revenue bills vital, ; thinks large states will have advantage in nominating candidates for president, ; thinks president should not be chosen from three candidates, ; thinks when legislature votes for president it should vote by states, ; moves eventual election of president by house of representatives, ; approves of vice-president being president of senate, ; favors inclusion of senate in treaty-making, ; thinks whole legislature should participate in treaties of peace, ; moves that majority of whole senate vote for treaties, ; thinks supreme court should not try president, ; thinks representation large enough, ; moves states be required to consent to amendments, ; favors submitting constitution to congress, ; favors two-thirds vote to override president's negative, ; thinks state bills of rights sufficient, ; thinks legislature should appoint treasurer, ; objects to power to cut canals, ; thinks provision for liberty of press unnecessary, ; thinks accounts may be published from time to time, ; opposes address to states, ; favors additional representation for north carolina, ; thinks states and nation may have concurrent commercial jurisdiction, ; seconds motion to vest appointments in president and others, ; thinks three-quarter states may oppress others by amendments, ; thinks conventions may act on amendments, ; moves that states be preserved, ; moves to strike out clause concerning amendments, . signing constitution, mode proposed, ii., ; takes place, . slavery and slave trade, debate on, ii., , ; compromise on, brought in, ; power to prohibit, objected to, . slaves, import tax on, agreed to, ii., ; delivery up of fugitive, proposed, ; agreed to, ; verbal amendment made, . south carolina, motion that representation of, be increased, ii., . spaight, richard dobbs, n. c., attends convention, i., ; moves rule for revision of questions, ; pierce's sketch of, , n.; seconds motion for representation by free inhabitants, ; favors election to senate by free population, ; withdraws motion for elections to senate by state legislatures, ; moves reconsideration of appointment of executive by electors, ii., ; seconds motion to elect executive by national legislature, ; fears capital will be located at new york, ; favors commercial regulations by majority vote, ; moves senate choose president from thirteen candidates, ; moves seven years' term for executive, ; moves six years' term, ; moves electors meet at seat of government, ; proposes president make appointments during recess of senate, ; moves special provision respecting territorial rights, . state acts, validity of, debated, ii., , ; certain, prohibited, . state debts, debate on assumption of, ii., . state laws, negative of. _see_ legislature, national, negative of. state police, non-interference in, by national government, debated, i., . state representation, equal in house, debated, i., ; in senate, , ; committee to arrange, debated, , ; report of committee, . _see_ legislature, national, representation in. states, admission of new, provision for, agreed to, i., , , ; debated, ii., , , , , , , . strong, caleb, mass., attends convention, i., ; favors one-year term for representatives, ; pierce's sketch of, , n.; favors committee on representation, ; favors equal representation by states in senate, ; opposes inclusion of judiciary in revisionary power, ii., ; thinks executive will not be re-elected, ; thinks question of voting in senate should be postponed, ; favors $ per day as payment for legislature, ; moves revenue bills originate in house, . style and arrangement, committee on. _see_ committee on style and arrangement. sumptuary laws, debate on, ii., , ; committee on, _see_ committee on sumptuary laws. supreme court. _see_ judiciary, national supreme. t taxation, by representation, debated, i., , , ii., ; basis of, by free and slave population, debated, i., ; direct on states in proportion to representation, debated, ; direct by national government, opposed, ; proposed that it be by quotas, ii., ; according to congressional representation, debated, , ; definition of direct, asked, ; by population, proportion agreed to, ; power of, on exports, debated, , , ; on migration of slaves, debated, ; on slaves, debated, , ; capitation and direct, debated, . _see_ legislature, national, representation in. term of members of legislature. _see_ legislature, national, term of. territory, guaranty of, to each state, debated, i., . tonnage dues. _see_ navigation acts. treason, debate on, ii., . treasurer, appointment of. _see_ legislature, national, power of. treaties, power to make, debated, i., , , ii., , ; force of, debated, ; power to interpret, by judiciary, debated, ; of peace, how to be made, , , ; provision for, reconsidered, ; proposed that they require two-thirds senate, , ; proposed that they require majority, ; notice of, to senators, proposed, . _see_ legislature, national, senate. u university, national. _see_ legislature, national, power of. v varnum, j. m., letter from, with address from rhode island, i., , n. vermont, admission of, to union, debated, ii., . veto power. _see_ executive, national, negative of. vice-president, duties of, defined, ii., , , . virginia plan, the, presented to convention, i., ; debated in committee of the whole, ; debated, ; reported on from committee of the whole, , ; vote on, . voting, restriction of, to freeholders, debated, ii., . w war, power to declare, debated, ii., . washington, george, va., attends convention, i., ; elected president of convention, ; thanks convention for election, ; pierce's sketch of, , n.; rebukes member for losing his notes, , n.; john jay's letter to, ii., , n.; knox's letter to, , n.; urges increase in representation, iv., ; asks instructions concerning journals, . williamson, hugh, n. c., attends convention, i., ; objects to election of executive by districts, ; pierce's sketch of, , n.; moves impeachability of executive, ; favors limiting senate to twenty-five members, ; opposes indefinite power of negative on state laws, ; favors proportional representation, ; favors states paying representatives, ; moves that number in senate be fixed, ; favors six years' term for senators, ; thinks rights of small states not menaced, ; favors committee on representation in senate, ; opposes compromise proposed, ; thinks senate better able to consider money bills than house, ; thinks proposed representation unfair to southern states, ; favors reducing representation of northern states, ; amends motion fixing periodical census, ; thinks new hampshire representation too large, ; opposes election of executive by people, ; opposes eligibility of executive to re-election, ii., , ; opposes election of executive by electors, ; favors six years' term for executive, ; moves number of electors be based on representatives, ; moves electors be paid out of national treasury, ; suggests national officers take oath to support state governments, ; favors ratification of constitution by conventions, ; favors voting per capita in senate, ; dislikes single executive, ; suggests voting for three persons for executive, ; favors forbidding national capital at state capital, ; seconds motion to limit negative of each branch of legislature on the other, ; moves representation in house based on taxation, ; favors reconsidering question of money bills, ; thinks provision for filling vacancies in senate necessary, ; insists upon guarding qualifications of senators, , ; thinks provision on money bills should be retained, ; moves nine years' citizenship for representatives, ; opposes eligibility of members of legislature to other offices, ; moves postponement of question of money bills, ; moves to make three-quarters of legislature necessary to overcome executive negative, ; thinks exports should not be taxed, ; thinks state lands ought to be given up, ; appointed on grand committee, ; favors restrictions on army, ; moves quotas of states be determined, ; opposes apportionment of taxation by representation, ; thinks states should not have power to tax exports, ; thinks slave trade should be left to states, ; on committee on navigation acts, ; thinks prohibition of _ex post facto_ laws unnecessary, ; thinks discussion of negative of state laws unnecessary, ; doubts if judiciary can impartially decide controversies between states, ; opposes slavery, but wishes union, ; on committee of august , ; moves to postpone question of executive succession, ; seconds motion to make it impossible for states to levy imposts, ; moves clause of articles of confederation as to state acts, ; favors commercial regulations by two-thirds vote, ; thinks question of new states should be left to legislature, , ; on committee of august , ; thinks ineligibility of members of legislature should extend to offices created during their term, , ; objects to president's dependence on senate in appointments, ; moves to reconsider representation, ; objects to senate electing president, , , ; moves election of president by one-third of all electors, ; moves electors voting be the only ones counted, ; favors separate provision for re-electing president, ; moves seven years' term for president, ; moves six years' term for president, ; thinks electors should meet at seat of government, ; suggests eventual election of president by whole legislature, voting by states, ; thinks vice-president unnecessary, ; thinks treaties of peace important, , ; thinks treaties may be made without majority of people, ; opposes requirement that treaties be ratified by majority of whole senate, ; proposes that notice of treaties to senators be required, ; thinks senate will lean towards president, ; moves increase in representation in house of representatives, ; moves that old congress sanction constitution, ; favors two-thirds vote to override president's negative, ; fears too many laws, ; moves provision for juries in civil suits, ; moves increase of representation, ; seconds motion against direct tax, ; suggests signing letter only, . wilson, james, pa., attends convention, i., ; nominates william temple franklin for secretary of convention, ; pierce's sketch of, , n.; favors election of representatives by the people, , ; favors election of senators by the people, , ; favors a single executive, , , ; favors election of executive by the people, , , ii., , ; favors three years' term for executive, i., ; moves election of executive by district electors, ; opposes an executive council, ; favors negative by executive on legislature, , ; favors creation of inferior judiciary, , ; favors inclusion of judiciary in power of negative, ; opposes appointment of judges by legislature, ; favors ratification by plurality of states, ; favors election of representatives by the people, ; favors preservation of state governments for local purposes, ; favors inclusion of judiciary in revisionary power, , ii., , ; favors election to senate by districts, i., ; favors absolute negative in legislature, ; favors proportional representation, , , ; favors representation by free inhabitants, ; thinks voting in senate should be on same plan as in house, ; opposes jersey plan, ; opposes hamilton plan, ; insists that states are dependent on each other, ; favors two branches of legislature, ; thinks state governments may encroach on national government, ; favors one-year term for representatives, ; favors national compensation of representatives, ; moves that compensation be fixed by legislature, ; opposes age limit for representatives, ; opposes ineligibility of representatives to other offices, , ; opposes elections to senate by state legislatures, ; favors six years' term for senators, ; favors nine years' term for senators, ; opposes eligibility of senators to state offices, ; opposes sending for new hampshire delegates, ; opposes representation by states in senate, ; admits question of number of senators is embarrassing, ; opposes committee on representation in senate, ; moves question of voting in senate, ; opposes originating money bills in house, , ; opposes yielding equal vote in senate to small states, ; thinks representation of western states should be based on property, ; thinks wealth an impracticable rule of representation, ; opposes inclusion of three-fifths of blacks as basis of representation, ; favors guaranty of republican government to the states, ; moves that representation be according to direct taxation, ; favors representation based on free inhabitants and three-fifths of slaves, ; favors adjusting taxation to representation, ; thinks equal vote in senate favored by minority, ; insists that numbers are correct basis for representation, ; thinks small states would abandon plea of equality in taxes and troops, ; thinks originating money bills in house of little consequence, ; insists on proportional representation in senate, ; favors non-interference of national government with state police, ; opposes election of executive by the people, ; opposes election of executive by legislature, ; favors appointment of judges by executive, ; favors continuance of old congress till new government starts, ; favors guaranty to states of republican government and against violence, ; favors impeachability of executive, ii., ; thinks departments should act separately, ; thinks oath of allegiance unnecessary, ; opposes election of executive by legislature, ; suggests election of executive by members of national legislature selected by lot, , ; on committee to report constitution according to resolutions, ; favors specifying general principles for executive, ; opposes disqualification from legislature of persons having unsettled accounts, ; thinks time of meeting of legislature should be fixed, ; favors winter as time for meeting of legislature, ; thinks suffrage in the states should not be prescribed by legislature, ; favors requiring representatives to be inhabitants, ; opposes requirement of seven years' inhabitancy for representatives, , ; thinks question of representation by free inhabitants premature, ; opposed to originating money bills in house, ; reviews question of citizenship of representatives, ; objects to vacancies in senate being filled by state executives, ; thinks provision as to money bills of no value to large states, , ; opposes fourteen years' residence as necessary for senators, ; moves to reconsider requirement of seven years for representatives, ; thinks number for quorum should not be small, ; thinks publication of legislative journal necessary, ; moves four years' citizenship for representatives, ; insists representatives need not be natives, ; thinks new government bound by pennsylvania's promises to foreigners, ; moves seven years' citizenship for senators, ; thinks people will disapprove members of legislature holding other offices, ; thinks good men will refuse legislature if debarred from other offices, ; seconds motion to have acts revised by executive and judiciary, ; thinks legislature will swallow up powers of government, ; favors making three-fourths of legislature necessary to overcome executive negative, ; explains difference between "duties" and "imposts," ; thinks exports may be taxed, ; opposed to power to emit bills of credit, ; thinks it unnecessary to define felonies, etc., ; thinks law of felonies, etc., ought to be declared, ; moves that treason be against united states, ; thinks treason may be against a state, ; thinks proof of treason may be difficult, ; favors power to tax exports, ; seconds motion to tax exports by two-thirds of legislature, ; thinks slaves should be taxed, ; favors commitment of question of navigation acts, ; thinks prohibition of _ex post facto_ laws unnecessary, ; thinks senate should not make appointments, ; thinks negative of state laws unnecessary, ; objects to senate's power to make treaties, ; thinks judiciary may decide controversies between states, ; seconds motion for election of executive by the people, ; thinks larger states should have larger share in election of executive, ; thinks senate should not have separate voice in election of executive, ; thinks state legislatures will order federal offices filled by state appointment if permitted, ; thinks pardon before conviction may be necessary, ; opposes removability of judges on application of legislature, ; explains appellate power of judiciary, ; doubts if suspension of right of habeas corpus is ever necessary, ; moves legislature be prohibited from paying debts in anything but coin, ; thinks states should not interfere with contracts, ; objects to treating fugitive slaves as criminals, ; favors interstate validity of state acts, ; on committee to consider subject, ; favors commercial regulations by majority vote, ; thinks majority may regulate formation of new states, ; thinks new states may be formed without consent of old, ; opposes motion to guarantee public lands, ; proposes ratification by seven states, ; prefers ratification by eight states to nine, ; thinks constitution binding only on ratifying states, ; moves that ratification be by majority of people and states, ; thinks state power over other states' acts not unusual, ; opposes ineligibility of members of legislature to other offices, ; approves plan of electing executive, ; thinks it unnecessary to give each house power over privileges of its members, ; moves eventual election of president by whole legislature, ; thinks eventual election of president by senate dangerous, ; moves to include house of representatives in treaty-making power, ; objects to senate's participation in appointments, ; objects to participation of two-thirds senate on treaties, , ; favors executive council, ; favors ratification of treaties with majority of senate, ; thinks less than two-thirds senate may ratify treaties of peace, ; opposed to president convening either house of legislature, ; moves amendments be with consent of two-thirds of states, ; substitutes three-fourths, ; opposes reconsideration of ratification clause, ; thinks old congress need not sanction constitution, ; moves to strike out "direct taxes," ; thinks legislature should not define offences against law of nations, ; seconds motion in favor of canals, , ; favors national university, ; thinks accounts should be published from time to time, ; thinks executive may pardon for treason, ; favors depositing convention journal with president, . wythe, george, va., attends convention, i., ; appointed on committee on rules, ; submits report of committee on rules, ; pierce's sketch of, , n.; offers additional rules, . y yates, robert, n. y., attends convention, i., ; pierce's sketch of, , n.; on committee on compromise on representation, ; leaves convention, , n. yeas and nays. _see_ legislature, national. transcriber notes: passages in italics were indicated by _underscores_. passages in bold were indicated by =equal signs=. small caps were replaced with all caps. throughout the document, the oe ligature was replaced with "oe". throughout the document, a tilded m is represented by [~m]. this document was filled with errors and inconsistencies in spelling, punctuations, and hyphenation. for example, usually the word re-eligible is hyphenated, but sometimes it is not; sometimes; reinstated is hyphenated but sometimes it is not; and usually the comma is used as a thousand mark, but sometimes a period is used for that purpose. sometimes vice president was used and sometimes vice-president was used. also, the abbreviations were not uniform (e.g., mas. v. mass.), which were only corrected when it is was clear which abbreviation was considered correct at the time printed. another example is the abbreviation for resolution, which was sometimes resol:^n, sometimes resol^n, and sometimes resol.^n. sometimes "nem: con." was used, and sometimes "nem. con." was used. the only time errors were corrected was when it was very clear that an error was made, and it was clear how the error should be corrected, and those corrections are listed below. throughout the document there are instances where a comma is used where one expects a period, a period is used where one expects a comma, a colon is used where one expects a comma or period, neither is used when one is expected. this instances are left as-is, except for two exceptions: where a period is missing at the end of a sentence or missing at the end of an abbreviation, both of which happened so often that those corrections were made but were not listed below. throughout the document, there was no consistence in the formatting of the titles for each date, (e.g., friday aug^{st} . in convention). no attempt was made to correct such inconsistencies. capitalization was corrected throughout the document without comment. throughout the document, a single superscripted letter is represented by that single letter preceded by a caret, and more than one superscripted letters are represented by the letters enclosed by curly brackets. thus, the word "y^e" represents a word where the "y" is normal and the "e" is superscripted; and the word " ^{dnd}" represents a word where the " " is normal and the "dnd" is superscripted. in both conventions, it is assumed that a dot appeared below the superscripted letters, since in the original text a dot was often (but not always) present under the superscripted letters. thus, " ^{dnd}" in the present text would represent a normal digit " " followed directly by the superscripted letters "dnd" with a single dot below the set of three letters. on page , "difficulty an seemed" was replaced with "difficulty and seemed". on page , "hamshire" was replaced with "hampshire". on page , a period was added after "div^d.". on page , removed period between " " and "years". on page , "forign" was replaced with "foreign". on page , in footnote , "mclurg" was replaced with "mcclurg". on page , a period was added after " ". on page , "[blank]" was inserted to mark a large blank space that appeared in the footnote. on page , there is a missing opening quotation mark in the last paragraph, but it is unclear where that mark should go. on page , the word "this" was capitalized in the sentence starting "this is committing too much". on page , "forign" was replaced with "foreign". on page , a period was added after "change of measures". on page , a comma was added after the word "virginia". on page , the comma after "weights and measures" was replaced with a semicolon. on page , a quotation mark was added after " . .". on page , "m^r kings" was replaced with "m^r king's". on page , "m^r carrols" was replaced with "m^r carrol's". on page , "in the shape it which" was replaced with "in the shape in which". on page , "it" was capitalized at the beginning of a sentence. on page , "hamiltons" was replaced with "hamilton's" on page , "will" was capitalized at the beginning of a sentence. on page , the period after "the violaters" was changed to a question mark. on page , "pinkneys" was replaced with "pinkney's". on page , "[blank]" was inserted to mark a large blank space within parenthesizes. on page , "reads" was replaced with "read's". on page , a colon was added after "the general legislature". on page , a quotation mark was added after "limits of the u. states." on page , "misdemesnors" was replaced with "misdemeanors". on page , "there" was replaced with "there". on page , "it" was replaced with "it". on page , a quotation mark was added after "exports". on page , a period was added after " ". on page , "reflextions" was replaced with "reflections". on page , "the" was replaced with "the". on page , a quotation mark was added after "training". on page , a quotation mark and a comma was added after "foreign state". on page , a period was added after "nem: contrad". on page , the quotation mark was deleted after "&c &c." on page , a quotation mark was added after "a second time." on page , "these" was replaced with "these". on page , " the" was replaced with " . the", and " . the" was replaced with " . the". on page , "u. s" was replaced with "u. s.". on page , "biennally" was replaced with "biennially". on page , a quotation mark was added after "purchased for forts". on page , a comma was removed after "the senate". on page , a quotation mark was removed after "the states,". on page , in footnote , a period was added after "united states of america". on page , a quotation mark was added after "the states present". on page , the word "the" was shown by the printer to be inserted in the sentence. this insertion was made. on page , added period were removed after some names in the signatures. on page , in the index entry for mason, which begins "doubts propriety of mutual negative", "legiture" was replaced with "legislature". on page , in the index entry "knox's letter to, ;" for "washington, george, va.", "n. was entered in the missing blank. throughout the document, "sharman" was replaced with "sherman". throughout the document, one delegate is sometimes named "dickinson" and is sometimes named "dickenson"; and another delegate is sometimes named "carroll" and is sometimes named "carrol". in the index, entries divided by page markers were joined into single entries where possible, and the formatting of the index was regularized (e.g., periods replaced with commas for uniformity of formatting). scanned images of public domain material from the google print project.) the journal of the debates in the convention which framed the constitution of the united states may-september, as recorded by james madison edited by gaillard hunt in two volumes volume i. g. p. putnam's sons new york and london the knickerbocker press the knickerbocker press, new york [illustration] contents of volume i. page the records of the constitutional convention (introduction by the editor) vii chronology xix journal of the constitutional convention of [illustration] [illustration] list of fac-similes. facing page first page of madison's journal, actual size charles pinckney's letter the pinckney draft hamilton's principal speech [illustration] [illustration] the records of the constitutional convention. james madison's contemporaries generally conceded that he was the leading statesman in the convention which framed the constitution of the united states; but in addition to this he kept a record of the proceedings of the convention which outranks in importance all the other writings of the founders of the american republic. he is thus identified, as no other man is, with the making of the constitution and the correct interpretation of the intentions of the makers. his is the only continuous record of the proceedings of the convention. he took a seat immediately in front of the presiding officer, among the members, and took down every speech or motion as it was made, using abbreviations of his own and immediately afterwards transcribing his notes when he returned to his lodgings. a few motions only escaped him and of important speeches he omitted none. the proceedings were ordered to be kept secret, but his self-imposed task of reporter had the unofficial sanction of the convention. alexander hamilton corrected slightly madison's report of his great speech and handed him his plan of government to copy. the same thing was done with benjamin franklin's speeches, which were written out by franklin and read by his colleague wilson, the fatigue of delivery being too great for the aged franklin, and madison also copied the patterson plan. edmund randolph wrote out for him his opening speech from his notes two years after the convention adjourned.[ ] [ ] madison to randolph, april , . in the years after the convention madison made a few alterations and additions in his journal, with the result that in parts there is much interlineation and erasure, but after patient study the meaning is always perfectly clear. three different styles of madison's own penmanship at different periods of his life appear in the journal, one being that of his old age within five years of his death. in this hand appears the following note at the end of the journal: "the few alterations and corrections made in the debates which are not in my handwriting were dictated by me and made in my presence by john c. payne."[ ] the rare occasions where payne's penmanship is distinguishable are indicated in the notes to this edition. [ ] mrs. madison's brother. the importance attached by madison to his record is shown by the terms of his will, dated april , , fourteen months before his death: "i give all my personal estate ornamental as well as useful, except as herein after otherwise given, to my dear wife; and i also give to her all my manuscript papers, having entire confidence in her discreet and proper use of them, but subject to the qualification in the succeeding clause. considering the peculiarity and magnitude of the occasion which produced the convention at philadelphia in , the characters who composed it, the constitution which resulted from their deliberations, its effects during a trial of so many years on the prosperity of the people living under it, and the interest it has inspired among the friends of free government, it is not an unreasonable inference that a careful and extended report of the proceedings and discussions of that body, which were with closed doors, by a member who was constant in his attendance, will be particularly gratifying to the people of the united states, and to all who take an interest in the progress of political science and the course of true liberty. it is my desire that the report as made by me should be published under her authority and direction."[ ] [ ] orange county, va., mss. records. this desire was never consummated, for mrs. madison's friends advised her that she could not herself profitably undertake the publication of the work, and she accordingly offered it to the government, by which it was bought for $ , , by act of congress, approved march , . on july , , an act was approved authorizing the joint committee on the library to cause the papers thus purchased to be published, and the committee intrusted the superintendence of the work to henry d. gilpin, solicitor of the treasury. the duplicate copy of the journal which mrs. madison had delivered was, under authority of congress, withdrawn from the state department and placed in mr. gilpin's hands. in (washington: lantree & o'sulivan), accordingly, appeared the three volumes, _the papers of james madison purchased by order of congress_, edited by henry d. gilpin. other issues of this edition, with changes of date, came out later in new york, boston, and mobile. this issue contained not only the journal of the constitutional convention, but madison's notes of the debates in the continental congress and in the congress of the confederation from february to april , , and a report jefferson had written of the debates in on the declaration of independence, besides a number of letters of madison's. from the text of gilpin a fifth volume was added to elliot's _debates_ in , and it was printed in one volume in chicago, . mr. gilpin's reading of the duplicate copy of the madison journal is thus the only one that has hitherto been published.[ ] his work was both painstaking and thorough, but many inaccuracies and omissions have been revealed by a second reading from the original manuscript journal written in madison's own hand, just as he himself left it; and this original manuscript has been followed with rigid accuracy in the text of the present edition. [ ] volume iii of _the documentary history of the united states_ (department of state, ) is a presentation of a literal print of the original journal, indicating by the use of larger and smaller type and by explanatory words the portions which are interlined or stricken out. the editor has compared carefully with madison's report, as the notes will show, the incomplete and less important records of the convention, kept by others. of these, the best known is that of robert yates, a delegate in the convention from new york, who took notes from the time he entered the convention, may , to july , when he went home to oppose what he foresaw would be the result of the convention's labors. these notes were published in (albany), edited by yates's colleague in the convention, john lansing, under the title, _secret proceedings and debates of the convention assembled at philadelphia, in the year , for the purpose of forming the constitution of the united states of america_. this was afterwards reprinted in several editions and in the three editions of _the debates on the federal constitution_, by jonathan elliot (washington, - ). madison pronounced yates's notes "crude and broken." "when i looked over them some years ago," he wrote to j. c. cabell, february , , "i was struck with the number of instances in which he had totally mistaken what was said by me, or given it in scraps and terms which, taken without the developments or qualifications accompanying them, had an import essentially different from what was intended." yates's notes were colored by his prejudices, which were strong against the leaders of the convention, but, making allowance for this and for their incompleteness, they are of high value and rank next to madison's in importance. rufus king, a delegate from massachusetts, kept a number of notes, scattered and imperfect, which were not published till , when they appeared in king's _life and correspondence of rufus king_ (new york: putnam's). william pierce, a delegate from georgia, made some memoranda of the proceedings of the convention, and brief and interesting sketches of all the delegates, which were first printed in _the savannah georgian_, april, - , , and reprinted in _the american historical review_ for january, . the notes of yates, king, and pierce are the only unofficial record of the convention extant, besides madison's, and their chief value is in connection with the madison record, which in the main they support, and which occasionally they elucidate. december , , charles pinckney wrote to john quincy adams that he had made more notes of the convention than any other member except madison, but they were never published and have been lost or destroyed.[ ] [ ] see p. , n. in (boston) was published the _journal, acts and proceedings of the convention_, etc., under the supervision of john quincy adams, secretary of state, by authority of a joint resolution of congress of march , . this was the official journal of the convention, which the secretary, william jackson, had turned over to the president, george washington, when the convention adjourned, jackson having previously burned all other papers of the convention in his possession. march , , washington deposited the papers jackson had given him with the secretary of state, timothy pickering. they consisted of three volumes,--the journal of the convention, the journal of the proceedings of the committee of the whole of the convention, and a list of yeas and nays, beside a printed draft of the constitution as reported august th, showing erasures and amendments afterwards adopted, and the virginia plan in different stages of development. in preparing the matter for publication secretary adams found that for friday, september , and saturday, september , the journal was a mere fragment, and madison was applied to and completed it from his minutes. from general b. bloomfield, executor of the estate of david brearley, a delegate in the convention from new jersey, adams obtained a few additional papers, and from charles pinckney a copy of what purported to be the plan of a constitution submitted by him to the convention. all of these papers, with some others, appeared in the edition of , which was a singularly accurate publication, as comparison by the present editor of the printed page with the original papers has shown. the pinckney plan, as it appeared in this edition of the journal, was incorporated by madison into his record, as he had not secured a copy of it when the convention was sitting. but the draft furnished to secretary adams in , and the plan presented by pinckney to the convention in were not identical, as madison conclusively proved in his note to his journal, in his letter to jared sparks of november , , and in several other letters, in all of which he showed that the draft did not agree in several important respects with pinckney's own votes and motions in the convention, and that there were important discrepancies between it and pinckney's _observations on the plan of government_, a pamphlet printed shortly after the convention adjourned.[ ] [ ] see p. l. ford's _pamphlets on the constitution_, . it is, indeed, inconceivable that the convention should have incorporated into the constitution so many of the provisions of the pinckney draft, and that at the same time so little reference should have been made to it in the course of the debates; and it is equally extraordinary that the contemporaries of pinckney did not accord to him the chief paternity of the constitution, which honor would have belonged to him if the draft he sent to mr. adams in had been the one he actually offered the convention in the first week of its session. the editor has made a careful examination of the original manuscripts in the case. they consist ( ) of mr. pinckney's letter to mr. adams of december , , written from winyaw, s. c., while pinckney was temporarily absent from charleston, acknowledging mr. adams's request for the draft, ( ) his letter of december , written from charleston, transmitting the draft, and ( ) the draft. the penmanship of all three papers is contemporaneous, and the letter of december and the draft were written with the same pen and ink. this may possibly admit of a difference of opinion, because the draft is in a somewhat larger chirography than the letter, having been, as befitted its importance, written more carefully. but the letter and the draft are written upon the same paper, and this paper was not made when the convention sat in . there are several sheets of the draft and one of the letter, and all bear the same water-mark--"russell & co. ." the draft cannot, therefore, claim to be the original pinckney plan, and was palpably made for the occasion, from mr. pinckney's original notes doubtless, aided and modified by a copy of the constitution itself. thirty years had elapsed since the close of the constitutional convention when the draft was compiled, and its incorrectness is not a circumstance to occasion great wonder.[ ] [ ] see p. , n. correspondence on the subject of the convention, written while it was in session, was not extensive, but some unpublished letters throwing light upon contemporaneous opinion have been found and are quoted in the notes. the editor desires to record his obligation for assistance in preparing these volumes to his friend, montgomery blair, esq., of silver spring, md. gaillard hunt. cherry hill farm, va., september, . [illustration] chronology of james madison. . . prepares the "virginia plan" in conjunction with the may - . virginia delegates. may . attends the first gathering of the delegates. may . moves postponement of question of representation by free population. moves that congressional representation be proportioned to the importance and size of the states. makes his first speech on this subject. may . advocates representation in one house by popular election. opposes uniting several states into one district for representation in senate. doubts practicability of enumerating powers of national legislature. suggests the impossibility of using force to coerce individual states. june . moves that the powers of the executive be enumerated. june . objects to giving congress power to remove the president upon demand of a majority of the state legislatures. june . favors giving power to more than a majority of the national legislature to overrule an executive negative of a law. june . opposes election of judges by both branches of congress. advocates submission of constitution to conventions of the people. favors inferior judicial tribunals. june . speaks for popular representation in the house. seconds motion to include a portion of the judiciary with the executive in revisionary power over laws. june . speaks for proportional representation in both houses of congress. june . seconds motion to give congress power to negative state laws. suggests temporary operation of urgent laws. june . seconds motion to make term of representatives three years. thinks the people will follow the convention. favors a term of seven years for senators. june . moves defining powers of judiciary. objects to appointment of judges by whole legislature. thinks both houses should have right to originate money bills. advocates a national government and opposes the "jersey plan." june . speaks in favor of national supremacy. opposes annual or biennial elections of representatives. june . favors fixing payment of salaries by a standard. june . proposes to debar senators from offices created or enhanced during their term. speaks for the proposition. june . wishes to take up question of right of suffrage. june . speaks for a long term for senators. opposes their payment by the states. june . speaks for proportional representation. june . insists that too much stress is laid on state sovereignty. june . contends against equal state representation in the senate. speaks again on subject, but would preserve state rights. july . opposes submission of the question to a special committee. july . opposes compromise report of committee. july . thinks part of report need not be postponed. july . thinks question of representation ought to be settled before other questions. july . suggests free inhabitants as basis of representation in one house, and all inhabitants as basis in the other house. july . moves increase of representatives. july . favors representation based on population. july . urges proportional representation as necessary to protect the smaller states. july . advocates national power of negative over state laws. thinks the branches of government should be kept separate. thinks monarchy likely to follow instability. thinks there should be provision for interregnum between adoption and operation of constitution. moves national guarantee of states against domestic violence. july . seconds motion forbidding a state to form any but a republican government. journal of the constitutional convention of . monday may ^{th} was the day fixed for the meeting of the deputies in convention for revising the federal system of government. on that day a small number only had assembled. seven states were not convened till, friday of may, when the following members appeared to wit: from _massachusetts_, rufus king. _n. york_, robert yates,[ ] alex^r hamilton. _n. jersey_, david brearly, william churchill houston, william patterson. _pennsylvania_, robert morris, thomas fitzsimons, james wilson, governeur morris. _delaware_, george read, richard basset,[ ] jacob broome. _virginia_, george washington, edmund randolph, john blair,[ ] james madison, george mason, george wythe, james mcclurg. _n. carolina_, alexander martin, william richardson davie, richard dobbs spaight, hugh williamson. _s. carolina_, john rutlidge, charles cotesworth pinckney, charles pinckney, pierce butler. _georgia_, william few.[ ] [ ] william pierce, delegate from georgia, made an estimate of each member of the convention, the only contemporary estimate thus far brought to light. yates did not speak in the convention. "m^r yates is said to be an able judge. he is a man of great legal abilities, but not distinguished as an orator. some of his enemies say he is an anti-federal man, but i discovered no such disposition in him. he is about years old, and enjoys a great share of health."--pierce's notes, _am. hist. rev._, iii., . for more about pierce's notes, see p. , n. [ ] "m^r bassett is a religious enthusiast, lately turned methodist, and serves his country because it is the will of the people that he should do so. he is a man of plain sense, and has modesty enough to hold his tongue. he is gentlemanly man and is in high estimation among the methodists. mr. bassett is about years old."--pierce's notes, _id._, iii., . he did not speak in the convention. [ ] "mr. blair is one of the most respectable men in virginia, both on account of his family as well as fortune. he is one of the judges of the supreme court in virginia, and acknowledged to have a very extensive knowledge of the laws. m^r blair is however, no orator, but his good sense, and most excellent principles, compensate for other deficiencies. he is about years of age."--pierce's notes, _am. hist. rev._, iii., . he did not speak in the convention. [ ] "m^r few possesses a strong natural genius, and from application has acquired some knowledge of legal matters;--he practises at the bar of georgia, and speaks tolerably well in the legislature. he has been twice a member of congress, and served in that capacity with fidelity to his state, and honor to himself. mr. few is about years of age."--pierce's notes, _id._, iii., . he did not speak in the convention. the credentials of connecticut and maryland required but one deputy to represent the state; of new york, south carolina, georgia, and new hampshire, two deputies; of massachusetts, new jersey, delaware, virginia, and north carolina, three; of pennsylvania, four.--_journal of the federal convention_, _et seq._; _documentary history of the constitution_, i., _et seq._ m^r robert morris[ ] informed the members assembled that by the instruction & in behalf, of the deputation of pen^a he proposed george washington, esq^r late commander in chief for president of the convention. m^r jn^o rutlidge seconded the motion; expressing his confidence that the choice would be unanimous, and observing that the presence of gen^l washington forbade any observations on the occasion which might otherwise be proper. [ ] "robert morris is a merchant of great eminence and wealth; an able financier, and a worthy patriot. he has an understanding equal to any public object, and possesses an energy of mind that few men can boast of. although he is not learned, yet he is as great as those who are. i am told that when he speaks in the assembly of pennsylvania, that he bears down all before him. what could have been his reason for not speaking in the convention i know not,--but he never once spoke on any point. this gentleman is about years old."--pierce's notes, _am. hist: rev._, iii., . [illustration] [illustration] general washington[ ] was accordingly unanimously elected by ballot, and conducted to the chair by m^r r. morris and m^r rutlidge; from which in a very emphatic manner he thanked the convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the house towards the involuntary errors which his inexperience might occasion. [ ] "gen^l washington is well known as the commander in chief of the late american army. having conducted these states to independence and peace, he now appears to assist in framing a government to make the people happy. like gustavus vasa, he may be said to be the deliverer of his country;--like peter the great he appears as the politician and the states-man; and like cincinnatus he returned to his farm perfectly contented with being only a plain citizen, after enjoying the highest honor of the confederacy,--and now only seeks for the approbation of his country-men by being virtuous and useful. the general was conducted to the chair as president of the convention by the unanimous voice of its members. he is in the ^d year of his age."--pierce's notes, _am. hist. rev._, iii., . (the nomination came with particular grace from pe[~nn]a, as doc^r franklin alone could have been thought of as a competitor. the doc^r was himself to have made the nomination of general washington, but the state of the weather and of his health confined him to his house.) m^r wilson[ ] moved that a secretary be appointed, and nominated m^r temple franklin. [ ] "mr. wilson ranks among the foremost in legal and political knowledge. he has joined to a fine genius all that can set him off and show him to advantage. he is well acquainted with man, and understands all the passions that influence him. government seems to have been his peculiar study, all the political institutions of the world he knows in detail, and can trace the causes and effects of every revolution from the earliest stages of the greecian commonwealth down to the present time. no man is more clear, copious, and comprehensive than mr. wilson, yet he is no great orator. he draws the attention not by the charm of his eloquence, but by the force of his reasoning. he is about years old."--pierce's notes, _am. hist. rev._, iii., . col hamilton[ ] nominated major jackson. [ ] "col^o hamilton is deservedly celebrated for his talents. he is a practitioner of the law, and reputed to be a finished scholar. to a clear and strong judgment he unites the ornaments of fancy, and whilst he is able, convincing, and engaging in his eloquence the heart and head sympathize in approving him. yet there is something too feeble in his voice to be equal to the strains of oratory;--it is my opinion he is rather a convincing speaker, that [than] a blazing orator. col^o hamilton requires time to think,--he enquires into every part of his subject with the searchings of phylosophy, and when he comes forward he comes highly charged with interesting matter, there is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.--his language is not always equal, sometimes didactic like bolingbroke's, at others light and tripping like stern's. his eloquence is not so defusive as to trifle with the senses, but he rambles just enough to strike and keep up the attention. he is about years old, of small stature, and lean. his manners are tinctured with stiffness, and sometimes with a degree of vanity that is highly disagreable."--pierce's notes, _id._, iii., . on the ballot maj^r jackson had votes & m^r franklin votes. on reading the credentials of the deputies it was noticed that those from delaware were prohibited from changing the article in the confederation establishing an equality of votes among the states.[ ] [ ] "... so also and provided, that such alterations or further provisions, or any of them, do not extend to that part of the fifth article of the confederation of the said states, finally ratified on the first day march, in the year one thousand seven hundred and eighty one, which declares that 'in determining questions in the united states in congress assembled each state shall have one vote.'"--_documentary history of the constitution_ (dept. of state), i., . the appointment of a committee, consisting of mess^{rs} wythe, hamilton & c. pinckney, on the motion of mr. pinckney, to prepare standing rules & orders was the only remaining step taken on this day. monday may .---- from mass^{ts} nat: gorham & caleb strong. from connecticut oliver elseworth. from delaware, gunning bedford. from maryland james m^chenry. from penn^a b. franklin, george clymer, th^s mifflin & jared ingersol, took their seats.[ ] [ ] "entre nous. i believe the eastern people have taken ground they will not depart from respecting the convention.--one legislature composed of a lower-house triennially elected and an _executive & senate_ for a good number of years.--i shall see gerry & johnson, as they pass & may perhaps give you a hint."--william grayson to madison, new york, may , , _mad. mss._ m^r wythe[ ] from the committee for preparing rules made a report which employed the deliberations of this day. [ ] "m^r wythe is the famous professor of law at the university of william and mary. he is confessedly one of the most learned legal characters of the present age. from his close attention to the study of general learning he has acquired a compleat knowledge of the dead languages and all the sciences. he is remarked for his exemplary life, and universally esteemed for his good principles. no man it is said understands the history of government better than m^r wythe,--nor any one who understands the fluctuating condition to which all societies are liable better than he does, yet from his too favorable opinion of men, he is no great politician. he is a neat and pleasing speaker, and a most correct and able writer. mr. wythe is about years of age."--pierce's notes, _am. hist. rev._, iii., . m^r king[ ] objected to one of the rules in the report authorizing any member to call for the yeas & nays and have them entered on the minutes. he urged that as the acts of the convention were not to bind the constituents, it was unnecessary to exhibit this evidence of the votes; and improper as changes of opinion would be frequent in the course of the business & would fill the minutes with contradictions. [ ] "m^r king is a man much distinguished for his eloquence and great parliamentary talents. he was educated in massachusetts, and is said to have good classical as well as legal knowledge. he has served for three years in the congress of the united states with great and deserved applause, and is at this time high in the confidence and approbation of his country-men. this gentleman is about thirty three years of age, about five feet ten inches high, well formed, an handsome face, with a strong expressive eye, and a sweet high toned voice. in his public speaking there is something peculiarly strong and rich in his expression, clear, and convincing in his arguments, rapid and irresistible at times in his eloquence but he is not always equal. his action is natural, swimming, and graceful, but there is a rudeness of manner sometimes accompanying it. but take him _tout en semble_, he may with propriety be ranked among the luminaries of the present age."--pierce's notes, _am. hist. rev._, iii., . col. mason[ ] seconded the objection; adding that such a record of the opinions of members would be an obstacle to a change of them on conviction; and in case of its being hereafter promulged must furnish handles to the adversaries of the result of the meeting. [ ] "mr. mason is a gentleman of remarkable strong powers, and possesses a clear and copious understanding. he is able and convincing in debate, steady and firm in his principles, and undoubtedly one of the best politicians in america. m^r mason is about years old, with a fine strong constitution."--pierce's notes, _id._, iii., . the proposed rule was rejected nem. contrad certe. the standing rules[ ] agreed to were as follows:[ ] [ ] previous to the arrival of a majority of the states, the rule by which they ought to vote in the convention had been made a subject of conversation among the members present. it was pressed by governeur morris and favored by robert morris and others from pennsylvania, that the large states should unite in firmly refusing to the small states an equal vote, as unreasonable, and as enabling the small states to negative every good system of government, which must, in the nature of things, be founded on a violation of that equality. the members from virginia, conceiving that such an attempt might beget fatal altercations between the large & small states, and that it would be easier to prevail on the latter, in the course of the deliberations, to give up their equality for the sake of an effective government, than on taking the field of discussion to disarm themselves of the right & thereby throw themselves on the mercy of the larger states, discountenanced and stifled the project.--madison's note. [ ] in the ms. madison adds: "[see the journal & copy here the printed rules]," and they were copied by him from the _journal of the federal convention_ (_ _). they have been compared with the ms. journal and found to be correct. viz. a house to do business shall consist of the deputies of not less than seven states; and all questions shall be decided by the greater number of these which shall be fully represented; but a less number than seven may adjourn from day to day. immediately after the president shall have taken the chair, and the members their seats, the minutes of the preceding day shall be read by the secretary. every member, rising to speak, shall address the president; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript--and of two members rising at the same time, the president shall name him who shall be first heard. a member shall not speak oftener than twice, without special leave, upon the same question; and not the second time, before every other, who had been silent, shall have been heard, if he choose to speak upon the subject. a motion made and seconded, shall be repeated, and if written, as it shall be when any member shall so require, read aloud by the secretary, before it shall be debated; and may be withdrawn at any time, before the vote upon it shall have been declared. orders of the day shall be read next after the minutes, and either discussed or postponed, before any other business shall be introduced. when a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate shall be received. [ ]a question which is complicated, shall, at the request of any member, be divided, and put separately on the propositions of which it is compounded. [ ] an undecided line is drawn through the page in the ms. from here to the end of the rules; but not, as it would appear, to strike them out, as they were actually adopted by the convention. the determination of a question, altho' fully debated, shall be postponed, if the deputies of any state desire it until the next day. a writing which contains any matter brought on to be considered, shall be read once throughout for information, then by paragraphs to be debated, and again, with the amendments, if any, made on the second reading; and afterwards the question shall be put on the whole, amended, or approved in its original form, as the case shall be. committees shall be appointed by ballot; and the members who have the greatest number of ballots, altho' not a majority of the votes present, shall be the committee. when two or more members have an equal number of votes, the member standing first on the list in the order of taking down the ballots, shall be preferred. a member may be called to order by any other member, as well as by the president; and may be allowed to explain his conduct or expressions supposed to be reprehensible. and all questions of order shall be decided by the president without appeal or debate. upon a question to adjourn for the day, which may be made at any time, if it be seconded, the question shall be put without a debate. when the house shall adjourn, every member shall stand in his place, until the president pass him. a letter from sundry persons of the state of rho. island addressed to the honorable the chairman of the general convention was presented to the chair by mr. gov^r morris,[ ] and being read, was ordered to lie on the table for further consideration.[ ] [ ] "m^r governeur morris is one of those genius's in whom every species of talents combine to render him conspicuous and flourishing in public debate:--he winds through all the mazes of rhetoric, and throws around him such a glare that he charms, captivates, and leads away the senses of all who hear him. with an infinite streach of fancy he brings to view things when he is engaged in deep argumentation, that render all the labor of reasoning easy and pleasing. but with all these powers he is fickle and inconstant,--never pursuing one train of thinking,--nor ever regular. he has gone through a very extensive course of reading, and is acquainted with all the sciences. no man has more wit,--nor can any one engage the attention more than m^r morris. he was bred to the law, but i am told he disliked the profession, and turned merchant. he is engaged in some great mercantile matters with his namesake, m^r rob^t morris. this gentleman is about years old, he has been unfortunate in losing one of his legs, and getting all the flesh taken off his right arm by a scald, when a youth."--pierce's notes, _am. hist. rev._, iii., . [ ] "newport june th "sir-- "the inclosed address, of which i presume your excellency has received a duplicate, was returned to me from new york after my arrival in this state. i flattered myself that our legislature, which convened on monday last, would have receded from the resolution therein refer'd to, and have complied with the recommendation of congress in sending deligates to the federal convention. the upper house, or governor, & council, embraced the measure, but it was negatived in the house of assembly by a large majority, notwithstanding the greatest exertions were made to support it. "being disappointed in their expectations, the minority in the administration and all the worthy citizens of this state, whose minds are well informd regreting the peculiarities of their situation place their fullest confidence in the wisdom & moderation of the national council, and indulge the warmest hopes of being favorably consider'd in their deliberations. from these deliberations they anticipate a political system which must finally be adopted & from which will result the safety, the honour, & the happiness of the united states. "permit me, sir, to observe, that the measures of our present legislature do not exhibit the real character of the state. they are equally reprobated, & abhored by gentlemen of the learned professions, by the whole mercantile body, & by most of the respectable farmers and mechanicks. the majority of the administration is composed of a licentious number of men, destitute of education, and many of them, void of principle. from anarchy and confusion they derive their temporary consequence, and this they endeavor to prolong by debauching the minds of the common people, whose attention is wholly directed to the abolition of debts both public & private. with these are associated the disaffected of every description, particularly those who were unfriendly during the war. their paper money system, founded in oppression & fraud, they are determined to support at every hazard. and rather than relinquish their favorite pursuit they trample upon the most sacred obligations. as a proof of this they refused to comply with a requisition of congress for repealing all laws repugnant to the treaty of peace with great britain, and urged as their principal reason, that it would be calling in question the propriety of their former measures. "these evils may be attributed, partly to the extreme freedom of our own constitution, and partly to the want of energy in the federal union: and it is greatly to be apprehended that they cannot speedily be removed but by uncommon and very serious exertions. it is fortunate however that the wealth and resources of this state are chiefly in possion of the well affected, & that they are intirely devoted to the public good. "i have the honor of being sir, "with the greatest veneration & esteem, "your excellencys very obedient & "most humble servant-- ["j. m. varnum.] "his excellency "gen^l washington." the letter was inadvertently unsigned, but it was well known to come from general varnum. the enclosure was as follows: "providence, may . . "gentlemen: "since the legislature of this state have finally declined sending delegates to meet you in convention for the purposes mentioned in the resolve of congress of the ^{st} february , the merchants tradesmen and others of this place, deeply affected with the evils of the present unhappy times, have thought proper to communicate in writing their approbation of your meeting, and their regret that it will fall short of a compleat representation of the federal union.-- "the failure of this state was owing to the nonconcurrence of the upper house of assembly with a vote passed in the lower house, for appointing delegates to attend the said convention, at their session holden at newport on the first wednesday of the present month.-- "it is the general opinion here and we believe of the well informed throughout this state, that full power for the regulation of the commerce of the united states, both foreign & domestick ought to be vested in the national council. "and that effectual arrangements should also be made for giving operation to the present powers of congress in their requisitions upon the states for national purposes.-- "as the object of this letter is chiefly to prevent any impressions unfavorable to the commercial interest of this state, from taking place in our sister states from the circumstance of our being unrepresented in the present national convention, we shall not presume to enter into any detail of the objects we hope your deliberations will embrace and provide for being convinced they will be such as have a tendency to strengthen the union, promote commerce, increase the power & establish the credit of the united states. "the result of your deliberations tending to these desireable purposes we still hope may finally be approved and adopted by this state, for which we pledge our influence and best exertions.-- "in behalf of the merchants, tradesmen &c. "we have the honour to be with perfect consideration & respect "your most obedient & "most humble servant's "john brown jabez bowen } tho^s lloyd halsey nicho^s brown } jos. nightingale john jenckes } levi hall welcome arnold } comtee. philip allen william russell } paul allen jeremiah olmy } william barton } "the hon^{ble} the chairman of the general convention "philadelphia" --_const. mss._ both letters are printed in the _documentary history of the constitution_, i., and . m^r butler moved that the house provide ag^{st} interruption of business by absence of members,[ ] and against licentious publications of their proceedings--to which was added by--m^r spaight[ ]--a motion to provide that on the one hand the house might not be precluded by a vote upon any question, from revising the subject matter of it, when they see cause, nor, on the other hand, be led too hastily to rescind a decision, which was the result of mature discussion.--whereupon it was ordered that these motions be referred for the consideration of the committee appointed to draw up the standing rules and that the committee make report thereon. [ ] "mr. butler is a character much respected for the many excellent virtues which he possesses. but as a politician or an orator, he has no pretensions to either. he is a gentleman of fortune, and takes rank among the first in south carolina. he has been appointed to congress, and is now a member of the legislature of south carolina. m^r butler is about years of age; an irishman by birth."--pierce's notes, _am. hist. rev._, iii., . [ ] "mr. spaight is a worthy man, of some abilities, and fortune. without possessing a genius to render him brilliant, he is able to discharge any public trust that his country may repose in him. he is about years of age."--pierce's notes, _id._, iii., . adj^j till tomorrow . oclock. tuesday may . john dickenson and elbridge gerry, the former from delaware, the latter from mass^{ts} took their seats. the following rules were added, on the report of m^r wythe from the committee-- that no member be absent from the house, so as to interrupt the representation of the state, without leave. that committees do not sit whilst the house shall be or ought to be, sitting. that no copy be taken of any entry on the journal during the sitting of the house without leave of the house. that members only be permitted to inspect the journal. that nothing spoken in the house be printed, or otherwise published or communicated without leave. that a motion to reconsider a matter which has been determined by a majority, may be made, with leave unanimously given, on the same day on which the vote passed; but otherwise not without one day's previous notice: in which last case, if the house agree to the reconsideration, some future day shall be assigned for that purpose. m^r c. pinkney[ ] moved that a committee be appointed to superintend the minutes. [ ] "mr. charles pinckney is a young gentleman of the most promising talents. he is, altho' only y^s of age, in possession of a very great variety of knowledge. government, law, history, and phylosophy are his favorite studies, but he is intimately acquainted with every species of polite learning, and has a spirit of application and industry beyond most men. he speaks with great neatness and perspicuity, and treats every subject as fully, without running into prolixity, as it requires. he has been a member of congress, and served in that body with ability and eclat."--pierce's notes, _am. hist. rev._, iii., . m^r gov^r morris objected to it. the entry of the proceedings of the convention belonged to the secretary as their impartial officer. a committee might have an interest & bias in moulding the entry according to their opinions and wishes. the motion was negatived, noes, ays. mr. randolph[ ] then opened the main business.[ ] [ ] "mr. randolph is governor of virginia,--a young gentleman in whom unite all the accomplishments of the scholar, and the statesman. he came forward with the postulata, or first principles, on which the convention acted, and he supported them with a force of eloquence and reasoning that did him great honor. he has a most harmonious voice, a fine person and striking manners. mr. randolph is about years of age."--pierce's notes, _id._, iii., . [ ] in the ms. in randolph's hand: "[here insert his speech including his resolutions]." the speech also is in randolph's hand, having been furnished by him. he expressed his regret, that it should fall to him, rather than those, who were of longer standing in life and political experience, to open the great subject of their mission. but, as the convention had originated from virginia, and his colleagues supposed that some proposition was expected from them, they had imposed this task on him. he then commented on the difficulty of the crisis, and the necessity of preventing the fulfilment of the prophecies of the american downfal. he observed that in revising the foederal system we ought to inquire . into the properties, which such a government ought to possess, . the defects of the confederation, . the danger of our situation & . the remedy. . the character of such a government ought to secure . against foreign invasion: . against dissensions between members of the union, or seditions in particular states: . to procure to the several states various blessings, of which an isolated situation was incapable: . to be able to defend itself against encroachment: & . to be paramount to the state constitutions. . in speaking of the defects of the confederation he professed a high respect for its authors, and considered them as having done all that patriots could do, in the then infancy of the science, of constitutions, & of confederacies,--when the inefficiency of requisitions was unknown--no commercial discord had arisen among any states--no rebellion had appeared as in mass^{ts}--foreign debts had not become urgent--the havoc of paper money had not been foreseen--treaties had not been violated--and perhaps nothing better could be obtained from the jealousy of the states with regard to their sovereignty. he then proceeded to enumerate the defects. . that the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority--of this he cited many examples; most of which tended to shew, that they could not cause infractions of treaties or of the law of nations to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money. , that the foederal government could not check the quarrels between states, nor a rebellion in any, not having constitutional power nor means to interpose according to the exigency. , that there were many advantages, which the u. s. might acquire, which were not attainable under the confederation--such as a productive impost--counteraction of the commercial regulations of other nations--pushing of commerce ad libitum,--&c &c. , that the foederal government could not defend itself against encroachments from the states. , that it was not even paramount to the state constitutions, ratified as it was in many of the states. . he next reviewed the danger of our situation, appealed to the sense of the best friends of the u. s. the prospect of anarchy from the laxity of government every where; and to other considerations. . he then proceeded to the remedy; the basis of which he said must be the republican principle. he proposed as conformable to his ideas the following resolutions, which he explained one by one. . resolved that the articles of confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, "common defence, security of liberty, and general welfare." . res^d therefore that the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases. . res^d that the national legislature ought to consist of two branches. . res^d that the members of the first branch of the national legislature ought to be elected by the people of the several states every ---- for the term of ----; to be of the age of ---- years at least, to receive liberal stipends by which they may be compensated for the devotion of their time to the public service; to be ineligible to any office established by a particular state, or under the authority of the united states, except those peculiarly belong to the functions of the first branch, during the term of service, and for the space of ---- after its expiration; to be incapable of re-election for the space of ---- after the expiration of their term of service, and to be subject to recall. . resol^d that the members of the second branch of the national legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual legislatures, to be of the age of ---- years at least; to hold their offices for a term sufficient to ensure their independency; to receive liberal stipends, by which they may be compensated for the devotion of their time to the public service; and to be ineligible to any office established by a particular state, or under the authority of the united states, except those peculiarly belonging to the functions of the second branch, during the term of service; and for the space of ---- after the expiration thereof. . resolved that each branch ought to possess the right of originating acts; that the national legislature ought to be empowered to enjoy the legislative rights vested in congress by the confederation & moreover to legislate in all cases to which the separate states are incompetent, or in which the harmony of the united states may be interrupted by the exercise of individual legislation; to negative all laws passed by the several states contravening in the opinion of the national legislature the articles of union; and to call forth the force of the union ag^{st} any member of the union failing to fulfil its duty under the articles thereof. . res^d that a national executive be instituted; to be chosen by the national legislature for the term of ---- years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in congress by the confederation. . res^d that the executive and a convenient number of the national judiciary, ought to compose a council of revision with authority to examine every act of the national legislature before it shall operate, & every act of a particular legislature before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by ---- of the members of each branch. . res^d that a national judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the national legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. that the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies & felonies on the high seas, captures from an enemy: cases in which foreigners or citizens of other states applying to such jurisdictions may be interested, or which respect the collection of the national revenues; impeachments of any national officers, and questions which may involve the national peace and harmony. . resolv^d that provision ought to be made for the admission of states lawfully arising within the limits of the united states, whether from a voluntary junction of government & territory or otherwise, with the consent of a number of voices in the national legislature less than the whole. . res^d that a republican government & the territory of each state, except in the instance of a voluntary junction of government & territory, ought to be guarantied by the united states to each state. . res^d that provision ought to be made for the continuance of congress and their authorities and privileges, until a given day after the reform of the articles of union shall be adopted, and for the completion of all their engagements. . res^d that provision ought to be made for the amendment of the articles of union whensoever it shall seem necessary, and that the assent of the national legislature ought not to be required thereto. . res^d that the legislative executive & judiciary powers within the several states ought to be bound by oath to support the articles of union. . res^d that the amendments which shall be offered to the confederation, by the convention ought at a proper time, or times, after the approbation of congress to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures to be expressly chosen by the people to consider & decide thereon. he concluded with an exhortation, not to suffer the present opportunity of establishing general peace, harmony, happiness and liberty in the u. s. to pass away unimproved.[ ] [ ] this abstract of the speech was furnished to j. m. by m^r randolph and is in his handwriting. as a report of it from him had been relied on, it was omitted by j. m.--_madison's note._ the fifteen resolutions, constituting the "virginia plan," are in madison's handwriting. it was then resolved--that the house will tomorrow resolve itself into a committee of the whole house to consider of the state of the american union--and that the propositions moved by m^r randolph be referred to the said committee. m^r charles pinkney laid before the house the draft of a federal government which he had prepared, to be agreed upon between the free and independent states of america.[ ]--m^r p. plan ordered that the same be referred to the committee of the whole appointed to consider the state of the american union.[ ] [ ] robert yates, delegate from new york, kept notes of the proceedings of the convention, until he left july th, with his colleague, john lansing. they wrote a joint letter to governor clinton afterwards, giving their reasons: "we were not present at the completion of the new constitution; but before we left the convention, its principles were so well established as to convince us, that no alteration was to be expected to conform it to our ideas of expediency and safety."--_secret proceedings of the federal convention_, . yates's notes are quoted here, whenever they are at variance with madison's. he gives pinckney's motion as follows: "mr. c. pinckney, a member from south carolina, then added, that he had reduced his ideas of a new government to a system, which he read, and confessed that it was grounded on the same principle as of the above [the randolph] resolutions."--_id._, . [ ] charles pinckney wrote to john quincy adams: "wingaw near georgetown december "sir "i have just had the honour to receive your favour--being at present absent from charleston on a visit to my planting interest in this neighbourhood i shall in consequence of your letter shorten my stay here considerably & return to town for the purpose of complying with your request as soon as possible--from an inspection of my old papers not long ago i know it was then easily in my power to have complied with your request--i still hope it is & as soon as i return to my residence in charleston will again, or as quickly as i can write you on it to prevent delay. "the draught of the constitution proposed by me was divided into a number of articles & was in complete detail--the resolutions offered by m^r randolph were merely general ones & as far as i recollect they were both referred to the same committee. "with great respect & esteem" &c. --_dept. of state mss._, miscellaneous letters. three weeks later he wrote again: "sir "on my return to this city as i promised i examined carefully all the numerous notes & papers which i had retained relating to the federal convention--among them i found several rough draughts of the constitution i proposed to the convention--although they differed in some measure from each other in the wording & arrangement of the articles--yet they were all substantially the same--they all proceeded upon the idea of throwing out of view the attempt to amend the existing confederation (then a very favorite idea of a number) & proceeding de novo--of a division of the powers of government into legislative executive & judicial & of making the government to operate directly upon the people & not upon the states. my plan was substantially adopted in the sequel except as to the senate & giving more power to the executive than i intended--the force of vote which the small & middling states had in the convention prevented our obtaining a proportional representation in more than one branch & the great powers given to the president were never intended to have been given to him while the convention continued in that patient & coolly deliberative situation in which they had been for nearly the whole of the preceding five months of their session nor was it until within the last week or ten days that almost the whole of the executive department was altered--i can assure you as a fact that for more than four months & a half out of five the power of exclusively making treaties, appointing for the ministers & judges of the supreme court was given to the senate after numerous debates & consideration of the subject both in committee of the whole & in the house--this i not only aver but can prove by printed documents in my possession to have been the case--& should i ever have the pleasure to see you & converse on the subject will state to you some things relative to this business that may be new & perhaps surprising to you--the veil of secrecy from the proceedings of the convention being removed by congress & but very few of the members alive would make disclosures now of the secrets there acted less improper than before--with the aid of the journal & the numerous notes & memorandums i have preserved should now be in my power to give a view of the almost insuperable difficulties the convention had to encounter & of the conflicting opinions of the members i believe should have attempted it had i not always understood m^r madison intended it--he alone i believe possessed & retained more numerous & particular notes of their proceedings than myself. i will thank you sir to do me the honour to send me or to get the president to direct a copy of the journal of the convention to be sent me as also of the secret journals of congress should it be considered not improper in me to make the request. "i have already informed you i have several rough draughts of the constitution i proposed & that they are all substantially the same differing only in words & the arrangement of the articles--at the distance of nearly thirty two years it is impossible for me now to say which of the or draughts i have was the one but enclosed i send you the one i believe was it--i repeat however that they are substantially the same differing only in form & unessentials--it may be necessary to remark that very soon after the convention met i changed & avowed candidly the change of my opinion on giving the power to congress to revise the state laws in certain cases & in giving the exclusive power to the senate to declare war thinking it safer to refuse the first altogether & to vest the latter in congress--i will thank you to acknowledge by a line the receipt of the draught & this. "with very great respect & esteem "i have the honour to be your most "obedient servant "charles pinckney. "december "in charleston."--_const. mss._ the plan is written upon paper of the same size as the letter, and with the same ink. it is undoubtedly contemporaneous with the letter. madison wrote the following note to accompany his journal: "the length of the document laid before the convention, and other circumstances having prevented the taking of a copy at the time, that which is here inserted was taken from the paper furnished to the secretary of state, and contained in the journal of the convention published in . on comparing the paper with the constitution in its final form, or in some of its stages; and with the propositions, and speeches of m^r pinckney in the convention, it would seem that considerable errour must have crept into the paper; occasioned possibly by the loss of the document laid before the convention (neither that nor the resolutions offered by m^r patterson being among the preserved papers) and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what passed in the convention, might be confounded with the original text, and after a lapse of more than thirty years, confounded also in the memory of the author. "there is in the paper a similarity in some cases, and an identity in others, with details, expressions, and definitions, the results of critical discussions and modifications that can not be ascribed to accident or anticipation. "examples may be noticed in article viii of the paper; which is remarkable also for the circumstance, that whilst it specifies the functions of the president, no provision is contained in the paper for the election of such an officer, nor indeed for the appointment of any executive magistracy; notwithstanding the evident purpose of the author to provide an _entire_ plan of a federal government. "again, in several instances where the paper corresponds with the constitution, it is at variance with the ideas of m^r pinckney, as decidedly expressed in his propositions, and in his arguments, the former in the journal of the convention, the latter in the report of its debates: thus in art: viii of the paper, provision is made for removing the president by impeachment; when it appears that in the convention, july . he was opposed to any impeachability of the executive magistrate: in art: iii, it is required that all money-bills shall originate in the first branch of the legislature; which he strenuously opposed aug: and again aug: : in art: v members of each house are made ineligible to, as well as incapable of holding, any office under the union &c. as was the case at one stage of the constitution; a disqualification highly disapproved and opposed by him aug: . "a still more conclusive evidence of errour in the paper is seen in art: iii, which provides, as the constitution does, that the first branch of the legislature shall be chosen by the people of the several states; whilst it appears that on the ^{th} of june, a few days only after the draft was laid before the convention, its author opposed that mode of choice, urging & proposing in place of it, an election by the legislatures of the several states. "the remarks here made tho' not material in themselves, were due to the authenticity and accuracy aimed at, in this record of the proceedings of a publick body, so much an object, sometimes, of curious research, as at all times, of profound interest."--_mad. mss._ this note, as given in gilpin's _madison papers_ (_ _), is freely edited. the pinckney plan is given here as pinckney sent it to adams. chief-justice charles c. nott, of the u. s. court of claims, informs the editor that correspondence with pinckney's descendants reveals the fact that none of the notes to which he alludes in his letters are extant. the letter of december , , and plan, are printed in _the documentary history of the constitution_, i., _et seq._ [illustration: charles pinckney's letter. (reduced.)] [illustration: the pinckney draft. (reduced.)] we the people of the states of new hampshire massachusetts rhode island & providence plantations connecticut new york new jersey pennsylvania delaware maryland virginia north carolina south carolina & georgia do ordain, declare & establish the following constitution for the government of ourselves & posterity. article : the style of this government shall be the united states of america & the government shall consist of supreme legislative executive & judicial powers. the legislative power shall be vested in a congress to consist of two separate houses--one to be called the house of delegates & the other the senate who shall meet on the ---- ---- day of ---- in every year. the members of the house of delegates shall be chosen every ---- year by the people of the several states & the qualification of the electors shall be the same as those of the electors in the several states for their legislatures--each member shall have been a citizen of the united states for ---- years; and shall be of ---- years of age & a resident in the state he is chosen for.----until a census of the people shall be taken in the manner herein after mentioned the house of delegates shall consist of ---- to be chosen from the different states in the following proportions: for new hampshire, ----; for massachusetts, ---- for rhode island, ---- for connecticut, ---- for new york, ---- for new jersey, ---- for pennsylvania, ---- for delaware, ---- for mary^{ld}, ---- for virginia, ---- for north carolina, ---- for south carolina, ---- for georgia, ---- & the legislature shall hereafter regulate the number of delegates by the number of inhabitants according to the provisions herein after made, at the rate of one for every ---- thousand.--all money bills of every kind shall originate in the house of delegates & shall not be altered by the senate. the house of delegates shall exclusively possess the power of impeachment & shall choose it's own officers & vacancies therein shall be supplied by the executive authority of the state in the representation from which they shall happen. the senate shall be elected & chosen by the house of delegates which house immediately after their meeting shall choose by ballot ---- senators from among the citizens & residents of new hampshire ---- from among those of massachusetts ---- from among those of rhode island ---- from among those of connecticut ---- from among those of new york ---- from among those of new jersey ---- from among those of pennsylvania ---- from among those of delaware ---- from among those of maryland ---- from among those of virginia ---- from among those of north carolina ---- from among those of south carolina & ---- from among those of georgia ---- the senators chosen from new hampshire massachusetts rhode island & connecticut shall form one class--those from new york new jersey pennsylvania & delaware one class--& those from maryland virginia north carolina south carolina & georgia one class. the house of delegates shall number these classes one two & three & fix the times of their service by lot--the first class shall serve for ---- years--the second for ---- years & the third for ---- years--as their times of service expire the house of delegates shall fill them up by elections for ---- years & they shall fill all vacancies that arise from death or resignation for the time of service remaining of the members so dying or resigning. each senator shall be ---- years of age at least--shall have been a citizen of the united states years before his election & shall be a resident of the state he is chosen from. the senate shall choose its own officers. each state shall prescribe the time & manner of holding elections by the people for the house of delegates & the house of delegates shall be the judges of the elections returns & qualifications of their members. in each house a majority shall constitute a quorum to do business--freedom of speech & debate in the legislature shall not be impeached or questioned in any place out of it & the members of both houses shall in all cases except for treason felony or breach of the peace be free from arrest during their attendance at congress & in going to & returning from it--both houses shall keep journals of their proceedings & publish them except on secret occasions & the yeas & nays may be entered thereon at the desire of one ---- of the members present. neither house without the consent of the other shall adjourn for more than ---- days nor to any place but where they are sitting. the members of each house shall not be eligible to or capable of holding any office under the union during the time for which they have been respectively elected nor the members of the senate for one year after. the members of each house shall be paid for their services by the states which they represent. every bill which shall have passed the legislature shall be presented to the president of the united states for his revision--if he approves it he shall sign it--but if he does not approve it he shall return it with his objections to the house it originated in which house if two thirds of the members present, notwithstanding the president's objections agree to pass it, shall send it to the other house with the president's objections, where if two thirds of the members present also agree to pass it, the same shall become a law--& all bills sent to the president & not returned by him within ---- days shall be laws unless the legislature by their adjournment prevent their return in which case they shall not be laws. ^{th} the legislature of the united states shall have the power to lay & collect taxes duties imposts & excises to regulate commerce with all nations & among the several states. to borrow money & emit bills of credit to establish post offices. to raise armies to build & equip fleets to pass laws for arming organizing & disciplining the militia of the united states to subdue a rebellion in any state on application of its legislature to coin money & regulate the value of all coins & fix the standard of weights & measures to provide such dock yards & arsenals & erect such fortifications as may be necessary for the united states & to exercise exclusive jurisdiction therein to appoint a treasurer by ballot to constitute tribunals inferior to the supreme court to establish post & military roads to establish & provide for a national university at the seat of the government of the united states to establish uniform rules of naturalization to provide for the establishment of a seat of government for the united states not exceeding ---- miles square in which they shall have exclusive jurisdiction to make rules concerning captures from an enemy to declare the law & punishment of piracies & felonies at sea & of counterfeiting coin & of all offences against the laws of nations to call forth the aid of the militia to execute the laws of the union enforce treaties suppress insurrections and repel invasions and to make all laws for carrying the foregoing powers into execution. the legislature of the united states shall have the power to declare the punishment of treason which shall consist only in levying war against the united states or any of them or in adhering to their enemies. no person shall be convicted of treason but by the testimony of two witnesses. the proportion of direct taxation shall be regulated by the whole number of inhabitants of every description which number shall within ---- years after the first meeting of the legislature & within the term of every ---- year after be taken in the manner to be prescribed by the legislature no tax shall be laid on articles exported from the states--nor capitation tax but in proportion to the census before directed all laws regulating commerce shall require the assent of two thirds of the members present in each house--the united states shall not grant any title of nobility--the legislature of the united states shall pass no law on the subject of religion, nor touching or abridging the liberty of the press nor shall the privilege of the writ of habeas corpus ever be suspended except in case of rebellion or invasion. all acts made by the legislature of the united states pursuant to this constitution & all treaties made under the authority of the united states shall be the supreme law of the land & all judges shall be bound to consider them as such in their decisions. the senate shall have the sole & exclusive power to declare war & to make treaties & to appoint ambassadors & other ministers to foreign nations & judges of the supreme court. they shall have the exclusive power to regulate the manner of deciding all disputes & controversies now subsisting or which may arise between the states respecting jurisdiction or territory. the executive power of the united states shall be vested in a president of the united states of america which shall be his style & his title shall be his excellency. he shall be elected for ---- years & shall be reeligible. he shall from time to time give information to the legislature of the state of the union & recommend to their consideration the measures he may think necessary--he shall take care that the laws of the united states be duly executed: he shall commission all the officers of the united states & except as to ambassadors other ministers and judges of the supreme court he shall nominate & with the consent of the senate appoint all other officers of the united states. he shall receive public ministers from foreign nations & may correspond with the executives of the different states. he shall have power to grant pardons & reprieves except in impeachments--he shall be commander in chief of the army & navy of the united states & of the militia of the several states & shall receive a compensation which shall not be increased or diminished during his continuance in office. at entering on the duties of his office he shall take an oath faithfully to execute the duties of a president of the united states.--he shall be removed from his office on impeachment by the house of delegates & conviction in the supreme court of treason bribery or corruption--in case of his removal death resignation or disability the president of the senate shall exercise the duties of his office until another president be chosen--& in case of the death of the president of the senate the speaker of the house of delegates shall do so. the legislature of the united states shall have the power and it shall be their duty to establish such courts of law equity & admiralty as shall be necessary--the judges of the courts shall hold their offices during good behaviour & receive a compensation, which shall not be increased or diminished during their continuance in office--one of these courts shall be termed the supreme court whose jurisdiction shall extend to all cases arising under the laws of the united states or affecting ambassadors other public ministers & consuls--to the trial of impeachment of officers of the united states--to all cases of admiralty & maritime jurisdiction--in cases of impeachment affecting ambassadors and other public ministers this jurisdiction shall be original & in all other cases appellate---- all criminal offences (except in cases of impeachment) shall be tried in the state where they shall be committed--the trials shall be open & public & shall be by jury. immediately after the first census of the people of the united states the house of delegates shall apportion the senate by electing for each state out of the citizens resident therein one senator for every ---- members each state shall have in the house of delegates--each state shall be entitled to have at least one member in the senate. no state shall grant letters of marque & reprisal or enter into treaty or alliance or confederation nor grant any title of nobility nor without the consent of the legislature of the united states lay any impost on imports--nor keep troops or ships of war in time of peace--nor enter into compacts with other states or foreign powers or emit bills of credit or make any thing but gold silver or copper a tender in payment of debts nor engage in war except for self defence when actually invaded or the danger of invasion be so great as not to admit of a delay until the government of the united states can be informed thereof--& to render these prohibitions effectual the legislature of the united states shall have the power to revise the laws of the several states that may be supposed to infringe the powers exclusively delegated by this constitution to congress & to negative & annul such as do. the citizens of each state shall be entitled to all privileges & immunities of citizens in the several states--any person charged with crimes in any state fleeing from justice to another shall on demand of the executive of the state from which he fled be delivered up & removed to the state having jurisdiction of the offence. full faith shall be given in each state to the acts of the legislature & to the records & judicial proceedings of the courts & magistrates of every state. the legislature shall have power to admit new states into the union on the same terms with the original states provided two thirds of the members present in both houses agree. on the application of the legislature of a state the united states shall protect it against domestic insurrection. if two thirds of the legislatures of the states apply for the same the legislature of the united states shall call a convention for the purpose of amending the constitution--or should congress, with the consent of two thirds of each house, propose to the states amendments to the same--the agreement of two thirds of the legislatures of the states shall be sufficient to make the said amendments parts of the constitution. the ratification of the conventions of ---- states shall be sufficient for organizing this constitution.[ ] [ ] "... what will be the result of their meeting i cannot with any certainty determine, but i hardly think much good can come of it; the people of america don't appear to me to be ripe for any great innovations & it seems they are ultimately to ratify or reject: the weight of gen^l washington as you justly observe is very great in america, but i hardly think it is sufficient to induce the people to pay money or part with power. "the delegates from the eastw^d are for a very strong government, & wish to prostrate all y^e state legislatures, & form a general system out of y^e whole; but i don't learn that the people are with them, on y^e contrary in massachusetts they think that government too strong, & are about rebelling again, for the purpose of making it more democratical: in connecticut they have rejected the requisition for y^e present year decidedly, & no man there would be elected to the office of a constable if he was to declare that he meant to pay a copper towards the domestic debt:--r. island has refused to send members--the cry there is for a good government after they have paid their debts in depreciated paper:--first demolish the philistines (i. e. their creditors) then for _propiety_. "n. hampshire has not paid a shilling, since peace, & does not ever mean to pay on to all eternity:--if it was attempted to tax the people for y^e domestic debt shays would arise in a fortnight.--in n. york they pay well because they can do it by plundering n. jersey & connecticut.--jersey will go great lengths from motives of revenge and interest: pensylvany will join provided you let the sessions of the executive of america be fixed in philad^a & give her other advantages in trade to compensate for the loss of state power. i shall make no observations on the southern states, but i think they will be (perhaps from different motives) as little disposed to part with efficient power as any in the union...."--william grayson to james monroe, new york, may , . _monroe mss._ adjourned. wednesday may . roger sherman (from connecticut) took his seat. the house went into committee of the whole on the state of the union. m^r gorham was elected to the chair by ballot. the propositions of m^r randolph which had been referred to the co[~m]ittee being taken up. he moved on the suggestion of m^r g. morris, that the first of his propositions to wit "resolved that the articles of confederation ought to be so corrected & enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty, and general welfare,--should be postponed, in order to consider the following: . that a union of the states merely federal will not accomplish the objects proposed by the articles of confederation, namely common defence, security of liberty, & gen^l welfare. . that no treaty or treaties among the whole or part of the states, as individual sovereignties, would be sufficient. . that a _national_ government ought to be established consisting of a _supreme_ legislative, executive & judiciary. the motion for postponing was seconded by m^r gov^r morris and unanimously agreed to. some verbal criticisms were raised ag^{st} the first proposition, and it was agreed on motion of m^r butler seconded by m^r randolph, to pass on to the third, which underwent a discussion, less however on its general merits than on the force and extent of the particular terms _national & supreme_. m^r charles pinkney wished to know of m^r randolph, whether he meant to abolish the state govern^{ts} altogether. m^r r. replied that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view. m^r butler said he had not made up his mind on the subject, and was open to the light which discussion might throw on it. after some general observations he concluded with saying that he had opposed the grant of powers to cong^s heretofore, because the whole power was vested in one body. the proposed distribution of the powers into different bodies changed the case, and would induce him to go great lengths. gen^l pinkney[ ] expressed a doubt whether the act of cong^s reco[~m]ending the convention, or the commissions of the deputies to it, could authorize a discussion of a system founded on different principles from the federal constitution. [ ] "m^r ch^s cotesworth pinckney is a gentleman of family and fortune in his own state. he has received the advantage of a liberal education, and possesses a very extensive degree of legal knowledge. when warm in a debate he sometimes speaks well,--but he is generally considered an indifferent orator. mr. pinckney was an officer of high rank in the american army, and served with great reputation through the war. he is now about years of age."--pierce's notes, _am. hist. rev._, iii., . m^r gerry[ ] seemed to entertain the same doubt. [ ] "m. gerry's character is marked for integrity and perseverance. he is a hesitating and laborious speaker;--possesses a great degree of confidence and goes extensively into all subjects that he speaks on, without respect to elegance or flower of diction. he is connected and sometimes clear in his arguments, conceives well, and cherishes as his first virtue, a love for his country. mr. gerry is very much of a gentleman in his principles and manners;--he has been engaged in the mercantile line and is a man of property. he is about years of age."--pierce's notes, _am. hist. rev._, iii., . m^r gov^r morris explained the distinction between a _federal_ and _national_, _supreme_, gov^t; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and _compulsive_ operation. he contended that in all communities there must be one supreme power, and one only. m^r mason observed that the present confederation was not only deficient in not providing for coercion & punishment ag^{st} delinquent states; but argued very cogently that punishment could not in the nature of things be executed on the states collectively, and therefore that such a gov^t was necessary as could directly operate on individuals, and would punish those only whose guilt required it. m^r sherman[ ] who took his seat today, admitted that the confederation had not given sufficient power to cong^s and that additional powers were necessary; particularly that of raising money which he said would involve many other powers. he admitted also that the general & particular jurisdictions ought in no case to be concurrent. he seemed however not to be disposed to make too great inroads on the existing system; intimating as one reason, that it would be wrong to lose every amendment, by inserting such as would not be agreed to by the states. [ ] "m^r sherman exhibits the oddest shaped character i ever remember to have met with. he is awkward, un-meaning, and unaccountably strange in his manner. but in his train of thinking there is something regular, deep, and comprehensive; yet the oddity of his address, the vulgarisms that accompany his public speaking, and that strange new england cant which runs through his public as well as his private speaking make everything that is connected with him grotesque and laughable;--and yet he deserves infinite praise,--no man has a better heart or a clearer head. if he cannot embellish he can furnish thoughts that are wise and useful. he is an able politician and extremely artful in accomplishing any particular object;--it is remarked that he seldom fails. i am told he sits on the bench in connecticut, and is very correct in the discharge of his judicial functions. in the early part of his life he was a shoe-maker;--but despising the lowness of his condition, he turned almanack maker, and so progressed upwards to a judge. he has been several years a member of congress, and discharged the duties of his office with honor and credit to himself, and advantage to the state he represented. he is about ."--pierce's notes, _am. hist. rev._, iii., . it was moved by m^r read,[ ] ^{ded} by m^r ch^s cotesworth pinkney, to postpone the ^d proposition last offered by m^r randolph viz that a national government ought to be established consisting of a supreme legislative executive and judiciary, in order to take up the following,--viz. "resolved that in order to carry into execution the design of the states in forming this convention, and to accomplish the objects proposed by the confederation a more effective government consisting of a legislative, executive and judiciary, ought to be established." the motion to postpone for this purpose was lost: yeas. massachusetts, connecticut, delaware, s. carolina-- . nays. n. y. pennsylvania, virginia, north carolina-- . [ ] "m^r read is a lawyer and a judge;--his legal abilities are said to be very great, but his powers of oratory are fatiguing and tiresome to the last degree;--his voice is feeble and his articulation so bad that few can have patience to attend to him. he is a very good man, and bears an amiable character with those who know him. mr. read is about , of a low stature, and a weak constitution."--pierce's notes, _id._, iii., . on the question as moved by m^r butler, on the third proposition it was resolved in committee of whole that a national govern^t ought to be established consisting of a supreme legislative executive & judiciary,--mass^{ts} being ay.--connect.--no. n. york divided (col. hamilton ay. m^r yates no.) pen^a ay. delaware ay. virg^a ay. n. c. ay. s. c. ay. the following resolution, being the ^d of those proposed by m^r randolph was taken up, viz.--"that the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases." m^r madison[ ] observing that the words, "_or to the number of free inhabitants_," might occasion debates which would divert the committee from the general question whether the principle of representation should be changed, moved that they might be struck out. [ ] "mr. madison is a character who has long been in public life; and what is very remarkable every person seems to acknowledge his greatness. he blends together the profound politician, with the scholar. in the management of every great question he evidently took the lead in the convention, and tho' he cannot be called an orator, he is a most agreeable, eloquent, and convincing speaker. from a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best informed man of any point in debate. the affairs of the united states, he perhaps, has the most correct knowledge of, of any man in the union. he has been twice a member of congress, and was always thought one of the ablest members that ever sat in that council. mr. maddison is about years of age, a gentleman of great modesty,--with a remarkable sweet temper. he is easy and unreserved among his acquaintance, and has a most agreeable style of conversation."--pierce's notes, _am. hist. rev._, iii., . m^r king observed that the quotas of contribution which would alone remain as the measure of representation, would not answer, because waving every other view of the matter, the revenue might hereafter be so collected by the general gov^t that the sums respectively drawn from the states would not appear, and would besides be continually varying. m^r madison admitted the propriety of the observation, and that some better rule ought to be found. col. hamilton moved to alter the resolution so as to read "that the rights of suffrage in the national legislature ought to be proportioned to the number of free inhabitiants." m^r spaight ^{ded} the motion. it was then moved that the resolution be postponed, which was agreed to. m^r randolph and m^r madison then moved the following resolution--"that the rights of suffrage in the national legislature ought to be proportioned." it was moved and ^{ded} to amend it by adding "and not according to the present system"--which was agreed to. it was then moved & ^{ded} to alter the resolution so as to read "that the rights of suffrage in the national legislature ought not to be according to the present system." it was then moved & ^{ded} to postpone the resolution moved by m^r randolph & m^r madison, which being agreed to: m^r madison, moved, in order to get over the difficulties, the following resolution--"that the equality of suffrage established by the articles of confederation ought not to prevail in the national legislature, and "that an equitable ratio of representation ought to be substituted." this was ^{ded} by m^r gov^r morris, and being generally relished, would have been agreed to; when, m^r reed moved that the whole clause relating to the point of representation be postponed; reminding the com^e that the deputies from delaware were restrained by their co[~m]ission from assenting to any change of the rule of suffrage, and in case such a change should be fixed on, it might become their duty to retire from the convention. m^r gov^r morris observed that the valuable assistance of those members could not be lost without real concern, and that so early a proof of discord in the convention as the secession of a state, would add much to the regret; that the change proposed was however so fundamental an article in a national gov^t, that it could not be dispensed with. m^r madison observed that whatever reason might have existed for the equality of suffrage when the union was a federal one among sovereign states, it must cease when a national governm^t should be put into the place. in the former case, the acts of cong^s depended so much for their efficacy on the cooperation of the states, that these had a weight both within & without congress, nearly in proportion to their extent and importance. in the latter case, as the acts of the gen^l gov^t would take effect without the intervention of the state legislatures, a vote from a small state w^d have the same efficacy & importance as a vote from a large one, and there was the same reason for different numbers of representatives from different states, as from counties of different extents within particular states. he suggested as an expedient for at once taking the sense of the members on this point and saving the delaware deputies from embarrassment, that the question should be taken in committee, and the clause on report to the house, be postponed without a question there. this however did not appear to satisfy mr. read. by several it was observed that no just construction of the act of delaware, could require or justify a secession of her deputies, even if the resolution were to be carried thro' the house as well as the committee. it was finally agreed however that the clause should be postponed: it being understood that in the event the proposed change of representation would certainly be agreed to, no objection or difficulty being started from any other quarter than from delaware. the motion of mr. read to postpone being agreed to, the committee then rose. the chairman reported progress, and the house having resolved to resume the subject in committee to-morrow, adjourned to o clock. thursday may [ ] [ ] "this day the state of new jersey was represented, so that there were now ten states in convention."--yates, _secret proceedings_, etc., . but in the _journal of the federal convention ( )_, as in madison's account, new jersey is entered as present may th. on may two votes are recorded by madison and in the _journal_ without new jersey. it is probable that an error was made in the _journal_ and that madison followed it. william pierce, from georgia took his seat.[ ] [ ] rufus king kept a few notes of the proceedings of the convention from may st to august th. they are meagre, but corroborate madison's report. see king's _life and correspondence of rufus king_, i., . pierce also kept a few rough notes of the proceedings which were printed in the _savannah georgian_, april , , , , , , , and , , and reprinted in _the american historical review_, iii., _et seq._ they throw little additional light on the debates, but wherever they do are quoted here, as are king's. in committee of the whole on mr. randolph's propositions. the ^d resolution "that the national legislature ought to consist of two branches" was agreed to without debate or dissent, except that of pennsylvania, given probably from complaisance to doc^r franklin who was understood to be partial to a single house of legislation. resol: . first clause, "that the members of the first branch of the national legislature ought to be elected by the people of the several states," being taken up, m^r sherman opposed the election by the people, insisting that it ought to be by the state legislatures. the people he said, immediately should have as little to do as may be about the government. they want information and are constantly liable to be misled. m^r gerry. the evils we experience flow from the excess of democracy. the people do not want virtue, but are the dupes of pretended patriots. in mass^{ts} it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute. one principal evil arises from the want of due provision for those employed in the administration of governm^t. it would seem to be a maxim of democracy to starve the public servants. he mentioned the popular clamour in mass^{ts} for the reduction of salaries and the attack made on that of the gov^r though secured by the spirit of the constitution itself. he had he said been too republican heretofore: he was still however republican, but had been taught by experience the danger of the levelling spirit. m^r mason argued strongly for an election of the larger branch by the people. it was to be the grand depository of the democratic principle of the gov^t. it was, so to speak, to be our house of commons--it ought to know & sympathize with every part of the community; and ought therefore to be taken not only from different parts of the whole republic, but also from different districts of the larger members of it, which had in several instances particularly in virg^a, different interests and views arising from difference of produce, of habits &c &c. he admitted that we had been too democratic but was afraid we s^d incautiously run into the opposite extreme. we ought to attend to the rights of every class of the people. he had often wondered at the indifference of the superior classes of society to this dictate of humanity & policy, considering that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but certainly would, distribute their posterity throughout the lowest classes of society. every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of citizens. m^r wilson contended strenuously for drawing the most numerous branch of the legislature immediately from the people. he was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. no government could long subsist without the confidence of the people. in a republican government this confidence was peculiarly essential. he also thought it wrong to increase the weight of the state legislatures by making them the electors of the national legislature. all interference between the general and local governm^{ts} should be obviated as much as possible. on examination it would be found that the opposition of states to federal measures had proceeded much more from the officers of the states, than from the people at large. m^r madison considered the popular election of one branch of the national legislature as essential to every plan of free government. he observed that in some of the states one branch of the legislature was composed of men already removed from the people by an intervening body of electors. that if the first branch of the general legislature should be elected by the state legislatures, the second branch elected by the first--the executive by the second together with the first; and other appointments again made for subordinate purposes by the executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt. he was an advocate for the policy of refining the popular appointments by successive filtrations, but thought it might be pushed too far. he wished the expedient to be resorted to only in the appointment of the second branch of the legislature, and in the executive & judiciary branches of the government. he thought too that the great fabric to be raised would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the legislatures. m^r gerry did not like the election by the people. the maxims taken from the british constitution were often fallacious when applied to our situation which was extremely different. experience he said had shewn that the state legislatures drawn immediately from the people did not always possess their confidence. he had no objection however to an election by the people if it were so qualified that men of honor & character might not be unwilling to be joined in the appointments. he seemed to think the people might nominate a certain number out of which the state legislatures should be bound to choose.[ ] [ ] "mr. strong would agree to the principle, provided it would undergo a certain modification, but pointed out nothing."--pierce's notes, _am. hist. rev._, iii., . m^r butler thought an election by the people an impracticable mode. on the question for an election of the first branch of the national legislature, by the people, mass^{ts} ay. connec^t div^d. n. york ay. n. jersey no. pen^a ay. delaw^r div^d. v^a ay. n. c. ay. s. c. no. georg^a ay. the remaiñg clauses of resolution ^{th} relating to the qualifications of members of the national legislature, being posp^d nem. con., as entering too much into detail for general propositions. the committee proceeded to resolution . "that the second, (or senatorial) branch of the national legislature ought to be chosen by the first branch out of persons nominated by the state legislatures." m^r spaight contended that the ^d branch ought to be chosen by the state legislatures and moved an amendment to that effect.[ ] [ ] "m^r king observed that the question called for was premature, and out of order,--that unless we go on regularly from one principle to the other we shall draw out our proceedings to an endless length."--pierce's notes, _am. hist. rev._, iii., . m^r butler apprehended that the taking so many powers out of the hands of the states as was proposed, tended to destroy all that balance and security of interests among the states which it was necessary to preserve; and called on m^r randolph the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to assign to this second branch. m^r rand^f observed that he had at the time of offering his propositions stated his ideas as far as the nature of general propositions required; that details made no part of the plan, and could not perhaps with propriety have been introduced. if he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first; so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. he observed that the general object was to provide a cure for the evils under which the u. s. laboured; that in tracing these evils to their origin every man had found it in the turbulance and follies of democracy: that some check therefore was to be sought for ag^{st} this tendency of our governments: and that a good senate seemed most likely to answer the purpose.[ ] [ ] "butler said that until the number of the senate could be known it would be impossible for him to give a vote on it."--pierce's notes, _am. hist. rev._, iii., . m^r king reminded the committee that the choice of the second branch as proposed (by m^r spaight) viz. by the state legislatures would be impracticable, unless it was to be very numerous, or _the idea of proportion_ among the states was to be disregarded. according to this _idea_, there must be or members to entitle delaware to the choice of one of them.--m^r spaight withdrew his motion. m^r wilson opposed both a nomination by the state legislatures, and an election by the first branch of the national legislature, because the second branch of the latter, ought to be independent of both. he thought both branches of the national legislature ought to be chosen by the people, but was not prepared with a specific proposition. he suggested the mode of chusing the senate of n. york to wit of uniting several election districts for one branch, in chusing members for the other branch, as a good model. m^r madison observed that such a mode would destroy the influence of the smaller states associated with larger ones in the same district; as the latter would chuse from within themselves, altho' better men might be found in the former. the election of senators in virg^a where large & small counties were often formed into one district for the purpose, had illustrated this consequence. local partiality, would often prefer a resident within the county or state, to a candidate of superior merit residing out of it. less merit also in a resident would be more known throughout his own state.[ ] [ ] "m^r butler moved to have the proposition relating to the first branch postponed, in order to take up another,--which was that the second branch of the legislature consist of blank. "m^r king objected to the postponement for the reasons which he had offered before."--pierce's notes, _id._, iii., . m^r sherman favored an election of one member by each of the state legislatures.[ ] [ ] according to pierce, mason spoke after sherman, and pinckney's motion is given more fully by pierce than by madison. "m^r mason was of opinion that it would be highly improper to draw the senate out of the first branch; that it would occasion vacancies which would cost much time, trouble, and expense to have filled up,--besides which it would make the members too dependent on the first branch. "m^r ch^s pinckney said he meant to propose to divide the continent into four divisions, out of which a certain number of persons sh^d be nominated, and out of that nomination to appoint a senate."--pierce's notes, _amer. hist. rev._, iii., . m^r pinkney moved to strike out the "nomination by the state legislatures;" on this question. [ ]mass^{ts} no. con^t no. n. y. no. n. j. no. pen^a no. del. div^d v^a no. n. c. no. s. c. no. georg no. [ ] this question is omitted in the printed journal, & the votes applied to the succeeding one, instead of the votes as here stated.--madison's note. on the whole question for electing by the first branch out of nominations by the state legislatures, mass. ay. con^t no. n. y. no. n. jersey, no. pen^a no. del. no. virg^a ay. n. c. no. s. c. ay. g^a no. so the clause was disagreed to & a chasm left in this part of the plan. the sixth resolution stating the cases in which the national legislature ought to legislate was next taken into discussion: on the question whether each branch sh^d originate laws, there was an unanimous affirmative without debate. on the question for transferring all the legislative power of the existing cong^s to this assembly, there was also a silent affirmative nem. con. on the proposition for giving "legislative power in all cases to which the state legislatures were individually incompetent," m^r pinkney & m^r rutledge[ ] objected to the vagueness of the term _incompetent_, and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.[ ] [ ] "mr. rutledge is one of those characters who was highly mounted at the commencement of the late revolution;--his reputation in the first congress gave him a distinguished rank among the american worthies. he was bred to the law, and now acts as one of the chancellors of south carolina. this gentleman is much famed in his own state as an orator, but in my opinion he is too rapid in his public speaking to be denominated an agreeable orator. he is undobotedly a man of abilities, and a gentleman of distinction and fortune. mr. rutledge was once governor of south carolina. he is about years of age."--pierce's notes, _amer. hist. rev._, iii., . [ ] according to pierce: "m^r sherman was of opinion that it would be too indefinitely expressed,--and yet it would be hard to define all the powers by detail. it appeared to him that it would be improper for the national legislature to negative all the laws that were connected with the states themselves. "m^r madison said it was necessary to adopt some general principles on which we should act,--that we were wandering from one thing to another without seeming to be settled in any one principle. "m^r wythe observed that it would be right to establish general principles before we go into detail, or very shortly gentlemen would find themselves in confusion, and would be obliged to have recurrence to the point from whence they sat out. "m^r king was of opinion that the principles ought first to be established before we proceed to the framing of the act. he apprehends that the principles only go so far as to embrace all the power that is given up by the people to the legislature, and to the federal government, but no farther. "m^r randolph was of opinion that it would be impossible to define the powers and the length to which the federal legislature ought to extend just at this time. "m^r wilson observed that it would be impossible to enumerate the powers which the federal legislature ought to have."--pierce's notes, _id._, iii., , . m^r butler repeated his fears that we were running into an extreme in taking away the powers of the states, and called on mr. randolph for the extent of his meaning. m^r randolph disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination. his opinion was fixed on this point. m^r madison said that he had brought with him into the convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national legislature; but had also brought doubts concerning its practicability. his wishes remained unaltered; but his doubts had become stronger. what his opinion might ultimately be he could not yet tell. but he should shrink from nothing which should be found essential to such a form of gov^t as would provide for the safety, liberty and happiness of the community. this being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to. on the question for giving powers, in cases to which the states are not competent--mass^{ts} ay. con^t div^d. (sherman no. elseworth ay.) n. y. ay. n. j. ay. p^a ay. del. ay. v^a ay. n. c. ay. s. carolina ay. georg^a ay. the other clauses giving powers necessary to preserve harmony among the states to negative all state laws contravening in the opinion of the nat. leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the union," being added after the words "contravening &c. the articles of the union," on motion of d^r franklin) were agreed to with^t debate or dissent. the last clause of resolution , authorizing an exertion of the force of the whole ag^{st} a delinquent state came next into consideration. m^r madison, observed that the more he reflected on the use of force, the more he doubted, the practicability, the justice and the efficacy of it when applied to people collectively and not individually.--a union of the states containing such an ingredient seemed to provide for its own destruction. the use of force ag^{st} a state, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. he hoped that such a system would be framed as might render this resource unnecessary, and moved that the clause be postponed. this motion was agreed to, nem. con. the committee then rose & the house adjourned.[ ] [ ] "when the convention first opened at philadelphia, there were a number of propositions brought forward as great leading principles for the new government to be established for the united states. a copy of these propositions was given to each member with an injunction to keep everything a profound secret. one morning, by accident, one of the members dropt his copy of the propositions, which being luckily picked up by general mifflin was presented to general washington, our president, who put it in his pocket. after the debates of the day were over, and the question for adjournment was called for, the general arose from his seat, and previous to his putting the question addressed the convention in the following manner,-- "'gentlemen "'i am sorry to find that some one member of this body, has been so neglectful of the secrets of the convention as to drop in the state house, a copy of their proceedings, which by accident was picked up and delivered to me this morning. i must entreat gentlemen to be more careful, lest our transactions get into the news papers, and disturb the public repose by premature speculations. i know not whose paper it is, but there it is [throwing it down on the table,] let him who owns it take it.' at the same time he bowed, picked up his hat, and quitted the room with a dignity so severe that every person seemed alarmed; for my part i was extremely so, for putting my hand in my pocket i missed my copy of the same paper, but advancing up to the table my fears soon dissipated; i found it to be in the hand writing of another person. when i went to my lodgings at the indian queen, i found my copy in a coat pocket which i had pulled off that morning. it is something remarkable that no person ever owned the paper."--pierce's notes, _am. hist. rev._, iii., . friday june ^{st} william houston from georgia took his seat. the committee of the whole proceeded to resolution . "that a national executive be instituted, to be chosen by the national legislature for the term of ---- years &c. to be ineligible thereafter, to possess the executive powers of congress &c." m^r pinkney was for a vigorous executive but was afraid the executive powers of the existing congress might extend to peace & war &c. which would render the executive a monarchy, of the worst kind, to wit an elective one. m^r wilson moved that the executive consist of a single person. m^r c. pinkney seconded the motion, so as to read "that a national ex. to consist of a single person, be instituted." a considerable pause ensuing and the chairman asking if he should put the question, doc^r franklin[ ] observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put. [ ] "d^r franklin is well known to be the greatest phylosopher of the present age;--all the operations of nature he seems to understand,--the very heavens obey him, and the clouds yield up their lightning to be imprisoned in his rod. but what claim he has to the politician, posterity must determine. it is certain that he does not shine much in public council,--he is no speaker, nor does he seem to let politics engage his attention. he is, however, a most extraordinary man, and he tells a story in a style more engaging than anything i ever heard. let his biographer finish his character. he is years old, and possesses an activity of mind equal to a youth of years of age."--pierce's notes, _amer. hist. rev._, iii., . m^r rutlidge animadverted on the shyness of gentlemen on this and other subjects. he said it looked as if they supposed themselves precluded by having frankly disclosed their opinions from afterwards changing them, which he did not take to be at all the case. he said he was for vesting the executive power in a single person, tho' he was not for giving him the power of war and peace. a single man would feel the greatest responsibility and administer the public affairs best. m^r sherman said he considered the executive magistracy as nothing more than an institution for carrying the will of the legislature into effect, that the person or persons ought to be appointed by and accountable to the legislature only, which was the depository of the supreme will of the society. as they were the best judges of the business which ought to be done by the executive department, and consequently of the number necessary from time to time for doing it, he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more as experience might dictate. m^r wilson preferred a single magistrate, as giving most energy dispatch and responsibility to the office. he did not consider the prerogatives of the british monarch as a proper guide in defining the executive powers. some of these prerogatives were of a legislative nature. among others that of war & peace &c. the only powers he considered strictly executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the legislature.[ ] [ ] according to king, madison followed wilson: "madison agreed with wilson in the definition of executive power. _ex vi termini._ executive power does not include the power of war and peace. executive power shd. be limited and defined. if large, we shall have the evils of elective monarchies. perhaps the best plan will be a single executive of long duration, with a council and with liberty to dissent on his personal responsibility."--king's _life and correspondence of rufus king_, i., . according to pierce: "m^r madison was of opinion that an executive formed of one man would answer the purpose when aided by a council, who should have the right to advise and record their proceedings, but not to control his authority."--pierce's notes, _am. hist. rev._, iii., . m^r gerry favored the policy of annexing a council to the executive in order to give weight & inspire confidence.[ ] [ ] king gives gerry's remarks: "_gerry._ i am in favor of a council to advise the executive: they will be organs of information respecting persons qualified for various offices. their opinions may be recorded, so as to be liable to be called to account & impeached--in this way, their responsibility will be certain, and for misconduct their punishment sure." dickinson followed gerry: "_dickinson._ a limited yet vigorous executive is not republican, but peculiar to monarchy--the royal executive has vigour, not only by power, but by popular attachment & report--an equivalent to popular attachment may be derived from the veto on the legislative acts. we cannot have a limited monarchy--our condition does not permit it. republics are in the beginning and for a time industrious, but they finally destroy themselves because they are badly constituted. i dread the consolidation of the states, & hope for a good national govt. from the present division of the states with a feeble executive. "we are to have a legislature of two branches, or two legislatures, as the sovereign of the nation--this will work a change unless you provide that the judiciary shall aid and correct the executive. the first branch of the legislature, the h. of representatives, must be on another plan. the second branch or senate may be on the present scheme of representing _the states_--the representatives to be apportioned according to the quotas of the states paid into the general treasury. the executive to be removed from office by the national legislature, on the petition of seven states."--king's _life and correspondence of rufus king_, i., _et seq._ m^r randolph strenuously opposed a unity in the executive magistracy. he regarded it as the foetus of monarchy. we had he said no motive to be governed by the british govenm^t as our prototype. he did not mean however to throw censure on that excellent fabric. if we were in a situation to copy it he did not know that he should be opposed to it; but the fixt genius of the people of america required a different form of government. he could not see why the great requisites for the executive department, vigor, dispatch & responsibility could not be found in three men, as well as in one man. the executive ought to be independent. it ought therefore in order to support its independence to consist of more than one. m^r wilson said that unity in the executive instead of being the fetus of monarchy would be the best safeguard against tyranny. he repeated that he was not governed by the british model which was inapplicable to the situation of this country; the extent of which was so great, and the manners so republican, that nothing but a great confederated republic would do for it. m^r wilson's motion for a single magistrate was postponed by common consent, the committee seeming unprepared for any decision on it; and the first part of the clause agreed to, viz--"that a national executive be instituted."[ ] [ ] williamson followed wilson, according to king: "_williamson_--there is no true difference between an executive composed of a single person, with a council, and an executive composed of three or more persons."--king's _life and correspondence of rufus king_, i., . m^r madison thought it would be proper, before a choice sh^d be made between a unity and a plurality in the executive, to fix the extent of the executive authority; that as certain powers were in their nature executive, and must be given to that departm^t whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. he accordingly moved that so much of the clause before the committee as related to the powers of the executive sh^d be struck out & that after the words "that a national executive ought to be instituted" there be inserted the words following viz. "with power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers "not legislative nor judiciary in their nature," as may from time to time be delegated by the national legislature." the words "not legislative nor judiciary in their nature" were added to the proposed amendment, in consequence of a suggestion by gen^l pinkney that improper powers might otherwise be delegated. m^r wilson seconded this motion. m^r pinkney moved to amend the amendment by striking out the last member of it; viz: "and to execute such other powers not legislative nor judiciary in their nature as may from time to time be delegated." he said they were unnecessary, the object of them being included in the "power to carry into effect the national laws." m^r randolph seconded the motion. m^r madison did not know that the words were absolutely necessary, or even the preceding words, "to appoint to offices &c. the whole being perhaps included in the first member of the proposition. he did not however see any inconveniency in retaining them, and cases might happen in which they might serve to prevent doubts and misconstructions. in consequence of the motion of m^r pinkney, the question on m^r madison's motion was divided; and the words objected to by m^r pinkney struck out; by the votes of connecticut, n. y., n. j., pen^a, del., n. c., & geo. ag^{st} mass., virg^a & s. carolina the preceding part of the motion being first agreed to; connecticut divided all the other states in the affirmative. the next clause in resolution , relating to the mode of appointing, & the duration of, the executive being under consideration, m^r wilson said he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. he would say however at least that in theory he was for an election by the people. experience, particularly in n. york & mass^{ts}, shewed that an election of the first magistrate by the people at large, was both a convenient & successful mode. the objects of choice in such cases must be persons whose merits have general notoriety. m^r sherman was for the appointment by the legislature, and for making him absolutely dependent on that body, as it was the will of that which was to be executed. an independence of the executive on the supreme legislature, was in his opinion the very essence of tyranny if there was any such thing. m^r wilson moves that the blank for the term of duration should be filled with three years, observing at the same time that he preferred this short period, on the supposition that a re-eligibility would be provided for. m^r pinkney moves for seven years. m^r sherman was for three years, and ag^{st} the doctrine of rotation as throwing out of office the men best qualified to execute its duties. m^r mason was for seven years at least, and for prohibiting a re-eligibility as the best expedient both for preventing the effect of a false complaisance on the side of the legislature towards unfit characters; and a temptation on the side of the executive to intrigue with the legislature for a re-appointment. m^r bedford[ ] was strongly opposed to so long a term as seven years. he begged the committee to consider what the situation of the country would be, in case the first magistrate should be saddled on it for such a period and it should be found on trial that he did not possess the qualifications ascribed to him, or should lose them after his appointment. an impeachment he said would be no cure for this evil, as an impeachment would reach misfeasance only, not incapacity. he was for a triennial election, and for an ineligibility after a period of nine years. [ ] "mr. bedford was educated for the bar, and in his profession i am told, has merit. he is a bold and nervous speaker, and has a very commanding and striking manner;--but he is warm and impetuous in his temper, and precipitate in his judgment. mr. bedford is about years old, and very corpulent."--pierce's notes, _am. hist. rev._, iii., . on the question for seven years, mass^{ts} divid^{d.} con^t no. n. y. ay. n. j. ay. pen^a ay. del. ay. virg^a ay. n. c. no. s. c. no. geor. no. there being ays, noes, & div^d, a question was asked whether a majority had voted in the affirmative? the president decided that it was an affirmative vote. the _mode of appointing_ the executive was the next question. m^r wilson renewed his declarations in favor of an appointment by the people. he wished to derive not only both branches of the legislature from the people, without the intervention of the state legislatures but the executive also; in order to make them as independent as possible of each other, as well as of the states; col. mason favors the idea, but thinks it impracticable. he wishes however that m^r wilson might have time to digest it into his own form.--the clause, "to be chosen by the national legislature"--was accordingly postponed.-- m^r rutlidge suggests an election of the executive by the second branch only of the national legislature. the committee then rose and the house adjourned. saturday june ^d in committee of whole william sam^l johnson from connecticut, daniel of st. thomas jenifer, from mary^d, & john lansing j^r from n. york, took their seats. it was mov^d & ^{ded} to postpone ye resol: of m^r randolph respecting the executive, in order to take up the ^d branch of the legislature; which being negatived by mas: con: del: virg: n. c. s. c. geo: ag^{st} n. y. pen^a mary^d. the mode of appointing the executive was resumed. m^r wilson made the following motion, to be substituted for the mode proposed by mr. randolph's resolution, "that the executive magistracy shall be elected in the following manner: that the states be divided into ---- districts: & that the persons qualified to vote in each district for members of the first branch of the national legislature elect ---- members for their respective districts to be electors of the executive magistracy, that the said electors of the executive magistracy meet at ---- and they or any ---- of them so met shall proceed to elect by ballot, but not out of their own body ---- person-- in whom the executive authority of the national government shall be vested." m^r wilson repeated his arguments in favor of an election without the intervention of the states. he supposed too that this mode would produce more confidence among the people in the first magistrate, than an election by the national legislature. m^r gerry, opposed the election by the national legislature. there would be a constant intrigue kept up for the appointment. the legislature & the candidates w^d bargain & play into one another's hands, votes would be given by the former under promises or expectations from the latter, of recompensing them by services to members of the legislature or to their friends. he liked the principle of m^r wilson's motion, but fears it would alarm & give a handle to the state partizans, as tending to supersede altogether the state authorities. he thought the community not yet ripe for stripping the states of their powers, even such as might not be requisite for local purposes. he was for waiting till the people should feel more the necessity of it. he seemed to prefer the taking the suffrages of the states, instead of electors, or letting the legislatures nominate, and the electors appoint. he was not clear that the people ought to act directly even in the choice of electors, being too little informed of personal characters in large districts, and liable to deceptions. m^r williamson[ ] could see no advantage in the introduction of electors chosen by the people who would stand in the same relation to them as the state legislatures, whilst the expedient would be attended with great trouble and expence. [ ] "mr. williamson is a gentleman of education and talents. he enters freely into public debate from his close attention to most subjects, but he is no orator. there is a great degree of good humour and pleasantry in his character; and in his manners there is a strong trait of the gentleman. he is about years of age."--pierce's notes, _amer. hist. rev._, iii., . on the question for agreeing to m^r wilson's substitute, it was negatived: mass^{ts} no. con^t no. n. y.[ ] no. p^a ay. del. no. mar^d ay. virg^a no. n. c. no. s. c. no. geo^a no. [ ] new york, in the printed journal, divided.--madison's note. on the question for electing the executive by the national legislature for the term of seven years, it was agreed to, mass^{ts} ay. con^t ay. n. y. ay. pen^a no. del. ay. mary^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. doc^r franklin moved that what related to the compensation for the services of the executive be postponed, in order to substitute--"whose necessary expences shall be defrayed, but who shall receive no salary, stipend fee or reward whatsoever for their services." he said that being very sensible of the effect of age on his memory, he had been unwilling to trust to that for the observations which seemed to support his motion and had reduced them to writing, that he might with the permission of the committee read instead of speaking them. m^r wilson made an offer to read the paper, which was accepted. the following is a literal copy of the paper: sir, it is with reluctance that i rise to express a disapprobation of any one article of the plan for which we are so much obliged to the honorable gentleman who laid it before us. from its first reading i have borne a good will to it, and in general wished it success. in this particular of salaries to the executive branch i happen to differ; and as my opinion may appear new and chimerical, it is only from a persuasion that it is right, and from a sense of duty that i hazard it. the committee will judge of my reasons when they have heard them, and their judgment may possibly change mine.--i think i see inconveniences in the appointment of salaries; i see none in refusing them, but on the contrary, great advantages. sir, there are two passions which have a powerful influence on the affairs of men. these are ambition and avarice; the love of power, and the love of money. separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. place before the eyes of such men, a post of _honour_ that shall be at the same time a place of _profit_, and they will move heaven and earth to obtain it. the vast number of such places it is that renders the british government so tempestuous. the struggles for them are the true sources of all those factions which are perpetually dividing the nation, distracting its councils, hurrying sometimes into fruitless & mischievous wars, and often compelling a submission to dishonorable terms of peace. and of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? it will not be the wise and moderate, the lovers of peace and good order, the men fittest for the trust. it will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. these will thrust themselves into your government and be your rulers.--and these too will be mistaken in the expected happiness of their situation: for their vanquished competitors of the same spirit, and from the same motives will perpetually be endeavouring to distress their administration, thwart their measures, and render them odious to the people. besides these evils, sir, tho' we may set out in the beginning with moderate salaries, we shall find that such will not be of long continuance. reasons will never be wanting for proposed augmentations. and there will always be a party for giving more to the rulers, that the rulers may be able in return to give more to them. hence as all history informs us, there has been in every state & kingdom a constant kind of warfare between the governing & governed; the one striving to obtain more for its support, and the other to pay less. and this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the princes, or enslaving of the people. generally indeed the ruling power carries its point, the revenues of princes constantly increasing, and we see that they are never satisfied, but always in want of more. the more the people are discontented with the oppression of taxes; the greater need the prince has of money to distribute among his partizans and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure. there is scarce a king in an hundred who would not, if he could, follow the example of pharoah, get first all the people's money, then all their lands, and then make them and their children servants for ever. it will be said, that we don't propose to establish kings. i know it. but there is a natural inclination in mankind to kingly government. it sometimes relieves them from aristocratic domination. they had rather have one tyrant than five hundred. it gives more of the appearance of equality among citizens, and that they like. i am apprehensive therefore, perhaps too apprehensive, that the government of these states, may in future times, end in a monarchy. but this catastrophe i think may be long delayed, if in our proposed system we do not sow the seeds of contention, faction & tumult, by making our posts of honor, places of profit. if we do, i fear that tho' we do employ at first a number, and not a single person, the number will in time be set aside, it will only nourish the foetus of a king, as the honorable gentleman from virginia very aptly expressed it, and a king will the sooner be set over us. it may be imagined by some that this is an utopian idea, and that we can never find men to serve us in the executive department, without paying them well for their services. i conceive this to be a mistake. some existing facts present themselves to me, which incline me to a contrary opinion. the high sheriff of a county in england is an honorable office, but it is not a profitable one. it is rather expensive and therefore not sought for. but yet, it is executed and well executed, and usually by some of the principal gentlemen of the county. in france, the office of counsellor, or member of their judiciary parliaments is more honorable. it is therefore purchased at a high price: there are indeed fees on the law proceedings, which are divided among them, but these fees do not amount to more than three per cent on the sum paid for the place. therefore as legal interest is there at five perc^t they in fact pay two perc^t for being allowed to do the judiciary business of the nation, which is at the same time entirely exempt from the burden of paying them any salaries for their services. i do not however mean to recommend this as an eligible mode for our judiciary department. i only bring the instance to shew that the pleasure of doing good & serving their country and the respect such conduct entitles them to, are sufficient motives with some minds to give up a great portion of their time to the public, without the mean inducement of pecuniary satisfaction. another instance is that of a respectable society who have made the experiment, and practised it with success more than one hundred years. i mean the quakers. it is an established rule with them, that they are not to go to law; but in their controversies they must apply to their monthly, quarterly and yearly meetings. committees of these sit with patience to hear the parties, and spend much time in composing their differences. in doing this, they are supported by a sense of duty, and the respect paid to usefulness. it is honorable to be so employed, but it is never made profitable by salaries, fees or perquisites. and indeed in all cases of public service the less the profit the greater the honor. to bring the matter nearer home, have we not seen, the great and most important of our offices, that of general of our armies executed for eight years together without the smallest salary, by a patriot whom i will not now offend by any other praise; and this through fatigues and distresses in common with the other brave men his military friends & companions, and the constant anxieties peculiar to his station? and shall we doubt finding three or four men in all the u. states, with public spirit enough to bear sitting in peaceful council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed. sir, i have a better opinion of our country. i think we shall never be without a sufficient number of wise and good men to undertake and execute well and faithfully the office in question. sir. the saving of the salaries that may at first be proposed is not an object with me. the subsequent mischiefs of proposing them are what i apprehend. and therefore it is, that i move the amendment. if it is not seconded or accepted i must be contented with the satisfaction of having delivered my opinion frankly and done my duty. the motion was seconded by col. hamilton, with the view he said merely of bringing so respectable a proposition before the committee, and which was besides enforced by arguments that had a certain degree of weight. no debate ensued, and the proposition was postponed for the consideration of the members. it was treated with great respect, but rather for the author of it, than from any apparent conviction of its expediency or practicability. m^r dickinson moved,[ ] "that the executive be made removable by the national legislature on the request of a majority of the legislatures of individual states." it was necessary he said to place the power of removing somewhere. he did not like the plan of impeaching the great officers of state. he did not know how provision could be made for removal of them in a better mode than that which he had proposed. he had no idea of abolishing the state governments as some gentlemen seemed inclined to do. the happiness of this country in his opinion required considerable powers to be left in the hands of the states. [ ] "mr. dickinson has been famed through all america for his farmers letters; he is a scholar, and said to be a man of very extensive information. when i saw him in the convention i was induced to pay the greatest attention to him whenever he spoke. i had often heard that he was a great orator, but i found him an indifferent speaker. with an affected air of wisdom he labors to produce a trifle,--his language is irregular and incorrect,--his flourishes, (for he sometimes attempts them,) are like expiring flames, they just shew themselves and go out;--no traces of them are left on the mind to chear or animate it. he is, however, a good writer and will be ever considered one of the most important characters in the united states. he is about years old, and was bred a quaker."--pierce's notes, _am. hist. rev._, iii., . m^r bedford seconded the motion. m^r sherman contended that the national legislature should have power to remove the executive at pleasure. m^r mason. some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen. he opposed decidedly the making the executive the mere creature of the legislature as a violation of the fundamental principle of good government. m^r madison & m^r wilson observed that it would leave an equality of agency in the small with the great states; that it would enable a minority of the people to prevent y^e removal of an officer who had rendered himself justly criminal in the eyes of a majority; that it would open a door for intrigues ag^{st} him in states where his administration tho' just might be unpopular, and might tempt him to pay court to particular states whose leading partizans he might fear, or wish to engage as his partizans. they both thought it bad policy to introduce such a mixture of the state authorities, where their agency could be otherwise supplied. m^r dickinson considered the business as so important that no man ought to be silent or reserved. he went into a discourse of some length, the sum of which was, that the legislative, executive, & judiciary departments ought to be made as independ^t as possible; but that such an executive as some seemed to have in contemplation was not consistent with a republic: that a firm executive could only exist in a limited monarchy. in the british gov^t itself the weight of the executive arises from the attachments which the crown draws to itself, & not merely from the force of its prerogatives. in place of these attachments we must look out for something else. one source of stability is the double branch of the legislature. the division of the country into distinct states formed the other principal source of stability. this division ought therefore to be maintained, and considerable powers to be left with the states. this was the ground of his consolation for the future fate of his country. without this, and in case of a consolidation of the states into one great republic, we might read its fate in the history of smaller ones. a limited monarchy he considered as _one_ of the best governments in the world. it was not _certain_ that the same blessings were derivable from any other form. it was certain that equal blessings had never yet been derived from any of the republican form. a limited monarchy however was out of the question. the spirit of the times--the state of our affairs forbade the experiment, if it were desireable. was it possible moreover in the nature of things to introduce it even if these obstacles were less insuperable. a house of nobles was essential to such a gov^t could these be created by a breath, or by a stroke of the pen? no. they were the growth of ages, and could only arise under a complication of circumstances none of which existed in this country. but though a form the most perfect _perhaps_ in itself be unattainable, we must not despair. if antient republics have been found to flourish for a moment only & then vanish for ever, it only proves that they were badly constituted; and that we ought to seek for every remedy for their diseases. one of these remedies he conceived to be the accidental lucky division of this country into distinct states; a division which some seemed desirous to abolish altogether. as to the point of representation in the national legislature as it might affect states of different sizes, he said it must probably end in mutual concession. he hoped that each state would retain an equal voice at least in one branch of the national legislature, and supposed the sums paid within each state would form a better ratio for the other branch than either the number of inhabitants or the quantum of property.[ ] [ ] according to pierce: "m^r madison said it was far from being his wish that every executive officer should remain in office, without being amenable to some body for his conduct."--pierce's notes, _am. hist. rev._, iii., . a motion being made to strike out, "on request by a majority of the legislatures of the individual states," and rejected, connecticut, s. carol: & geo. being ay, the rest no: the question on m^r dickinson's motion for making executive removable by nat^l legislature at request of majority of state legislatures was also rejected all the states being in the negative except delaware which gave an affirmative vote. the question for making y^e executive ineligible after seven years, was next taken and agreed to: mass^{ts} ay. con^t no. n. y. ay. p^a div^d. del. ay. mary^d ay. v^a ay. n. c. ay. s. c. ay. geo. no.[ ] [ ] in printed journal geo. ay.--madison's note. m^r williamson ^{ded} by m^r davie[ ] moved to add to the last clause, the words--"and to be removable on impeachment & conviction of mal-practice or neglect of duty"--which was agreed to. [ ] "mr. davey is a lawyer of some eminence in his state. he is said to have a good classical education, and is a gentleman of considerable literary talents. he was silent in the convention, but his opinion was always respected. mr. davy is about years of age."--pierce's notes, _am. hist. rev._, iii., . m^r rutlidge & m^r c. pinkney moved that the blank for the n^o of persons in the executive be filled with the words "one person." he supposed the reasons to be so obvious & conclusive in favor of one that no member would oppose the motion. m^r randolph opposed it with great earnestness, declaring that he should not do justice to the country which sent him if he were silently to suffer the establishm^t of a unity in the executive department. he felt an opposition to it which he believed he should continue to feel as long as he lived. he urged . that the permanent temper of the people was adverse to the very semblance of monarchy. . that a unity was unnecessary a plurality being equally competent to all the objects of the department. . that the necessary confidence would never be reposed in a single magistrate. . that the appointments would generally be in favor of some inhabitant near the center of the community, and consequently the remote parts would not be on an equal footing. he was in favor of three members of the executive to be drawn from different portions of the country. m^r butler contended strongly for a single magistrate as most likely to answer the purpose of the remote parts. if one man should be appointed he would be responsible to the whole, and would be impartial to its interests. if three or more should be taken from as many districts, there would be a constant struggle for local advantages. in military matters this would be particularly mischievous. he said his opinion on this point had been formed under the opportunity he had had of seeing the manner in which a plurality of military heads distracted holland when threatened with invasion by the imperial troops. one man was for directing the force to the defence of this part, another to that part of the country, just as he happened to be swayed by prejudice or interest. the motion was then postp^d, the committee rose & the house adj^d. monday june . in committee of the whole the question was resumed on motion of m^r pinkney, ^{ded} by m^r wilson, "shall the blank for the number of the executive be filled with a single person?" m^r wilson was in favor of the motion. it had been opposed by the gentleman from virg^a (mr. randolph) but the arguments used had not convinced him. he observed that the objections of m^r r. were levelled not so much ag^st the measure itself, as ag^{st} its unpopularity. if he could suppose that it would occasion a rejection of the plan of which it should form a part, though the part were an important one, yet he would give it up rather than lose the whole. on examination he could see no evidence of the alledged antipathy of the people. on the contrary he was persuaded that it does not exist. all know that a single magistrate is not a king. one fact has great weight with him. all the states tho agreeing in scarce any other instance, agree in placing a single magistrate at the head of the govern^t. the idea of three heads has taken place in none. the degree of power is indeed different; but there are no co-ordinate heads. in addition to his former reasons for preferring a unity, he would mention another. the _tranquillity_ not less than the vigor of the gov^t he thought would be favored by it. among three equal members, he foresaw nothing but uncontrouled, continued, & violent animosities; which would not only interrupt the public administration; but diffuse their poison thro' the other branches of gov^t, thro' the states, and at length thro' the people at large. if the members were to be unequal in power the principle of opposition to the unity was given up. if equal, the making them an odd number would not be a remedy. in courts of justice there are two sides only to a question. in the legislative & executive departm^{ts} questions have commonly many sides. each member therefore might espouse a separate one & no two agree.[ ] [ ] according to pierce, king followed wilson: "mr. king was of opinion that the judicial ought not to join in the negative of a law, because the judges will have the expounding of those laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the constitution."--pierce's notes, _am. hist. rev._, iii., . m^r sherman. this matter is of great importance and ought to be well considered before it is determined. m^r wilson he said had observed that in each state a single magistrate was placed at the head of the gov^t. it was so he admitted, and properly so, and he wished the same policy to prevail in the federal gov^t. but then it should be also remarked that in all the states there was a council of advice, without which the first magistrate could not act. a council he thought necessary to make the establishment acceptable to the people. even in g. b. the king has a council; and though he appoints it himself, its advice has its weight with him, and attracts the confidence of the people. m^r williamson asks m^r wilson whether he means to annex a council. m^r wilson means to have no council, which oftener serves to cover, than prevent malpractices. m^r gerry was at a loss to discover the policy of three members for the executive. it w^d be extremely inconvenient in many instances, particularly in military matters, whether relating to the militia, an army, or a navy. it would be a general with three heads. on the question for a single executive it was agreed to mass^{ts} ay. con^t ay. n. y. no. pen^a ay. del. no. mary^d no. virg^a ay. (m^r r. & m^r blair no--doc^r mcc^g m^r m. & gen. w. ay. col. mason being no, but not in the house, m^r wythe ay. but gone home). n. c. ay. s. c. ay. georg^a ay. first clause of proposition ^{th} relating _to a council of revision_ taken into consideration. m^r gerry doubts whether the judiciary ought to form a part of it, as they will have a sufficient check ag^{st} encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. in some states the judges had actually set aside laws as being ag^{st} the constitution. this was done too with general approbation. it was quite foreign from the nature of y^e office to make them judges of the policy of public measures. he moves to postpone the clause in order to propose "that the national executive shall have a right to negative any legislative act which shall not be afterwards passed by ---- parts of each branch of the national legislature." m^r king seconds the motion, observing that the judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation. m^r wilson thinks neither the original proposition nor the amendment goes far enough. if the legislative exetv & judiciary ought to be distinct & independent, the executive ought to have an absolute negative. without such a self-defence the legislature can at any moment sink it into non-existence. he was for varying the proposition in such a manner as to give the executive & judiciary jointly an absolute negative. on the question to postpone in order to take m^r gerry's proposition into consideration it was agreed to, mass^s ay. con^t no. n. y. ay. p^a ay. del. no. mary^d no. virg^a no. n. c ay. s. c. ay. g^a ay. mr. gerry's proposition being now before committee, m^r wilson & m^r hamilton move that the last part of it (viz. "w^{ch} s^l not be afterw^{ds} passed "unless by ---- parts of each branch of the national legislature") be struck out, so as to give the executive an absolute negative on the laws. there was no danger they thought of such a power being too much exercised. it was mentioned by col: hamilton that the king of g. b. had not exerted his negative since the revolution. m^r gerry sees no necessity for so great a controul over the legislature as the best men in the community would be comprised in the two branches of it. doc^r franklin, said he was sorry to differ from his colleague for whom he had a very great respect, on any occasion, but he could not help it on this. he had had some experience of this check in the executive on the legislature, under the proprietary government of pen^a. the negative of the governor was constantly made use of to extort money. no good law whatever could be passed without a private bargain with him. an increase of his salary, or some donation, was always made a condition; till at last it became the regular practice, to have orders in his favor on the treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. when the indians were scalping the western people, and notice of it arrived, the concurrence of the governor in the means of self-defence could not be got, till it was agreed that his estate should be exempted from taxation: so that the people were to fight for the security of his property, whilst he was to bear no share of the burden. this was a mischevous sort of check. if the executive was to have a council, such a power would be less objectionable. it was true, the king of g. b. had not, as was said, exerted his negative since the revolution; but that matter was easily explained. the bribes and emoluments now given to the members of parliament rendered it unnecessary, every thing being done according to the will of the ministers. he was afraid, if a negative should be given as proposed, that more power and money would be demanded, till at last eno' would be gotten to influence & bribe the legislature into a compleat subjection to the will of the executive. m^r sherman was ag^{st} enabling any one man to stop the will of the whole. no one man could be found so far above all the rest in wisdom. he thought we ought to avail ourselves of his wisdom in revising the laws, but not permit him to overrule the decided and cool opinions of the legislature. m^r madison supposed that if a proper proportion of each branch should be required to overrule the objections of the executive, it would answer the same purpose as an absolute negative. it would rarely if ever happen that the executive constituted as ours is proposed to be, would have firmness eno' to resist the legislature, unless backed by a certain part of the body itself. the king of g. b. with all his splendid attributes would not be able to withstand y^e unanimous and eager wishes of both houses of parliament. to give such a prerogative would certainly be obnoxious to the temper of this country; its present temper at least. m^r wilson believed as others did that this power would seldom be used. the legislature would know that such a power existed, and would refrain from such laws, as it would be sure to defeat. its silent operation would therefore preserve harmony and prevent mischief. the case of pen^a formerly was very different from its present case. the executive was not then as now to be appointed by the people. it will not in this case as in the one cited be supported by the head of a great empire, actuated by a different & sometimes opposite interest. the salary too is now proposed to be fixed by the constitution, or if d^r f.'s idea should be adopted all salary whatever interdicted. the requiring a large proportion of each house to overrule the executive check might do in peaceable times; but there might be tempestuous moments in which animosities may run high between the executive and legislative branches, and in which the former ought to be able to defend itself. m^r butler had been in favor of a single executive magistrate; but could he have entertained an idea that a compleat negative on the laws was to be given him he certainly should have acted very differently. it had been observed that in all countries the executive power is in a constant course of increase. this was certainly the case in g. b. gentlemen seemed to think that we had nothing to apprehend from an abuse of the executive power. but why might not a cataline or a cromwell arise in this country as well as in others. m^r bedford was opposed to every check on the legislature, even the council of revision first proposed. he thought it would be sufficient to mark out in the constitution the boundaries to the legislative authority, which would give all the requisite security to the rights of the other departments. the representatives of the people were the best judges of what was for their interest, and ought to be under no external controul whatever. the two branches would produce a sufficient controul within the legislature itself. col. mason observed that a vote had already passed he found [he was out at the time] for vesting the executive powers in a single person. among these powers was that of appointing to offices in certain cases. the probable abuses of a negative had been well explained by d^r f. as proved by experience, the best of all tests. will not the same door be opened here. the executive may refuse its assent to necessary measures till new appointments shall be referred to him; and having by degrees engrossed these into all his own hands, the american executive, like the british, will by bribery & influence, save himself the trouble & odium of exerting his negative afterwards. we are m^r chairman going very far in this business. we are not indeed constituting a british government, but a more dangerous monarchy, an elective one. we are introducing a new principle into our system, and not necessary as in the british gov^t where the executive has greater rights to defend. do gentlemen mean to pave the way to hereditary monarchy? do they flatter themselves that the people will ever consent to such an innovation? if they do i venture to tell them, they are mistaken. the people never will consent. and do gentlemen consider the danger of delay, and the still greater danger of a rejection, not for a moment but forever, of the plan which shall be proposed to them. notwithstanding the oppression & injustice experienced among us from democracy; the genius of the people is in favor of it, and the genius of the people must be consulted. he could not but consider the federal system as in effect dissolved by the appointment of this convention to devise a better one. and do gentlemen look forward to the dangerous interval between extinction of an old, and the establishment of a new governm^t and to the scenes of confusion which may ensue. he hoped that nothing like a monarchy would ever be attempted in this country. a hatred to its oppressions had carried the people through the late revolution. will it not be eno' to enable the executive to suspend offensive laws, till they shall be coolly revised, and the objections to them overruled by a greater majority than was required in the first instance. he never could agree to give up all the rights of the people to a single magistrate: if more than one had been fixed on, greater powers might have been entrusted to the executive. he hoped this attempt to give such powers would have its weight hereafter as an argument for increasing the number of the executive. doc^r franklin. a gentleman from s. c., (m^r butler) a day or two ago called our attention to the case of the u. netherlands. he wished the gentleman had been a little fuller, and had gone back to the original of that gov^t. the people being under great obligations to the prince of orange whose wisdom and bravery had saved them, chose him for the stadtholder. he did very well. inconveniences however were felt from his powers; which growing more & more oppressive, they were at length set aside. still however there was a party for the p. of orange, which descended to his son who excited insurrections, spilt a great deal of blood, murdered the de witts, and got the powers revested in the stadtholder. afterwards another prince had power to excite insurrections & make the stadtholdership hereditary. and the present stadth^{der} is ready to wade thro' a bloody civil war to the establishment of a monarchy. col. mason had mentioned the circumstance of appointing officers. he knew how that point would be managed. no new appointment would be suffered as heretofore in pens^a unless it be referred to the executive; so that all profitable offices will be at his disposal. the first man put at the helm will be a good one. no body knows what sort may come afterwards. the executive will be always increasing here, as elsewhere, till it ends in a monarchy. on the question for striking out so as to give executive an absolute negative,--mass^{ts} no. con^t no. n. y. no. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. georg^a no. m^r butler moved that the resol^n be altered so as to read--"resolved that the national executive have a power to suspend any legislative act for the term of ----." doct^r franklin seconds the motion. m^r gerry observed that a power of suspending might do all the mischief dreaded from the negative of useful laws; without answering the salutary purpose of checking unjust or unwise ones. on question "for giving this suspending power" all the states, to wit mass^{ts} con^t n. y. p^a del. mary^d virg^a n. c. s. c. georgia, were _no_. on a question for enabling _two thirds_ of each branch of the legislature to overrule the revisionary check, it passed in the affirmative sub silentio; and was inserted in the blank of m^r gerry's motion. on the question on m^r gerry's motion which gave the executive alone without the judiciary the revisionary controul on the laws unless overruled by / of each branch; mass^{ts} ay. con^t no. n. y. ay. p^a ay. del. ay. mary^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. it was moved by m^r wilson ^{ded} by m^r madison--that the following amendment be made to the last resolution--after the words "national ex." to add "& a convenient number of the national judiciary."[ ] [ ] before the motion, according to king's notes: "_madison_--the judiciary ought to be introduced in the business of legislation--they will protect their department, and united with the executive make its negatives more strong. there is weight in the objections to this measure--but a check on the legislature is necessary, experience proves it to be so, and teaches us that what has been thought a calumny on a republican govt. is nevertheless true--in all countries are diversity of interests, the rich & the poor, the dr. & cr., the followers of different demagogues, the diversity of religious sects--the effects of these divisions in ancient govts. are well known, and the like causes will now produce like effects. we must therefore introduce in our system provisions against the measures of an interested majority--a check is not only necessary to protect the executive power, but the minority in the legislature. the independence of the executive, having the eyes of all upon him will make him an impartial judge--add the judiciary, and you greatly increase his respectability." after the motion: "dickinson opposed--you shd. separate the departments--you have given the executive a share in legislation; and it is asked why not give a share to the judicial power. because the judges are to interpret the laws, and therefore shd. have no share in making them--not so with the executive whose causing the laws to be executed is a ministerial office only. besides we have experienced in the br. constitution which confers the power of a negative on the executive."--king's _life and correspondence of rufus king_, i., . an objection of order being taken by m^r hamilton to the introduction of the last amendment at this time, notice was given by m^r w. & m^r m., that the same w^d be moved to-morrow,--whereupon wednesday (the day after) was assigned to reconsider the amendment of m^r gerry. it was then moved & ^{ded} to proceed to the consideration of the ^{th} resolution submitted by m^r randolph--when on motion to agree to the first clause namely "resolved, that a national judiciary be established," it passed in the affirmative nem. con. it was then moved & ^{ded} to add these words to the first clause of the ninth resolution namely--"to consist of one supreme tribunal, and of one or more inferior tribunals," which passed in the affirmative. the comm^e then rose and the house adjourned. tuesday june . in committee of the whole governor livingston from new jersey, took his seat. the words, "one or more" were struck out before "inferior tribunals" as an amendment to the last clause of resol^n ^{th}. the clause--"that the national judiciary be chosen by the national legislature," being under consideration. m^r wilson opposed the appointm^t of judges by the national legisl: experience shewed the impropriety of such appointm^{ts} by numerous bodies. intrigue, partiality, and concealment were the necessary consequences. a principal reason for unity in the executive was that officers might be appointed by a single, responsible person. m^r rutlidge was by no means disposed to grant so great a power to any single person. the people will think we are leaning too much towards monarchy. he was against establishing any national tribunal except a single supreme one. the state tribunals are most proper to decide in all cases in the first instance. doc^r franklin observed that two modes of chusing the judges had been mentioned, to wit, by the legislature and by the executive. he wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. he would mention one which he had understood was practised in scotland. he then in a brief and entertaining manner related a scotch mode, in which the nomination proceeded from the lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. it was here he said the interest of the electors to make the best choice, which should always be made the case if possible. mr. madison disliked the election of the judges by the legislature or any numerous body. besides the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. the legislative talents which were very different from those of a judge, commonly recommended men to the favor of legislative assemblies. it was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. on the other hand he was not satisfied with referring the appointment to the executive, he rather inclined to give it to the senatorial branch, as numerous eno' to be confided in--as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. he hinted this only and moved that the _appointment by the legislature_ might be struck out, & a blank left to be hereafter filled on maturer reflection. m^r wilson second it. on the question for striking out, mass^{ts} ay. con^t no. n. y. ay. n. j. ay. pen^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. mr. wilson gave notice that he should at a future day move for a reconsideration of that clause which respects "inferior tribunals." m^r pinkney gave notice that when the clause respecting the appointment of the judiciary should again come before the committee he should move to restore the "appointment by the national legislature." the following clauses of resol: . were agreed to viz "to hold their offices during good behaviour, and to receive punctually at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution." the remaining clause of resolution . was postponed. resolution was agreed to,--viz--that provision ought to be made for the admission of states lawfully arising within the limits of the u. states, whether from a voluntary junction of government & territory, or otherwise with the consent of a number of voices in the national legislature less than the whole. the . propos: "_for guaranteeing to states republican gov^t & territory_" &c. being read m^r patterson[ ] wished the point of representation could be decided before this clause should be considered, and moved to postpone it, which was not opposed, and agreed to,--connecticut & s. carolina only voting ag^{st} it. [ ] "m^r patterson is one of those kind of men whose powers break in upon you, and create wonder and astonishment. he is a man of great modesty, with looks that bespeak talents of no great extent,--but he is a classic, a lawyer, and an orator;--and of a disposition so favorable to his advancement that every one seemed ready to exalt him with their praises. he is very happy in the choice of time and manner of engaging in a debate, and never speaks but when he understands his subject well. this gentleman is about y. of age, of a very low stature."--pierce's notes, _amer. hist. rev._, iii., . propos. "_for continuing cong^s till a given day and for fulfilling their engagements_," produced no debate. on the question, mass. ay. con^t no. n. y. ay. n. j.[ ] ay. pa. ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. g. ay. [ ] note in madison's writing: new jersey omitted in printed journal. propos: . "that _provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the nat^l legislature_", being taken up, m^r pinkney doubted the propriety or necessity of it. m^r gerry favored it. the novelty & difficulty of the experiment requires periodical revision. the prospect of such a revision would also give intermediate stability to the gov^t. nothing had yet happened in the states where this provision existed to prove its impropriety.--the proposition was postponed for further consideration: the votes being, mas: con. n. y. p^a del. ma. n. c. ay. virg^a s. c. geo. no. propos. . "_requiring oath from the state officers to support national gov^t_" was postponed after a short uninteresting conversation: the votes. con. n. jersey m^d virg. s. c. geo. ay. n. y. p^a del. n. c. no. massachusetts divided. propos. . for "_recommending conventions under appointment of the people to ratify the new constitution_" &c. being taken up, m^r sherman thought such a popular ratification unnecessary: the articles of confederation providing for changes and alterations with the assent of cong^s and ratification of state legislatures. m^r madison thought this provision essential. the articles of confed^n themselves were defective in this respect, resting in many of the states on the legislative sanction only. hence in conflicts between acts of the states, and of cong^s especially where the former are of posterior date, and the decision is to be made by state tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the state authority. he suggested also that as far as the articles of union were to be considered as a treaty only of a particular sort, among the governments of independent states, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. for these reasons as well as others he thought it indispensable that the new constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves. m^r gerry observed that in the eastern states the confed^n had been sanctioned by the people themselves. he seemed afraid of referring the new system to them. the people in that quarter have at this time the wildest ideas of government in the world. they were for abolishing the senate in mass^{ts} and giving all the other powers of gov^t to the other branch of the legislature. m^r king supposed that the last article of y^e confed^n rendered the legislature competent to the ratification. the people of the southern states where the federal articles had been ratified by the legislatures only, had since _impliedly_ given their sanction to it. he thought notwithstanding that there might be policy in varying the mode. a convention being a single house, the adoption may more easily be carried thro' it, than thro' the legislatures where there are several branches. the legislatures also being to lose power, will be most likely to raise objections. the people having already parted with the necessary powers it is immaterial to them, by which government they are possessed, provided they be well employed. m^r wilson took this occasion to lead the committee by a train of observations to the idea of not suffering a disposition in the plurality of states to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few states. he hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open for the accession of the rest.[ ] [ ] (this hint was probably meant in terrorem to the smaller states of n. jersey & delaware. nothing was said in reply to it.)--madison's note. m^r pinkney hoped that in case the experiment should not unanimously take place, nine states might be authorized to unite under the same governm^t. the propos. . was postponed nem. con^t. m^r pinkney & m^r rutlidge moved that to-morrow be assigned to reconsider that clause of propos: : which respects the election of the first branch of the national legislature--which passed in affirmative,--con.: n. y., p^a del. m^d, v^a, ay.-- mas.: n. j.: n. c.: s. c.: geo.: no. . mr. rutlidge hav^g obtained a rule for reconsideration of the clause for establishing _inferior_ tribunals under the national authority, now moved that that part of the clause in the propos. . should be expunged: arguing that the state tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of judgm^{ts}: that it was making an unnecessary encroachment on the jurisdiction of the states and creating unnecessary obstacles to their adoption of the new system. mr. sherman ^{ded} the motion. m^r madison observed that unless inferior tribunals were dispersed throughout the republic with _final_ jurisdiction in _many_ cases, appeals would be multiplied to a most oppressive degree; that besides, an appeal would not in many cases be a remedy. what was to be done after improper verdicts in state tribunals obtained under the biassed directions of a dependent judge, or the local prejudices of an undirected jury? to remand the cause for a new trial would answer no purpose. to order a new trial at the supreme bar would oblige the parties to bring up their witnesses, tho' ever so distant from the seat of the court. an effective judiciary establishment commensurate to the legislative authority, was essential. a government without a proper executive & judiciary would be the mere trunk of a body, without arms or legs to act or move. m^r wilson opposed the motion on like grounds. he said the admiralty jurisdiction ought to be given wholly to the national government, as it related to cases not within the jurisdiction of particular states, & to a scene in which controversies with foreigners would be most likely to happen. m^r sherman was in favor of the motion. he dwelt chiefly on the supposed expensiveness of having a new set of courts, when the existing state courts would answer the same purpose. m^r dickinson contended strongly that if there was to be a national legislature, there ought to be a national judiciary, and that the former ought to have authority to institute the latter. on the question for m^r rutlidge's motion to strike out "inferior tribunals" mass^{ts} divided. con^t ay. n. y. div^d. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. m^r wilson & m^r madison then moved, in pursuance of the idea expressed above by mr. dickinson, to add to the resol: . the words following "that the national legislature be empowered to institute inferior tribunals." they observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the legislature to establish or not establish them. they repeated the necessity of some such provision. m^r butler. the people will not bear such innovations. the states will revolt at such encroachments. supposing such an establishment to be useful, we must not venture on it. we must follow the example of solon who gave the athenians not the best gov^t he could devise, but the best they w^d receive. m^r king remarked as to the comparative expence, that the establishment of inferior tribunals w^d cost infinitely less than the appeals that would be prevented by them. on this question as moved by m^r w. & m^r m. mass. ay. c^t no. n. y. div^d. n. j.[ ] ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. [ ] in printed journals n. jersey, no.--madison's note. the committee then rose & the house adjourned to oc tom^w. wednesday june ^{th} in committee of the whole. m^r pinkney according to previous notice & rule obtained, moved "that the first branch of the national legislature be elected by the state legislatures, and not by the people;" contending that the people were less fit judges in such a case, and that the legislatures would be less likely to promote the adoption of the new government, if they were to be excluded from all share in it. m^r rutlidge ^{ded} the motion. m^r gerry.[ ] much depends on the mode of election. in england the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. our danger arises from the opposite extreme: hence in mass^{ts} the worst men get into the legislature. several members of that body had lately been convicted of infamous crimes. men of indigence, ignorance & baseness, spare no pains, however dirty to carry their point ag^{st} men who are superior to the artifices practised. he was not disposed to run into extremes. he was as much principled as ever ag^{st} aristocracy and monarchy. it was necessary on the one hand that the people should appoint one branch of the gov^t in order to inspire them with the necessary confidence. but he wished the election on the other to be so modified as to secure more effectually a just preference of merit. his idea was that the people should nominate certain persons in certain districts, out of whom the state legislatures sh^d make the appointment. [ ] "mr. gerry.--if the national legislature are appointed by the state legislatures, demagogues and corrupt members will creep in."--yates's _secret debates in forming the constitution_, . m^r wilson. he wished for vigor in the gov^t, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. the gov^t ought to possess not only ^{st} the _force_, but ^{dly} the _mind or sense_ of the people at large. the legislature ought to be the most exact transcript of the whole society. representation is made necessary only because it is impossible for the people to act collectively. the opposition was to be expected he said from the _governments_, not from the citizens of the states. the latter had parted as was observed (by m^r king) with all the necessary powers; and it was immaterial to them, by whom they were exercised, if well exercised. the state officers were to be the losers of power. the people he supposed would be rather more attached to the national gov^t than to the state gov^{ts} as being more important in itself, and more flattering to their pride. there is no danger of improper elections if made by _large_ districts. bad elections proceed from the smallness of the districts which give an opportunity to bad men to intrigue themselves into office. m^r sherman. if it were in view to abolish the state gov^{ts} the elections ought to be by the people. if the state gov^{ts} are to be continued, it is necessary in order to preserve harmony between the national & state gov^{ts} that the elections to the former sh^d be made by the latter. the right of participating in the national gov^t would be sufficiently secured to the people by their election of the state legislatures. the objects of the union, he thought were few, . defence ag^{st} foreign danger, . ag^{st} internal disputes & a resort to force, . treaties with foreign nations . regulating foreign commerce, & drawing revenue from it. these & perhaps a few lesser objects alone rendered a confederation of the states necessary. all other matters civil & criminal would be much better in the hands of the states. the people are more happy in small than in large states. states may indeed be too small as rhode island, & thereby be too subject to faction. some others were perhaps too large, the powers of gov^t not being able to pervade them. he was for giving the general gov^t power to legislate and execute within a defined province. col. mason. under the existing confederacy, cong^s represent the _states_ and not the _people_ of the states: their acts operate on the _states_, not on the individuals. the case will be changed in the new plan of gov^t. the people will be represented; they ought therefore to choose the representatives. the requisites in actual representation are that the rep^s should sympathize with their constituents; sh^d think as they think, & feel as they feel; and that for these purposes sh^d even be residents among them. much he s^d had been alledged ag^{st} democratic elections. he admitted that much might be said; but it was to be considered that no gov^t was free from imperfections & evils; and that improper elections in many instances were inseparable from republican gov^{ts}. but compare these with the advantage of this form in favor of the rights of the people, in favor of human nature. he was persuaded there was a better chance for proper elections by the people, if divided into large districts, than by the state legislatures. paper money had been issued by the latter when the former were against it. was it to be supposed that the state legislatures then w^d not send to the nat^l legislature patrons of such projects, if the choice depended on them. m^r madison considered an election of one branch at least of the legislature by the people immediately, as a clear principle of free gov^t and that this mode under proper regulations had the additional advantage of securing better representatives, as well as of avoiding too great an agency of the state governments in the general one. he differed from the member from connecticut (mr. sherman) in thinking the objects mentioned to be all the principal ones that required a national gov^t. those were certainly important and necessary objects; but he combined with them the necessity of providing more effectually for the security of private rights, and the steady dispensation of justice. interferences with these were evils which had more perhaps than anything else, produced this convention. was it to be supposed that republican liberty could long exist under the abuses of it practised in some of the states. the gentleman (m^r sherman) had admitted that in a very small state, faction & oppression w^d prevail. it was to be inferred then that wherever these prevailed the state was too small. had they not prevailed in the largest as well as the smallest tho' less than in the smallest; and were we not thence admonished to enlarge the sphere as far as the nature of the gov^t would admit. this was the only defence ag^{st} the inconveniences of democracy consistent with the democratic form of gov^t. all civilized societies would be divided into different sects, factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader--the disciples of this religious sect or that religious sect. in all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. what motives are to restrain them? a prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. conscience, the only remaining tie is known to be inadequate in individuals: in large numbers, little is to be expected from it. besides, religion itself may become a motive to persecution & oppression. these observations are verified by the histories of every country antient & modern. in greece & rome the rich & poor, the creditors & debtors, as well as the patricians & plebeians alternately oppressed each other with equal unmercifulness. what a source of oppression was the relation between the parent cities of rome, athens & carthage, & their respective provinces; the former possessing the power, & the latter being sufficiently distinguished to be separate objects of it? why was america so justly apprehensive of parliamentary injustice? because g. britain had a separate interest real or supposed, & if her authority had been admitted, could have pursued that interest at our expence. we have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. what has been the source of those unjust laws complained of among ourselves? has it not been the real or supposed interest of the major number? debtors have defrauded their creditors. the landed interest has borne hard on the mercantile interest. the holders of one species of property have thrown a disproportion of taxes on the holders of another species. the lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. in a republican gov^t the majority if united have always an opportunity. the only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the ^{st} place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the ^d place that in case they sh^d have such an interest, they may not be apt to unite in the pursuit of it. it was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils w^{ch} have been experienced. m^r dickinson considered it essential that one branch of the legislature sh^d be drawn immediately from the people; and as expedient that the other sh^d be chosen by the legislatures of the states. this combination of the state gov^{ts} with the national gov^t was as politic as it was unavoidable. in the formation of the senate we ought to carry it through such a refining process as will assimilate it as nearly as may be to the house of lords in england. he repeated his warm eulogiums on the british constitution. he was for a strong national gov^t but for leaving the states a considerable agency in the system. the objection ag^{st} making the former dependent on the latter might be obviated by giving to the senate an authority permanent & irrevocable for three, five or seven years. being thus independent they will check & decide with becoming freedom. m^r read. too much attachment is betrayed to the state govern^{ts}. we must look beyond their continuance. a national gov^t must soon of necessity swallow all of them up. they will soon be reduced to the mere office of electing the national senate. he was ag^{st} patching up the old federal system: he hoped the idea w^d be dismissed. it would be like putting new cloth on an old garment. the confederation was founded on temporary principles. it cannot last: it can not be amended. if we do not establish a good gov^t on new principles, we must either go to ruin, or have the work to do over again. the people at large are wrongly suspected of being averse to a gen^l gov^t. the aversion lies among interested men who possess their confidence. m^r pierce[ ] was for an election by the people as to the ^{st} branch & by the states as to the ^d branch; by which means the citizens of the states w^d be represented both _individually_ & _collectively_. [ ] "my own character i shall not attempt to draw, but leave those who may choose to speculate on it, to consider it in any light that their fancy or imagination may depict. i am conscious of having discharged my duty as a soldier through the course of the late revolution with honor and propriety; and my services in congress and the convention were bestowed with the best intention towards the interest of georgia, and towards the general welfare of the confederacy. i possess ambition, and it was that, and the flattering opinion which some of my friends had of me, that gave me a seat in the wisest council in the world, and furnished me with an opportunity of giving these short sketches of the characters who composed it."--pierce's notes, _amer. hist. rev._, iii., . general pinkney wished to have a good national gov^t & at the same time to leave a considerable share of power in the states. an election of either branch by the people scattered as they are in many states, particularly in s. carolina was totally impracticable. he differed from gentlemen who thought that a choice by the people w^d be a better guard ag^{st} bad measures, than by the legislatures. a majority of the people in s. carolina were notoriously for paper-money as a legal tender; the legislature had refused to make it a legal tender. the reason was that the latter had some sense of character and were restrained by that consideration. the state legislatures also he said would be more jealous, & more ready to thwart the national gov^t, if excluded from a participation in it. the idea of abolishing these legislatures w^d never go down. m^r wilson would not have spoken again, but for what had fallen from mr. read; namely, that the idea of preserving the state gov^{ts} ought to be abandoned. he saw no incompatibility between the national & state gov^{ts} provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. in all confederated systems antient & modern the reverse had happened; the generality being destroyed gradually by the usurpations of the parts composing it. on the question for electing the ^{st} branch by the state legislatures as moved by m^r pinkney: it was negatived: mass. no. c^t ay. n. y. no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. no. m^r wilson moved to reconsider the vote excluding the judiciary from a share in the revision of the laws, and to add after "national executive" the words "with a convenient number of the national judiciary;" remarking the expediency of reinforcing the executive with the influence of that department. m^r madison ^{ded} the motion. he observed that the great difficulty in rendering the executive competent to its own defence arose from the nature of republican gov^t which could not give to an individual citizen that settled pre-eminence in the eyes of the rest, that weight of property, that personal interest ag^{st} betraying the national interest, which appertain to an hereditary magistrate. in a republic personal merit alone could be the ground of political exaltation, but it would rarely happen that this merit would be so pre-eminent as to produce universal acquiescence. the executive magistrate would be envied & assailed by disappointed competitors: his firmness therefore w^d need support. he would not possess those great emoluments from his station, nor that permanent stake in the public interest which w^d place him out of the reach of foreign corruption. he would stand in need therefore of being controuled as well as supported. an association of the judges in his revisionary function w^d both double the advantage and diminish the danger. it w^d also enable the judiciary department the better to defend itself ag^{st} legislative encroachments. two objections had been made ^{st} that the judges ought not to be subject to the bias which a participation in the making of laws might give in the exposition of them. ^{dly} that the judiciary departm^t ought to be separate & distinct from the other great departments. the ^{st} objection had some weight; but it was much diminished by reflecting that a small proportion of the laws coming in question before a judge w^d be such wherein he had been consulted; that a small part of this proportion w^d be so ambiguous as to leave room for his prepossessions; and that but a few cases w^d probably arise in the life of a judge under such ambiguous passages. how much good on the other hand w^d proceed from the perspicuity, the conciseness, and the systematic character w^{ch} the code of laws w^d receive from the judiciary talents. as to the ^d objection, it either had no weight, or it applied with equal weight to the executive & to the judiciary revision of the laws. the maxim on which the objection was founded required a separation of the executive as well as the judiciary from the legislature & from each other. there w^d in truth however be no improper mixture of these distinct powers in the present case. in england, whence the maxim itself had been drawn, the executive had an absolute negative on the laws; and the supreme tribunal of justice (the house of lords) formed one of the other branches of the legislature. in short whether the object of the revisionary power was to restrain the legislature from encroaching on the other co-ordinate departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form, the utility of annexing the wisdom and weight of the judiciary to the executive seemed incontestable. m^r gerry thought the executive, whilst standing alone w^d be more impartial than when he c^d be covered by the sanction & seduced by the sophistry of the judges. m^r king. if the unity of the executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary as to the executive power. m^r pinkney had been at first in favor of joining the heads of the principal departm^{ts} the secretary at war, of foreign affairs &c.--in the council of revision. he had however relinquished the idea from a consideration that these could be called on by the executive magistrate whenever he pleased to consult them. he was opposed to the introduction of the judges into the business. col. mason was for giving all possible weight to the revisionary institution. the executive power ought to be well secured ag^{st} legislative usurpations on it. the purse & the sword ought never to get into the same hands whether legislative or executive. m^r dickinson. secrecy, vigor & despatch are not the principal properties req^d in the executive. important as these are, that of responsibility is more so, which can only be preserved; by leaving it singly to discharge its functions. he thought too a junction of the judiciary to it, involved an improper mixture of powers. m^r wilson remarked, that the responsibility required belonged to his executive duties. the revisionary duty was an extraneous one, calculated for collateral purposes. m^r williamson, was for substituting a clause requiring / for every effective act of the legislature, in place of the revisionary provision. on the question for joining the judges to the executive in the revisionary business, mass. no. con^t ay. n. y. ay. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. m^r pinkney gave notice that tomorrow he should move for the reconsideration of that clause in the sixth resolution adopted by the comm^e which vests a negative in the national legislature on the laws of the several states. the com^e rose & the house adj^d to oc. thursday june ^{th} --in committee of the whole m^r pinkney according to notice moved to reconsider the clause respecting the negative on state laws, which was agreed to, and tomorrow for fixed the purpose. the clause providing for y^e appointment of the ^d branch of the national legislature, having lain blank since the last vote on the mode of electing it, to wit, by the ^{st} branch, m^r dickinson now moved "that the members of the ^d branch ought to be chosen by the individual legislatures." m^r sherman seconded the motion; observing that the particular states would thus become interested in supporting the national govenm^t and that a due harmony between the two governments would be maintained. he admitted that the two ought to have separate and distinct jurisdictions, but that they ought to have a mutual interest in supporting each other. m^r pinkney. if the small states should be allowed one senator only, the number will be too great, there will be at least. m^r dickinson had two reasons for his motion. , because the sense of the states would be better collected through their governments; than immediately from the people at large; . because he wished the senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the british house of lords as possible; and he thought such characters more likely to be selected by the state legislatures, than in any other mode. the greatness of the number was no objection with him. he hoped there would be and twice . of them. if their number should be small, the popular branch could not be balanced by them. the legislature of a numerous people ought to be a numerous body. m^r williamson, preferred a small number of senators, but wished that each state should have at least one. he suggested as a convenient number. the different modes of representation in the different branches, will serve as a mutual check. m^r butler was anxious to know the ratio of representation before he gave any opinion. m^r wilson. if we are to establish a national government, that government ought to flow from the people at large. if one branch of it should be chosen by the legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them. he wished the senate to be elected by the people as well as the other branch, the people might be divided into proper districts for the purpose & moved to postpone the motion of m^r dickinson, in order to take up one of that import. m^r morris ^{ded} him. m^r read proposed "that the senate should be appointed by the executive magistrate out of a proper number of persons to be nominated by the individual legislatures." he said he thought it his duty, to speak his mind frankly. gentlemen he hoped would not be alarmed at the idea. nothing short of this approach towards a proper model of government would answer the purpose, and he thought it best to come directly to the point at once.--his proposition was not seconded nor supported. m^r madison, if the motion (of mr. dickinson) should be agreed to, we must either depart from the doctrine of proportional representation; or admit into the senate a very large number of members. the first is inadmissible, being evidently unjust. the second is inexpedient. the use of the senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch. enlarge their number and you communicate to them the vices which they are meant to correct. he differed from m^r d. who thought that the additional number would give additional weight to the body. on the contrary it appeared to him that their weight would be in an inverse ratio to their number. the example of the roman tribunes, was applicable. they lost their influence and power, in proportion as their number was augmented. the reason seemed to be obvious: they were appointed to take care of the popular interests & pretensions at rome, because the people by reason of their numbers could not act in concert; were liable to fall into factions among themselves, and to become a prey to their aristocratic adversaries. the more the representatives of the people therefore were multiplied, the more they partook of the infirmities of their constituents, the more liable they became to be divided among themselves either from their own indiscretions or the artifices of the opposite faction, and of course the less capable of fulfilling their trust. when the weight of a set of men depends merely on their personal characters; the greater the number the greater the weight. when it depends on the degree of political authority lodged in them the smaller the number the greater the weight. these considerations might perhaps be combined in the intended senate; but the latter was the material one. m^r gerry. modes of appointing the senate have been mentioned. . by the ^{st} branch of the national legislature. this would create a dependance contrary to the end proposed. . by the national executive. this is a stride towards monarchy that few will think of. . by the people. the people have two great interests, the landed interest, and the commercial including the stockholders. to draw both branches from the people will leave no security to the latter interest; the people being chiefly composed of the landed interest, and erroneously supposing, that the other interests are adverse to it. . by the individual legislatures. the elections being carried thro' this refinement, will be most likely to provide some check in favor of the commercial interest ag^{st} the landed; without which oppression will take place, and no free gov^t can last long where that is the case. he was therefore in favor of this last. m^r dickenson.[ ] the preservation of the states in a certain degree of agency is indispensable. it will produce that collision between the different authorities which should be wished for in order to check each other. to attempt to abolish the states altogether, would degrade the councils of our country, would be impracticable, would be ruinous. he compared the proposed national system to the solar system, in which the states were the planets, and ought to be left to move freely in their proper orbits. the gentleman from p^a (m^r wilson) wished he said to extinguish these planets. if the state governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequence would be that the national gov^t would move in the same direction as the state gov^{ts} now do, and would run into all the same mischiefs. the reform would only unite the small streams into one great current pursuing the same course without any opposition whatever. he adhered to the opinion that the senate ought to be composed of a large number, and that their influence from family weight & other causes would be increased thereby. he did not admit that the tribunes lost their weight in proportion as their n^o was augmented and gave a historical sketch of this institution. if the reasoning of (m^r madison) was good it would prove that the number of the senate ought to be reduced below ten, the highest n^o of the tribunitial corps. [ ] it will throw light on this discussion to remark that an election by the state legislatures involved a surrender of the principle insisted on by the large states & dreaded by the small ones, namely that of a proportional representation in the senate. such a rule w^d make the body too numerous, as the smallest state must elect one member at least.--madison's note. m^r wilson. the subject it must be owned is surrounded with doubts and difficulties. but we must surmount them. the british governm^t cannot be our model. we have no materials for a similar one. our manners, our laws, the abolition of entails and of primogeniture, the whole genius of the people, are opposed to it. he did not see the danger of the states being devoured by the nation^l gov^t. on the contrary, he wished to keep them from devouring the national gov^t. he was not however for extinguishing these planets as was supposed by mr. d.--neither did he on the other hand, believe that they would warm or enlighten the sun. within their proper orbits they must still be suffered to act for subordinate purposes, for which their existence is made essential by the great extent of our country. he could not comprehend in what manner the landed interest w^d be rendered less predominant in the senate, by an election through the medium of the legislatures than by the people themselves. if the legislatures, as was now complained, sacrificed the commercial to the landed interest, what reason was there to expect such a choice from them as would defeat their own views. he was for an election by the people in large districts which w^d be most likely to obtain men of intelligence & uprightness; subdividing the districts only for the accommodation of voters. m^r madison could as little comprehend in what manner family weight, as desired by m^r d. would be more certainly conveyed into the senate through elections by the state legislatures, than in some other modes. the true question was in what mode the best choice w^d be made? if an election by the people, or thro' any other channel than the state legislatures promised as uncorrupt & impartial a preference of merit, there could surely be no necessity for an appointment by those legislatures. nor was it apparent that a more useful check would be derived thro' that channel than from the people thro' some other. the great evils complained of were that the state legislatures run into schemes of paper money &c. whenever solicited by the people, & sometimes without even the sanction of the people. their influence then, instead of checking a like propensity in the national legislature, may be expected to promote it. nothing can be more contradictory than to say that the nat^l legislature with^t a proper check, will follow the example of the state legislatures, & in the same breath, that the state legislatures are the only proper check. m^r sherman opposed elections by the people in districts, as not likely to produce such fit men as elections by the state legislatures. m^r gerry insisted that the commercial & monied interest w^d be more secure in the hands of the state legislatures, than of the people at large. the former have more sense of character, and will be restrained by that from injustice. the people are for paper money when the legislatures are ag^{st} it. in mass^{ts} the county conventions had declared a wish for a _depreciating_ paper that w^d sink itself. besides, in some states there are two branches in the legislature, one of which is somewhat aristocratic. there w^d therefore be so far a better chance of refinement in the choice. there seemed, he thought to be three powerful objections ag^{st} elections by districts, . it is impracticable; the people cannot be brought to one place for the purpose; and whether brought to the same place or not, numberless frauds w^d be unavoidable. . small states forming part of the same district with a large one, or large part of a large one, w^d have no chance of gaining an appointment for its citizens of merit. a new source of discord w^d be opened between different parts of the same district. m^r pinkney thought the ^d branch ought to be permanent & independent; & that the members of it w^d be rendered more so by receiving their appointment from the state legislatures. this mode w^d avoid the rivalships & discontents incident to the election by districts. he was for dividing the states into three classes according to their respective sizes, & for allowing to the ^{st} class three members, to the ^d two, & to the ^d one. on the question for postponing m^r dickinson's motion referring the appointment of the senate to the state legislatures, in order to consider m^r wilson's for referring it to the people. mass. no. con^t no. n. y. no. n. j. no. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. col. mason. whatever power may be necessary for the nat^l gov^t a certain portion must necessarily be left in the states. it is impossible for one power to pervade the extreme parts of the u. s. so as to carry equal justice to them. the state legislatures also ought to have some means of defending themselves ag^{st} encroachments of the nat^l gov^t. in every other department we have studiously endeavoured to provide for its self-defence. shall we leave the states alone unprovided with the means for this purpose? and what better means can we provide than the giving them some share in, or rather to make them a constituent part of, the nat^l establishment. there is danger on both sides no doubt; but we have only seen the evils arising on the side of the state gov^{ts}. those on the other side remain to be displayed. the example of cong^s does not apply. cong^s had no power to carry their acts into execution, as the nat^l gov^t will have. on m^r dickinson's motion for an appointment of the senate by the state legislatures, mass. ay. c^t ay. n. y. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gerry gave notice that he w^d tomorrow move for a reconsideration of the mode of appointing the nat^l executive in order to substitute an appointm^t by the state executives. the committee rose & the house adj^d. friday june ^{th} in committee of the whole. on a reconsideration of the clause giving the nat^l legislature a negative on such laws of the states as might be contrary to the articles of union, or treaties with foreign nations, m^r pinkney moved "that the national legislature sh^d have authority to negative all laws which they sh^d judge to be improper." he urged that such a universality of the power was indispensably necessary to render it effectual; that the states must be kept in due subordination to the nation; that if the states were left to act of themselves in any case, it w^d be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of congress had been defeated by this means; nor had foreign treaties escaped repeated violations: that this universal negative was in fact the corner stone of an efficient national gov^t; that under the british gov^t the negative of the crown had been found beneficial, and the _states_ are more one nation now, than the _colonies_ were then. m^r madison seconded the motion. he could not but regard an indefinite power to negative legislative acts of the states as absolutely necessary to a perfect system. experience had evinced a constant tendency in the states to encroach on the federal authority; to violate national treaties; to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions. a negative was the mildest expedient that could be devised for preventing these mischiefs. the existence of such a check would prevent attempts to commit them. should no such precaution be engrafted, the only remedy w^d lie in an appeal to coercion. was such a remedy eligible? was it practicable? could the national resources, if exerted to the utmost enforce a national decree ag^{st} mass^{ts} abetted perhaps by several of her neighbours? it w^d not be possible. a small proportion of the community, in a compact situation acting on the defensive, and at one of its extremities, might at any time bid defiance to the national authority. any gov^t for the u. states formed on the supposed practicability of using force ag^{st} the unconstitutional proceedings of the states, w^d prove as visionary & fallacious as the gov^t of cong^s. the negative w^d render the use of force unnecessary. the states c^d of themselves pass no operative act, any more than one branch of a legislature where there are two branches, can proceed without the other. but in order to give the negative this efficacy, it must extend to all cases. a discrimination w^d only be a fresh source of contention between the two authorities. in a word, to recur to the illustrations borrowed from the planetary system. this prerogative of the general gov^t, is the great pervading principle that must controul the centrifugal tendency of the states; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political system. m^r williamson was ag^{st} giving a power that might restrain the states from regulating their internal police. m^r gerry c^d not see the extent of such a power, and was ag^{st} every power that was not necessary. he thought a remonstrance ag^{st} unreasonable acts of the states w^d reclaim them. if it sh^d not force might be resorted to. he had no objection to authorize a negative to paper money and similar measures. when the confederation was depending before congress, massachusetts was then for inserting the power of emitting paper money am^g the exclusive powers of congress. he observed that the proposed negative w^d extend to the regulations of the militia, a matter on which the existence of a state might depend. the nat^l legislature with such a power may enslave the states. such an idea as this will never be acceded to. it has never been suggested or conceived among the people. no speculative projector, and there are eno' of that character among us, in politics as well as in other things, has in any pamphlet or newspaper thrown out the idea. the states too have different interests and are ignorant of each other's interests. the negative therefore will be abused. new states too having separate views from the old states will never come into the union. they may even be under some foreign influence; are they in such case to participate in the negative on the will of the other states? m^r sherman thought the cases in which the negative ought to be exercised, might be defined. he wished the point might not be decided till a trial at least sh^d be made for that purpose. m^r wilson would not say what modifications of the proposed power might be practicable or expedient. but however novel it might appear the principle of it when viewed with a close & steady eye, is right. there is no instance in which the laws say that the individual sh^d be bound in one case, & at liberty to judge whether he will obey or disobey in another. the cases are parallel. abuses of the power over the individual person may happen as well as over the individual states. federal liberty is to the states, what civil liberty, is to private individuals, and states are not more unwilling to purchase it, by the necessary concession of their political sovereignty, than the savage is to purchase civil liberty by the surrender of the personal sovereignty, which he enjoys in a state of nature. a definition of the cases in which the negative should be exercised, is impracticable. a discretion must be left on one side or the other? will it not be most safely lodged on the side of the nat^l gov^t? among the first sentiments expressed in the first cong^s one was that virg^a is no more, that mass^{ts} is no [more], that p^a is no more &c. we are now one nation of brethren. we must bury all local interests & distinctions. this language continued for some time. the tables at length began to turn. no sooner were the state gov^{ts} formed than their jealousy & ambition began to display themselves. each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. review the progress of the articles of confederation thro' congress & compare the first & last draught of it. to correct its vices is the business of this convention. one of its vices is the want of an effectual controul in the whole over its parts. what danger is there that the whole will unnecessarily sacrifice a part? but reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests? m^r dickenson deemed it impossible to draw a line between the cases proper & improper for the exercise of the negative. we must take our choice of two things. we must either subject the states to the danger of being injured by the power of the nat^l gov^t or the latter to the danger of being injured by that of the states. he thought the danger greater from the states. to leave the power doubtful, would be opening another spring of discord, and he was for shutting as many of them as possible. m^r bedford. in answer to his colleague's question, where w^d be the danger to the states from this power, would refer him to the smallness of his own state which may be injured at pleasure without redress. it was meant he found to strip the small states of their equal right of suffrage. in this case delaware would have about / for its share in the general councils, whilst p^a & v^a would possess / of the whole. is there no difference of interests, no rivalship of commerce, of manufactures? will not these large states crush the small ones whenever they stand in the way of their ambitious or interested views. this shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the priñple of representation. and after all, if a state does not obey the law of the new system, must not force be resorted to as the only ultimate remedy, in this as in any other system. it seems as if p^a & v^a by the conduct of their deputies wished to provide a system in which they would have an enormous & monstrous influence. besides, how can it be thought that the proposed negative can be exercised? are the laws of the states to be suspended in the most urgent cases until they can be sent seven or eight hundred miles, and undergo the deliberation of a body who may be incapable of judging of them? is the national legislature too to sit continually in order to revise the laws of the states? m^r madison observed that the difficulties which had been started were worthy of attention and ought to be answered before the question was put. the case of laws of urgent necessity must be provided for by some emanation of the power from the nat^l gov^t into each state so far as to give a temporary assent at least. this was the practice in the royal colonies before the revolution and would not have been inconvenient if the supreme power of negativing had been faithful to the american interest, and had possessed the necessary information. he supposed that the negative might be very properly lodged in the senate alone, and that the more numerous & expensive branch therefore might not be obliged to sit constantly. he asked m^r b. what would be the consequence to the small states of a dissolution of the union w^{ch} seemed likely to happen if no effectual substitute was made for the defective system existing, and he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage? if the large states possessed the avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a gen^l gov^t was withdrawn. m^r butler was vehement ag^{st} the negative in the proposed extent, as cutting off all hope of equal justice to the distant states. the people there would not he was sure give it a hearing. on the question for extending the negative power to all cases as proposed by (m^r p. & m^r m.) mass. ay. con^t no. n. y. no. n. j. no. p^a ay. del. div^d. m^r read & m^r dickenson ay. m^r bedford & m^r basset no. mary^d no. v^a ay. m^r r. m^r mason no. m^r blair, doc^r m^c c^g m^r m. ay. gen^l w. not consulted. n. c. no. s. c. no. geo no. on motion of m^r gerry and m^r king tomorrow was assigned for reconsidering the mode of appointing the national executive: the reconsideration being voted for by all the states except connecticut & n. carolina. m^r pinkney and m^r rutlidge moved to add to the resol^n . agreed to by the com^e the following, viz. "that the states be divided into three classes, the ^{st} class to have members, the ^d two, & the ^d one member each, that an estimate be taken of the comparative importance of each state at fixed periods, so as to ascertain the number of members they may from time to time be entitled to." the committee then rose and the house adjourned. saturday june ^{th}[ ] mr. luther martin from maryland took his seat. in committee of the whole. [ ] edward carrington wrote to jefferson from new york, june , : "the debates and proceedings of the convention are kept in profound secrecy--opinions of the probable result of their deliberations can only be formed from the prevailing impressions of men of reflection and understanding--these are reducible to two schemes--the first, a consolidation of the whole empire into one republic, leaving in the states nothing more than subordinate courts for facilitating the administration of the laws--the second an investiture of the foederal sovereignty with full and independent authority as to the trade, revenues, and forces of the union, and the rights of peace and war, together with a negative upon all the acts of the state legislatures. the first idea, i apprehend, would be impracticable, and therefore do not suppose it can be adopted--general laws through a country embracing so many climates, productions, and manners as the united states, would operate many oppressions & a general legislature would be found incompetent to the formation of local ones, as a majority would in every instance, be ignorant of, and unaffected by the objects of legislation.... something like the second will probably be formed--indeed i am certain that nothing less than what will give the foederal sovereignty a compleat controul over the state governments, will be thought worthy of discussion--such a scheme constructed upon well adjusted principles would certainly give us stability and importance as a nation, and if the executive powers can be sufficiently checked, must be eligible--unless the whole has a decided influence over the parts, the constant effort will be to resume the delegated powers, and there cannot be an inducement in the foederal sovereignty to refuse its assent to an innocent act of a state.... the eastern opinions are for a total surrender of the state sovereignties, and indeed some amongst them go to a monarchy at once--they have verged to anarchy, while to the southward we have only felt an inconvenience, and their proportionate disposition to an opposite extreme is a natural consequence."--_jeff. mss._ m^r gerry, according to previous notice given by him, moved "that the national executive should be elected by the executives of the states whose proportion of votes should be the same with that allowed to the states in the election of the senate." if the appointm^t should be made by the nat^l legislature, it would lessen that independence of the executive which ought to prevail, would give birth to intrigue and corruption between the executive & legislature previous to the election, and to partiality in the executive afterwards to the friends who promoted him. some other mode therefore appeared to him necessary. he proposed that of appointing by the state executives as most analogous to the principle observed in electing the other branches of the nat^l gov^t; the first branch being chosen by the _people_ of the states, & the ^d by the legislatures of the states, he did not see any objection ag^{st} letting the executive be appointed by the executives of the states. he supposed the executives would be most likely to select the fittest men, and that it would be their interest to support the man of their own choice. m^r randolph urged strongly the inexpediency of m^r gerry's mode of appointing the nat^l executive. the confidence of the people would not be secured by it to the nat^l magistrate. the small states would lose all chance of an appointm^t from within themselves. bad appointments would be made; the executives of the states being little conversant with characters not within their own small spheres. the state executives too notwithstanding their constitutional independence, being in fact dependent on the state legislatures will generally be guided by the views of the latter, and prefer either favorites within the states, or such as it may be expected will be most partial to the interests of the state. a nat^l executive thus chosen will not be likely to defend with becoming vigilance & firmness the national rights ag^{st} state encroachments. vacancies also must happen. how can these be filled? he could not suppose either that the executives would feel the interest in supporting the nat^l executive which had been imagined. they will not cherish the great oak which is to reduce them to paltry shrubs. on the question for referring the appointment of the nat^l executive to the state executives as prop^d by m^r gerry mass^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. div^d. m^d no. v^a no. s. c. no. geo. no.[ ] [ ] "carried against the motion, noes, and delaware divided."--yates, _secret proceedings_, etc., . the journal also includes north carolina among the noes.--_journal of the federal convention_, . m^r patterson moves that the committee resume the clause relating to the rule of suffrage in the nat^l legislature. m^r brearly[ ] seconds him. he was sorry he said that any question on this point was brought into view. it had been much agitated in cong^s at the time of forming the confederation, and was then rightly settled by allowing to each sovereign state an equal vote. otherwise the smaller states must have been destroyed instead of being saved. the substitution of a ratio, he admitted carried fairness on the face of it; but on a deeper examination was unfair and unjust. judging of the disparity of the states by the quota of cong^s, virg^a would have votes, and georgia but one. a like proportion to the others will make the whole number ninety. there will be large states, and small ones. the large states by which he meant mass^{ts} pen^a & virg^a will carry every thing before them. it had been admitted, and was known to him from facts within n. jersey that where large & small counties were united into a district for electing representatives for the district, the large counties always carried their point, and consequently that the large states would do so. virg^a with her sixteen votes will be a solid column indeed, a formidable phalanx. while georgia with her solitary vote, and the other little states will be obliged to throw themselves constantly into the scale of some large one, in order to have any weight at all. he had come to the convention with a view of being as useful as he could in giving energy and stability to the federal government. when the proposition for destroying the equality of votes came forward, he was astonished, he was alarmed. is it fair then it will be asked that georgia should have an equal vote with virg^a. he would not say it was. what remedy then? one only, that a map of the u. s. be spread out, that all the existing boundaries be erased, and that a new partition of the whole be made into equal parts. [ ] "mr. brearly is a man of good, rather than of brilliant parts. he is a judge of the supreme court of new jersey, and is very much in the esteem of the people. as an orator he has little to boast of, but as a man he has every virtue to recommend him. mr. brearly is about years of age."--pierce's notes, _am. hist. rev._, iii., . m^r patterson considered the proposition for a proportional representation as striking at the existence of the lesser states. he w^d premise however to an investigation of this question some remarks on the nature structure and powers of the convention. the convention he said was formed in pursuance of an act of cong^s that this act was recited in several of the commissions, particularly that of mass^{ts} which he required to be read: that the amendment of the confederacy was the object of all the laws and commissions on the subject: that the articles of the confederation were therefore the proper basis of all the proceedings of the convention. we ought to keep within its limits, or we should be charged by our constituents with usurpation, that the people of america were sharpsighted and not to be deceived. but the commissions under which we acted were not only the measure of our power, they denoted also the sentiments of the states on the subject of our deliberation. the idea of a national gov^t as contradistinguished from a federal one, never entered into the mind of any of them, and to the public mind we must accommodate ourselves. we have no power to go beyond the federal scheme, and if we had the people are not ripe for any other. we must follow the people; the people will not follow us.--the _proposition_ could not be maintained whether considered in reference to us as a nation, or as a confederacy. a confederacy supposes sovereignty in the members composing it & sovereignty supposes equality. if we are to be considered as a nation, all state distinctions must be abolished, the whole must be thrown into hotchpot, and when an equal division is made, then there may be fairly an equality of representation. he held up virg^a mass^{ts} & p^a as the three large states, and the other ten as small ones; repeating the calculations of m^r brearly, as to the disparity of votes which w^d take place, and affirming that the small states would never agree to it. he said there was no more reason that a great individual state contributing much, should have more votes than a small one contributing little, than that a rich individual citizen should have more votes than an indigent one. if the rateable property of a was to that of b as to , ought a for that reason to have times as many votes as b. such a principle would never be admitted, and if it were admitted would put b entirely at the mercy of a. as a has more to be protected than b so he ought to contribute more for the common protection. the same may be said of a large state w^{ch} has more to be protected than a small one. give the large states an influence in proportion to their magnitude, and what will be the consequence? their ambition will be proportionally increased, and the small states will have every thing to fear. it was once proposed by galloway & some others that america should be represented in the british parl^t and then be bound by its laws. america could not have been entitled to more than / of the n^o of representatives which would fall to the share of g. b. would american rights & interests have been safe under an authority thus constituted? it has been said that if a nat^l gov^t is to be formed so as to operate on the people, and not on the states, the representatives ought to be drawn from the people. but why so? may not a legislature filled by the state legislatures operate on the people who chuse the state legislatures? or may not a practicable coercion be found. he admitted that there was none such in the existing system.--he was attached strongly to the plan of the existing confederacy, in which the people chuse their legislative representatives; and the legislatures their federal representatives. no other amendments were wanting than to mark the orbits of the states with due precision, and provide for the use of coercion, which was the great point. he alluded to the hint thrown out heretofore by m^r wilson of the necessity to which the large states might be reduced of confederating among themselves, by a refusal of the others to concur. let them unite if they please, but let them remember that they have no authority to compel the others to unite. n. jersey will never confederate on the plan before the committee. she would be swallowed up. he had rather submit to a monarch, to a despot, than to such a fate. he would not only oppose the plan here but on his return home do every thing in his power to defeat it there. m^r wilson, hoped if the confederacy should be dissolved, that a _majority_, that a _minority_ of the states would unite for their safety. he entered elaborately into the defence of a proportional representation, stating for his first position that as all authority was derived from the people, equal numbers of people ought to have an equal n^o of representatives, and different numbers of people different numbers of representatives. this principle had been improperly violated in the confederation, owing to the urgent circumstances of the time. as to the case of a. & b. stated by m^r patterson, he observed that in districts as large as the states, the number of people was the best measure of their comparative wealth. whether therefore wealth or numbers were to form the ratio it would be the same. m^r p. admitted persons, not property to be the measure of suffrage. are not the citizens of pen^a equal to those of n. jersey? does it require of the former to balance of the latter? representatives of different districts ought clearly to hold the same proportion to each other, as their respective constituents hold to each other. if the small states will not confederate on this plan, pen^a & he presumed some other states, would not confederate on any other. we have been told that each state being sovereign, all are equal. so each man is naturally a sovereign over himself, and all men are therefore naturally equal. can he retain this equality when he becomes a member of civil government. he can not. as little can a sovereign state, when it becomes a member of a federal govern^t. if n. j. will not part with her sovereignty it is vain to talk of gov^t. a new partition of the states is desirable, but evidently & totally impracticable. m^r williamson illustrated the cases by a comparison of the different states, to counties of different sizes within the same state; observing that proportional representation was admitted to be just in the latter case, and could not therefore be fairly contested in the former. the question being about to be put m^r patterson hoped that as so much depended on it, it might be thought best to postpone the decision till tomorrow, which was done, nem. con. the com^e rose & the house adjourned. monday, june ^{th} m^r abraham baldwin from georgia took his seat. in committee of the whole. the clause concerning the rule of suffrage in the nat^l legislature postponed on saturday was resumed. m^r sherman proposed that the proportion of suffrage in the ^{st} branch should be according to the respective numbers of free inhabitants; and that in the second branch or senate, each state should have one vote and no more. he said as the states would remain possessed of certain individual rights, each state ought to be able to protect itself: otherwise a few large states will rule the rest. the house of lords in england he observed had certain particular rights under the constitution, and hence they have an equal vote with the house of commons that they may be able to defend their rights. m^r rutlidge proposed that the proportion of suffrage in the ^{st} branch should be according to the quotas of contribution. the justice of this rule he said could not be contested. m^r butler urged the same idea: adding that money was power; and that the states ought to have weight in the gov^t in proportion to their wealth. m^r king & m^r wilson,[ ] in order to bring the question to a point moved "that the right of suffrage in the first branch of the national legislature ought not to be according [to] the rule established in the articles of confederation, but according to some equitable ratio of representation." the clause so far as it related to suffrage in the first branch was postponed in order to consider this motion. [ ] in the printed journal mr. rutlidge is named as the seconder of the motion.--madison's note. m^r dickenson contended for the _actual_ contributions of the states as the rule of their representation & suffrage in the first branch. by thus connecting the interests of the states with their duty, the latter would be sure to be performed. m^r king remarked that it was uncertain what mode might be used in levying a national revenue; but that it was probable, imposts would be one source of it. if the _actual_ contributions were to be the rule the non-importing states, as con^t & n. jersey, w^d be in a bad situation indeed. it might so happen that they w^d have no representation. this situation of particular states had been always one powerful argument in favor of the per c^t impost. the question being ab^t to be put doc^r franklin s^d he had thrown his ideas of the matter on a paper w^{ch} mr. wilson read to the committee in the words following--mr. chairman it has given me great pleasure to observe that till this point, the proportion of representation, came before us, our debates were carried on with great coolness & temper. if any thing of a contrary kind, has on this occasion appeared. i hope it will not be repeated; for we are sent here to _consult_, not to _contend_, with each other; and declarations of a fixed opinion, and of determined resolution, never to change it, neither enlighten nor convince us. positiveness and warmth on one side, naturally beget their like on the other; and tend to create and augment discord & division in a great concern, wherein harmony & union are extremely necessary to give weight to our councils, and render them effectual in promoting & securing the common good. i must own that i was originally of opinion it would be better if every member of congress, or our national council, were to consider himself rather as a representative of the whole, than as an agent for the interests of a particular state; in which case the proportion of members for each state would be of less consequence, & it would not be very material whether they voted by states or individually. but as i find this is not to be expected, i now think the number of representatives should bear some proportion to the number of the represented; and that the decisions sh^d be by the majority of members, not by the majority of the states. this is objected to from an apprehension that the greater states would then swallow up the smaller. i do not at present clearly see what advantage the greater states could propose to themselves by swallowing up the smaller, and therefore do not apprehend they would attempt it. i recollect that in the beginning of this century, when the union was proposed of the two kingdoms, england & scotland, the scotch patriots were full of fears, that unless they had an equal number of representatives in parliament, they should be ruined by the superiority of the english. they finally agreed however that the different proportions of importance in the union, of the two nations should be attended to, whereby they were to have only forty members in the house of commons, and only sixteen in the house of lords; a very great inferiority of numbers! and yet to this day i do not recollect that any thing has been done in the parliament of great britain to the prejudice of scotland; and whoever looks over the lists of public officers, civil & military of that nation will find i believe that the north britons enjoy at least their full proportion of emolument. but, sir, in the present mode of voting by states, it is equally in the power of the lesser states to swallow up the greater; and this is mathematically demonstrable. suppose for example, that smaller states had each members in the house, and the larger to have one with another members; and that upon a question, two members of each smaller state should be in the affirmative and one in the negative, they would make affirmatives negatives and that all the larger states should be unanimously in the negative, they would make negatives --- in all it is then apparent that the carry the question against the , and the minority overpowers the majority, contrary to the common practice of assemblies in all countries and ages. the greater states sir are naturally as unwilling to have their property left in the disposition of the smaller, as the smaller are to have theirs in the disposition of the greater. an honorable gentleman has, to avoid this difficulty, hinted a proposition of equalizing the states. it appears to me an equitable one, and i should, for my own part, not be against such a measure, if it might be found practicable. formerly, indeed, when almost every province had a different constitution, some with greater others with fewer privileges, it was of importance to the borderers when their boundaries were contested, whether by running the division lines, they were placed on one side or the other. at present when such differences are done away, it is less material. the interest of a state is made up of the interests of its individual members. if they are not injured, the state is not injured. small states are more easily well & happily governed than large ones. if therefore in such an equal division, it should be found necessary to diminish pennsylvania, i should not be averse to the giving a part of it to n. jersey, and another to delaware. but as there would probably be considerable difficulties in adjusting such a division; and however equally made at first, it would be continually varying by the augmentation of inhabitants in some states, and their fixed proportion in others; and thence frequent occasion for new divisions, i beg leave to propose for the consideration of the committee another mode, which appears to me to be as equitable, more easily carried into practice, and more permanent in its nature. let the weakest state say what proportion of money or force it is able and willing to furnish for the general purposes of the union. let all the others oblige themselves to furnish each an equal proportion. the whole of these joint supplies to be absolutely in the disposition of congress. the congress in this case to be composed of an equal number of delegates from each state. and their decisions to be by the majority of individual members voting. if these joint and equal supplies should on particular occasions not be sufficient, let congress make requisitions on the richer and more powerful states for further aids, to be voluntarily afforded, leaving to each state the right of considering the necessity and utility of the aid desired, and of giving more or less as it should be found proper. this mode is not new. it was formerly practised with success by the british government with respect to ireland and the colonies. we sometimes gave even more than they expected, or thought just to accept; and in the last war carried on while we were united, they gave us back in years a million sterling. we should probably have continued such voluntary contributions, whenever the occasions appeared to require them for the common good of the empire. it was not till they chose to force us, and to deprive us of the merit and pleasure of voluntary contributions that we refused & resisted. those contributions however were to be disposed of at the pleasure of a government in which we had no representative. i am therefore persuaded, that they will not be refused to one in which the representation shall be equal. my learned colleague (m^r wilson) has already mentioned that the present method of voting by states, was submitted to originally by congress, under a conviction of its impropriety, inequality, and injustice. this appears in the words of their resolution. it is of sep^r . . the words are "resolved that in determining questions in this cong^s each colony or province shall have one vote: the cong^s not being possessed of or at present able to procure materials for ascertaining the importance of each colony." on the question for agreeing to m^r king's and m^r wilson's motion it passed in the affirmative. mass^{ts} ay. c^t ay. n. y. no. n. j. no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. it was then moved by m^r rutlidge, ^{ded} by m^r butler to add to the words "equitable ratio of representation" at the end of the motion just agreed to, the words "according to the quotas of contribution." on motion of m^r wilson seconded by m^r pinkney, this was postponed; in order to add, after the words "equitable ratio of representation" the words following: "in proportion to the whole number of white & other free citizens & inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except indians not paying taxes, in each state," this being the rule in the act of congress agreed to by eleven states, for apportioning quotas of revenue on the states, and requiring a census only every , , or years. m^r gerry thought property not the rule of representation. why then sh^d the blacks, who were property in the south, be in the rule of representation more than the cattle & horses of the north.[ ] [ ] after gerry spoke, according to yates, "mr. madison was of opinion at present, to fix the standard of representation, and let the detail be the business of a sub-committee."--_secret proceedings_, p. . on the question,--mass: con: n. y. pen: mary^d virg^a n. c. s. c. & geo: were in the affirmative: n. j. & del: in the negative. m^r sherman moved that a question be taken whether each state shall have one vote in the ^d branch. every thing he said depended on this. the smaller states would never agree to the plan on any other principle than an equality of suffrage in this branch. m^r elsworth[ ] seconded the motion. [ ] "m^r elsworth is a judge of the supreme court in connecticut;--he is gentleman of a clear, deep, and copius understanding; eloquent, and connected in public debate; and always attentive to his duty. he is very happy in a reply, and choice in selecting such parts of his adversary's arguments as he finds make the strongest impressions,--in order to take off the force of them, so as to admit the power of his own. m^r elsworth is about years of age, a man much respected for his integrity, and venerated for his abilities."--pierce's notes, _am. hist. rev._, iii., . on the question for allowing each state one vote in the ^d branch, mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r wilson & m^r hamilton moved that the right of suffrage in the ^d branch ought to be according to the same rule as in the ^{st} branch. on this question for making the ratio of representation the same in the ^d as in the ^{st} branch it passed in the affirmative; mass^{ts} ay. con^t no. n. y. no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. resol: , for guarantying republican gov^t & territory to each state, being considered--the words "or partition," were, on motion of m^r madison added, after the words "voluntary junction;" mas. n. y. p. v^a n. c. s. c. g. ay. con: n. j. del: m^d no. m^r read disliked the idea of guarantying territory. it abetted the idea of distinct states w^{ch} would be a perpetual source of discord. there can be no cure for this evil but in doing away states altogether and uniting them all into one great society. alterations having been made in the resolution, making it read, "that a republican constitution & its existing laws ought to be guaranteed to each state by the u. states," the whole was agreed to nem. con.[ ] [ ] yates attributes this amendment to madison. "mr. madison moved an amendment, to add to or alter the resolution as follows: the republican constitutions and the existing laws of each state, to be guaranteed by the united states."--_secret proceedings_, etc., . resolution . for amending the national constitution hereafter without consent of the nat^l legislature being considered, several members did not see the necessity of the resolution at all, nor the propriety of making the consent of the nat^l legisl. unnecessary. col. mason urged the necessity of such a provision. the plan now to be formed will certainly be defective, as the confederation has been found on trial to be. amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and constitutional way than to trust to chance and violence. it would be improper to require the consent of the nat^l legislature, because they may abuse their power, and refuse their consent on that very account. the opportunity for such an abuse, may be the fault of the constitution calling for amendm^t. m^r randolph enforced these arguments. the words, "without requiring the consent of the nat^l legislature" were postponed. the other provision in the clause passed nem. con. resolution . requiring oaths from the members of the state gov^{ts} to observe the nat^l constitution & laws, being considered,[ ] [ ] "mr. williamson. this resolve will be unnecessary, as the union will become the law of the land."--yates, _secret proceedings_, etc., . m^r sherman opposed it as unnecessarily intruding into the state jurisdictions. m^r randolph considered it necessary to prevent that competition between the national constitution & laws & those of the particular states, which had already been felt. the officers of the states are already under oath to the states. to preserve a due impartiality they ought to be equally bound to the nat^l gov^t. the nat^l authority needs every support we can give it. the executive & judiciary of the states, notwithstanding their nominal independence on the state legislatures are in fact, so dependent on them, that unless they be brought under some tie to the nat^l system, they will always lean too much to the state systems, whenever a contest arises between the two. m^r gerry did not like the clause. he thought there was as much reason for requiring an oath of fidelity to the states from nat^l officers, as vice versa. m^r luther martin moved to strike out the words requiring such an oath from the state officers, viz "within the several states," observing that if the new oath should be contrary to that already taken by them it would be improper; if coincident the oaths already taken will be sufficient. on the question for striking out as proposed by mr. l. martin mass^{ts} no. con^t ay. n. y. no. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. question on whole resolution as proposed by m^r randolph; mass^{ts} ay. con^t no. n. y. no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. com^e rose & house adj^d. tuesday june ^{th} in committee of whole the question taken on the resolution , to wit, referring the new system to the people of the states for ratification it passed in the affirmative mass^{ts} ay. con^t no. n. y. no. n. j. no. p^a[ ] ay. del. div^d. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. [ ] pennsylvania omitted in the printed journal. the vote is there entered as of june th.--madison's note. m^r sherman & m^r elseworth moved to fill the blank left in the ^{th} resolution for the periods of electing the members of the first branch with the words, "every year;" mr. sherman observing that he did it in order to bring on some question. m^r rutlidge proposed "every two years." m^r jennifer[ ] prop^d, "every three years," observing that the too great frequency of elections rendered the people indifferent to them, and made the best men unwilling to engage in so precarious a service. [ ] "m^r jenifer is a gentleman of fortune in maryland;--he is always in good humour, and never fails to make his company pleased with him. he sits silent in the senate, and seems to be conscious that he is no politician. from his long continuance in single life, no doubt but he has made the vow of celibacy. he speaks warmly of the ladies notwithstanding. m^r jenifer is about years of age, and once served as aid de camp to major gen^l lee."--pierce's notes, _am. hist. rev._, iii., . m^r madison seconded the motion for three years. instability is one of the great vices of our republics, to be remedied. three years will be necessary, in a government so extensive, for members to form any knowledge of the various interests of the states to which they do not belong, and of which they can know but little from the situation and affairs of their own. one year will be almost consumed in preparing for and travelling to & from the seat of national business. m^r gerry. the people of new england will never give up the point of annual elections, they know of the transition made in england from triennial to septennial elections, and will consider such an innovation here as the prelude to a like usurpation. he considered annual elections as the only defence of the people ag^{st} tyranny. he was as much ag^{st} a triennial house as ag^{st} a hereditary executive. m^r madison, observed that if the opinions of the people were to be our guide, it w^d be difficult to say what course we ought to take. no member of the convention could say what the opinions of his constituents were at this time; much less could he say what they would think if possessed of the information & lights possessed by the members here; & still less what would be their way of thinking or months hence. we ought to consider what was right & necessary in itself for the attainment of a proper governm^t. a plan adjusted to this idea will recommend itself--the respectability of this convention will give weight to their recommendation of it. experience will be constantly urging the adoption of it, and all the most enlightened & respectable citizens will be its advocates. should we fall short of the necessary & proper point, this influential class of citizens, will be turned against the plan, and little support in opposition to them can be gained to it from the unreflecting multitude. m^r gerry repeated his opinion that it was necessary to consider what the people would approve. this had been the policy of all legislators. if the reasoning of mr. madison were just, and we supposed a limited monarchy the best form in itself, we ought to recommend it, tho' the genius of the people was decidedly adverse to it, and having no hereditary distinctions among us, we were destitute of the essential materials for such an innovation. on the question for the triennial election of the ^{st} branch mass. no. (m^r king ay.) m^r ghorum wavering. con^t no. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. ay. the words requiring members of y^e ^{st} branch to be of the age of ---- years were struck out maryland alone no. the words "_liberal compensation for members_," being consid^d m^r madison moves to insert the words, "_& fixt_." he observed that it would be improper to leave the members of the nat^l legislature to be provided for by the state legisl^s, because it would create an improper dependence; and to leave them to regulate their own wages, was an indecent thing, and might in time prove a dangerous one. he thought wheat or some other article of which the average price throughout a reasonable period preceding might be settled in some convenient mode, would form a proper standard. col. mason seconded the motion; adding that it would be improper for other reasons to leave the wages to be regulated by the states. . the different states would make different provision for their representatives, and an inequality would be felt among them, whereas he thought they ought to be in all respects equal. . the parsimony of the states might reduce the provision so low that as had already happened in choosing delegates to congress, the question would be not who were most fit to be chosen, but who were most willing to serve. on the question for inserting the words, "and fixt" mass^{ts} no. con^t no. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. doc^r franklyn said he approved of the amendment just made for rendering the salaries as fixed as possible; but disliked the word "_liberal_." he would prefer the word moderate if it was necessary to substitute any other. he remarked the tendency of abuses in every case, to grow of themselves when once begun, and related very pleasantly the progression in ecclesiastical benefices, from the first departure from the gratuitous provision for the apostles, to the establishment of the papal system. the word "liberal" was struck out nem con. on the motion of m^r pierce, that the wages should be paid out of the national treasury, mass^{ts} ay. c^t no. n. y. no. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. g. ay. question on the clause relating to term of service & compensation of ^{st} branch, mass^{ts} ay. c^t no. n. y. no. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. on a question for striking out the "_ineligibility_ of members of the nat^l legis: to _state offices_," mass^{ts} div^d. con^t ay. n. y. ay. n. j. no. p^a no. del. no. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. no. on the question for agreeing to the clause as amended, mass^{ts} ay. con^t no. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. on a question for making members of the nat^l legislature _ineligible_ to any office under the nat^l gov^t for the term of years after ceasing to be members, mass^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. on the question for such ineligibility for one year, mass^{ts} ay. c^t ay. n. y. no. n. j. ay. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. no. on question moved by mr. pinckney, for striking out "incapable of re-election into ^{st} branch of the nat^l legisl. for ---- years, and subject to recall" ag^d to nem. con. on question for striking out from the resol: the words requiring members of the senatorial branch to be of the age of ---- years at least mass^{ts} no. con^t ay. n. y. no. n. j. ay. p^a ay. del. no. m^d no. v^a no. n. c. div^d. s. c. no. geo. div^d. on the question for filling the blank with years as the qualification; it was agreed to, mass^{ts} ay. c^t no. n. y. ay. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. m^r spaight moved to fill the blank for the duration of the appointm^{ts} to the ^d branch of the national legislature with the words " years." m^r sherman, thought years too long. he grounded his opposition he said on the principle that if they did their duty well, they would be reelected. and if they acted amiss, an earlier opportunity should be allowed for getting rid of them. he preferred years which w^d be between the terms of the ^{st} branch & of the executive. m^r pierce proposed years. years would raise an alarm. great mischiefs had arisen in england from their septennial act which was reprobated by most of their patriotic statesmen. m^r randolph was for the term of years. the democratic licentiousness of the state legislatures proved the necessity of a firm senate. the object of this ^d branch is to controul the democratic branch of the nat^l legislature. if it be not a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it. the senate of maryland constituted on like principles had been scarcely able to stem the popular torrent. no mischief can be apprehended, as the concurrence of the other branch, and in some measure, of the executive, will in all cases be necessary. a firmness & independence may be the more necessary also in this branch, as it ought to guard the constitution ag^{st} encroachments of the executive who will be apt to form combinations with the demagogues of the popular branch. m^r madison, considered years as a term by no means too long. what we wished was to give to the gov^t that stability which was every where called for, and which the enemies of the republican form alledged to be inconsistent with its nature. he was not afraid of giving too much stability by the term of seven years. his fear was that the popular branch would still be too great an overmatch for it. it was to be much lamented that we had so little direct experience to guide us. the constitution of maryland was the only one that bore any analogy to this part of the plan. in no instance had the senate of mary^d created just suspicions of danger from it. in some instances perhaps it may have erred by yielding to the h. of delegates. in every instance of their opposition to the measures of the h. of d. they had had with them the suffrages of the most enlightened and impartial people of the other states as well as of their own. in the states where the senates, were chosen in the same manner as the other branches, of the legislature, and held their seats for years, the institution was found to be no check whatever ag^{st} the instabilities of the other branches. he conceived it to be of great importance that a stable & firm gov^t, organized in the republican form should be held out to the people. if this be not done, and the people be left to judge of this species of gov^t by y^e operations of the defective systems under which they now live, it is much to be feared the time is not distant when, in universal disgust, they will renounce the blessing which they have purchased at so dear a rate, and be ready for any change that may be proposed to them. on the question for "seven years" as the term for the ^d branch mass^{ts} divided. (m^r king, m^r ghorum ay, m^r gerry, m^r strong, no) con^t no. n. y. div^d n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r butler and m^r rutlidge proposed that the members of the ^d branch should be entitled to no salary or compensation for their services. on the question,[ ]-- mass^{ts} div^d. con^t ay. n. y. no. n. j. no. p. no. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. no. [ ] (it is probable y^e votes here turned chiefly on the idea that if the salaries were not here provided for, the members would be paid by their respective states) this note for the bottom margin.--madison's note. it was then moved & agreed that the clauses respecting the stipends & ineligibility of the ^d branch be the same as, of the ^{st} branch:--con: disagreeing to the ineligibility. it was moved & ^{ded} to alter the resol: . so as to read "that the jurisdiction of the supreme tribunal shall be to hear & determine in the dernier resort, all piracies, felonies, &c." it was moved & ^{ded} to strike out "all piracies & felonies on the high seas," which was agreed to. it was moved & agreed to strike out "all captures from an enemy." it was moved & agreed to strike out "other states" and insert "two distinct states of the union." it was moved & agreed to postpone the consideration of the resolution , relating to the judiciary: the com^e then rose & the house adjourned. wednesday june .[ ] in committee of the whole [ ] edward carrington wrote to madison from new york, june , : "the public mind is now on the point of a favourable turn to the objects of your meeting, and, being fairly met with the result, will, i am persuaded, eventually embrace it--being calculated for the permanent fitness, and not the momentary habits of the country, it may at first be viewed with hesitation, but derived and patronized as it will be, its influence must extend into an adoption as the present fabric gives way--the work once well done will be done forever, but patched up in accommodation to the whim of the day, it will soon require the hand of the cobbler again, and in every unfortunate experiment the materials are rendered the less fit for that monument of civil liberty which we wish to erect.--constitute a federal government, invigorate & check it well--give it then independent powers over the trade the revenues, and force of the union, and all things that involve any relationship to foreign powers--give it also the revisal of all state acts--unless it possesses a compleat controul over the state governments, the constant effort will be to resume the delegated powers,--nor do i see what inducement the federal sovereignty can have to negative an innocent act of a state--constitute it in such shape that, its first principles being preserved, it will be a good republic--i wish to see that system have a fair experiment--but let the liability to encroachment be rather from the federal, than the state, governments--in the first case we shall insensibly glide into a monarchy: in the latter nothing but anarchy can be the consequence. "some gentlemen think of a total surrender of the state sovereignty--i see not the necessity of that measure for giving us national stability in consequence--the negative of the federal sovereignty will effectually prevent the existence of any licentious or inconsiderate act--and i believe that even under a new monarchy it would be found necessary thus to continue the local administration--general laws would operate many particular [undecipherable] and a general legislature would be found incompetent to the formation of local ones--the interest of the united states may be well combined for the common good--but the affairs of so extensive a country are not to be thrown into one mass--an attempt to confederate upon terms materially opposed to the particular interests would in all probability occasion a dismemberment, and in that event, within a long time yet to come, the prospects of commerce will be at an end as to any degree of national importance, let her fate be what it may as to freedom or vassalage."--_mad. mss._ resol: being resumed the latter parts of the clause relating to the jurisdiction of the nat^l tribunals, was struck out nem. con in order to leave full room for their organization. m^r randolph & m^r madison, then moved the following resolution respecting a national judiciary,viz "that the jurisdiction of the national judiciary shall extend to cases, which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony" which was agreed to. m^r pinkney & m^r sherman moved to insert after the words "one supreme tribunal" the words "the judges of which to be appointed by the national legislature." m^r madison, objected to an app^t by the whole legislature. many of them were incompetent judges of the requisite qualifications. they were too much influenced by their partialities. the candidate who was present, who had displayed a talent for business in the legislative field, who had perhaps assisted ignorant members in business of their own, or of their constituents, or used other winning means, would without any of the essential qualifications for an expositor of the laws prevail over a competitor not having these recommendations, but possessed of every necessary accomplishment. he proposed that the appointment should be made by the senate, which as a less numerous & more select body, would be more competent judges, and which was sufficiently numerous to justify such a confidence in them. m^r sherman & m^r pinkney withdrew their motion, and the app^t by the senate was ag^d to nem. con. m^r gerry moved to restrain the senatorial branch from originating money bills. the other branch was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings. if the senate should be allowed to originate such bills, they w^d repeat the experiment, till chance should furnish a sett of representatives in the other branch who will fall into their snares. m^r butler saw no reason for such a discrimination. we were always following the british constitution when the reason of it did not apply. there was no analogy between the h. of lords and the body proposed to be established. if the senate should be degraded by any such discriminations, the best men would be apt to decline serving in it in favor of the other branch. and it will lead the latter into the practice of tacking other clauses to money bills. m^r madison observed that the comentators on the brit: const: had not yet agreed on the reason of the restriction on the h. of l. in money bills. certain it was there could be no similar reason in the case before us. the senate would be the representatives of the people as well as the ^{st} branch. if they s^d have any dangerous influence over it, they would easily prevail on some member of the latter to originate the bill they wished to be passed. as the senate would be generally a more capable sett of men, it w^d be wrong to disable them from any preparation of the business, especially of that which was most important, and in our republics, worse prepared than any other. the gentleman in pursuance of his principle ought to carry the restraint to the _amendment_, as well as the originating of money bills, since, an addition of a given sum w^d be equivalent to a distinct proposition of it. m^r king differed from m^r gerry, and concurred in the objections to the proposition. m^r read favored the proposition, but would not extend the restraint to the case of amendments. m^r pinkney thinks the question premature. if the senate sh^d be formed on the _same_ proportional representation as it stands at present, they s^d have equal power, otherwise if a different principle s^d be introduced. m^r sherman. as both branches must concur, there can be no danger whichever way the senate be formed. we establish two branches in order to get more wisdom, which is particularly needed in the finance business--the senate bear their share of the taxes, and are also the representatives of the people. what a man does by another, he does by himself is a maxim. in con^t both branches can originate in all cases, and it has been found safe & convenient. whatever might have been the reason of the rule as to the h. of lords, it is clear that no good arises from it now even there. gen^l pinkney. this distinction prevails in s. c. and has been a source of pernicious disputes between y^e branches. the constitution is now evaded, by informal schedules of amendments handed from y^e senate to the other house. m^r williamson wishes for a question chiefly to prevent re-discussion. the restriction will have one advantage, it will oblige some member in the lower branch to move, & people can then mark him. on the question for excepting money bills, as prop^d by m^r gerry, mass. no. con^t no. n. y. ay. n. j. no. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no.[ ] [ ] according to the journal ( ) pennsylvania was among the noes. committee rose & m^r ghorum made report, which was postponed till tomorrow, to give an opportunity for other plans to be proposed. the report was in the words following: report of the committee of whole on m^r randolph's propositions. . res^d that it is the opinion of this committee that a national governm^t ought to be established, consisting of a supreme legislative, executive & judiciary. . resol^d that the national legislature ought to consist of two branches. . res^d that the members of the first branch of the national legislature ought to be elected by the people of the several states for the term of three years, to receive fixed stipends by which they may be compensated for the devotion of their time to public service, to be paid out of the national treasury: to be ineligible to any office established by a particular state, or under the authority of the u. states, (except those peculiarly belonging to the functions of the first branch), during the term of service, and under the national government for the space of one year after its expiration. . res^d that the members of the second branch of the nat^l legislature ought to be chosen by the individual legislatures, to be of the age of years at least, to hold their offices for a term sufficient to ensure their independency, namely, seven years, to receive fixed stipends by which they may be compensated for the devotion of their time to public service to be paid out of the national treasury; to be ineligible to any office established by a particular state, or under the authority of the u. states, (except those peculiarly belonging to the functions of the second branch) during the term of service, and under the nat^l gov^t for the space of one year after its expiration. . res^d that each branch ought to possess the right of originating acts. . res^d that the nat^l legislature ought to be empowered to enjoy the legislative rights vested in cong^s by the confederation, and moreover to legislate in all cases to which the separate states are incompetent; or in which the harmony of the u. s. may be interrupted by the exercise of individual legislation; to negative all laws passed by the several states contravening in the opinion of the national legislature the articles of union, or any treaties subsisting under the authority of the union. . res^d that the rights of suffrage in the ^{st} branch of the national legislature, ought not to be according to the rule established in the articles of confederation but according to some equitable ratio of representation, namely, in proportion to the whole number of white & other free citizens & inhabitants, of every age sex and condition, including those bound to servitude for a term of years, & three fifths of all other persons, not comprehended in the foregoing description, except indians not paying taxes in each state. . resolved that the right of suffrage in the ^d branch of the national legislature ought to be according to the rule established for the first. . resolved that a national executive be instituted to consist of a single person, to be chosen by the nat^l legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for--to be ineligible a second time, & to be removeable on impeachment and conviction of malpractices or neglect of duty--to receive a fixed stipend by which he may be compensated for the devotion of his time to public service to be paid out of the national treasury. . resol^d that the nat^l executive shall have a right to negative any legislative act, which shall not be afterwards passed unless by two thirds of each branch of the national legislature. . resol^d that a nat^l judiciary be established, to consist of one supreme tribunal, the judges of which to be appointed by the ^d branch of the nat^l legislature, to hold their offices during good behaviour, & to receive punctually at stated times a fixed compensation for their services, in which no increase or diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution. . resol^d that the nat^l legislature be empowered to appoint inferior tribunals. . res^d that the jurisdiction of the nat^l judiciary shall extend to all cases which respect the collection of the nat^l revenue, impeachments of any nat^l officers, and questions which involve the national peace & harmony. . res^d that provision ought to be made for the admission of states lawfully arising within the limits of the u. states, whether from a voluntary junction of government & territory or otherwise, with the consent of a number of voices in the nat^l legislature less than the whole. . res^d that provision ought to be made for the continuance of congress and their authorities and privileges untill a given day after the reform of the articles of union shall be adopted and for the completion of all their engagements. . res^d that a republican constitution & its existing laws ought to be guaranteed to each state by the u. states. . res^d that provision ought to be made for the amendment of the articles of union whensoever it shall seem necessary. . res^d that the legislative, executive & judiciary powers within the several states ought to be bound by oath to support the articles of union. . res^d that the amendments which shall be offered to the confederation by the convention ought at a proper time or times after the approbation of cong^s to be submitted to an assembly or assemblies recommended by the several legislatures to be expressly chosen by the people to consider and decide thereon. thursday june . in convention. m^r patterson, observed to the convention that it was the wish of several deputations, particularly that of n. jersey, that further time might be allowed them to contemplate the plan reported from the committee of the whole, and to digest one purely federal, and contradistinguished from the reported plan. he said they hoped to have such an one ready by tomorrow to be laid before the convention: and the convention adjourned that leisure might be given for the purpose. friday june ^{th} m^r patterson, laid before the convention the plan which he said several of the deputations wished to be substituted in place of that proposed by m^r randolph. after some little discussion of the most proper mode of giving it a fair deliberation it was agreed that it should be referred to a committee of the whole, and that in order to place the two plans in due comparison, the other should be recommitted. at the earnest request of m^r lansing[ ] & some other gentlemen, it was also agreed that the convention should not go into co[~m]ittee of the whole on the subject till tomorrow, by which delay the friends of the plan proposed by m^r patterson w^d be better prepared to explain & support it, and all would have an opportu^y of taking copies.[ ] [ ] "mr. lansing is a practising attorney at albany, and mayor of that corporation. he has a hisitation in his speech, that will prevent his being an orator of any eminence;--his legal knowledge i am told is not extensive, nor his education a good one. he is however a man of good sense, plain in his manners, and sincere in his friendships. he is about years of age."--pierce's notes, _am. hist. rev._, iii., . [ ] (this plan had been concerted among the deputations or members thereof, from con^t n. y. n. j. del. and perhaps m^r martin from mary^d who made with them a common cause though on different principles. con^t & n. y. were ag^{st} a departure from the principle of the confederation, wishing rather to add a few new powers to cong^s than to substitute, a national gov^t. the states of n. j. & del. were opposed to a national gov^t because its patrons considered a proportional representation of the states as the basis of it. the eagerness displayed by the members opposed to a nat^l gov^t from these different motives began now to produce serious anxiety for the result of the convention. m^r dickenson said to m^r madison you see the consequence of pushing things too far. some of the members from the small states wish for two branches in the general legislature, and are friends to a good national government; but we would sooner submit to foreign power, than submit to be deprived of an equality of suffrage in both branches of the legislature, and thereby be thrown under the domination of the large states.)--madison note. "mr. madison moved for the report of the committee, and the question may then come on whether the convention will postpone it in order to take into consideration the system now offered. "mr. lansing is of opinion that the two systems are fairly contrasted. the one now offered is on the basis of amending the federal government, and the other to be reported as a national government, on propositions which exclude the propriety of amendment. considering therefore its importance, and that justice may be done to its weighty consideration, he is for postponing it a day. "col. hamilton cannot say he is in sentiment with either plan--supposes both might again be considered as federal plans, and by this means they will be fairly in committee, and be contrasted so as to make a comparative estimate of the two."--yates, _secret proceedings_, etc., , . the propositions from n. jersey moved by m^r patterson were in the words following. . res^d that the articles of confederation ought to be so revised, corrected, & enlarged, as to render the federal constitution adequate to the exigencies of government, & the preservation of the union. . res^d that in addition to the powers vested in the u. states in congress, by the present existing articles of confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods or merchandizes of foreign growth or manufacture, imported into any part of the u. states, by stamps on paper, vellum or parchment, and by a postage on all letters or packages passing through the general post-office, to be applied to such federal purposes as they shall deem proper & expedient; to make rules & regulations for the collection thereof; and the same from time to time, to alter & amend in such manner as they shall think proper, to pass acts for the regulation of trade & commerce as well with foreign nations as with each other: provided that all punishments, fines, forfeitures & penalties to be incurred for contravening such acts rules and regulations shall be adjudged by the common law judiciaries of the state in which any offence contrary to the true intent & meaning of such acts rules & regulations shall have been committed or perpetrated, with liberty of commencing in the first instance all suits & prosecutions for that purpose in the superior common law judiciary in such state, subject nevertheless, for the correction of all errors, both in law & fact in rendering judgment, to an appeal to the judiciary of the u. states. . res^d that whenever requisitions shall be necessary, instead of the rule for making requisitions mentioned in the articles of confederation, the united states in cong^s be authorized to make such requisitions in proportion to the whole number of white & other free citizens & inhabitants of every age sex and condition including those bound to servitude for a term of years & three fifths of all other persons not comprehended in the foregoing description, except indians not paying taxes; that if such requisitions be not complied with, in the time specified therein, to direct the collection thereof in the non complying states & for that purpose to devise and pass acts directing & authorizing the same; provided that none of the powers hereby vested in the u. states in cong^s shall be exercised without the consent of at least ---- states, and in that proportion if the number of confederated states should hereafter be increased or diminished. . res^d that the u. states in cong^s be authorized to elect a federal executive to consist of ---- persons, to continue in office for the term of ---- years, to receive punctually at stated times a fixed compensation for their services, in which no increase nor diminution shall be made so as to affect the persons composing the executive at the time of such increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or appointment during their time of service and for ---- years thereafter: to be ineligible a second time, & removeable by cong^s on application by a majority of the executives of the several states; that the executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, & to direct all military operations; provided that none of the persons composing the federal executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as general or in any other capacity. . res^d that a federal judiciary be established to consist of a supreme tribunal the judges of which to be appointed by the executive, & to hold their offices during good behaviour, to receive punctually at stated times a fixed compensation for their services in which no increase nor diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution: that the judiciary so established shall have authority to hear & determine in the first instance on all impeachments of federal officers, & by way of appeal in the dernier resort in all cases touching the rights of ambassadors, in all cases of captures from an enemy, in all cases of piracies & felonies on the high seas, in all cases in which foreigners may be interested, in the construction of any treaty or treaties, or which may arise on any of the acts for the regulation of trade, or the collection of the federal revenue: that none of the judiciary shall during the time they remain in office be capable of receiving or holding any other office or appointment during their term of service, or for ---- thereafter. . res^d that all acts of the u. states in cong^s made by virtue & in pursuance of the powers hereby & by the articles of confederation vested in them, and all treaties made & ratified under the authority of the u. states shall be the supreme law of the respective states so far forth as those acts or treaties shall relate to the said states or their citizens, and that the judiciary of the several states shall be bound thereby in their decisions any thing in the respective laws of the individual states to the contrary notwithstanding: and that if any state, or any body of men in any state shall oppose or prevent y^e carrying into execution such acts or treaties, the federal executive shall be authorized to call forth y^e power of the confederated states, or so much thereof as may be necessary to enforce and compel an obedience to such acts, or an observance of such treaties. . res^d that provision be made for the admission of new states into the union. . res^d that the rule for naturalization ought to be same in every state. . res^d that a citizen of one state committing an offence in another state of the union, shall be deemed guilty of the same offence as if it had been committed by a citizen of the state in which the offence was committed.[ ] [ ] this copy of m^r patterson's propositions varies in a few clauses from that in the printed journal furnished from the papers of m^r brearley a colleague of m^r patterson. a confidence is felt, notwithstanding, in its accuracy. that the copy in the journal is not entirely correct is shewn by the ensuing speech of m^r wilson (june ) in which he refers to the mode of removing the executive by impeachment & conviction as a feature in the virg^a plan forming one of its contrasts to that of m^r patterson, which proposed a removal on the application of a majority of the executives of the states. in the copy printed in the journal, the two modes are combined in the same clause; whether through inadvertence, or as a contemplated amendment, does not appear.--madison's note. the journal contains: " . resolved, that the legislative, executive, and judiciary powers within the several states, ought to be bound, by oath, to support the articles of union," and " . resolved, that provision ought to be made for hearing and deciding upon all disputes arising between the united states and an individual state, respecting territory."--_journal of the federal convention_, . adjourned. saturday june . in committee of the whole on resolutions propos^d by m^r p. & m^r r. m^r lansing called for the reading of the ^{st} resolution of each plan, which he considered as involving principles directly in contrast; that of m^r patterson says he sustains the sovereignty of the respective states, that of m^r randolph destroys it: the latter requires a negative on all the laws of the particular states; the former, only certain general powers for the general good. the plan of m^r r. in short absorbs all power except what may be exercised in the little local matters of the states which are not objects worthy of the supreme cognizance. he grounded his preference of m^r p's plan, chiefly on two objections ag^{st} that of m^r r. . want of power in the convention to discuss & propose it. . the improbability of its being adopted, . he was decidedly of opinion that the power of the convention was restrained to amendments of a federal nature, and having for their basis the confederacy in being. the act of congress the tenor of the acts of the states, the co[~m]issions produced by the several deputations all proved this. and this limitation of the power to an amendment of the confederacy, marked the opinion of the states, that it was unnecessary & improper to go farther. he was sure that this was the case with his state. n. york would never have concurred in sending deputies to the convention, if she had supposed the deliberations were to turn on a consolidation of the states, and a national government. . was it probable that the states would adopt & ratify a scheme, which they had never authorized us to propose? and which so far exceeded what they regarded as sufficient? we see by their several acts particularly in relation to the plan of revenue proposed by cong. in , not authorized by the articles of confederation, what were the ideas they then entertained. can so great a change be supposed to have already taken place. to rely on any change which is hereafter to take place in the sentiments of the people would be trusting to too great an uncertainty. we know only what their present sentiments are. and it is in vain to propose what will not accord with these. the states will never feel a sufficient confidence in a general government to give it a negative on their laws. the scheme is itself totally novel. there is no parallel to it to be found. the authority of congress is familiar to the people, and an augmentation of the powers of congress will be readily approved by them. m^r patterson, said as he had on a former occasion given his sentiments on the plan proposed by m^r r. he would now avoiding repetition as much as possible give his reasons in favor of that proposed by himself. he preferred it because it accorded . with the powers of the convention, with the sentiments of the people. if the confederacy was radically wrong, let us return to our states, and obtain larger powers, not assume them ourselves. i came here not to speak my own sentiments, but the sentiments of those who sent me. our object is not such a governm^t as may be best in itself, but such a one as our constituents have authorized us to prepare, and as they will approve. if we argue the matter on the supposition that no confederacy at present exists, it can not be denied that all the states stand on the footing of equal sovereignty. all therefore must concur before any can be bound. if a proportional representation be right, why do we not vote so here? if we argue on the fact that a federal compact actually exists, and consult the articles of it we still find an equal sovereignty to be the basis of it. he reads the ^{th} art: of confederation giving each state a vote--& the ^{th} declaring that no alteration shall be made without unanimous consent. this is the nature of all treaties. what is unanimously done, must be unanimously undone. it was observed (by m^r wilson) that the larger state gave up the point, not because it was right, but because the circumstances of the moment urged the concession. be it so. are they for that reason at liberty to take it back. can the donor resume his gift without the consent of the donee. this doctrine may be convenient, but it is a doctrine that will sacrifice the lesser states. the larger states acceded readily to the confederacy. it was the small ones that came in reluctantly and slowly. n. jersey & maryland were the two last, the former objecting to the want of power in congress over trade: both of them to the want of power to appropriate the vacant territory to the benefit of the whole.--if the sovereignty of the states is to be maintained, the representatives must be drawn immediately from the states, not from the people: and we have no power to vary the idea of equal sovereignty. the only expedient that will cure the difficulty, is that of throwing the states into hotchpot. to say that this is impracticable, will not make it so. let it be tried, and we shall see whether the citizens of mass^{ts} pen^a & v^a accede to it. it will be objected that coercion will be impracticable. but will it be more so in one plan than the other? its efficacy will depend on the quantum of power collected, not on its being drawn from the states, or from the individuals; and according to his plan it may be exerted on individuals as well as according that of m^r r. a distinct executive & judiciary also were equally provided by his plan. it is urged that two branches in the legislature are necessary. why? for the purpose of a check. but the reason of the precaution is not applicable to this case. within a particular state, where party heats prevail, such a check may be necessary. in such a body as congress it is less necessary, and besides, the delegations of the different states are checks on each other. do the people at large complain of cong^s? no, what they wish is that cong^s may have more power. if the power now proposed be not eno', the people hereafter will make additions to it. with proper powers cong^s will act with more energy & wisdom than the proposed nat^l legislature; being fewer in number, and more secreted & refined by the mode of election. the plan of m^r r. will also be enormously expensive. allowing georgia & del. two representatives each in the popular branch the aggregate number of that branch will be . add to it half as many for the other branch and you have , coming once at least a year from the most distant as well as the most central parts of the republic. in the present deranged state of our finances can so expensive a system be seriously thought of? by enlarging the powers of cong^s the greatest part of this expence will be saved, and all purposes will be answered. at least a trial ought to be made. m^r wilson entered into a contrast of the principal points of the two plans so far he said as there had been time to examine the one last proposed. these points were . in the virg^a plan there are & in some degree branches in the legislature: in the plan from n. j. there is to be a _single_ legislature only-- . representation of the people at large is the basis of one: the state legislatures, the pillars of the other-- . proportional representation prevails in one;--equality of suffrage in the other-- . a single executive magistrate is at the head of the one:--a plurality is held out in the other.-- . in the one the majority of the people of the u. s. must prevail:--in the other a minority may prevail. . the nat^l legislature is to make laws in all cases to which the separate states are incompetent &:--in place of this cong^s are to have additional power in a few cases only-- . a negative on the laws of the states:--in place of this coertion to be substituted-- . the executive to be removable on impeachment & conviction;--in one plan: in the other to be removable at the instance of a majority of the executives of the states-- . revision of the laws provided for in one:--no such check in the other-- . inferior national tribunals in one:--none such in the other. . in one y^e jurisdiction of nat^l tribunals to extend &c.--; an appellate jurisdiction only allowed in the other. . here the jurisdiction is to extend to all cases affecting the nation^l peace & harmony; _there_ a few cases only are marked out. . finally y^e ratification is in this to be by the people themselves:--in that by the legislative authorities according to the art: of the confederation. with regard to the _power of the convention_, he conceived himself authorized to _conclude nothing_, but to be at liberty to _propose any thing_. in this particular he felt himself perfectly indifferent to the two plans. with _regard to the sentiments of the people_, he conceived it difficult to know precisely what they are. those of the particular circle in which one moved, were commonly mistaken for the general voice. he could not persuade himself that the state gov^{ts} & sovereignties were so much the idols of the people, nor a nat^l gov^t so obnoxious to them, as some supposed. why s^d a nat^l gov^t be unpopular? has it less dignity? will each citizen enjoy under it less liberty or protection? will a citizen of _deleware_ be degraded by becoming a citizen of the _united states_? where do the people look at present for relief from the evils of which they complain? is it from an internal reform of their gov^{ts}? no, sir. it is from the nat^l councils that relief is expected. for these reasons he did not fear, that the people would not follow us into a national gov^t and it will be a further recommendation of m^r r'^s plan that it is to be submitted to _them_, and not to the _legislatures_, for ratification. proceeding now to the ^{st} point on which he had contrasted the two plans, he observed that anxious as he was for some augmentation of the federal powers, it would be with extreme reluctance indeed that he could ever consent to give powers to cong^s he had two reasons either of w^{ch} was sufficient, . cong^s as a legislative body does not stand on the people. . it is a _single_ body. . he would not repeat the remarks he had formerly made on the principles of representation, he would only say that an inequality in it, has ever been a poison contaminating every branch of gov^t. in g. britain where this poison has had a full operation, the security of private rights is owing entirely to the purity of her tribunals of justice, the judges of which are neither appointed nor paid, by a venal parliament. the political liberty of that nation, owing to the inequality of representation is at the mercy of its rulers. he means not to insinuate that there is any parallel between the situation of that country & ours at present. but it is a lesson we ought not to disregard, that the smallest bodies in g. b. are notoriously the most corrupt. every other source of influence must also be stronger in small than large bodies of men. when lord chesterfield had told us that one of the dutch provinces had been seduced into the views of france, he need not have added, that it was not holland, but one of the _smallest_ of them. there are facts among ourselves which are known to all. passing over others, he will only remark that the _impost_, so anxiously wished for by the public was defeated not by any of the _larger_ states in the union. . _congress is a single legislature._ despotism comes on mankind in different shapes, sometimes in an executive, sometimes in a military, one. is there no danger of a legislative despotism? theory & practice both proclaim it. if the legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. in a single house there is no check, but the inadequate one, of the virtue & good sense of those who compose it. on another great point, the contrast was equally favorable to the plan reported by the committee of the whole. it vested the executive powers in a single magistrate. the plan of n. jersey, vested them in a plurality. in order to controul the legislative authority, you must divide it. in order to controul the executive you must unite it. one man will be more responsible than three. three will contend among themselves till one becomes the master of his colleagues. in the triumvirates of rome first cæsar, then augustus, are witnesses of this truth. the kings of sparta, & the consuls of rome prove also the factious consequences of dividing the executive magistracy. having already taken up so much time he w^d not he s^d, proceed to any of the other points. those on which he had dwelt, are sufficient of themselves; and on the decision of them, the fate of the others will depend. m^r pinkney,[ ] the whole comes to this, as he conceived. give n. jersey an equal vote, and she will dismiss her scruples, and concur in the nat^l system. he thought the convention authorized to go any length in recommending; which they found necessary to remedy the evils which produced this convention. [ ] yates states it was c. c. pinckney who said this.--_secret proceedings_, etc., . m^r elseworth proposed as a more distinctive form of collecting the mind of the committee on the subject, "that the legislative power of the u.s. should remain in cong^s" this was not seconded, though it seemed better calculated for the purpose than the ^{st} proposition of m^r patterson in place of which mr. e. wished to substitute it. m^r randolph, was not scrupulous on the point of power. when the salvation of the republic was at stake, it would be treason to our trust, not to propose what we found necessary. he painted in strong colours, the imbecility of the existing confederacy, & the danger of delaying a substantial reform. in answer to the objection drawn from the sense of our constituents as denoted by their acts relating to the convention and the objects of their deliberation, he observed that as each state acted separately in the case, it would have been indecent for it to have charged the existing constitution with all the vices which it might have perceived in it. the first state that set on foot this experiment would not have been justified in going so far, ignorant as it was of the opinion of others, and sensible as it must have been of the uncertainty of a successful issue to the experiment. there are certainly reasons of a peculiar nature where the ordinary cautions must be dispensed with; and this is certainly one of them. he w^d not as far as depended on him leave any thing that seemed necessary, undone. the present moment is favorable, and is probably the last that will offer. the true question is whether we shall adhere to the federal plan, or introduce the national plan. the insufficiency of the former has been fully displayed by the trial already made. there are but two modes, by which the end of a gen^l gov^t can be attained: the ^{st} is by coercion as proposed by m^r p's plan . by real legislation as prop^d by the other plan. coercion he pronounced to be _impracticable_, _expensive_, _cruel to individuals_. it tended also to habituate the instruments of it to shed the blood & riot in the spoils of their fellow citizens, and consequently trained them up for the service of ambition. we must resort therefore to a national _legislation over individuals_, for which cong^s are unfit. to vest such power in them, would be blending the legislative with the executive, contrary to the rec^d maxim on this subject: if the union of these powers heretofore in cong^s has been safe, it has been owing to the general impotency of that body. cong^s are moreover not elected by the people, but by the legislatures who retain even a power of recall. they have therefore no will of their own, they are a mere diplomatic body, and are always obsequious to the views of the states, who are always encroaching on the authority of the u. states. a provision for harmony among the states, as in trade, naturalization &.--for crushing rebellion whenever it may rear its crest--and for certain other general benefits, must be made. the powers for these purposes can never be given to a body, inadequate as congress are in point of representation, elected in the mode in which they are, and possessing no more confidence than they do: for notwithstanding what has been said to the contrary, his own experience satisfied him that a rooted distrust of congress pretty generally prevailed. a nat^l gov^t alone, properly constituted, will answer the purpose; and he begged it to be considered that the present is the last moment for establing one. after this select experiment, the people will yield to despair. the committee rose & the house adjourned. monday june . in committee of the whole on the propositions of m^r patterson & m^r randolph. on motion of m^r dickinson to postpone the ^{st} resolution in m^r patterson's plan, in order to take up the following viz--"that the articles of confederation ought to be revised and amended, so as to render the government of the u. s. adequate to the exigencies, the preservation and the prosperity of the union" the postponement was agreed to by states, pen: divided. mr. hamilton,[ ] had been hitherto silent on the business before the convention, partly from respect to others whose superior abilities age & experience rendered him unwilling to bring forward ideas dissimilar to theirs, and partly from his delicate situation with respect to his own state, to whose sentiments as expressed by his colleages, he could by no means accede. this crisis however which now marked our affairs, was too serious to permit any scruples whatever to prevail over the duty imposed on every man to contribute his efforts for the public safety & happiness. he was obliged therefore to declare himself unfriendly to both plans. he was particularly opposed to that from n. jersey, being fully convinced, that no amendment of the confederation, leaving the states in possession of their sovereignty could possibly answer the purpose. on the other hand he confessed he was much discouraged by the amazing extent of country in expecting the desired blessings from any general sovereignty that could be substituted.--as to the powers of the convention, he thought the doubts started on that subject had arisen from distinctions & reasonings too subtle. a _federal_ gov^t he conceived to mean an association of independent communities into one. different confederacies have different powers, and exercise them in different ways. in some instances the powers are exercised over collective bodies; in others over individuals, as in the german diet--& among ourselves in cases of piracy. great latitude therefore must be given to the signification of the term. the plan last proposed departs itself from the _federal_ idea, as understood by some, since it is to operate eventually on individuals. he agreed moreover with the honble gentleman from v^a (m^r r.) that we owed it to our country, to do on this emergency whatever we should deem essential to its happiness. the states sent us here to provide for the exigencies of the union. to rely on & propose any plan not adequate to these exigencies, merely because it was not clearly within our powers, would be to sacrifice the means to the end. it may be said that the _states_ cannot _ratify_ a plan not within the purview of the article of the confederation providing for alterations & amendments. but may not the states themselves in which no constitutional authority equal to this purpose exists in the legislatures, have had in view a reference to the people at large. in the senate of n. york, a proviso was moved, that no act of the convention should be binding untill it should be referred to the people & ratified; and the motion was lost by a single voice only, the reason assigned ag^{st} it being, that it might possibly be found an inconvenient shackle. [ ] hamilton happened to call upon madison while the latter was putting the last touches to this speech and "acknowledged its fidelity, without suggesting more than a few verbal alterations which were made."--(cf. _madison's writings_, vol. ii.). a brief of the speech from the hamilton papers is given in lodge's _works of hamilton_, i., , where (i., ) yates's report also is quoted. [illustration: hamilton's principal speech. (reduced.)] the great question is what provision shall we make for the happiness of our country? he would first make a comparative examination of the two plans--prove that there were essential defects in both--and point out such changes as might render a _national one_, efficacious.--the great & essential principles necessary for the support of government are . an active & constant interest in supporting it. this principle does not exist in the states in favor of the federal gov^t. they have evidently in a high degree, the esprit de corps. they constantly pursue internal interests adverse to those of the whole. they have their particular debts--their particular plans of finance &c. all these when opposed to, invariably prevail over the requisitions & plans of congress. . the love of power. men love power. the same remarks are applicable to this principle. the states have constantly shewn a disposition rather to regain the powers delegated by them than to part with more, or to give effect to what they had parted with. the ambition of their demagogues is known to hate the controul of the gen^l government. it may be remarked too that the citizens have not that anxiety to prevent a dissolution of the gen^l gov^t as of the particular gov^{ts}. a dissolution of the latter would be fatal; of the former would still leave the purposes of gov^t attainable to a considerable degree. consider what such a state as virg^a will be in a few years, a few compared with the life of nations. how strongly will it feel its importance and self-sufficiency? . an habitual attachment of the people. the whole force of this tie is on the side of the state gov^t. its sovereignty is immediately before the eyes of the people: its protection is immediately enjoyed by them. from its hand distributive justice, and all those acts which familiarize & endear a gov^t to a people, are dispensed to them. . _force_ by which may be understood a _coercion of laws_ or _coercion of arms_. cong^s have not the former except in few cases. in particular states, this coercion is nearly sufficient; tho' he held it in most cases, not entirely so. a certain portion of military force is absolutely necessary in large communities. mass^{ts} is now feeling this necessity & making provision for it. but how can this force be exerted on the states collectively. it is impossible. it amounts to a war between the parties. foreign powers also will not be idle spectators. they will interpose, the confusion will increase, and a dissolution of the union will ensue. . _influence._ he did not mean corruption, but a dispensation of those regular honors & emoluments, which produce an attachment to the gov^t. almost all the weight of these is on the side of the states; and must continue so as long as the states continue to exist. all the passions then we see, of avarice, ambition, interest, which govern most individuals, and all public bodies, fall into the current of the states, and do not flow into the stream of the gen^l gov^t. the former therefore will generally be an overmatch for the gen^l gov^t and render any confederacy, in its very nature precarious. theory is in this case fully confirmed by experience. the amphyctionic council had it would seem ample powers for general purposes. it had in particular the power of fining and using force ag^{st} delinquent members. what was the consequence. their decrees were mere signals of war. the phocian war is a striking example of it. philip at length taking advantage of their disunion, and insinuating himself into their councils, made himself master of their fortunes. the german confederacy affords another lesson. the authority of charlemagne seemed to be as great as could be necessary. the great feudal chiefs however, exercising their local sovereignties, soon felt the spirit & found the means of, encroachments, which reduced the imperial authority to a nominal sovereignty. the diet has succeeded, which tho' aided by a prince at its head, of great authority independently of his imperial attributes, is a striking illustration of the weakness of confederated governments. other examples instruct us in the same truth. the swiss cantons have scarce any union at all, and have been more than once at war with one another.--how then are all these evils to be avoided? only by such a compleat sovereignty in the general goverm^t as will turn all the strong principles & passions abovementioned on its side. does the scheme of n. jersey produce this effect? does it afford any substantial remedy whatever? on the contrary it labors under great defects, and the defect of some of its provisions will destroy the efficacy of others. it gives a direct revenue to cong^s but this will not be sufficient. the balance can only be supplied by requisitions: which experience proves cannot be relied on. if states are to deliberate on the mode, they will also deliberate on the object of the supplies, and will grant or not grant as they approve or disapprove of it. the delinquency of one will invite and countenance it in others. quotas too must in the nature of things be so unequal as to produce the same evil. to what standard will you resort? land is a fallacious one. compare holland with russia; france or eng^d with other countries of europe, pen^a with n. carol^a will the relative pecuniary abilities in those instances, correspond with the relative value of land. take numbers of inhabitants for the rule and make like comparison of different countries, and you will find it to be equally unjust. the different degrees of industry and improvement in different countries render the first object a precarious measure of wealth. much depends too on _situation_. con^t n. jersey & n. carolina, not being commercial states & contributing to the wealth of the commercial ones, can never bear quotas assessed by the ordinary rules of proportion. they will & must fail in their duty, their example will be followed, and the union itself be dissolved. whence then is the national revenue to be drawn? from commerce; even from exports which notwithstanding the co[~m]on opinion are fit objects of moderate taxation, from excise, &c &c. these tho' not equal, are less unequal than quotas. another destructive ingredient in the plan, is that equality of suffrage which is so much desired by the small states. it is not in human nature that v^a & the large states should consent to it, or if they did that they sh^d long abide by it. it shocks too much all ideas of justice, and every human feeling. bad principles in a gov^t tho slow are sure in their operation, and will gradually destroy it. a doubt has been raised whether cong^s at present have a right to keep ships or troops in time of peace. he leans to the negative. mr. p'^s plan provides no remedy.--if the powers proposed were adequate, the organization of cong^s is such that they could never be properly & effectually exercised. the members of cong^s being chosen by the states & subject to recall, represent all the local prejudices. should the powers be found effectual, they will from time to time be heaped on them, till a tyrannic sway shall be established. the general power whatever be its form if it preserves itself, must swallow up the state powers. otherwise it will be swallowed up by them. it is ag^{st} all the principles of a good government to vest the requisite powers in such a body as cong^s. two sovereignties can not co-exist within the same limits. giving powers to cong^s must eventuate in a bad gov^t or in no gov^t. the plan of n. jersey therefore will not do. what then is to be done? here he was embarrassed. the extent of the country to be governed, discouraged him. the expence of a general gov^t was also formidable; unless there were such a diminution of expence on the side of the state gov^{ts} as the case would admit. if they were extinguished, he was persuaded that great oeconomy might be obtained by substituting a general gov^t. he did not mean however to shock the public opinion by proposing such a measure. on the other hand he saw no _other_ necessity for declining it. they are not necessary for any of the great purposes of commerce, revenue, or agriculture. subordinate authorities he was aware would be necessary. there must be district tribunals; corporations for local purposes. but cui bono, the vast & expensive apparatus now appertaining to the states. the only difficulty of a serious nature which occurred to him, was that of drawing representatives from the extremes to the centre of the community. what inducements can be offered that will suffice? the moderate wages for the ^{st} branch would only be a bait to little demagogues. three dollars or thereabouts he supposed would be the utmost. the senate he feared from a similar cause, would be filled by certain undertakers who wish for particular offices under the gov^t. this view of the subject almost led him to despair that a republican gov^t could be established over so great an extent. he was sensible at the same time that it would be unwise to propose one of any other form. in his private opinion he had no scruple in declaring, supported as he was by the opinion of so many of the wise & good, that the british gov^t was the best in the world: and that he doubted much whether any thing short of it would do in america. he hoped gentlemen of different opinions would bear with him in this, and begged them to recollect the change of opinion on this subject which had taken place and was still going on. it was once thought that the power of cong^s was amply sufficient to secure the end of their institution. the error was now seen by every one. the members most tenacious of republicanism, he observed, were as loud as any in declaiming ag^{st} the vices of democracy. this progress of the public mind led him to anticipate the time, when others as well as himself would join in the praise bestowed by m^r neckar on the british constitution, namely, that it is the only gov^t in the world "which unites public strength with individual security."--in every co[~m]unity where industry is encouraged, there will be a division of it into the few & the many. hence separate interests will arise. there will be debtors & creditors &c. give all power to the many, they will oppress the few. give all power to the few, they will oppress the many. both therefore ought to have the power, that each may defend itself ag^{st} the other. to the want of this check we owe our paper money, instalment laws &c. to the proper adjustment of it the british owe the excellence of their constitution. their house of lords is a most noble institution. having nothing to hope for by a change, and a sufficient interest by means of their property, in being faithful to the national interest, they form a permanent barrier ag^{st} every pernicious innovation, whether attempted on the part of the crown or of the commons. no temporary senate will have firmness eno' to answer the purpose. the senate (of maryland) which seems to be so much appealed to, has not yet been sufficiently tried. had the people been unanimous & eager in the late appeal to them on the subject of a paper emission they would have yielded to the torrent. their acquiescing in such an appeal is a proof of it.--gentlemen differ in their opinions concerning the necessary checks, from the different estimates they form of the human passions. they suppose seven years a sufficient period to give the senate an adequate firmness, from not duly considering the amazing violence & turbulence of the democratic spirit. when a great object of gov^t is pursued, which seizes the popular passions, they spread like wild fire, and become irresistable. he appealed to the gentlemen from the n. england states whether experience had not there verified the remark.--as to the executive, it seemed to be admitted that no good one could be established on republican principles. was not this giving up the merits of the question; for can there be a good gov^t without a good executive. the english model was the only good one on this subject. the hereditary interest of the king was so interwoven with that of the nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad--and at the same time was both sufficiently independent and sufficiently controuled, to answer the purpose of the institution at home, one of the weak sides of republics was their being liable to foreign influence & corruption. men of little character, acquiring great power become easily the tools of intermeddling neibours. sweden was a striking instance. the french & english had each their parties during the late revolution which was effected by the predominant influence of the former.--what is the inference from all these observations? that we ought to go as far in order to attain stability and permanency, as republican principles will admit. let one branch of the legislature hold their places for life or at least during good behaviour. let the executive also be for life. he appealed to the feelings of the members present whether a term of seven years, would induce the sacrifices of private affairs which an acceptance of public trust would require, so as to ensure the services of the best citizens. on this plan we should have in the senate a permanent will, a weighty interest, which would answer essential purposes. but is this a republican gov^t, it will be asked? yes if all the magistrates are appointed, and vacancies are filled, by the people, or a process of election originating with the people. he was sensible that an executive constituted as he proposed would have in fact but little of the power and independence that might be necessary. on the other plan of appointing him for years, he thought the executive ought to have but little power. he would be ambitious, with the means of making creatures, and as the object of his ambition w^d be to _prolong_ his power, it is probable that in case of a war, he would avail himself of the emergence, to evade or refuse a degradation from his place. an executive for life has not this motive for forgetting his fidelity, and will therefore be a safer depository of power. it will be objected probably, that such an executive will be an _elective monarch_, and will give birth to the tumults which characterize that form of gov^t. he w^d reply that _monarch_ is an indefinite term. it marks not either the degree or duration of power. if this executive magistrate w^d be a monarch for life--the other prop^d by the report from the co[~m]ittee of the whole, w^d be a monarch for seven years. the circumstance of being elective was also applicable to both. it had been observed by judicious writers that elective monarchies w^d be the best if they could be guarded ag^{st} the _tumults_ excited by the ambition and intrigues of competitors. he was not sure that tumults were an inseparable evil. he rather thought this character of elective monarchies had been taken rather from particular cases than from general principles. the election of roman emperors was made by the _army_. in _poland_ the election is made by great rival _princes_ with independent power, and ample means, of raising commotions. in the german empire, the appointment is made by the electors & princes, who have equal motives & means, for exciting cabals & parties. might not such a mode of election be devised among ourselves as will defend the community ag^{st} these effects in any dangerous degree? having made these observations he would read to the committee a sketch of a plan which he sh^d prefer to either of those under consideration. he was aware that it went beyond the ideas of most members. but will such a plan be adopted out of doors? in return he would ask will the people adopt the other plan? at present they will adopt neither. but he sees the union dissolving or already dissolved--he sees evils operating in the states which must soon cure the people of their fondness for democracies--he sees that a great progress has been already made & is still going on in the public mind. he thinks therefore that the people will in time be unshackled from their prejudices; and whenever that happens, they will themselves not be satisfied at stopping where the plan of m^r r. w^d place them, but be ready to go as far at least as he proposes. he did not mean to offer the paper he had sketched as a proposition to the committee. it was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of m^r r. in the proper stages of its future discussion. he read his sketch in the words following; to wit i. the supreme legislative power of the united states of america to be vested in two different bodies of men; the one to be called the assembly, the other the senate who together shall form the legislature of the united states with power to pass all laws whatsoever subject to the negative hereafter mentioned. ii. the assembly to consist of persons elected by the people to serve for three years. iii. the senate to consist of persons elected to serve during good behaviour; their election to be made by electors chosen for that purpose by the people: in order to this the states to be divided into election districts. on the death, removal or resignation of any senator his place to be filled out of the district from which he came. iv. the supreme executive authority of the united states to be vested in a governour to be elected to serve during good behaviour--the election to be made by electors chosen by the people in the election districts aforesaid--the authorities & functions of the executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed; to have the direction of war when authorized or begun; to have with the advice and approbation of the senate the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of finance, war and foreign affairs; to have the nomination of all other officers (ambassadors to foreign nations included) subject to the approbation or rejection of the senate; to have the power of pardoning all offences except treason; which he shall not pardon without the approbation of the senate. v. on the death resignation or removal of the governour his authorities to be exercised by the president of the senate till a successor be appointed. vi. the senate to have the sole power of declaring war, the power of advising and approving all treaties, the power of approving or rejecting all appointments of officers except the heads or chiefs of the departments of finance war and foreign affairs. vii. the supreme judicial authority to be vested in ---- judges to hold their offices during good behaviour with adequate and permanent salaries. this court to have original jurisdiction in all causes of capture, and an appellative jurisdiction in all causes in which the revenues of the general government or the citizens of foreign nations are concerned. viii. the legislature of the united states to have power to institute courts in each state for the determination of all matters of general concern. ix. the governour senators and all officers of the united states to be liable to impeachment for mal- and corrupt conduct; and upon conviction to be removed from office, & disqualified for holding any place of trust or profit--all impeachments to be tried by a court to consist of the chief ---- or judge of the superior court of law of each state, provided such judge shall hold his place during good behavior, and have a permanent salary. x. all laws of the particular states contrary to the constitution or laws of the united states to be utterly void; and the better to prevent such laws being passed, the governour or president of each state shall be appointed by the general government and shall have a negative upon the laws about to be passed in the state of which he is the governour or president. xi. no state to have any forces land or naval; and the militia of all the states to be under the sole and exclusive direction of the united states, the officers of which to be appointed and commissioned by them. on these several articles he entered into explanatory observations corresponding with the principles of his introductory reasoning.[ ] [ ] copy of a paper communicated to j. m. by col. hamilton, about the close of the convention in philad^a, , which he said delineated the constitution which he would have wished to be proposed by the convention. he had stated the principles of it in the course of the deliberations. the people of the united states of america do ordain & establish this constitution for the government of themselves and their posterity. article i § . the legislative power shall be vested in two distinct bodies of men, one to be called the assembly, the other the senate, subject to the negative hereinafter mentioned. § . the executive power, with the qualifications hereinafter specified, shall be vested in a president of the united states. § . the supreme judicial authority, except in the cases otherwise provided for in this constitution, shall be vested in a court to be called the supreme court, to consist of not less than six nor more than twelve judges. article ii § . the assembly shall consist of persons to be called representatives, who shall be chosen, except in the first instance, by the free male citizens & inhabitants of the several states comprehended in the union, all of whom of the age of twenty one years & upwards shall be entitled to an equal vote. § . but the first assembly shall be chosen in the manner prescribed in the last article and shall consist of one hundred members of whom n. hampshire shall have five, massachusetts thirteen, rhode island two, connecticut seven, n. york nine, n. jersey six, pennsylvania twelve, delaware two, maryland eight, virginia sixteen, n. carolina eight, s. carolina eight, georgia four. § . the legislature shall provide for the future elections of representatives, apportioning them in each state, from time to time, as nearly as may be to the number of persons described in the § of the vii article, so as that the whole number of representatives shall never be less than one hundred, nor more than ---- hundred. there shall be a census taken for this purpose within three years after the first meeting of the legislature, and within every successive period of ten years. the term for which representatives shall be elected shall be determined by the legislature but shall not exceed three years. there shall be a general election at least once in three years; and the time of service of all the members in each assembly shall begin, (except in filling vacancies) on the same day, and shall always end on the same day. § . forty members shall make a house sufficient to proceed to business; but their number may be increased by the legislature, yet so as never to exceed a majority of the whole number of representatives. § . the assembly shall choose its president and other officers, shall judge of the qualifications & elections of its own members, punish them for improper conduct in their capacity of representatives not extending to life or limb; and shall exclusively possess the power of impeachment except in the case of the president of the united states; but no impeachment of a member of the senate shall be by less than two thirds of the representatives present. § . representatives may vote by proxy; but no representative present shall be proxy for more than one who is absent.[a] [a] quere, ? (to provide for distant states).--note in madison's hand. § . bills for raising revenue, and bills for appropriating monies for the support of fleets and armies, and for paying the salaries of the officers of government, shall originate in the assembly; but may be altered and amended by the senate. § . the acceptance of an office under the united states by a representative shall vacate his seat in the assembly. article iii § . the senate shall consist of persons to be chosen, except in the first instance, by electors elected for that purpose by the citizens and inhabitants of the several states comprehended in the union who shall have in their own right, or in the right of their wifes, an estate in land for not less than life, or a term of years, whereof at the time of giving their votes there shall be at least fourteen years unexpired. § . but the first senate shall be chosen in the manner prescribed in the last article and shall consist of forty members to be called senators, of whom n. hampshire shall have ---- mass^{ts} ---- r. island ---- connecticut ---- n. york ---- n. jersey ---- pen^a ---- delaware ---- mary^d ---- virg^a ---- n. carol. ---- s. carol. ---- geo. ----. § . the legislature shall provide for the future elections of senators, for which purpose the states respectively, which have more than one senator, shall be divided into convenient districts to which the senators shall be apportioned. a state having but one senator shall be itself a district. on the death, resignation or removal from office of a senator his place shall be supplied by a new election in the district from which he came. upon each election there shall be not less than six nor more than twelve electors chosen in a district. § . the number of senators shall never be less than forty, nor shall any state, if the same shall not hereafter be divided, ever have less than the number allotted to it in the second section of this article; but the legislature may increase the whole number of senators, in the same proportion to the whole number of representatives as forty is to one hundred; and such increase beyond the present number, shall be apportioned to the respective states in a ratio to the respective numbers of their representatives. § . if states shall be divided, or if a new arrangement of the boundaries of two or more states shall take place, the legislature shall apportion the number of senators (in elections succeeding such division or new arrangement) to which the constituent parts were entitled according to the change of situation, having regard to the number of persons described in the §. of the vii article. § . the senators shall hold their places during good behaviour, removable only by conviction on impeachment for some crime or misdemeanor. they shall continue to exercise their offices when impeached untill a conviction shall take place. sixteen senators attending in person shall be sufficient to make a house to transact business; but the legislature may increase this number, yet so as never to exceed a majority of the whole number of senators. the senators may vote by proxy, but no senator who is present shall be proxy for more than two who are absent. § . the senate shall choose its president and other officers; shall judge of the qualifications and elections of its members, and shall punish them for improper conduct in their capacity of senators; but such punishment shall not extend to life or limb, nor to expulsion. in the absence of their president they may choose a temporary president. the president shall only have a casting vote when the house is equally divided. § . the senate shall exclusively possess the power of declaring war. no treaty shall be made without their advice and consent; which shall also be necessary to the appointment of all officers, except such for which a different provision is made in this constitution. article iv § . the president of the united states of america, (except in the first instance) shall be elected in the manner following--the judges of the supreme court shall within sixty days after a vacancy shall happen, cause public notice to be given in each state, of such vacancy, appointing therein three several days for the several purposes following, to wit, a day for commencing the election of electors for the purposes hereinafter specified, to be called the first electors, which day shall not be less than forty, nor more than sixty days, after the day of the publication of the notice in each state--another day for the meeting of the electors not less [than] forty nor more than ninety days from the day for commencing their election--another day for the meeting of electors to be chosen by the first electors, for the purpose hereinafter specified, and to be called the second electors, which day shall be not less than forty nor more than sixty days after the day for the meeting of the first electors. § . after notice of a vacancy shall have been given there shall be chosen in each state a number of persons, as the first electors in the preceding section mentioned, equal to the whole number of the representatives and senators of such state in the legislature of the united states; which electors shall be chosen by the citizens of such state having an estate of inheritance or for three lives in land, or a clear personal estate of the value of one thousand spanish milled dollars of the present standard. § . these first electors shall meet in their respective states at the time appointed, at one place; and shall proceed to vote by ballot for a president, who shall not be one of their own number, unless the legislature upon experiment should hereafter direct otherwise. they shall cause two lists to be made of the name or names of the person or persons voted for, which they or the major part of them shall sign & certify. they shall then proceed each to nominate openly in the presence of the others, two persons as for second electors, and out of the persons who shall have the four highest numbers of nominations, they shall afterwards by ballot by plurality of votes choose two who shall be the second electors, to each of whom shall be delivered one of the lists before mentioned. these second electors shall not be any of the persons voted for as president. a copy of the same list signed and certified in like manner shall be transmitted by the first electors to the seat of the government of the united states, under a sealed cover directed to the president of the assembly, which after the meeting of the second electors shall be opened for the inspection of the two houses of the legislature. § . the second electors shall meet precisely on the day appointed and not on another day, at one place. the chief justice of the supreme court, or if there be no chief justice, the judge senior in office in such court, or if there be no one judge senior in office, some other judge of that court, by the choice of the rest of the judges or of a majority of them, shall attend at the same place and shall preside at the meeting, but shall have no vote. two thirds of the whole number of the electors shall constitute a sufficient meeting for the execution of their trust. at this meeting the lists delivered to the respective electors shall be produced and inspected, and if there be any person who has a majority of the whole number of votes given by the first electors, he shall be the president of the united states; but if there be no such person, the second electors so met shall proceed to vote, by ballot for one of the persons named in the lists who shall have the three highest numbers of the votes of the first electors; and if upon the first or any succeeding ballot on the day of their meeting, either of those persons shall have a number of votes equal to a majority of the whole number of second electors chosen, he shall be the president. but if no such choice be made on the day appointed for the meeting either by reason of the non-attendance of the second electors, or their not agreeing, or any other matter, the person having the greatest number of votes of the first electors shall be the president. § . if it should happen that the chief justice or some other judge of the supreme court should not attend in due time, the second electors shall proceed to the execution of their trust without him. § . if the judges should neglect to cause the notice required by the first section of this article to be given within the time therein limited, they may nevertheless cause it to be afterwards given; but their neglect if wilful, is hereby declared to be an offence for which they may be impeached, and if convicted they shall be punished as in other cases of conviction on impeachment. § . the legislature shall by permanent laws provide such further regulations as may be necessary for the more orderly election of the president; not contravening the provisions herein contained. § . the president before he shall enter upon the execution of his office shall take an oath or affirmation, faithfully to execute the same, and to the utmost of his judgment & power to protect the rights of the people, and preserve the constitution inviolate. this oath or affirmation shall be administered by the president of the senate for the time being in the presence of both houses of the legislature. § . the senate and the assembly shall always convene in session on the day appointed for the meeting of the second electors and shall continue sitting till the president take the oath or affirmation of office. he shall hold his place during good behavior, removeable only by conviction upon impeachment for some crime or misdemeanor. § . the president at the beginning of every meeting of the legislature as soon as they shall be ready to proceed to business, shall convene them together at the place where the senate shall sit, and shall communicate to them all such matters as may be necessary for their information, or as may require their consideration. he may by message during the session communicate all other matters which may appear to him proper. he may, whenever in his opinion the public business shall require it, convene the senate and assembly, or either of them, and may prorogue them for a time not exceeding forty days at one prorogation; and if they should disagree about their adjournment, he may adjourn them to such time as he shall think proper. he shall have a right to negative all bills, resolutions or acts of the two houses of the legislature about to be passed into laws. he shall take care that the laws be faithfully executed. he shall be the commander in chief of the army and navy of the united states and of the militia within the several states, and shall have the direction of war when commenced, but he shall not take the actual command in the field of an army without the consent of the senate and assembly. all treaties, conventions and agreements with foreign nations shall be made by him, by and with the advice and consent of the senate. he shall have the appointment of the principal or chief officer of each of the departments of war, naval affairs, finance and foreign affairs; and shall have the nomination; and by and with the consent of the senate, the appointment of all other officers to be appointed under the authority of the united states, except such for whom different provision is made by this constitution; and provided that this shall not be construed to prevent the legislature, from appointing by name, in their laws, persons to special and particular trusts created in such laws; nor shall be construed to prevent principals in offices merely ministerial, from constituting deputies.--in the recess of the senate he may fill vacancies in offices by appointments to continue in force until the end of the next session of the senate, and he shall commission all officers. he shall have power to pardon all offences except treason, for which he may grant reprieves, untill the opinion of the senate & assembly can be had, and with their concurrence may pardon the same. § . he shall receive a fixed compensation for his services to be paid to him at stated times, and not to be increased nor diminished during his continuance in office. § . if he depart out of the united states without the consent of the senate and assembly, he shall thereby abdicate his office. § . he may be impeached for any crime or misdemeanor by the two houses of the legislature, two thirds of each house concurring, and if convicted shall be removed from office. he may be afterwards tried & punished in the ordinary course of law. his impeachment shall operate as a suspension from office until the determination thereof. § . the president of the senate shall be vice president of the united states. on the death, resignation, impeachment, removal from office, or absence from the united states, of the president thereof, the vice president shall exercise all the powers by this constitution vested in the president, until another shall be appointed, or untill he shall return within the united states, if his absence was with the consent of the senate and assembly. article v § . there shall be a chief justice of the supreme court, who together with the other judges thereof, shall hold the office during good behaviour, removable only by conviction on impeachment for some crime or misdemeanor. each judge shall have a competent salary to be paid to him at stated times, and not to be diminished during his continuance in office. the supreme court shall have original jurisdiction in all causes in which the united states shall be a party, in all controversies between the united states, and a particular state, or between two or more states, except such as relate to a claim of territory between the united states, and one or more states, which shall be determined in the mode prescribed in the vi article; in all cases affecting foreign ministers, consuls and agents; and an appellate jurisdiction both as to law and fact in all cases which shall concern the citizens of foreign nations, in all questions between the citizens of different states, and in all others in which the fundamental rights of this constitution are involved, subject to such exceptions as are herein contained and to such regulations as the legislature shall provide. the judges of all courts which may be constituted by the legislature shall also hold their places during good behaviour, removeable only by conviction on impeachment for some crime or misdemeanor, and shall have competent salaries to be paid at stated times and not to be diminished during their continuance in office; but nothing herein contained shall be construed to prevent the legislature from abolishing such courts themselves. all crimes, except upon impeachment, shall be tried by a jury of twelve men; and if they shall have been committed within any state, shall be tried within such state; and all civil causes arising under this constitution of the like kind with those which have been heretofore triable by jury in the respective states, shall in like manner be tried by jury; unless in special cases the legislature shall think proper to make different provision, to which provision the concurrence of two thirds of both houses shall be necessary. § . impeachments of the president and vice president of the u. states, members of the senate, the governours and presidents of the several states, the principal or chief officers of the departments enumerated in the §. of the ^{th} article, ambassadors and other like public ministers, the judges of the supreme court, generals, and admirals of the navy shall be tried by a court to consist of the judges of the supreme court, and the chief justice or first or senior judge of the superior court of law in each state, of whom twelve shall constitute a court. a majority of the judges present may convict. all other persons shall be tried on impeachment by a court to consist of the judges of the supreme court and six senators drawn by lot, a majority of whom may convict. impeachments shall clearly specify the particular offence for which the party accused is to be tried, and judgment on conviction upon the trial thereof shall be either removal from office singly, or removal from office and disqualification for holding any future office or place of trust; but no judgment on impeachment shall prevent prosecution and punishment in the ordinary course of law; provided that no judge concerned in such conviction shall sit as judge on the second trial. the legislature may remove the disabilities incurred by conviction on impeachment. article vi controversies about the right of territory between the united states and particular states shall be determined by a court to be constituted in manner following. the state or states claiming in opposition to the united states as parties shall nominate a number of persons, equal to double the number of the judges of the supreme court for the time being, of whom none shall be citizens by birth of the states which are parties, nor inhabitants thereof when nominated, and of whom not more than two shall have their actual residence in one state. out of the persons so nominated the senate shall elect one half, who together with the judges of the supreme court, shall form the court. two thirds of the whole number may hear and determine the controversy, by plurality of voices. the states concerned may at their option claim a decision by the supreme court only. all of the members of the court hereby instituted shall, prior to the hearing of the cause take an oath impartially and according to the best of their judgments and consciences, to hear and determine the controversy. article vii § . the legislature of the united states shall have power to pass all laws which they shall judge necessary to the common defence and general welfare of the union: but no bill, resolution, or act of the senate and assembly shall have the force of a law until it shall have received the assent of the president, or of the vice-president when exercising the powers of the president; and if such assent shall not have been given within ten days, after such bill, resolution or other act shall have been presented to him for that purpose, the same shall not be a law. no bill, resolution or other act not assented to shall be revived in the same session of the legislature. the mode of signifying such assent, shall be by signing the bill act of [r] resolution, and returning it so signed to either house of the legislature. § . the enacting stile of all laws shall be "be it enacted by the people of the united states of america." § . no bill of attainder shall be passed, nor any ex post facto law; nor shall any title of nobility be granted by the united states, or by either of them; nor shall any person holding an office or place of trust under the united states without the permission of the legislature accept any present, emolument office or title from a foreign prince or state. nor shall any religious sect, or denomination, or religious test for any office or place, be ever established by law. § . taxes on lands, houses and other real estate, and capitation taxes shall be proportioned in each state by the whole number of free persons, except indians not taxed, and by three fifths of all other persons. § . the two houses of the legislature may by joint ballot appoint a treasurer of the united states. neither house in the session of both houses, without the consent of the other shall adjourn for more than three days at a time. the senators and representatives, in attending, going to and coming from the session of their respective houses shall be privileged from arrest, except for crimes and breaches of the peace. the place of meeting shall always be at the seat of government which shall be fixed by law. § . the laws of the united states, and the treaties which have been made under the articles of the confederation, and which shall be made under this constitution shall be the supreme law of the land, and shall be so construed by the courts of the several states. § . the legislature shall convene at least once in each year, which unless otherwise provided for by law, shall be on the first monday in december. § . the members of the two houses of the legislature shall receive a reasonable compensation for their services, to be paid out of the treasury of the united states and ascertained by law. the law for making such provision shall be passed with the concurrence of the first assembly and shall extend to succeeding assemblies; and no succeeding assembly shall concur in an alteration of such provision, so as to increase its own compensation; but there shall be always a law in existence for making such provision. article viii § . the governour or president of each state shall be appointed under the authority of the united states, and shall have a right to negative all laws about to be passed in the state of which he shall be governour or president, subject to such qualifications and regulations, as the legislature of the united states shall prescribe. he shall in other respects have the same powers only which the constitution of the state does or shall allow to its governour or president, except as to the appointment of officers of the militia. § . each governour or president of a state shall hold his office until a successor be actually appointed, unless he die, or resign or be removed from office by conviction on impeachment. there shall be no appointment of such governor or president in the recess of the senate. the governours and presidents of the several states at the time of the ratification of this constitution shall continue in office in the same manner and with the same powers as if they had been appointed pursuant to the first section of this article. the officers of the militia in the several states may be appointed under the authority of the u. states; the legislature whereof may authorize the governors or presidents of states to make such appointments with such restrictions as they shall think proper. article ix § . no person shall be eligible to the office of president of the united states unless he be now a citizen of one of the states, or hereafter be born a citizen of the united states. § . no person shall be eligible as a senator or representative unless at the time of his election he be a citizen and inhabitant of the state in which he is chosen; provided that he shall not be deemed to be disqualified by a temporary absence from the state. § . no person entitled by this constitution to elect or to be elected president of the united states, or a senator or representative in the legislature thereof, shall be disqualified but by the conviction of some offence for which the law shall have previously ordained the punishment of disqualification. but the legislature may by law provide that persons holding offices under the united states or either of them shall not be eligible to a place in the assembly or senate, and shall be during their continuance in office suspended from sitting in the senate. § . no person having an office or place of trust under the united states shall without permission of the legislature accept any present emolument office or title from any foreign prince or state. § . the citizens of each state shall be entitled to the rights privileges and immunities of citizens in every other state; and full faith and credit shall be given in each state to the public acts, records and judicial proceedings of another. § . fugitives from justice from one state who shall be found in another shall be delivered up on the application of the state from which they fled. § . no new state shall be erected within the limits of another, or by the junction of two or more states, without the concurrent consent of the legislatures of the united states and of the states concerned. the legislature of the united states may admit new states into the union. § . the united states are hereby declared to be bound to guarantee to each state a republican form of government, and to protect each state as well against domestic violence as foreign invasion. § . all treaties, contracts and engagements of the united states of america under the articles of confederation and perpetual union, shall have equal validity under this constitution. § . no state shall enter into a treaty, alliance, or contract with another, or with a foreign power without the consent of the united states. § . the members of the legislature of the united states and of each state, and all officers executive & judicial of the one and of the other shall take an oath or affirmation to support the constitution of the united states. § . this constitution may receive such alterations and amendments as may be proposed by the legislature of the united states, with the concurrence of two thirds of the members of both houses, and ratified by the legislatures of, or by conventions of deputies chosen by the people in, two thirds of the states composing the union. article x this constitution shall be submitted to the consideration of conventions in the several states, the members whereof shall be chosen by the people of such states respectively under the direction of their respective legislatures. each convention which shall ratify the same, shall appoint the first representatives and senators from such state according to the rule prescribed in the ---- § of the ---- article. the representatives so appointed shall continue in office for one year only. each convention so ratifying shall give notice thereof to the congress of the united states, transmitting at the same time a list of the representatives and senators chosen. when the constitution shall have been duly ratified, congress shall give notice of a day and place for the meeting of the senators and representatives from the several states; and when these or a majority of them shall have assembled according to such notice, they shall by joint ballot, by plurality of votes, elect a president of the united states; and the constitution thus organized shall be carried into effect.--_mad. mss._ "col: hamilton did not propose in the convention any plan of a constitution. he had sketched an outline which he read as part of a speech; observing that he did not mean it as a proposition, but only to give a more correct view of his ideas. "mr. patterson regularly proposed a plan which was discussed & voted on."--madison to john quincy adams, montpellier, nov. , , _dept. of state mss._, miscellaneous letters. committee rose & the house adjourned. tuesday june ^{th} in committee of whole on the propositions of m^r patterson,--[ ] [ ] this was the last session of the convention in committee of the whole. the substitute offered yesterday by m^r dickenson being rejected by a vote now taken on it; con. n. y. n. j. del. ay. mass. p^a v. n. c. s. c. geo. no. mary^d divided m^r patterson's plan was again at large before the committee. m^r madison. much stress has been laid by some gentlemen on the want of power in the convention to propose any other than a _federal_ plan. to what had been answered by others, he would only add, that neither of the characteristics attached to a _federal_ plan would support this objection. one characteristic, was that in a _federal_ government, the power was exercised not on the people individually; but on the people _collectively_, on the _states_. yet in some instances as in piracies, captures &c. the existing confederacy, and in many instances the amendments to it proposed by m^r patterson, must operate immediately on individuals. the other characteristic was, that a _federal_ gov^t derived its appointments not immediately from the people, but from the states which they respectively composed. here too were facts on the other side. in two of the states, connect^t & rh. island, the delegates to cong^s were chosen, not by the legislatures, but by the people at large; and the plan of m^r p. intended no change in this particular. it had been alledged (by m^r patterson), that the confederation having been formed by unanimous consent, could be dissolved by unanimous consent only. does this doctrine result from the nature of compacts? does it arise from any particular stipulation in the articles of confederation? if we consider the federal union as analagous to the fundamental compact by which individuals compose one society, and which must in its theoretic origin at least, have been the unanimous act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. a breach of the fundamental principles of the compact by a part of the society would certainly absolve the other part from their obligations to it. if the breach of _any_ article by _any_ of the parties, does not set the others at liberty, it is because, the contrary is _implied_ in the compact itself, and particularly by that law of it, which gives an indefinite authority to the majority to bind the whole in all cases. this latter circumstance shews that we are not to consider the federal union as analagous to the social compact of individuals: for if it were so, a majority would have a right to bind the rest, and even to form a new constitution for the whole, which the gentl^n from n. jersey would be among the last to admit. if we consider the federal union as analagous not to the social compacts among individual men: but to the conventions among individual states, what is the doctrine resulting from these conventions? clearly, according to the expositors of the law of nations, that a breach of any one article by any one party, leaves all the other parties at liberty, to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. in some treaties indeed it is expressly stipulated that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which in general is understood to dissolve all subsisting treaties. but are there any exceptions of this sort to the articles of confederation? so far from it that there is not even an express stipulation that force shall be used to compell an offending member of the union to discharge its duty. he observed that the violations of the federal articles had been numerous & notorious. among the most notorious was an act of n. jersey herself; by which she _expressly refused_ to comply with a constitutional requisition of cong^s and yielded no farther to the expostulations of their deputies, than barely to rescind her vote of refusal without passing any positive act of compliance. he did not wish to draw any rigid inferences from these observations. he thought it proper however that the true nature of the existing confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands. proceeding to the consideration of m^r patterson's plan, he stated the object of a proper plan to be twofold. . to preserve the union. . to provide a governm^t that will remedy the evils felt by the states both in their united and individual capacities. examine m^r p'^s plan, & say whether it promises satisfaction in these respects. . will it prevent the violations of the law of nations & of treaties which if not prevented must involve us in the calamities of foreign wars? the tendency of the states to these violations has been manifested in sundry instances. the files of cong^s contain complaints already, from almost every nation with which treaties have been formed. hitherto indulgence has been shewn to us. this cannot be the permanent disposition of foreign nations. a rupture with other powers is among the greatest of national calamities. it ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. the existing confederacy does not sufficiently provide against this evil. the proposed amendment to it does not supply the omission. it leaves the will of the states as uncontrouled as ever. . will it prevent encroachments on the federal authority? a tendency to such encroachments has been sufficiently exemplified, among ourselves, as well as in every other confederated republic antient and modern. by the federal articles, transactions with the indians appertain to cong^s. yet in several instances, the states have entered into treaties & wars with them. in like manner no two or more states can form among themselves any treaties &c. without the consent of cong^s. yet virg^a & mary^d in one instance--pen^a & n. jersey in another, have entered into compacts, without previous application or subsequent apology. no state again can of right raise troops in time of peace without the like consent. of all cases of the league, this seems to require the most scrupulous observance. has not mass^{ts}, notwithstanding, the most powerful member of the union, already raised a body of troops? is she not now augmenting them, without having even deigned to apprise cong^s of her intention? in fine--have we not seen the public land dealt out to con^t to bribe her acquiescence in the decree constitutionally awarded ag^{st} her claim on the territory of pen^a: for no other possible motive can account for the policy of cong^s in that measure?--if we recur to the examples of other confederacies, we shall find in all of them the same tendency of the parts to encroach on the authority of the whole. he then reviewed the amphyctionic & achæan confederacies among the antients, and the helvetic, germanic & belgic among the moderns, tracing their analogy to the u. states in the constitution and extent of their federal authorities--in the tendency of the particular members to usurp on these authorities, and to bring confusion & ruin on the whole.--he observed that the plan of mr. pat[er]son, besides omitting a controul over the states as a general defence of the federal prerogatives was particularly defective in two of its provisions. . its ratification was not to be by the people at large, but by the _legislatures_. it could not therefore render the acts of cong^s in pursuance of their powers, even legally _paramount_ to the acts of the states. . it gave to the federal tribunal an appellate jurisdiction only--even in the criminal cases enumerated. the necessity of any such provision supposed a danger of undue acquittals in the state tribunals, of what avail c^d an appellate tribunal be, after an acquittal? besides in most if not all of the states, the executives have by their respective _constitutions_, the right of pard^g. how could this be taken from them by a _legislative_ ratification only? . will it prevent trespasses of the states on each other? of these enough has been already seen. he instanced acts of virg^a & maryland which gave a preference to their own citizens in cases where the citizens of other states are entitled to equality of privileges by the articles of confederation. he considered the emissions of paper money & other kindred measures as also aggressions. the states relatively to one another being each of them either debtor or creditor; the creditor states must suffer unjustly from every emission by the debtor states. we have seen retaliating acts on the subject which threatened danger not to the harmony only, but the tranquillity of the union. the plan of m^r paterson, not giving even a negative on the acts of the states, left them as much at liberty as ever to execute their unrighteous projects ag^{st} each other. . will it secure the internal tranquillity of the states themselves? the insurrections in mass^{ts} admonished all the states of the danger to which they were exposed. yet the plan of m^r p. contained no provisions for supplying the defect of the confederation on this point. according to the republican theory indeed, right & power being both vested in the majority, are held to be synonymous. according to fact & experience, a minority may in an appeal to force be an overmatch for the majority. . if the minority happen to include all such as possess the skill & habits of military life, with such as possess the great pecuniary resources, one third may conquer the remaining two thirds. . one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, & who for obvious reasons may be more ready to join the standard of sedition than that of established government. . where slavery exists, the republican theory becomes still more fallacious. . will it secure a good internal legislation & administration to the particular states? in developing the evils which vitiate the political system of the u. s. it is proper to take into view those which prevail within the states individually as well as those which affect them collectively: since the former indirectly affect the whole; and there is great reason to believe that the pressure of them had a full share in the motives which produced the present convention. under this head he enumerated and animadverted on . the multiplicity of the laws passed by the several states. . the mutability of their laws. . the injustice of them. . the impotence of them: observing that m^r patterson's plan contained no remedy for this dreadful class of evils, and could not therefore be received as an adequate provision for the exigencies of the community. . will it secure the union ag^{st} the influence of foreign powers over its members. he pretended not to say that any such influence had yet been tried: but it was naturally to be expected that occasions would produce it. as lessons which claimed particular attention, he cited the intrigues practised among the amphyctionic confederates first by the kings of persia, and afterwards fatally by philip of macedon: among the achæans, first by macedon & afterwards no less fatally by rome: among the swiss by austria, france & the lesser neighbouring powers: among the members of the germanic body by france, england, spain & russia--and in the belgic republic, by all the great neighbouring powers. the plan of m^r patterson, not giving to the general councils any negative on the will of the particular states, left the door open for the like pernicious machinations among ourselves. . he begged the smaller states which were most attached to m^r patterson's plan to consider the situation in which it would leave them. in the first place they would continue to bear the whole expence of maintaining their delegates in congress. it ought not to be said that if they were willing to bear this burthen, no others had a right to complain. as far as it led the small states to forbear keeping up a representation, by which the public business was delayed, it was evidently a matter of common concern. an examination of the minutes of congress would satisfy every one that the public business had been frequently delayed by this cause; and that the states most frequently unrepresented in cong^s were not the larger states. he reminded the convention of another consequence of leaving on a small state the burden of maintaining a representation in cong^s. during a considerable period of the war, one of the representatives of delaware, in whom alone before the signing of the confederation the entire vote of that state and after that event one half of its vote, frequently resided, was a citizen & resident of pen^a and held an office in his own state incompatible with an appointment from it to cong^s. during another period, the same state was represented by three delegates two of whom were citizens of penn^a and the third a citizen of new jersey. these expedients must have been intended to avoid the burden of supporting delegates from their own state. but whatever might have been y^e cause, was not in effect the vote of one state doubled, and the influence of another increased by it? in the ^d place the coercion, on which the efficacy of the plan depends, can never be exerted but on themselves. the larger states will be impregnable, the smaller only can feel the vengeance of it. he illustrated the position by the history of the amphyctionic confederates: and the ban of the german empire. it was the cobweb w^{ch} could entangle the weak, but would be the sport of the strong. . he begged them to consider the situation in which they would remain in case their pertinacious adherence to an inadmissible plan, should prevent the adoption of any plan. the contemplation of such an event was painful; but it would be prudent to submit to the task of examining it at a distance, that the means of escaping it might be the more readily embraced. let the union of the states be dissolved, and one of two consequences must happen. either the states must remain individually independent & sovereign; or two or more confederacies must be formed among them. in the first event would the small states be more secure ag^{st} the ambition & power of their larger neighbours, than they would be under a general government pervading with equal energy every part of the empire, and having an equal interest in protecting every part ag^{st} every other part? in the second, can the smaller expect that their larger neighbours would confederate with them on the principle of the present confederacy, which gives to each member, an equal suffrage; or that they would exact less severe concessions from the smaller states, than are proposed in the scheme of m^r randolph? the great difficulty lies in the affair of representation; and if this could be adjusted, all others would be surmountable. it was admitted by both the gentlemen from n. jersey, (m^r brearly and m^r patterson) that it would not be _just to allow virg^a_ which was times as large as delaware an equal vote only. their language was that it would not be _safe for delaware_ to allow virg^a times as many votes. the expedient proposed by them was that all the states should be thrown into one mass and a new partition be made into equal parts. would such a scheme be practicable? the dissimilarities existing in the rules of property, as well as in the manners, habits and prejudices of the different states, amounted to a prohibition of the attempt. it had been found impossible for the power of one of the most absolute princes in europe (k. of france) directed by the wisdom of one of the most enlightened and patriotic ministers (m^r neckar) that any age has produced, to equalize in some points only the different usages & regulations of the different provinces. but admitting a general amalgamation and repartition of the states to be practicable, and the danger apprehended by the smaller states from a proportional representation to be real; would not a particular and voluntary coalition of these with their neighbours, be less inconvenient to the whole community, and equally effectual for their own safety. if n. jersey or delaware conceived that an advantage would accrue to them from an equalization of the states, in which case they would necessarily form a junction with their neighbours, why might not this end be attained by leaving them at liberty by the constitution to form such a junction whenever they pleased? and why should they wish to obtrude a like arrangement on all the states, when it was, to say the least, extremely difficult, would be obnoxious to many of the states, and when neither the inconveniency, nor the benefit of the expedient to themselves, would be lessened by confining it to themselves.--the prospect of many new states to the westward was another consideration of importance. if they should come into the union at all, they would come when they contained but few inhabitants. if they sh^d be entitled to vote according to their proportions of inhabitants, all would be right & safe. let them have an equal vote, and a more objectionable minority than ever might give law to the whole.[ ] [ ] "mr. dickinson supposed that there were good regulations in both. let us therefore contrast the one with the other, and consolidate such parts of them as the committee approve."--yates, _secret proceedings_, etc., . on a question for postponing generally the ^{st} proposition of m^r patterson's plan, it was agreed to: n. y. & n. j. only being no. on the question moved by m^r king whether the co[~m]itee should rise & m^r randolph's proposition be reported without alteration, which was in fact a question whether m^r r's should be adhered to as preferable to those of m^r patterson; mass^{ts} ay. con^t ay. n. y. no. n. j. no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. copy of the resol^{ns} of mr. r. as altered in com^e and reported to the house. (of m^r randolph's plan as reported from the co[~m]ittee)--the . propos: "that a nat^l gov^t ought to be established consisting &c." being taken up in the house. m^r wilson observed that by a nat^l gov^t he did not mean one that would swallow up the state gov^{ts} as seemed to be wished by some gentlemen. he was tenacious of the idea of preserving the latter. he thought, contrary to the opinion of (col. hamilton) that they might not only subsist but subsist on friendly terms with the former. they were absolutely necessary for certain purposes which the former could not reach. all large governments must be subdivided into lesser jurisdictions. as examples he mentioned persia, rome, and particularly the divisions & subdivisions of england by alfred. col. hamilton coincided with the proposition as it stood in the report. he had not been understood yesterday. by an abolition of the states, he meant that no boundary could be drawn between the national & state legislatures; that the former must therefore have indefinite authority. if it were limited at all, the rivalship of the states would gradually subvert it. even as corporations the extent of some of them as v^a mass^{ts} &c. would be formidable. _as states_, he thought they ought to be abolished. but he admitted the necessity of leaving in them, subordinate jurisdictions. the examples of persia & the roman empire, cited by (m^r wilson) were he thought in favor of his doctrine: the great powers delegated to the satraps & proconsuls having frequently produced revolts, and schemes of independence. m^r king wished as every thing depended on this proposition, that no objections might be improperly indulged ag^{st} the phraseology of it. he conceived that the import of the term "states" "sovereignty" "_national_" "federal," had been often used & applied in the discussions inaccurately & delusively. the states were not "sovereigns" in the sense contended for by some. they did not possess the peculiar features of sovereignty, they could not make war, nor peace, nor alliances nor treaties. considering them as political beings, they were dumb, for they could not speak to any for[~e]gn sovereign whatever. they were deaf, for they could not hear any propositions from such sovereign. they had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. on the other side, if the union of the states comprises the idea of a confederation, it comprises that also of consolidation. a union of the states is a union of the men composing them, from whence a _national_ character results to the whole. cong^s can act alone without the states--they can act & their acts will be binding ag^{st} the instructions of the states. if they declare war: war is de jure declared--captures made in pursuance of it are lawful--no acts of the states can vary the situation, or prevent the judicial consequences. if the states therefore retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. if they formed a confederacy in some respects--they formed a nation in others. the convention could clearly deliberate on & propose any alterations that cong^s could have done under y^e federal articles, and could not cong^s propose by virtue of the last article, a change in any article whatever; and as well that relating to the equality of suffrage, as any other. he made these remarks to obviate some scruples which had been expressed. he doubted much the practicability of annihilating the states; but thought that much of their power ought to be taken from them.[ ] [ ] king, in his notes, gives a résumé of his speech. it illustrates the accuracy of madison's reporting: "answer (r. king) the states under the confed. are not sovereign states they can do no act but such as are of a subordinate nature or such as terminate in themselves--and even these are restrained--coinage, p. office &c. they are wholly incompetent to the exercise of any of the gt. & distinguishing acts of sovereignty--they can neither make nor receive (embassies) to or from any other sovereign--they have not the powers of injuring another or of defending themselves from an injury offered from one another--they are deaf, dumb and impotent--these faculties are yielded up and the u. s. in c. assd. hold and possess them, and they alone can exercise them--they are so far out of the controul of the separate states yt. if every state in the union was to instruct yr. deleg., and those delegates within ye powers of the arts. of union shd. do an act in violation of their instructions it wd. nevertheless be valid. if they declared a war, any giving aid or comfort to the enemy wd. be treason; if peace, any capture on the high seas wd. be piracy. this remark proves yt. the states are now subordinate corporations or societies and not sovereigns--these imperfect states are the confederates and they are the electors of the magistrates who exercise the national sovereignty. the articles of confedr. and perpetual union, are partly federal & partly of the nature of a constitution or form of govt. arising from and applying to the citizens of the u. s. & not from the individual states. "the only criterion of determining what is federal & what is national is this, those acts which are for the government of the states only are purely federal, those which are for the government of the citizens of the individual states are national and not federal. "if then the articles of confedr. & perpetual union have this twofold capacity, and if they provide for an alteration in a certain mode, why may not they be so altered as that the federal article may be changed to a national one, and the national to a federal? i see no argument that can be objected to the authority. the th article regulates the influence of the several states and makes them equal--does not the confed. authorize this alteration, that instead of this equality, one state may have double the influence of another--i conceive it does--and so of every article except that wh. destroys the idea of a confedy. i think it may be proved that every article may be totally altered provided you have one guarantying to each state the right of regulating its private & internal affairs in the manner of a subordinate corporation. "but admitting that the arts, of confed. & perpet. union, or the powers of the legis. did not extend to the proposed reform; yet the public deputations & the public danger require it--the system proposed to be adopted is no scheme of a day, calculated to postpone the hour of danger, & thus leave it to fall with double ruin on our successors--it is no crude and undigested plan; the child of narrow and unextensive views, brought forward under the auspices of cowardice & irresolution--it is a measure of decision, it is the foundation of freedom & of national glory. it will draw on itself and be able to support the severest scrutiny & examination. it is no idle experiment, no romantic speculation--the measure forces itself upon wise men, and if they have not firmness to look it in the face and protect it--farewell to the freedom of our government--our military glory will be tarnished and our boasts of freedom will be the scorn of the enemies of liberty."--_life and correspondence of rufus king_, i., , n. m^r martin.[ ] said he considered that the separation from g. b. placed the states in a state of nature towards each other; that they would have remained in that state till this time, but for the confederation; that they entered into the confederation on the footing of equality; that they met now to amend it on the same footing; and that he could never accede to a plan that would introduce an inequality and lay states at the mercy of v^a mass^{ts} and penn^a. [ ] "mr. martin was educated for the bar, and is attorney general for the state of maryland. this gentleman possesses a good deal of information, but he has a very bad delivery, and so extremely prolix, that he never speaks without tiring the patience of all who hear him. he is about years of age."--pierce's notes, _am. hist. rev._, iii., . m^r wilson, could not admit the doctrine that when the colonies became independent of g. britain, they became independent also of each other. he read the declaration of independence, observing thereon that the _united colonies_ were declared to be free & independent states; and inferring that they were independent, not _individually_ but _unitedly_ and that they were confederated as they were independent, states. col. hamilton assented to the doctrine of m^r wilson. he denied the doctrine that the states were thrown into a state of nature. he was not yet prepared to admit the doctrine that the confederacy, could be dissolved by partial infractions of it. he admitted that the states met now on an equal footing but could see no inference from that against concerting a change of the system in this particular. he took this occasion of observing for the purpose of appeasing the fears of the small states, that two circumstances would render them secure under a national gov^t in which they might lose the equality of rank they now held: one was the local situation of the largest states virg^a mass^{ts} & p^a. they were separated from each other by distance of place, and equally so, by all the peculiarities which distinguish the interests of one state from those of another. no combination therefore could be dreaded. in the second place, as there was a gradation in the states from v^a the largest down to delaware the smallest, it would always happen that ambitious combinations among a few states might & w^d be counteracted by defensive combinations of greater extent among the rest. no combination has been seen among the large counties merely as such, ag^{st} lesser counties. the more close the union of the states, and the more compleat the authority of the whole: the less opportunity will be allowed to the stronger states to injure the weaker. adj^d. wednesday june . . in convention. m^r william blount from n. carolina took his seat. ^{st} propos: of the report of com^e of the whole, before the house. m^r elseworth ^{ded} by m^r gorham, moves to alter it so as to run "that the government of the united states ought to consist of a supreme legislative, executive and judiciary." this alteration he said would drop the word _national_, and retain the proper title "the united states." he could not admit the doctrine that a breach of any of the federal articles could dissolve the whole. it would be highly dangerous not to consider the confederation as still subsisting. he wished also the plan of the convention to go forth as an amendment of the articles of the confederation, since under this idea the authority of the legislatures could ratify it. if they are unwilling, the people will be so too. if the plan goes forth to the people for ratification several succeeding conventions within the states would be unavoidable. he did not like these conventions. they were better fitted to pull down than to build up constitutions. m^r randolph. did not object to the change of expression, but apprised the gentleman who wished for it that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification. the motion of m^r elsew^{th} was acquiesced in nem: con: the ^d resol: "that the national legislature ought to consist of two branches" taken up, the word "national" struck out as of course. _m^r lansing._ observed that the true question here was, whether the convention would adhere to or depart from the foundation of the present confederacy; and moved instead of the ^d resolution, "that the powers of legislation be vested in the u. states in congress." he had already assigned two reasons ag^{st} such an innovation as was proposed: . the want of competent powers in the convention.-- . the state of the public mind. it had been observed by (m^r madison) in discussing the first point, that in two states the delegates to cong^s were chosen by the people. notwithstanding the first appearance of this remark, it had in fact no weight, as the delegates however chosen, did not represent the people merely as so many individuals; but as forming a sovereign state. (mr. randolph) put it, he said, on its true footing namely that the public safety superseded the scruple arising from the review of our powers. but in order to feel the force of this consideration, the same impression must be had of the public danger. he had not himself the same impression, and could not therefore dismiss his scruple. (m^r wilson) contended that as the convention were only to recommend, they might recommend what they pleased. he differed much from him. any act whatever of so respectable a body must have a great effect, and if it does not succeed, will be a source of great dissentions. he admitted that there was no certain criterion of the public mind on the subject. he therefore recurred to the evidence of it given by the opposition in the states to the scheme of an impost. it could not be expected that those possessing sovereignty could ever voluntarily part with it. it was not to be expected from any one state, much less from thirteen. he proceeded to make some observations on the plan itself and the argum^{ts} urged in support of it. the point of representation could receive no elucidation from the case of england. the corruption of the boroughs did not proceed from their comparative smallness; but from the actual fewness of the inhabitants, some of them not having more than one or two. a great inequality existed in the counties of england. yet the like complaint of peculiar corruption in the small ones had not been made. it had been said that congress represent the state prejudices: will not any other body whether chosen by the legislatures or people of the states, also represent their prejudices? it had been asserted by his colleague (col. hamilton) that there was no coincidence of interests among the large states that ought to excite fears of oppression in the smaller. if it were true that such a uniformity of interests existed among the states, there was equal safety for all of them, whether the representation remained as heretofore, or were proportioned as now proposed. it is proposed that the gen^l legislature shall have a negative on the laws of the states. is it conceivable that there will be leisure for such a task? there will on the most moderate calculation, be as many acts sent up from the states as there are days in the year. will the members of the general legislature be competent judges? will a gentleman from georgia be a judge of the expediency of a law which is to operate in n. hampshire. such a negative would be more injurious than that of great britain heretofore was. it is said that the national gov^t must have the influence arising from the grant of offices and honors. in order to render such a government effectual he believed such an influence to be necessary. but if the states will not agree to it, it is in vain, worse than in vain to make the proposition. if this influence is to be attained, the states must be entirely abolished. will any one say this would ever be agreed to? he doubted whether any gen^l government equally beneficial to all can be attained. that now under consideration he is sure, must be utterly unattainable. he had another objection. the system was too novel & complex. no man could foresee what its operation will be either with respect to the gen^l gov^t or the state gov^{ts}. one or other it has been surmised must absorb the whole. col. mason. did not expect this point would have been reagitated. the essential differences between the two plans, had been clearly stated. the principal objections ag^{st} that of m^r r. were the _want of power_ & the _want of practicability_. there can be no weight in the first as the fiat is not to be _here_, but in the people. he thought with his colleague m^r r. that there were besides certain crisises, in which all the ordinary cautions yielded to public necessity. he gave as an example, the eventual treaty with g. b. in forming which the co[~m]^{srs} of the u. s. had boldly disregarded the improvident shackles of cong^s had given to their country an honorable & happy peace, and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass. the _impracticability_ of gaining the public concurrence he thought was still more groundless. (m^r lansing) had cited the attempts of congress to gain an enlargement of their powers, and had inferred from the miscarriage of these attempts, the hopelessness of the plan which he (m^r l) opposed. he thought a very different inference ought to have been drawn; viz that the plan which (m^r l) espoused, and which proposed to augment the powers of congress, never could be expected to succeed. he meant not to throw any reflections on cong^s as a body, much less on any particular members of it. he meant however to speak his sentiments without reserve on this subject; it was a privilege of age, and perhaps the only compensation which nature had given for, the privation of so many other enjoyments: and he should not scruple to exercise it freely. is it to be thought that the people of america, so watchful over their interests; so jealous of their liberties, will give up their all, will surrender both the sword and the purse, to the same body, and that too not chosen immediately by themselves? they never will. they never ought. will they trust such a body, with the regulation of their trade, with the regulation of their taxes; with all the other great powers, which are in contemplation? will they give unbounded confidence to a secret journal--to the intrigues--to the factions which in the nature of things appertain to such an assembly? if any man doubts the existence of these characters of congress, let him consult their journals for the years , , & .--it will be said, that if the people are averse to parting with power, why is it hoped that they will part with it to a national legislature. the proper answer is that in this case they do not part with power: they only transfer it from one sett of immediate representatives to another sett.--much has been said of the unsettled state of the mind of the people, he believed the mind of the people of america, as elsewhere, was unsettled as to some points; but settled as to others. in two points he was sure it was well settled. . in an attachment to republican government. . in an attachment to more than one branch in the legislature. their constitutions accord so generally in both these circumstances, that they seem almost to have been preconcerted. this must either have been a miracle, or have resulted from the genius of the people. the only exceptions to the establishm^t of two branches in the legislatures are the state of p^a & cong^s and the latter the only single one not chosen by the people themselves. what has been the consequence? the people have been constantly averse to giving that body further powers--it was acknowledged by (m^r patterson) that his plan could not be enforced without military coercion. does he consider the force of this concession. the most jarring elements of nature; fire & water themselves are not more incompatible that[n] such a mixture of civil liberty and military execution. will the militia march from one state to another, in order to collect the arrears of taxes from the delinquent members of the republic? will they maintain an army for this purpose? will not the citizens of the invaded state assist one another till they rise as one man, and shake off the union altogether. rebellion is the only case, in which the military force of the state can be properly exerted ag^{st} its citizens. in one point of view he was struck with horror at the prospect of recurring to this expedient. to punish the non-payment of taxes with death, was a severity not yet adopted by despotism itself: yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty. he took this occasion to repeat, that notwithstanding his solicitude to establish a national government, he never would agree to abolish the state gov^{ts} or render them absolutely insignificant. they were as necessary as the gen^l gov^t and he would be equally careful to preserve them. he was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. the convention, tho' comprising so many distinguished characters, could not be expected to make a faultless gov^t. and he would prefer trusting to posterity the amendment of its defects, rather than to push the experiment too far. m^r luther martin agreed with (col mason) as to the importance of the state gov^{ts} he would support them at the expence of the gen^l gov^t which was instituted for the purpose of that support. he saw no necessity for two branches, and if it existed congress might be organized into two. he considered cong^s as representing the people, being chosen by the legislatures who were chosen by the people. at any rate, congress represented the legislatures; and it was the legislatures not the people who refused to enlarge their powers. nor could the rule of voting have been the ground of objection, otherwise ten of the states must always have been ready, to place further confidence in cong^s. the causes of repugnance must therefore be looked for elsewhere.--at the separation from the british empire, the people of america preferred the establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one: to these they look up for the security of their lives, liberties & properties: to these they must look up. the federal gov^t they formed, to defend the whole ag^{st} foreign nations, in case of war, and to defend the lesser states ag^{st} the ambition of the larger: they are afraid of granting power unnecessarily, lest they should defeat the original end of the union; lest the powers should prove dangerous to the sovereignties of the particular states which the union was meant to support; and expose the lesser to being swallowed up by the larger. he conceived also that the people of the states having already vested their powers in their respective legislatures, could not resume them without a dissolution of their governments. he was ag^{st} conventions in the states: was not ag^{st} assisting states ag^{st} rebellious subjects; thought the _federal_ plan of m^r patterson did not require coercion more than the _national one_, as the latter must depend for the deficiency of its revenues on requisitions & quotas, and that a national judiciary extended into the states would be ineffectual, and would be viewed with a jealousy inconsistent with its usefulness. m^r sherman ^{ded} & supported m^r lansings motion. he admitted two branches to be necessary in the state legislatures, but saw no necessity for them in a confederacy of states. the examples were all, of a single council. cong^s carried us thro' the war, and perhaps as well as any gov^t could have done. the complaints at present are not that the views of cong^s are unwise or unfaithful; but that their powers are insufficient for the execution of their views. the national debt & the want of power somewhere to draw forth the national resources, are the great matters that press. all the states were sensible of the defect of power in cong^s. he thought much might be said in apology for the failure of the state legislatures to comply with the confederation. they were afraid of leaning too hard on the people, by accumulating taxes; no _constitutional_ rule had been or could be observed in the quotas--the accounts also were unsettled & every state supposed itself in advance, rather than in arrears. for want of a general system, taxes to a due amount had not been drawn from trade which was the most convenient resource. as almost all the states had agreed to the recommendation of cong^s on the subject of an impost, it appeared clearly that they were willing to trust cong^s with power to draw a revenue from trade. there is no weight therefore in the argument drawn from a distrust of cong^s for money matters being the most important of all, if the people will trust them with power as to them, they will trust them with any other necessary powers. cong^s indeed by the confederation have in fact the right of saying how much the people shall pay, and to what purpose it shall be applied: and this right was granted to them in the expectation that it would in all cases have its effect. if another branch were to be added to cong^s to be chosen by the people, it would serve to embarrass. the people would not much interest themselves in the elections, a few designing men in the large districts would carry their points, and the people would have no more confidence in their new representatives than in cong^s. he saw no reason why the state legislatures should be unfriendly as had been suggested, to cong^s. if they appoint cong^s and approve of their measures, they would be rather favourable and partial to them. the disparity of the states in point of size he perceived was the main difficulty. but the large states had not yet suffered from the equality of votes enjoyed by the small ones. in all great and general points, the interests of all the states were the same. the state of virg^a notwithstanding the equality of votes, ratified the confederation without, or even proposing, any alteration. mass^{ts} also ratified without any material difficulty &c. in none of the ratifications is the want of two branches noticed or complained of. to consolidate the states as some had proposed would dissolve our treaties with foreign nations, which had been formed with us, as _confederated_ states. he did not however suppose that the creation of two branches in the legislature would have such an effect. if the difficulty on the subject of representation can not be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each state had an equal voice in the other. this was necessary to secure the rights of the lesser states; otherwise three or four of the large states would rule the others as they please. each state like each individual had its peculiar habits usages and manners, which constituted its happiness. it would not therefore give to others a power over this happiness, any more than an individual would do, when he could avoid it. m^r wilson. urged the necessity of two branches; observed that if a proper model were not to be found in other confederacies it was not to be wondered at. the number of them was small & the duration of some at least short. the amphyctionic and achæan were formed in the infancy of political science; and appear by their history & fate, to have contained radical defects. the swiss & belgic confederacies were held together not by any vital principle of energy but by the incumbent pressure of formidable neighbouring nations: the german owed its continuance to the influence of the h. of austria. he appealed to our own experience for the defects of our confederacy. he had been years in the since the commencement of the revolution, a member of congress, and had felt all its weaknesses. he appealed to the recollection of others whether on many important occasions, the public interest had not been obstructed by the small members of the union. the success of the revolution was owing to other causes, than the constitution of congress. in many instances it went on even ag^{st} the difficulties arising from cong^s themselves. he admitted that the large states did accede as had been stated, to the confederation in its present form. but it was the effect of necessity not of choice. there are other instances of their yielding from the same motive to the unreasonable measures of the small states. the situation of things is now a little altered. he insisted that a jealousy would exist between the state legislatures & the general legislature: observing that the members of the former would have views & feelings very distinct in this respect from their constituents. a private citizen of a state is indifferent whether power be exercised by the gen^l or state legislatures, provided it be exercised most for his happiness. his representative has an interest in its being exercised by the body to which he belongs. he will therefore view the national legisl: with the eye of a jealous rival. he observed that the addresses of cong^s to the people at large, had always been better received & produced greater effect, than those made to the legislatures. on the question for postponing in order to take up m^r lansing's proposition "to vest the powers of legislation in cong^s" mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d div^d. v^a no. n. c. no. s. c. no. geo. no. on motion of the deputies from delaware, the question on the ^d resolution in the report from the committee of the whole was postponed till tomorrow. adj^d. thursday june . in convention. m^r jonathan dayton from n. jersey took his seat.[ ] [ ] from june to july inclusive not copied by m^r eppes.--madison's note. this applies evidently to notes he permitted hon. george w. eppes, jefferson's son-in-law, to take. doc^r johnson.[ ] on a comparison of the two plans which had been proposed from virginia & n. jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the states. the plan from v^a did not profess to destroy this individuality altogether, but was charged with such a tendency. one gentleman alone (col. hamilton) in his animadversions on the plan of n. jersey, boldly and decisively contended for an abolition of the state gov^{ts}. m^r wilson & the gentleman from virg^a who also were adversaries of the plan of n. jersey held a different language. they wished to leave the states in possession of a considerable, tho' a subordinate jurisdiction. they had not yet however shewn how this c^d consist with, or be secured ag^{st} the general sovereignty & jurisdiction, which they proposed to give to the national government. if this could be shewn in such a manner as to satisfy the patrons of the n. jersey propositions, that the individuality of the states would not be endangered, many of their objections would no doubt be removed. if this could not be shewn their objections would have their full force. he wished it therefore to be well considered whether in case the states, as was proposed, sh^d retain some portion of sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the gen^l gov^t, without giving them each a distinct and equal vote for the purpose of defending themselves in the general councils. [ ] "d^r johnson is a character much celebrated for his legal knowledge; he is said to be one of the first classics in america, and certainly possesses a very strong and enlightened understanding. "as an orator in my opinion, there is nothing in him that warrants the high reputation which he has for public speaking. there is something in the tone of his voice not pleasing to the ear,--but he is eloquent and clear,--always abounding with information and instruction. he was once employed as an agent for the state of connecticut to state her claims to certain landed territory before the british house of commons; this office he discharged with so much dignity, and made such an ingenious display of his powers, that he laid the foundation of a reputation which will probably last much longer than his own life. d^r johnson is about sixty years of age, possesses the manners of a gentleman, and engages the hearts of men by the sweetness of his temper, and that affectionate style of address with which he accosts his acquaintance."--pierce's notes, _am. hist. rev._, iii., . m^r wilson's respect for doc^r johnson, added to the importance of the subject led him to attempt, unprepared as he was, to solve the difficulty which had been started. it was asked how the gen^l gov^t and individuality of the particular states could be reconciled to each other; and how the latter could be secured ag^{st} the former? might it not, on the other side be asked how the former was to be secured ag^{st} the latter? it was generally admitted that a jealousy & rivalship would be felt between the gen^l & particular gov^{ts}. as the plan now stood, tho' indeed contrary to his opinion, one branch of the gen^l gov^t (the senate or second branch) was to be appointed by the state legislatures. the state legislatures, therefore, by this participation in the gen^l gov^t would have an opportunity of defending their rights. ought not a reciprocal opportunity to be given to the gen^l gov^t of defending itself by having an appointment of some one constituent branch of the state gov^{ts}. if a security be necessary on one side, it w^d seem reasonable to demand it on the other. but taking the matter in a more general view, he saw no danger to the states from the gen^l gov^t. in case a combination should be made by the large ones it w^d produce a general alarm among the rest; and the project w^d be frustrated. but there was no temptation to such a project. the states having in general a similar interest, in case of any propositions in the national legislature to encroach on the state legislatures, he conceived a general alarm w^d take place in the national legislature itself, that it would communicate itself to the state legislatures, and w^d finally spread among the people at large. the gen^l gov^t will be as ready to preserve the rights of the states as the latter are to preserve the rights of individuals; all the members of the former, having a common interest, as representatives of all the people of the latter, to leave the state gov^{ts} in possession of what the people wish them to retain. he could not discover, therefore any danger whatever on the side from which it was apprehended. on the contrary, he conceived that in spite of every precaution the general gov^t would be in perpetual danger of encroachments from the state gov^{ts}. m^r madison was of opinion that there was . less danger of encroachment from the gen^l gov^t than from the state gov^{ts} . that the mischief from encroachments would be less fatal if made by the former, than if made by the latter. . all the examples of other confederacies prove the greater tendency in such systems to anarchy than to tyranny; to a disobedience of the members than usurpations of the federal head. our own experience had fully illustrated this tendency.--but it will be said that the proposed change in the principles & form of the union will vary the tendency; that the gen^l gov^t will have real & greater powers, and will be derived in one branch at least from the people, not from the gov^{ts} of the states. to give full force to this objection, let it be supposed for a moment that indefinite power should be given to the gen^l legislature, and the states reduced to corporations dependent on the gen^l legislature; why sh^d it follow that the gen^l gov^t w^d take from the states any branch of their power as far as its operation was beneficial, and its continuance desireable to the people? in some of the states, particularly in connecticut, all the townships are incorporated, and have a certain limited jurisdiction. have the representatives of the people of the townships in the legislature of the state ever endeavoured to despoil the townships of any part of their local authority? as far as this local authority is convenient to the people they are attached to it; and their representatives chosen by & amenable to them, naturally respect their attachment to this, as much as their attachment to any other right or interest. the relation of a general gov^t to state gov^{ts} is parallel. . guards were more necessary ag^{st} encroachments of the state gov^{ts} on the gen^l gov^t than of the latter on the former. the great objection made ag^{st} an abolition of the state gov^{ts} was that the gen^l gov^t could not extend its care to all the minute objects which fall under the cognizance of the local jurisdictions. the objection as stated lay not ag^{st} the probable abuse of the general power, but ag^{st} the imperfect use that could be made of it throughout so great an extent of country, and over so great a variety of objects. as far as its operation would be practicable it could not in this view be improper; as far as it would be impracticable, the conveniency of the gen^l gov^t itself would concur with that of the people in the maintenance of subordinate governments. were it practicable for the gen^l gov^t to extend its care to every requisite object without the cooperation of the state gov^{ts} the people would not be less free as members of one great republic than as members of thirteen small ones. a citizen of delaware was not more free than a citizen of virginia: nor would either be more free than a citizen of america. supposing therefore a tendency in the gen^l government to absorb the state gov^{ts} no fatal consequence could result. taking the reverse as the supposition, that a tendency should be left in the state gov^{ts} towards an independence on the general gov^t and the gloomy consequences need not be pointed out. the imagination of them, must have suggested to the states the experiment we are now making to prevent the calamity, and must have formed the chief motive with those present to undertake the arduous task. on the question for resolving "that the legislature ought to consist of two branches" mass. ay. con^t ay. n. y. no. n. jersey, no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. the _third_ resolution of the report taken into consideration. gen^l pinkney moved "that the ^{st} branch, instead of being elected by the people, sh^d be elected in such manner as the legislature of each state should direct." he urged . that this liberty would give more satisfaction, as the legislatures could then accommodate the mode to the conveniency & opinions of the people. . that it would avoid the undue influence of large counties which would prevail if the elections were to be made in districts as must be the mode intended by the report of the committee. . that otherwise disputed elections must be referred to the general legislature which would be attended with intolerable expence and trouble to the distant parts of the republic. m^r l. martin seconded the motion.[ ] [ ] after martin's second, according to yates: "m^r madison. i oppose the motion--there are no difficulties, but they may be obviated in the details connected with the subject."--yates, _secret proceedings_, etc., . col. hamilton considered the motion as intended manifestly to transfer the election from the people to the state legislatures, which would essentially vitiate the plan. it would increase that state influence which could not be too watchfully guarded ag^{st}. all too must admit the possibility, in case the gen^l gov^t sh^d maintain itself, that the state gov^{ts} might gradually dwindle into nothing. the system therefore sh^d not be engrafted on what might possibly fail. m^r mason urged the necessity of retaining the election by the people. whatever inconveniency may attend the democratic principle, it must actuate one part of the gov^t. it is the only security for the rights of the people. m^r sherman, would like an election by the legislatures best, but is content with the plan as it stands. m^r rutlidge could not admit the solidity of the distinction between a mediate & immediate election by the people. it was the same thing to act by oneself, and to act by another. an election by the legislature would be more refined than an election immediately by the people: and would be more likely to correspond with the sense of the whole community. if this convention had been chosen by the people in districts it is not to be supposed that such proper characters would have been preferred. the delegates to cong^s he thought had also been fitter men than would have been appointed by the people at large. m^r wilson considered the election of the ^{st} branch by the people not only as the corner stone, but as the foundation of the fabric: and that the difference between a mediate & immediate election was immense. the difference was particularly worthy of notice in this respect: that the legislatures are actuated not merely by the sentiment of the people; but have an official sentiment opposed to that of the gen^l gov^t and perhaps to that of the people themselves. m^r king enlarged on the same distinction. he supposed the legislatures w^d constantly choose men subservient to their own views as contrasted to the general interest; and that they might even devise modes of election that w^d be subversive of the end in view. he remarked several instances in which the views of a state might be at variance with those of the gen^l gov^t: and mentioned particularly a competition between the national & state debts, for the most certain & productive funds. gen^l pinkney was for making the state gov^{ts} a part of the general system. if they were to be abolished, or lose their agency, s. carolina & other states would have but a small share of the benefits of gov^t. on the question for gen^l pinkney motion to substitute election of the ^{st} branch in such mode as the legislatures should appoint, in stead of its being elected by the people" mass^{ts} no. con^t ay. n. y. no. n. j. ay. p^a no. del. ay. m^d div^d. v^a no. n. c. no. s. c. ay. geo. no. general pinkney then moved that the ^{st} branch be elected _by the people_ in such mode as the legislatures should direct; but waived it on its being hinted that such a provision might be more properly tried in the detail of the plan. on the question for y^e election of the ^{st} branch by the _people_" mass^{ts} ay. con^t ay. n. y. ay. n. j. no. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. election of the ^{st} branch "for the term of three years," considered. m^r randolph moved to strike out, "three years" and insert "two years"--he was sensible that annual elections were a source of great mischiefs in the states, yet it was the want of such checks ag^{st} the popular intemperence as were now proposed, that rendered them so mischievous. he would have preferred annual to biennial, but for the extent of the u. s. and the inconveniency which would result from them to the representatives of the extreme parts of the empire. the people were attached to frequency of elections. all the constitutions of the states except that of s. carolina, had established annual elections. m^r dickinson. the idea of annual elections was borrowed from the antient usage of england, a country much less extensive than ours. he supposed biennial would be inconvenient. he preferred triennial, and in order to prevent the inconveniency of an entire change of the whole number at the same moment, suggested a rotation, by an annual election of one third. m^r elseworth was opposed to three years, supposing that even one year was preferable to two years. the people were fond of frequent elections and might be safely indulged in one branch of the legislature. he moved for year. m^r strong[ ] seconded & supported the motion. [ ] "m^r strong is a lawyer of some eminence,--he has received a liberal education, and has good connections to recommend him. as a speaker he is feeble, and without confidence. this gent^n is about thirty five years of age, and greatly in the esteem of his colleagues."--pierce's notes, _amer. hist. rev._ iii., . m^r wilson being for making the ^{st} branch an effectual representation of the people at large, preferred an annual election of it. this frequency was most familiar & pleasing to the people. it would not be more inconvenient to them, than triennial elections, as the people in all the states have annual meetings with which the election of the national representatives might be made to co-incide. he did not conceive that it would be necessary for the nat^l leigsl: to sit constantly; perhaps not half--perhaps not one fourth of the year. m^r madison was persuaded that annual elections would be extremely inconvenient and apprehensive that biennial would be too much so; he did not mean inconvenient to the electors; but to the representatives. they would have to travel seven or eight hundred miles from the distant parts of the union; and would probably not be allowed even a reimbursement of their expences. besides, none of those who wished to be re-elected would remain at the seat of governm^t; confiding that their absence would not affect them. the members of cong^s had done this with few instances of disappointment. but as the choice was here to be made by the people themselves who would be much less complaisant to individuals, and much more susceptible of impressions from the presence of a rival candidate, it must be supposed that the members from the most distant states would travel backwards & forwards at least as often as the elections should be repeated. much was to be said also on the time requisite for new members who would always form a large proportion, to acquire that knowledge of the affairs of the states in general without which their trust could not be usefully discharged. m^r sherman preferred annual elections, but would be content with biennial. he thought the representatives ought to return home and mix with the people. by remaining at the seat of gov^t they would acquire the habits of the place which might differ from those of their constituents. col. mason observed that the states being differently situated such a rule ought to be formed as would put them as nearly as possible on a level. if elections were annual the middle states would have a great advantage over the extreme ones. he wished them to be biennial; and the rather as in that case they would coincide with the periodical elections of s. carolina as well of the other states. col. hamilton urged the necessity of years, there ought to be neither too much nor too little dependence, on the popular sentiments. the checks in the other branches of the govern^t would be but feeble, and would need every auxiliary principle that could be interwoven. the british house of commons were elected septennially, yet the democratic spirit of y^e constitution had not ceased. frequency of elections tended to make the people listless to them; and to facilitate the success of little cabals. this evil was complained of in all the states. in virg^a it had been lately found necessary to force the attendance & voting of the people by severe regulations. on the question for striking out "three years" mass^{ts} ay. con^t ay. n. y. no. n. j. div^d. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. the motion for "two years" was then inserted nem. con. adj^d. friday june . in convention the clause in resol. "to receive fixed stipends to be paid out of the nation^l treasury" considered. m^r elseworth, moved to substitute payment by the states out of their own treasurys: observing that the manners of different states were very different in the stile of living and in the profits accruing from the exercise of like talents. what would be deemed therefore a reasonable compensation in some states, in others would be very unpopular, and might impede the system of which it made a part. m^r williamson favored the idea. he reminded the house of the prospect of new states to the westward. they would be too poor--would pay little into the common treasury--and would have a different interest from the old states. he did not think therefore that the latter ought to pay the expences of men who would be employed in thwarting their measures & interests. m^r ghorum[ ] wished not to refer the matter to the state legislatures who were always paring down salaries in such a manner as to keep out of offices men most capable of executing the functions of them. he thought also it would be wrong to fix the compensations by the constitution, because we could not venture to make it as liberal as it ought to be without exciting an enmity ag^{st} the whole plan. let the nat^l legisl: provide for their own wages from time to time; as the state legislatures do. he had not seen this part of their power abused, nor did he apprehend an abuse of it. [ ] "m^r gorham is a merchant in boston, high in reputation, and much in the esteem of his country-men. he is a man of very good sense, but not much improved in his education. he is eloquent and easy in public debate, but has nothing fashionable or elegant in his style;--all he aims at is to convince, and where he fails it never is from his auditory not understanding him, for no man is more perspicuous and full. he has been president of congress, and three years a member of that body. m^r gorham is about years of age, rather lusty, and has an agreeable and pleasing manner."--pierce's notes, _am. hist. rev._, iii., . m^r randolph said he feared we were going too far, in consulting popular prejudices. whatever respect might be due to them, in lesser matters, or in cases where they formed the permanent character of the people, he thought it neither incumbent on nor honorable for the convention, to sacrifice right & justice to that consideration. if the states were to pay the members of the nat^l legislature, a dependence would be created that would vitiate the whole system. the whole nation has an interest in the attendance & services of the members. the nation^l treasury therefore is the proper fund for supporting them. m^r king, urged the danger of creating a dependence on the states by leav^g to them the payment of the members of the nat^l legislature. he supposed it w^d be best to be explicit as to the compensation to be allowed. a reserve on that point, or a reference to the nat^l legislature of the quantum, would excite greater opposition than any sum that would be actually necessary or proper. m^r sherman contended for referring both the quantum and the payment of it to the state legislatures. m^r wilson was ag^{st} _fixing_ the compensation as circumstances would change and call for a change of the amount. he thought it of great moment that the members of the nat^l gov^t should be left as independent as possible of the state gov^{ts} in all respects. m^r madison concurred in the necessity of preserving the compensations for the nat^l gov^t independent on the state gov^{ts} but at the same time approved of _fixing_ them by the constitution, which might be done by taking a standard which w^d not vary with circumstances. he disliked particularly the policy suggested by m^r williamson of leaving the members from the poor states beyond the mountains, to the precarious & parsimonious support of their constituents. if the western states hereafter arising should be admitted into the union, they ought to be considered as equals & as brethren. if their representatives were to be associated in the common councils, it was of common concern that such provisions should be made as would invite the most capable and respectable characters into the service. m^r hamilton apprehended inconveniency from _fixing_ the wages. he was strenuous ag^{st} making the national council dependent on the legislative rewards of the states. those who pay are the masters of those who are paid. payment by the states would be unequal as the distant states would have to pay for the same term of attendance and more days in travelling to & from the seat of the gov^t. he expatiated emphatically on the difference between the feelings & views of the _people_--& the _governments_ of the states arising from the personal interest & official inducements which must render the latter unfriendly to the gen^l gov^t. m^r wilson moved that the salaries of the ^{st} branch "_be ascertained by the national legislature_," and be paid out of the nat^l treasury. m^r madison, thought the members of the legis^l too much interested to ascertain their own compensation. it w^d be indecent to put their hands into the public purse for the sake of their own pockets. on this question mass. no. con^t no. n. y. div^d n. j. ay. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. div^d. on the question for striking out "nat^l treasury" as moved by m^r elseworth. m^r hamilton renewed his opposition to it. he pressed the distinction between the state gov^{ts} & the people. the former w^d be the rivals of the gen^l gov^t. the state legislatures ought not therefore to be the paymasters of the latter. m^r elseworth. if we are jealous of the state gov^{ts} they will be so of us. if on going home i tell them we gave the gen: gov^t such powers because we c^d not trust you. will they adopt it, and with^t y^r approbation it is a nullity.[ ] [ ] according to yates, wilson followed ellsworth: "mr. wilson. i am not for submitting the national government to the approbation of the state legislatures. i know that they and the state officers will oppose it. i am for carrying it to the people of each state."--yates, _secret proceedings_, etc., . mass^{ts} ay. con^t ay. n. y. div^d. n. j. no. pen^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. div^d.[ ] [ ] (it appeared that mass^{ts} concurred, not because they thought the state treas^y ought to be substituted; but because they thought nothing should be said on the subject, in which case it w^d silently devolve on the nat^l treasury to support the national legislature.)--madison's note. on a question for substituting "adequate compensation" in place of "fixt stipends" it was agreed to nem. con. the friends of the latter being willing that the practicability of _fixing_ the compensation should be considered hereafter in forming the details. it was then moved by m^r butler that a question be taken on both points jointly; to wit "adequate compensation to be paid out of the nat^l treasury." it was objected to as out of order, the parts having been separately decided on. the presid^t refer^d the question of order to the house, and it was determined to be in order. con. n. j. del. m^d n. c. s. c.--ay.--n. y. p^a v^a geo. no.--mass. divided. the question on the sentence was then postponed by s. carolina in right of the state. col. mason moved to insert "twenty-five years of age as a qualification for the members of the ^{st} branch." he thought it absurd that a man today should not be permitted by the law to make a bargain for himself, and tomorrow should be authorized to manage the affairs of a great nation. it was more extraordinary as every man carried with him in his own experience a scale for measuring the deficiency of young politicians; since he would if interrogated be obliged to declare that his political opinions at the age of . were too crude & erroneous to merit an influence on public measures. it had been said that cong^s had proved a good school for our young men. it might be so for any thing he knew but if it were, he chose that they should bear the expence of their own education. m^r wilson was ag^{st} abridging the rights of election in any shape. it was the same thing whether this were done by disqualifying the objects of choice, or the persons chusing. the motion tended to damp the efforts of genius, and of laudable ambition. there was no more reason for incapacitating _youth_ than _age_, where the requisite qualifications were found. many instances might be mentioned of signal services rendered in high stations to the public before the age of : the present m^r pitt and lord bolingbroke were striking instances. on the question for inserting " years of age" mass^{ts} no. con^t ay. n. y. div^d. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. m^r ghorum moved to strike out the last member of the resol: concerning ineligibility of members of the ^{st} branch to office during the term of their membership & for one year after. he considered it as unnecessary & injurious. it was true abuses had been displayed in g. b. but no one c^d say how far they might have contributed to preserve the due influence of the gov^t nor what might have ensued in case the contrary theory had been tried. m^r butler opposed it. this precaution ag^{st} intrigue was necessary. he appealed to the example of g. b. where men got into parl^t that they might get offices for themselves or their friends. this was the source of the corruption that ruined their gov^t. m^r king, thought we were refining too much. such a restriction on the members would discourage merit. it would also give a pretext to the executive for bad appointments, as he might always plead this as a bar to the choice he wished to have made. m^r wilson was ag^{st} fettering elections, and discouraging merit. he suggested also the fatal consequence in time of war, of rendering perhaps the best commanders ineligible; appealing to our situation during the late war, and indirectly leading to a recollection of the appointment of the co[~m]ander in chief out of congress.[ ] [ ] according to yates, madison followed wilson: "mr. madison. some gentlemen give too much weight and others too little to this subject. if you have no exclusive clause, there may be danger of creating offices or augmenting the stipends of those already created, in order to gratify some members if they were not excluded. such an instance has fallen within my own observation. i am therefore of opinion, that no office ought to be open to a member, which may be created or augmented while he is in the legislature."--yates, _secret proceedings_, etc., . yates gives the rest of the debate as follows: "mr. mason. it seems as if it was taken for granted, that all offices will be filled by the executive, while i think many will remain in the gift of the legislature. in either case, it is necessary to shut the door against corruption. if otherwise, they may make or multiply offices, in order to fill them. are gentlemen in earnest when they suppose that this exclusion will prevent the first characters from coming forward? are we not struck at seeing the luxury and venality which has already crept in among us? if not checked we shall have ambassadors to every petty state in europe--the little republic of _st. marino_ not excepted. we must in the present system remove the temptation. i admire many parts of the british constitution and government, but i detest their corruption.--why has the power of the crown so remarkably increased the last century? a stranger, by reading their laws, would suppose it considerably diminished; and yet, by the sole power of appointing the increased officers of government, corruption pervades every town and village in the kingdom. if such a restriction should abridge the right of election, it is still necessary, as it will prevent the people from ruining themselves; and will not the same causes here produce the same effects? i consider this clause as the corner-stone on which our liberties depend--and if we strike it out we are erecting a fabric for our destruction. "mr. gorham. the corruption of the english government cannot be applied to america. this evil exists there in the venality of their boroughs; but even this corruption has its advantage, as it gives stability to their government. we do not know what the effect would be if members of parliament were excluded from offices. the great bulwark of our liberty is the frequency of elections, and the great danger is the septennial parliaments. "mr. hamilton. in all general questions which become the subjects of discussion, there are always some truths mixed with falsehoods. i confess there is danger where men are capable of holding two offices. take mankind in general, they are vicious--their passions may be operated upon. we have been taught to reprobate the danger of influence in the british government, without duly reflecting how far it was necessary to support a good government. we have taken up many ideas on trust, and at last, pleased with their own opinions, establish them as undoubted truths. hume's opinion of the british constitution confirms the remark, that there is always a body of firm patriots, who often shake a corrupt administration. take mankind as they are, and what are they governed by? their passions. there may be in every government a few choice spirits, who may act from more worthy motives. one great error is that we suppose mankind more honest than they are. our prevailing passions are ambition and interest; and it will ever be the duty of a wise government to avail itself of those passions, in order to make them subservient to the public good--for these ever induce us to action. perhaps a few men in a state, may, from patriotic motives, or to display their talents, or to reap the advantage of public applause, step forward; but if we adopt the clause, we destroy the motive. i am therefore against all exclusions and refinements, except only in this case; that when a member takes his seat, he should vacate every other office. it is difficult to put any exclusive regulation into effect. we must in some degree submit to the inconvenience."--yates, _secret proceedings_, etc., , . col. mason was for shutting the door at all events ag^{st} corruption. he enlarged on the venality and abuses in this particular in g. britain: and alluded to the multiplicity of foreign embassies by cong^s. the disqualification he regarded as a corner stone in the fabric. col. hamilton, there are inconveniences on both sides. we must take man as we find him, and if we expect him to serve the public must interest his passions in doing so. a reliance on pure patriotism had been the source of many of our errors. he thought the remark of m^r ghorum a just one. it was impossible to say what w^d be the effect in g. b. of such a reform as had been urged. it was known that one of the ablest politicians (m^r hume) had pronounced all that influence on the side of the crown, which went under the name of corruption, an essential part of the weight which maintained the equilibrium of the constitution. on m^r ghorum's motion for striking out "ineligibility," mass^{ts} ay. con^t no. n. y. div^d. n. j. ay. p^a div^d. del. div^d. mar^d no. v^a no. n. c. ay. s. c. no. g^a ay. adj^d. saturday june . in convention the ^d resol: resumed. on question yesterday postponed by s. carol: for agreeing to the whole sentence "for allowing an adequate compensation to be paid out of the _treasury of the u. states_" mass^{ts} ay. con^t no. n. y. no. n. j. ay. pen^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. divided. so the question was lost, & the sentence not inserted: gen^l pinkney moves to strike out the ineligibility of members of the ^{st} branch to offices established "by a particular state." he argued from the inconveniency to which such a restriction would expose both the members of the ^{st} branch, and the states wishing for their services; & from the smallness of the object to be attained by the restriction. it w^d seem from the ideas of some that we are erecting a kingdom to be divided ag^{st} itself,[ ] he disapproved such a fetter on the legislature. [ ] according to yates wilson followed pinckney: "mr. wilson. i perceive that some gentlemen are of opinion to give a bias in favor of state governments. this question ought to stand on the same footing."--yates, _secret proceedings_, etc., . m^r sherman seconds the motion. it w^d seem that we are erecting a kingdom at war with itself. the legislature ought not to [be] fettered in such a case. on the question mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. m^d div^d. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison renewed his motion yesterday made & waved to render the members of the ^{st} branch "ineligible during their term of service, & for one year after--to such offices only as should be established, or the emoluments thereof augmented, by the legislature of the u. states during the time of their being members." he supposed that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, & that if the door was shut ag^{st} them: it might properly be left open for the appoint^t of members to other offices as an encouragem^t to the legislative service. m^r alex: martin[ ] seconded the motion. [ ] "mr. martin was lately governor of north carolina, which office he filled with credit. he is a man of sense, and undoubtedly is a good politician, but he is not formed to shine in public debate, being no speaker. mr. martin was once a colonel in the american army, but proved unfit for the field. he is about years of age."--pierce's notes, _am. hist. rev._, iii., . m^r butler. the amend^t does not go far eno. & w^d be easily evaded. m^r rutlidge, was for preserving the legislature as pure as possible, by shutting the door against appointments of its own members to offices, which was one source of its corruption. m^r mason.[ ] the motion of my colleague is but a partial remedy for the evil. he appealed to him as a witness of the shameful partiality of the legislature of virginia to its own members. he enlarged on the abuses & corruption in the british parliament, connected with the appointment of its members. he c^d not suppose that a sufficient number of citizens could not be found who would be ready, without the inducement of eligibility to offices, to undertake the legislative service. genius & virtue it may be said, ought to be encouraged. genius, for aught he knew, might, but that virtue should be encouraged by such a species of venality, was an idea, that at least had the merit of being new. [ ] yates gives mason's speech more fully and a speech by madison omitted here: "mr. mason. i differ from my colleague in his proposed amendment. let me state the practice in the state where we came from. there, all officers are appointed by the legislature. need i add, that many of their appointments are most shameful. nor will the check proposed by this amendment be sufficient. it will soon cease to be any check at all. it is asserted that it will be very difficult to find men sufficiently qualified as legislators without the inducement of emolument. i do believe that men of genius will be deterred unless possessed of great virtues. we may well dispense with the first characters when destitute of virtue--i should wish them never to come forward--but if we do not provide against corruption, our government will soon be at an end; nor would i wish to put a man of virtue in the way of temptation. evasions and caballing would evade the amendment. nor would the danger be less, if the executive has the appointment of officers. the first three or four years we might go on well enough; but what would be the case afterwards? i will add, that such a government ought to be refused by the people--and it will be refused. "mr. madison. my wish is that the national legislature be as uncorrupt as possible. i believe all public bodies are inclined, from various motives, to support its members; but it is not always done from the base motives of venality. friendship, and a knowledge of the abilities of those with whom they associate, may produce it. if you bar the door against such attachments, you deprive the government of its greatest strength and support. can you always rely on the patriotism of the members? if this be the only inducement, you will find a great indifferency in filling your legislative body. if we expect to call forth useful characters, we must hold out allurements; nor can any great inconveniency arise from such inducements. the legislative body must be the road to public honor; and the advantage will be greater to adopt my motion, than any possible inconvenience."--yates, _secret proceedings_, etc., . m^r king remarked that we were refining too much in this business; and that the idea of preventing intrigue and solicitation of offices was chimerical. you say that no member shall himself be eligible to any office. will this restrain him from availing himself of the same means which would gain appointments for himself, to gain them for his son, his brother, or any other object of his partiality. we were losing therefore the advantages on one side, without avoiding the evils on the other. m^r wilson supported the motion. the proper cure he said for corruption in the legislature was to take from it the power of appointing to offices. one branch of corruption would indeed remain, that of creating unnecessary offices, or granting unnecessary salaries, and for that the amendment would be a proper remedy. he animadverted on the impropriety of stigmatizing with the name of venality the laudable ambition of rising into the honorable offices of the government; an ambition most likely to be felt in the early & most incorrupt period of life, & which all wise & free gov^{ts} had deemed it sound policy, to cherish, not to check. the members of the legislature have perhaps the hardest & least profitable task of any who engage in the service of the state. ought this merit to be made a disqualification? m^r sherman observed that the motion did not go far enough. it might be evaded by the creation of a new office, the translation to it of a person from another office, and the appointment of a member of the legislature to the latter. a new embassy might be established to a new court, & an ambassador taken from another, in order to _create_ a vacancy for a favorite member. he admitted that inconveniences lay on both sides. he hoped there w^d be sufficient inducements to the public service without resorting to the prospect of desirable offices, and on the whole was rather ag^{st} the motion of m^r madison. m^r gerry thought there was great weight in the objection of m^r sherman. he added as another objection ag^{st} admitting the eligibility of members in any case that it would produce intrigues of ambitious men for displacing proper officers, in order to create vacancies for themselves.[ ] in answer to m^r king he observed that although members, if disqualified themselves might still intrigue & cabal for their sons, brothers &c., yet as their own interests would be dearer to them, than those of their nearest connections, it might be expected they would go greater lengths to promote it. [ ] yates gives gerry's remarks: "this amendment is of great weight, and its consequences ought to be well considered. at the beginning of the war, we possessed more than roman virtue. it appears to me it is now the reverse. we have more land and stock-jobbers than any place on earth. it appears to me that we have constantly endeavored to keep distinct the three great branches of government; but if we agree to this motion, it must be destroyed by admitting the legislators to share in the executive, or to be too much influenced by the executive, in looking up to them for offices."--yates, _secret proceedings_, etc., . m^r madison had been led to this motion as a middle ground between an eligibility in all cases, and an absolute disqualification. he admitted the probable abuses of an eligibility of the members, to offices particularly within the gift of the legislature. he had witnessed the partiality of such bodies to their own members, as had been remarked of the virginia assembly by his colleague (col. mason). he appealed however to him, in turn to vouch another fact not less notorious in virginia, that the backwardness of the best citizens to engage in the legislative service gave but too great success to unfit characters. the question was not to be viewed on one side only. the advantages & disadvantages on both ought to be fairly compared. the objects to be aimed at were to fill all offices with the fittest characters, & to draw the wisest & most worthy citizens into the legislative service. if on one hand, public bodies were partial to their own members; on the other they were as apt to be misled by taking characters on report, or the authority of patrons and dependents. all who had been concerned in the appointment of strangers on those recommendations must be sensible of this truth. nor w^d the partialities of such bodies be obviated by disqualifying their own members. candidates for office would hover round the seat of gov^t or be found among the residents there, and practise all the means of counting the favor of the members. a great proportion of the appointments made by the states were evidently brought about in this way. in the general gov^t the evil must be still greater, the characters of distant states, being much less known throughout the u. states than those of the distant parts of the same state. the elections by congress had generally turned on men living at the seat of the fed^l gov^t or in its neighbourhood.--as to the next object, the impulse to the legislative service, was evinced by experience to be in general too feeble with those best qualified for it. this inconveniency w^d also be more felt in the nat^l gov^t than in the state gov^{ts} as the sacrifices req^d from the distant members, w^d be much greater, and the pecuniary provisions, probably, more disproportionate. it w^d therefore be impolitic to add fresh objections to the legislative service by an absolute disqualification of its members. the point in question was whether this would be an objection with the most capable citizens. arguing from experience he concluded that it would. the legislature of virg^a would probably have been without many of its best members, if in that situation, they had been ineligible to cong^s to the gov^t & other honorable offices of the state. m^r butler thought characters fit for office w^d never be unknown. col. mason. if the members of the legislature are disqualified, still the honors of the state will induce those who aspire to them to enter that service, as the field in which they can best display & improve their talents, & lay the train for their subsequent advancement. m^r jenifer remarked that in maryland, the senators chosen for five years, c^d hold no other office & that this circumstance gained them the greatest confidence of the people. on the question for agreeing to the motion of m^r madison, mass^{ts} div^d. c^t ay. n. y. no. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r sherman mov^d to insert the words "and incapable of holding" after the words "eligible to offices" w^{ch} was agreed to without opposition. the word "established" & the words "nat^l gov^t" were struck out of the resolution ^d. m^r spaight called for a division of the question, in consequence of which it was so put, as that it turned in the first member of it, "on the ineligibility of members _during the term for which they were elected_"--whereon the states were, mass^{ts} div^d. c^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. on the ^d member of the sentence extending ineligibility of members to one year after the term for which they were elected col. mason thought this essential to guard ag^{st} evasions by resignations, and stipulations for office to be filled at the expiration of the legislative term. m^r gerry, had known such a case. m^r hamilton. evasions c^d not be prevented--as by proxies--by friends holding for a year, & then opening the way &c. m^r rutlidge admitted the possibility of evasions, but was for contracting them as possible. mass. no. c^t no. n. y. ay. n. j. no. p^a div^d. del. ay. mar^d ay. v^a no. n. c. no. s. c. ay. geo. no. adj^d. monday, june . in convention. resolution . being taken up. m^r pinkney spoke as follows--[ ] the efficacy of the system will depend on this article. in order to form a right judgm^t in the case, it will be proper to examine the situation of this country more accurately than it has yet been done. the people of the u. states are perhaps the most singular of any we are acquainted with. among them there are fewer distinctions of fortune & less of rank, than among the inhabitants of any other nation. every freeman has a right to the same protection & security; and a very moderate share of property entitles them to the possession of all the honors and privileges the public can bestow: hence arises a greater equality, than is to be found among the people of any other country, and an equality which is more likely to continue--i say this equality is likely to continue, because in a new country, possessing immense tracts of uncultivated lands, where every temptation is offered to emigration & where industry must be rewarded with competency, there will be few poor, and few dependent--every member of the society almost, will enjoy an equal power of arriving at the supreme offices & consequently of directing the strength & sentiments of the whole community. none will be excluded by birth, & few by fortune, from voting for proper persons to fill the offices of government--the whole community will enjoy in the fullest sense that kind of political liberty which consists in the power the members of the state reserve to themselves, of arriving at the public offices, or at least, of having votes in the nomination of those who fill them. [ ] pinckney furnished madison with a copy of this speech which he transcribed, but apparently not with the whole of it, as madison's note at the end indicates. the original pinckney draft is among the madison papers, and shows madison's copying to have been accurate. if this state of things is true & the prospect of its continuing probable, it is perhaps not politic to endeavour too close an imitation of a government calculated for a people whose situation is, & whose views ought to be extremely different. much has been said of the constitution of g. britain. i will confess that i believe it to be the best constitution in existence; but at the same time i am confident it is one that will not or cannot be introduced into this country, for many centuries.--if it were proper to go here into a historical dissertation on the british constitution, it might easily be shewn that the peculiar excellence, the distinguishing feature of that governm^t cannot possibly be introduced into our system--that its balance between the crown & the people cannot be made a part of our constitution,--that we neither have nor can have the members to compose it, nor the rights, privileges & properties of so distinct a class of citizens to guard,--that the materials for forming this balance or check do not exist, nor is there a necessity for having so permanent a part of our legislative, until the executive power is so constituted as to have something fixed & dangerous in its principle--by this i mean a sole, hereditary, though limited executive. that we cannot have a proper body for forming a legislative balance between the inordinate power of the executive and the people, is evident from a review of the accidents & circumstances which gave rise to the peerage of great britain--i believe it is well ascertained that the parts which compose the british constitution arose immediately from the forests of germany; but the antiquity of the establishment of nobility is by no means clearly defined. some authors are of opinion that the dignity denoted by the titles of dux et comes, was derived from the old roman to the german empire; while others are of the opinion that they existed among the germans long before the romans were acquainted with them. the institution however of nobility is immemorial among the nations who may properly be termed the ancestors of britain.--at the time they were summoned in england to become a part of the national council, the circumstances which contributed to make them a constituent part of that constitution, must be well known to all gentlemen who have had industry & curiosity enough to investigate the subject--the nobles with their possessions & dependents composed a body permanent in their nature and formidable in point of power. they had a distinct interest both from the king and the people; an interest which could only be represented by themselves, and the guardianship could not be safely intrusted to others.--at the time they were originally called to form a part of the national council, necessity perhaps as much as other cause, induced the monarch to look up to them. it was necessary to demand the aid of his subjects in personal & pecuniary services. the power and possessions of the nobility would not permit taxation from any assembly of which they were not a part: & the blending the deputies of the commons with them, & thus forming what they called their parlerment was perhaps as much the effect of chance as of any thing else. the commons were at that time compleatly subordinate to the nobles, whose consequence & influence seem to have been the only reasons for their superiority; a superiority so degrading to the commons that in the first summons we find the peers are called upon to consult the commons to consent. from this time the peers have composed a part of the british legislature, and notwithstanding their power and influence have diminished & those of the commons have increased, yet still they have always formed an excellent balance ag^{st} either the encroachments of the crown or the people. i have said that such a body cannot exist in this country for ages, and that untill the situation of our people is exceedingly changed no necessity will exist for so permanent a part of the legislature. to illustrate this i have remarked that the people of the united states are more equal in their circumstances than the people of any other country--that they have very few rich men among them,--by rich men i mean those whose riches may have a dangerous influence, or such as are esteemed rich in europe--perhaps there are not one hundred such on the continent; that it is not probable this number will be greatly increased; that the genius of the people their mediocrity of situation & the prospects which are afforded their industry in a country which must be a new one for centuries are unfavorable to the rapid distinction of ranks. the destruction of the right of primogeniture & the equal division of the property of intestates will also have an effect to preserve this mediocrity; for laws invariably affect the manners of a people. on the other hand that vast extent of unpeopled territory which opens to the frugal & industrious a sure road to competency & independence will effectually prevent for a considerable time the increase of the poor or discontented, and be the means of preserving that equality of condition which so eminently distinguishes us. if equality is as i contend the leading feature of the u. states, where then are the riches & wealth whose representation & protection is the peculiar province of this permanent body. are they in the hands of the few who may be called rich; in the possession of less than a hundred citizens? certainly not. they are in the great body of the people, among whom there are no men of wealth, and very few of real poverty.--is it probable that a change will be created, and that a new order of men will arise? if under the british government, for a century no such change was probable, i think it may be fairly concluded it will not take place while even the semblance of republicanism remains.--how is this change to be effected? where are the sources from whence it is to flow? from the landed interest? no. that is too unproductive & too much divided in most of the states. from the monied interest? if such exists at present, little is to be apprehended from that source. is it to spring from commerce? i believe it would be the first instance in which a nobility sprang from merchants. besides, sir, i apprehend that on this point the policy of the u. states has been much mistaken. we have unwisely considered ourselves as the inhabitants of an old instead of a new country. we have adopted the maxims of a state full of people & manufactures & established in credit. we have deserted our true interest, and instead of applying closely to those improvements in domestic policy which would have ensured the future importance of our commerce, we have rashly & prematurely engaged in schemes as extensive as they are imprudent. this however is an error which daily corrects itself & i have no doubt that a few more severe trials will convince us, that very different commercial principles ought to govern the conduct of these states. the people of this country are not only very different from the inhabitants of any state we are acquainted with in the modern world; but i assert that their situation is distinct from either the people of greece or rome, or of any state we are acquainted with among the antients.--can the orders introduced by the institution of solon, can they be found in the united states? can the military habits & manners of sparta be resembled to our habits & manners? are the distinction of patrician & plebeian known among us? can the helvetic or belgic confederacies, or can the unwieldy, unmeaning body called the germanic empire, can they be said to possess either the same or a situation like ours? i apprehend not.--they are perfectly different, in their distinctions of rank, their constitutions, their manners & their policy. our true situation appears to me to be this,--a new extensive country containing within itself the materials for forming a government capable of extending to its citizens all the blessings of civil & religious liberty--capable of making them happy at home. this is the great end of republican establishments. we mistake the object of our government, if we hope or wish that it is to make us respectable abroad. conquest or superiority among other powers is not or ought not ever to be the object of republican systems. if they are sufficiently active & energetic to rescue us from contempt & preserve our domestic happiness & security, it is all we can expect from them,--it is more than almost any other government ensures to its citizens. i believe this observation will be found generally true:--that no two people are so exactly alike in their situation or circumstances as to admit the exercise of the same government with equal benefit; that a system must be suited to the habits & genius of the people it is to govern, and must grow out of them. the people of the u. s. may be divided into three classes--_professional men_ who must from their particular pursuits always have a considerable weight in the government while it remains popular--_commercial men_, who may or may not have weight as a wise or injudicious commercial policy is pursued.--if that commercial policy is pursued which i conceive to be the true one, the merchants of this country will not or ought not for a considerable time to have much weight in the political scale.--the third is the _landed interest_, the owners and cultivators of the soil, who are and ought ever to be the governing spring in the system.--these three classes, however distinct in their pursuits are individually equal in the political scale, and may be easily proved to have but one interest. the dependence of each on the other is mutual. the merchant depends on the planter. both must in private as well as public affairs be connected with the professional men; who in their turn must in some measure depend on them. hence it is clear from this manifest connection, & the equality which i before stated exists, & must for the reasons then assign, continue, that after all there is one, but one great & equal body of citizens composing the inhabitants of this country among whom there are no distinctions of rank, and very few or none of fortune. for a people thus circumstanced are we then to form a government & the question is what sort of government is best suited to them. will it be the british gov^t? no. why? because g. britain contains three orders of people distinct in their situation, their possessions & their principles.--these orders combined form the great body of the nation. and as in national expences the wealth of the whole community must contribute, so ought each component part to be properly & duly represented.--no other combination of power could form this due representation, but the one that exists.--neither the peers or the people could represent the royalty, nor could the royalty & the people form a proper representation for the peers.--each therefore must of necessity be represented by itself, or the sign of itself; and this accidental mixture has certainly formed a government admirably well balanced. but the u. states contain but one order that can be assimilated to the british nation,--this is the order of commons. they will not surely then attempt to form a government consisting of three branches, two of which shall have nothing to represent. they will not have an executive & senate (hereditary) because the king & lords of england are so. the same reasons do not exist and therefore the same provisions are not necessary. we must as has been observed suit our governm^t to the people it is to direct. these are i believe as active, intelligent & susceptible of good governm^t as any people in the world. the confusion which has produced the present relaxed state is not owing to them. it is owing to the weakness & (defects) of a gov^t incapable of combining the various interests it is intended to unite, and destitute of energy.--all that we have to do then is to distribute the powers of gov^t in such a manner, and for such limited periods, as while it gives a proper degree of permanency to the magistrate, will reserve to the people, the right of election they will not or ought not frequently to part with.--i am of opinion that this may easily be done; and that with some amendments the propositions before the committee will fully answer this end. no position appears to me more true than this; that the general gov^t cannot effectually exist without reserving to the states the possession of their local rights. they are the instruments upon which the union must frequently depend for the support & execution of their powers, however immediately operating upon the people, and not upon the states. much has been said about the propriety of abolishing the distinction of state governments, & having but one general system. suffer me for a moment to examine this question.[ ] [ ] the residue of this speech was not furnished, like the above, by mr. pinckney.--madison's note. yates' report of the speech is meagre. the closing paragraph, apparently the part lacking in madison's report, is: "while we were dependent on the crown of great britain, it was in contemplation to form the whole into one; but it was found impracticable. no legislature could make good laws for the whole, nor can it now be done. it would necessarily place the power in the hands of the few nearest the seat of government. state governments must therefore remain, if you mean to prevent confusion. the general negative powers will support the general government. upon these considerations, i am led to form the second branch differently from the report. these powers are important, and the number not too large, upon the principle of proportion. i have considered the subject with great attention; and i propose this plan (reads it), and if no better plan is proposed, i will then move its adoption."--yates, _secret proceedings_, etc., . the mode of constituting the ^d branch being under consideration. the word "national" was struck out, and "united states" inserted. m^r ghorum, inclined to a compromise as to the rule of proportion. he thought there was some weight in the objections of the small states. if v^a should have . votes & del^{re} with several other states together , those from virg^a would be more likely to unite than the others, and would therefore have an undue influence. this remark was applicable not only to states, but to counties or other districts of the same state. accordingly the constitution of mass^{ts} had provided that the representatives of the larger districts should not be in an exact ratio to their numbers, and experience he thought had shewn the provision to be expedient. m^r read. the states have heretofore been in a sort of partnership. they ought to adjust their old affairs before they open a new account. he brought into view the appropriation of the co[~m]on interest in the western lands, to the use of particular states. let justice be done on this head; let the fund be applied fairly & equally to the discharge of the general debt, and the smaller states who had been injured; would listen then perhaps to those ideas of just representation which had been held out. m^r ghorum, did not see how the convention could interpose in the case. errors he allowed had been committed on the subject. but cong^s were now using their endeavours to rectify them. the best remedy would be such a government as would have vigor enough to do justice throughout. this was certainly the best chance that could be afforded to the smaller states. m^r wilson, the question is shall the members of the ^d branch be chosen by the legislatures of the states? when he considered the amazing extent of country--the immense population which is to fill it, the influence which the gov^t we are to form will have, not only on the present generation of our people & their multiplied posterity, but on the whole globe, he was lost in the magnitude of the object. the project of henry the ^{th} & his statesmen was but the picture in miniature of the great portrait to be exhibited. he was opposed to an election by the state legislatures. in explaining his reasons it was necessary to observe the twofold relation in which the people would stand, . as citizens of the gen^l gov^t . as citizens of their particular state. the gen^l gov^t was meant for them in the first capacity: the state gov^{ts} in the second. both gov^{ts} were derived from the people--both meant for the people--both therefore ought to be regulated on the same principles. the same train of ideas which belonged to the relation of the citizens to their state gov^{ts} were applicable to their relation to the gen^l gov^t and in forming the latter, we ought to proceed, by abstracting as much as possible from the idea of the state gov^{ts}. with respect to the province & object of the gen^l gov^t they should be considered as having no existence. the election of the ^d branch by the legislatures, will introduce & cherish local interests & local prejudices. the gen^l gov^t is not an assemblage of states, but of individuals for certain political purposes--it is not meant for the states, but for the individuals composing them; the _individuals_ therefore not the _states_, ought to be represented in it: a proportion in this representation can be preserved in the ^d as well as in the ^{st} branch; and the election can be made by electors chosen by the people for that purpose. he moved an amendment to that effect which was not seconded. m^r elseworth saw no reason for departing from the mode contained in the report. whoever chooses the member, he will be a citizen of the state he is to represent & will feel the same spirit & act the same part whether he be appointed by the people or the legislature. every state has its particular views & prejudices, which will find their way into the general councils, through whatever channel they may flow. wisdom was one of the characteristics which it was in contemplation to give the second branch. would not more of it issue from the legislatures; than from an immediate election by the people. he urged the necessity of maintaining the existence, & agency of the states. without their co-operation it would be impossible to support a republican gov^t over so great an extent of country. an army could scarcely render it practicable. the largest states are the worst governed. virg^a is obliged to acknowledge her incapacity to extend her gov^t to kentuckey. mass^{ts} cannot keep the peace one hundred miles from her capitol and is now forming an army for its support. how long pen^a may be free from a like situation cannot be foreseen. if the principles & materials of our gov^t are not adequate to the extent of these single states; how can it be imagined that they can support a single gov^t throughout the u. states. the only chance of supporting a gen^l gov^t lies in grafting it on that of the individual states. doc^r johnson urged the necessity of preserving the state gov^{ts} which would be at the mercy of the gen^l gov^t on m^r wilson's plan. m^r madison thought it w^d obviate difficulty if the present resol: were postponed, & the {th} taken up, which is to fix the right of suffrage in the ^d branch. doc^r williamson professed himself a friend to such a system as would secure the existence of the state gov^{ts}. the happiness of the people depended on it. he was at a loss to give his vote as to the senate untill he knew the number of its members. in order to ascertain this, he moved to insert these words after " ^d branch of the nat^l legislature"--"who shall bear such proportion to the n^o of the ^{st} branch as to ----." he was not seconded. m^r mason. it has been agreed on all hands that an efficient gov^t is necessary that to render it such it ought to have the faculty of self defence, that to render its different branches effectual each of them ought to have the same power of self defence. he did not wonder that such an agreement should have prevailed in these points. he only wondered that there should be any disagreement about the necessity of allowing the state gov^{ts} the same self-defence. if they are to be preserved as he conceived to be essential, they certainly ought to have this power. and the only mode left of giving it to them, was by allowing them to appoint the ^d branch of the nat^l legislature. m^r butler observing that we were put to difficulties at every step by the uncertainty whether an equality or a ratio of representation w^d prevail finally in the ^d branch, moved to postpone the ^{th} resol: & to proceed to the resol: on that point. m^r madison seconded him. on the question mass^{ts} no. con^t no. n. y. ay. n. j. no. p^a no. del. no. m{d.} no. v^a ay. n. c. no. s. c. ay. geo. ay. on a question to postpone the and take up the resol: ays, mary^d v^a n. c. s. c. geo;--noes, mass. c^t n. y. n. j. p^a del: on the question to agree "that the members of the ^d branch be chosen by the indiv^l legislatures" mass^{ts} ay. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. ay. geo. ay.[ ] [ ] madison's note: it must be kept in view that the largest states particularly pennsylvania & virginia always considered the choice of the ^d branch by the state legislatures as opposed to a proportional representation to which they were attached as a fundamental principle of just government. the smaller states who had opposite views, were reinforced by the members from the large states most anxious to secure the importance of the state governments. on a question on the clause requiring the age of years at least,--it was agreed to unanimously: on a question to strike out the words, "sufficient to ensure their independency" after the word "term" it was agreed to. that the ^d branch hold their offices for a term of seven years, considered. m^r ghorum suggests a term of " years," / to be elected every year. m^r randolph, supported the idea of rotation, as favorable to the wisdom & stability of the corps, which might possibly be always sitting, and aiding the executive. and moves after " years," to add, "to go out in fixt proportion" which was agreed to. m^r williamson suggests " years," as more convenient for rotation than years. m^r sherman seconds him. m^r reed proposed that they s^d hold their offices "during good behaviour." mr. r. morris seconds him. gen^l pinkney, proposed " years." a longer term w^d fix them at the seat of gov^t. they w^d acquire an interest there, perhaps transfer their property & lose sight of the states they represent. under these circumstances the distant states w^d labour under great disadvantages.[ ] [ ] according to yates, madison followed pinckney: "mr. madison. we are proceeding in the same manner that was done when the confederation was first formed. its original draft was excellent, but in its progress and completion it became so insufficient as to give rise to the present convention. by the vote already taken, will not the temper of the state legislatures transfuse itself into the senate? do we create a free government?"--yates, _secret proceedings_, etc., . m^r sherman moved to strike out " years" in order to take questions on the several propositions. on the question to strike out "seven" mass^{ts} ay. con^t ay. n. y. ay. n. j. ay. p^a no. del. no. m^d div^d. v^a no. n. c. ay. s. c. ay. geo. ay. on the question to insert " years", which failed st^s being ay. no, & divided mass^{ts} no. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. no. geo. no. on a motion to adjourn, the votes were for ag^{st} it & divided,--con. n. j. p^a del. v^a ay. mass^{ts} n. y. n. c. s. c. geo: no. mary^d divided. on the question for " years" it was lost. mass^{ts} no. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d div^d. v^a ay. n. c. ay. s. c. no. geo. no. adj^d. tuesday, june . in convention the duration of the ^d branch under consideration. m^r ghorum moved to fill the blank with "six years," one third of the members to go out every second year. m^r wilson ^{ded} the motion. gen^l pinkney opposed six years in favor of four years. the states he said had different interests. those of the southern, and of s. carolina in particular were different from the northern. if the senators should be appointed for a long term, they w^d settle in the state where they exercised their functions; and would in a little time be rather the representatives of that than of the state appoint^g them. m^r reed mov^d that the term be nine years. this w^d admit of a very convenient rotation, one third going out triennially. he w^d still prefer "during good behaviour," but being little supported in that idea, he was willing to take the longest term that could be obtained. m^r broome ^{ded} the motion. m^r madison. in order to judge of the form to be given to this institution, it will be proper to take a view of the ends to be served by it. these were first to protect the people ag^{st} their rulers; secondly to protect the people ag^{st} the transient impressions into which they themselves might be led. a people deliberating in a temperate moment, and with the experience of other nations before them, on the plan of gov^t most likely to secure their happiness, would first be aware, that those charg^d with the public happiness might betray their trust. an obvious precaution ag^{st} this danger w^d be to divide the trust between different bodies of men, who might watch & check each other. in this they w^d be governed by the same prudence which has prevailed in organizing the subordinate departments of gov^t, where all business liable to abuses is made to pass thro' separate hands, the one being a check on the other. it w^d next occur to such people, that they themselves were liable to temporary errors, thro' want of information as to their true interest, and that men chosen for a short term, & employed but a small portion of that in public affairs, might err from the same cause. this reflection w^d naturally suggest that the gov^t be so constituted as that one of its branches might have an opp^y of acquiring a competent knowledge of the public interests. another reflection equally becoming a people on such an occasion, w^d be that they themselves, as well as a numerous body of representatives, were liable to err also, from fickleness and passion. a necessary fence ag^{st} this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose ag^{st} impetuous councils. it ought finally to occur to a people deliberating on a gov^t for themselves, that as different interests necessarily result from the liberty meant to be secured, the major interest might under sudden impulses be tempted to commit injustice on the minority. in all civilized countries the people fall into different classes hav^g a real or supposed difference of interests. there will be creditors & debtors; farmers, merch^{ts} & manufacturers. there will be particularly the distinction of rich & poor. it was true as had been observ^d (by m^r pinkney) we had not among us those hereditary distinctions, of rank which were a great source of the contests in the ancient gov^{ts} as well as the modern states of europe, nor those extremes of wealth or poverty which characterize the latter. we cannot however be regarded even at this time, as one homogeneous mass, in which every thing that affects a part will affect in the same manner the whole. in framing a system which we wish to last for ages, we sh^d not lose sight of the changes which ages will produce. an increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. these may in time outnumber those who are placed above the feelings of indigence. according to the equal laws of suffrage, the power will slide into the hands of the former. no agrarian attempts have yet been made in this country, but symptoms, of a levelling spirit, as we have understood, have sufficiently appeared in certain quarters, to give notice of the future danger. how is this danger to be guarded ag^{st} on the republican principles? how is the danger in all cases of interested coalitions to oppress the minority to be guarded ag^{st}? among other means by the establishment of a body in the gov^t sufficiently respectable for its wisdom & virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale. such being the objects of the second branch in the proposed gov^t he thought a considerable duration ought to be given to it. he did not conceive that the term of nine years could threaten any real danger; but in pursuing his particular ideas on the subject, he should require that the long term allowed to the ^d branch should not commence till such a period of life, as would render a perpetual disqualification to be re-elected little inconvenient either in a public or private view. he observed that as it was more than probable we were now digesting a plan which in its operation w^d decide for ever the fate of republican gov^t we ought not only to provide every guard to liberty that its preservation c^d require, but be equally careful to supply the defects which our own experience had particularly pointed out. m^r sherman. gov^t is instituted for those who live under it. it ought therefore to be so constituted as not to be dangerous to their liberties. the more permanency it has the worse if it be a bad gov^t. frequent elections are necessary to preserve the good behavior of rulers. they also tend to give permanency to the government, by preserving that good behavior, because it ensures their re-election. in connecticut elections have been very frequent, yet great stability & uniformity both as to persons & measures have been experienced from its original establishm^t to the present time; a period of more than a years. he wished to have provision made for steadiness & wisdom in the system to be adopted; but he thought six or four years would be sufficient. he sh^d be content with either. m^r read wished it to be considered by the small states that it was their interest that we should become one people as much as possible; that state attachments sh^d be extinguished as much as possible; that the senate, sh^d be so constituted as to have the feelings of citizens of the whole. m^r hamilton. he did not mean to enter particularly into the subject. he concurred with m^r madison in thinking we were now to decide forever the fate of republican government; and that if we did not give to that form due stability and wisdom, it would be disgraced & lost among ourselves, disgraced & lost to mankind forever. he acknowledged himself not to think favorably of republican government; but addressed his remarks to those who did think favorably of it, in order to prevail on them to tone their government as high as possible. he professed himself to be as zealous an advocate for liberty as any man whatever, and trusted he should be as willing a martyr to it though he differed as to the form in which it was most eligible.--he concurred also in the general observations of (m^r madison) on the subject, which might be supported by others if it were necessary. it was certainly true that nothing like an equality of property existed; that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself. this inequality of property constituted the great & fundamental distinction in society. when the tribunitial power had levelled the boundary between the _patricians_ & _plebeians_, what followed? the distinction between rich & poor was substituted. he meant not however to enlarge on the subject. he rose principally to remark that (m^r sherman) seemed not to recollect that one branch of the proposed gov^t was so formed, as to render it particularly the guardians of the poorer orders of citizens; nor to have adverted to the true causes of the stability which had been exemplified in con^t. under the british system as well as the federal, many of the great powers appertaining to gov^t particularly all those relating to foreign nations were not in the hands of the gov^t there. their internal affairs also were extremely simple, owing to sundry causes many of which were peculiar to that country. of late the governm^t had entirely given way to the people, and had in fact suspended many of its ordinary functions in order to prevent those turbulent scenes which had appeared elsewhere. he asks m^r s. whether the state at this time dare impose & collect a tax on y^e people? to these causes & not to the frequency of elections, the effect as far as it existed ought to be chiefly ascribed. m^r gerry, wished we could be united in our ideas concerning a permanent gov^t. all aim at the same end, but there are great differences as to the means. one circumstance he thought should be carefully attended to. there was not / part of our fellow citizens who were not ag^{st} every approach towards monarchy. will they ever agree to a plan which seems to make such an approach. the convention ought to be extremely cautious in what they hold out to the people. whatever plan may be proposed will be espoused with warmth by many out of respect to the quarter it proceeds from as well as from an approbation of the plan itself. and if the plan should be of such a nature as to rouse a violent opposition, it is easy to foresee that discord & confusion will ensue, and it is even possible that we may become a prey to foreign powers. he did not deny the position of m^r madison, that the majority will generally violate justice when they have an interest in so doing: but did not think there was any such temptation in this country. our situation was different from that of g. britain; and the great body of lands yet to be parcelled out & settled would very much prolong the difference. notwithstanding the symptoms of injustice which had marked many of our public councils, they had not proceeded so far as not to leave hopes, that there would be a sufficient sense of justice & virtue for the purpose of gov^t. he admitted the evils arising from a frequency of elections; and would agree to give the senate a duration of four or five years. a longer term would defeat itself. it never would be adopted by the people. m^r wilson did not mean to repeat what had fallen from others, but w^d add an observation or two which he believed had not yet been suggested. every nation may be regarded in two relations to its own citizens. to foreign nations. it is therefore not only liable to anarchy & tyranny within, but has wars to avoid & treaties to obtain from abroad. the senate will probably be the depository of the powers concerning the latter objects. it ought therefore to be made respectable in the eyes of foreign nations. the true reason why g. britain has not yet listened to a commercial treaty with us has been, because she had no confidence in the stability or efficacy of our government. years with a rotation, will provide these desirable qualities; and give our gov^t an advantage in this respect over monarchy itself. in a monarchy much must always depend on the temper of the man. in such a body, the personal character will be lost in the political. he w^d add another observation. the popular objection ag^{st} appointing any public body for a long term was that it might by gradual encroachments prolong itself first into a body for life, and finally become a hereditary one. it would be a satisfactory answer to this objection that as / would go out triennially, there would be always three divisions holding their places for unequal times, and consequently acting under the influence of different views, and different impulses.--on the question for years, / to go out triennially, mass^{ts} no. con^t, no. n. y. no. n. j. no. p^a ay. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no. on the question for years,[ ] / to go out biennially mass^{ts} ay. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. [ ] yates has the question on _five_ years, but this is obviously a mistake.--yates, _secret proceedings_, etc., . "to receive fixt stipends by which they may be compensated for their services" considered. general pinkney proposed "that no salary should be allowed." as this (the senatorial) branch was meant to represent the wealth of the country, it ought to be composed of persons of wealth; and if no allowance was to be made the wealthy alone would undertake the service. he moved to strike out the clause. doct^r franklin seconded the motion. he wished the convention to stand fair with the people. there were in it a number of young men who would probably be of the senate. if lucrative appointments should be recommended we might be chargeable with having carved out places for ourselves. on the question,--mas^{ts} connecticut[ ] p^a m^d s. carolina ay. n. y. n. j. del. virg^a n. c. geo. no. [ ] quer. whether connecticut should not be, no. & delaware, ay.--madison's note. m^r williamson moved to change the expression into these words to wit "to receive a compensation for the devotion of their time to the public service." the motion was seconded by m^r elseworth, and agreed to by all the states except s. carol^a. it seemed to be meant only to get rid of the word "fixt" and leave greater room for modifying the provision on this point. m^r elseworth moved to strike out "to be paid out of the nat^l treasury" and insert "to be paid by their respective states." if the senate was meant to strengthen the gov^t it ought to have the confidence of the states. the states will have an interest in keeping up a representation, and will make such provision for supporting the members as will ensure their attendance. m^r madison considered this as a departure from a fundamental principle, and subverting the end intended by allowing the senate a duration of years. they would if this motion should be agreed to, hold their places during pleasure; during the pleasure of the state legislatures. one great end of the institution was, that being a firm, wise and impartial body, it might not only give stability to the gen^l gov^t in its operations on individuals, but hold an even balance among different states. the motion would make the senate like congress, the mere agents & advocates of state interests & views, instead of being the impartial umpires & guardians of justice and the general good. cong^s had lately by the establishment of a board with full powers to decide on the mutual claims between the u. states & the individual states, fairly acknowledged themselves to be unfit for discharging this part of the business referred to them by the confederation. m^r dayton[ ] considered the payment of the senate by the states as fatal to their independence, he was decided for paying them out of the nat^l treasury. [ ] "cap. dayton is a young gentleman of talents, with ambition to exert them. he possesses a good education and some reading; he speaks well, and seems desirous of improving himself in oratory. there is an impetuosity in his temper that is injurious to him; but there is an honest rectitude about him that makes him a valuable member of society, and secures to him the esteem of all good men. he is about years old, served with me a brother aid to general sullivan in the western expedition of ' ."--pierce's notes, _am. hist. rev._, iii., . on the question for payment of the senate to be left to the states as moved by m^r elseworth. mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. no. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. col. mason. he did not rise to make any motion, but to hint an idea which seemed to be proper for consideration. one important object in constituting the senate was to secure the rights of property. to give them weight & firmness for this purpose, a considerable duration in office was thought necess[~a]y. but a longer term than years, would be of no avail in this respect, if needy persons should be appointed. he suggested therefore the propriety of annexing to the office a qualification of property. he thought this would be very practicable; as the rules of taxation would supply a scale for measuring the degree of wealth possessed by every man. a question was then taken whether the words "to be paid out of the public treasury," should stand. mass^{ts} ay. con^t no. n. y. no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. no. geo. no. m^r butler moved to strike out the ineligibility of senators to _state offices_. mr. williamson seconded the motion.[ ] [ ] according to yates, before wilson spoke: "mr. madison. congress heretofore depended on state interests; we are now going to pursue the same plan."--yates, _secret proceedings_, etc., . m^r wilson remarked the additional dependance this w^d create in the senators on the states. the longer the time he observed allotted to the officer, the more compleat will be the dependance if it exists at all.[ ] [ ] after wilson, according to yates: "mr. butler. this second branch i consider as the aristocratic part of our government; and they must be controlled by the states, or they will be too independent."--yates, _secret proceedings_, etc., . gen^l pinkney was for making the states as much as could be conveniently done, a part of the gen^l gov^t. if the senate was to be appointed by the states, it ought in pursuance of the same idea to be paid by the states: and the states ought not to be barred from the opportunity of calling members of it into offices at home. such a restriction would also discourage the ablest men from going into the senate. m^r williamson moved a resolution so penned as to admit of the two following questions. . whether the members of the senate should be ineligible to & incapable of holding offices _under the u. states_ . whether &c. under the _particular states_. on the question to postpone in order to consider williamson's resol^n mas^{ts} no. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r gerry & m^r madison move to add to m^r williamson's . quest: "and for year thereafter." on this amend^t mas^{ts} no. con^t ay. n. y. ay. n. j. no. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. no. on m^r will[iam]son's question as amend^{ed} vz, inelig: & incapable &c. &c. for year &c. ag^d to un[~a]mously. on the . question as to ineligibility &c. to state offices, mass. ay. c^t no. n. y. no. n. j. no. p^a ay. del. no. m^d no. v^a ay. n. c. no. s. c. no. geo. no. the . resol: "that each branch have the right of originating acts," was agreed to nem. con. adj^d. wednesday june . in convention. m^r rutlidge moved to postpone the ^{th} resolution, defining the powers of cong^s in order to take up the & which involved the most fundamental points; the rules of suffrage in the branches which was agreed to nem. con. a question being proposed on the resol: ; declaring that the suffrage in the first branch sh^d be according to an equitable ratio. m^r l. martin[ ] contended at great length and with great eagerness that the general gov^t was meant merely to preserve the state govern^{ts} not to govern individuals: that its powers ought to be kept within narrow limits: that if too little power was given to it, more might be added; but that if too much, it could never be resumed: that individuals as such have little to do but with their own states; that the gen^l gov^t has no more to apprehend from the states composing the union, while it pursues proper measures, that gov^t over individuals has to apprehend from its subjects: that to resort to the citizens at large for their sanction to a new govern^t will be throwing them back into a state of nature; that the dissolution of the state gov^{ts} is involved in the nature of the process; that the people have no right to do this without the consent of those to whom they have delegated their power for state purposes: through their tongues only they can speak, through their ears, only can hear: that the states have shewn a good disposition to comply with the acts of cong^s, weak, contemptibly weak as that body has been; and have failed through inability alone to comply: that the heaviness of the private debts, and the waste of property during the war, were the chief causes of this inability; that he did not conceive the instances mentioned by m^r madison of compacts between v^a & m^d between p^a & n. j. or of troops raised by mass^{ts} for defence against the rebels, to be violations of the articles of confederation--that an equal vote in each state was essential to the federal idea, and was founded in justice & freedom, not merely in policy: that tho' the states may give up this right of sovereignty, yet they had not, and ought not: that the states like individuals were in a state of nature equally sovereign & free. in order to prove that individuals in a state of nature are equally free & independent he read passages from locke, vattel, lord summers--priestly. to prove that the case is the same with states till they surrender their equal sovereignty, he read other passages in locke & vattel, and also rutherford: that the states being equal cannot treat or confederate so as to give up an equality of votes without giving up their liberty: that the propositions on the table were a system of slavery for states: that as v^a mass^{ts} & p^a have / of the votes they can do as they please without a miraculous union of the other ten: that they will have nothing to do, but to gain over one of the ten to make them compleat masters of the rest; that they can then appoint an execut^e & judiciary & legislate for them as they please: that there was & would continue a natural predilection & partiality in men for their own states; that the states, particularly the smaller, would never allow a negative to be exercised over their laws: that no state in ratifying the confederation had objected to the equality of votes; that the complaints at present run not ag^{st} this equality but the want of power: that members from v^a would be more likely to act in concert than a like number formed of members from different states: that instead of a junction of the small states as a remedy, he thought a division of the large states would be more eligible.--this was the substance of a speech which was continued more than three hours. he was too much exhausted he said to finish his remarks, and reminded the house that he should tomorrow, resume them. [ ] "mr. martin, the attorney-general from maryland, spoke on this subject upwards of three hours. as his arguments were too diffuse, and in many instances desultory, it was not possible to trace him through the whole, or to methodize his ideas into a systematic or argumentative arrangement."--yates, _secret proceedings_, etc., . adj^d. thursday june th. in convention m^r l. martin resumed his discourse,[ ] contending that the gen^l gov^t ought to be formed for the states, not for individuals: that if the states were to have votes in proportion to their numbers of people, it would be the same thing whether their representatives were chosen by the legislatures or the people; the smaller states would be equally enslaved; that if the large states have the same interest with the smaller as was urged, there could be no danger in giving them an equal vote; they would not injure themselves, and they could not injure the large ones on that supposition without injuring themselves and if the interests, were not the same, the inequality of suffrage w^d be dangerous to the smaller states: that it will be in vain to propose any plan offensive to the rulers of the states, whose influence over the people will certainly prevent their adopting it: that the large states were weak at present in proportion to their extent; & could only be made formidable to the small ones, by the weight of their votes: that in case a dissolution of the union should take place, the small states would have nothing to fear from their power; that if in such a case the three great states should league themselves together, the other ten could do so too; & that he had rather see partial confederacies take place, than the plan on the table. this was the substance of the residue of his discourse which was delivered with much diffuseness & considerable vehemence. [ ] yates gives martin's speech more fully: "on federal grounds, it is said, that a minority will govern a majority--but on the virginia plan a minority would tax a majority. in a federal government, a majority of states must and ought to tax. in the local government of states, counties may be unequal--still numbers, not property, govern. what is the government now forming, over states or persons? as to the latter, their rights cannot be the object of a general government. these are already secured by their guardians, the state governments. the general government is therefore intended only to protect and guard the rights of the states as states. "this general government, i believe, is the first upon earth which gives checks against democracies or aristocracies. the only necessary check in a general government ought to be a restraint to prevent its absorbing the powers of the state governments. representation on federal principles can only flow from state societies. representation and taxation are ever inseparable--not according to the quantum of property, but the quantum of freedom. "will the representatives of a state forget state interests? the mode of election cannot change it. these prejudices cannot be eradicated--your general government cannot be just or equal upon the virginia plan, unless you abolish state interests. if this cannot be done, you must go back to principles purely federal. "on this latter ground, the state legislatures and their constituents will have no interests to pursue different from the general government, and both will be interested to support each other. under these ideas can it be expected that the people can approve the virginia plan? but it is said, the people, not the state legislatures, will be called upon for approbation--with an evident design to separate the interests of the governors from the governed. what must be the consequence? anarchy and confusion. we lose the ideas of the powers with which we are intrusted. the legislatures must approve. by them it must, on your own plan, be laid before the people. how will such a government, over so many great states, operate. wherever new settlements have been formed in large states, they immediately want to shake off their independency. why? because the government is too remote for their good. the people want it nearer home. "the basis of all ancient and modern confederacies is the freedom and the independency of the states composing it. the states forming the amphictionic council were equal, though lacedemon, one of the greatest states, attempted the exclusion of three of the lesser states from this right. the plan reported, it is true, only intends to diminish those rights, not to annihilate them--it was the ambition and power of the great grecian states which at last ruined this respectable council. the states as societies are ever respectful. has holland or switzerland ever complained of the equality of the states which compose their respective confederacies? bern and zurich are larger than the remaining eleven cantons--so of many of the states of germany; and yet their governments are not complained of. bern alone might usurp the whole power of the helvetic confederacy, but she is contented still with being equal. "the admission of the larger states into the confederation, on the principle of equality, is dangerous--but on the virginia system it is ruinous and destructive. still it is the true interest of all the states to confederate--it is their joint efforts which must protect and secure us from foreign danger, and give us peace and harmony at home. "(here mr. martin entered into a detail of the comparative powers of each state, and stated their probable weakness and strength.) "at the beginning of our troubles with great britain, the smaller states were attempted to be cajoled to submit to the views of that nation, lest the larger states should usurp their rights. we then answered them--your present plan is slavery, which on the remote prospect of a distant evil, we will not submit to. "i would rather confederate with any single state, than submit to the virginia plan. but we are already confederated, and no power on earth can dissolve it but by the consent of _all_ the contracting powers--and four states, on this floor, have already declared their opposition to annihilate it. is the old confederation dissolved, because some of the states wish a new confederation?"--yates, _secret proceedings_, etc., . m^r lansing & m^r dayton moved to strike out "not," so that the art. might read that the rights of suffrage in the ^{st} branch ought to be according to the rule established by the confederation." m^r dayton expressed great anxiety that the question might not be put till tomorrow; govern^r livingston being kept away by indisposition, and the representation of n. jersey thereby suspended. m^r williamson, thought that if any political truth could be grounded on mathematical demonstration, it was that if the states were equally sovereign now, and parted with equal proportions of sovereignty, that they would remain equally sovereign. he could not comprehend how the smaller states would be injured in the case, and wished some gentleman would vouchsafe a solution of it. he observed that the small states, if they had a plurality of votes would have an interest in throwing the burdens off their own shoulders on those of the large ones. he begged that the expected addition of new states from the westward might be kept in view. they would be small states, they would be poor states, they would be unable to pay in proportion to their numbers; their distance from market rendering the produce of their labour less valuable; they would consequently be tempted to combine for the purpose of laying burdens on com[~m]erce & consumption which would fall with greatest weight on the old states. m^r madison, s^d he was much disposed to concur in any expedient not inconsistent with fundamental principles, that could remove the difficulty concerning the rule of representation. but he could neither be convinced that the rule contended for was just, nor necessary for the safety of the small states ag^{st} the large states. that it was not just, had been conceded by m^r breerly & m^r paterson themselves. the expedient proposed by them was a new partition of the territory of the u. states. the fallacy of the reasoning drawn from the equality of sovereign states in the formation of compacts, lay in confounding together mere treaties, in which were specified certain duties to which the parties were to be bound, and certain rules by which their subjects were to be reciprocally governed in their intercourse, with a compact by which an authority was created paramount to the parties, & making laws for the government of them. if france, england & spain were to enter into a treaty for the regulation of commerce &c. with the prince of monacho & or other of the smallest sovereigns of europe, they would not hesitate to treat as equals, and to make the regulations perfectly reciprocal. w^d the case be the same, if a council were to be formed of deputies from each with authority and discretion, to raise money, levy troops, determine the value of coin &c.? would or , million of people submit their fortunes into the hands of a few thousands? if they did it would only prove that they expected more from the terror of their superior force, than they feared from the selfishness of their feeble associates. why are counties of the same states represented in proportion to their numbers? is it because the representatives are chosen by the people themselves? so will be the representatives in the nation^l legislature. is it because, the larger have more at stake than the smaller? the case will be the same with the larger & smaller states. is it because the laws are to operate immediately on their persons & properties? the same is the case in some degree as the articles of confederation stand; the same will be the case in a far greater degree, under the plan proposed to be substituted. in the cases of captures, of piracies, and of offences in a federal army, the property & persons of individuals depend on the laws of cong^s. by the plan proposed a compleat power of taxation, the highest prerogative of supremacy is proposed to be vested in the national gov^t. many other powers are added which assimilate it to the gov^t of individual states. the negative proposed on the state laws, will make it an essential branch of the state legislatures & of course will require that it should be exercised by a body established on like principles with the other branches of those legislatures.--that it is not necess[~a]y to secure the small states ag^{st} the large ones he conceived to be equally obvious: was a combination of the large ones dreaded? this must arise either from some interest common to v^a mass^{ts} & p^a & distinguishing them from the other states, or from the mere circumstance of similarity of size. did any such common interest exist? in point of situation they could not have been more effectually separated from each other by the most jealous citizen of the most jealous state. in point of manners, religion, and the other circumstances which sometimes beget affection between different communities, they were not more assimilated than the other states--in point of the staple productions they were as dissimilar as any three other states in the union. the staple of mass^{ts} was _fish_, of p^a _flower_, of v^a _tob^o_. was a combination to be apprehended from the mere circumstance of equality of size? experience suggested no such danger. the journals of cong^s did not present any peculiar association of these states in the votes recorded. it had never been seen that different counties in the same state, conformable in extent, but disagreeing in other circumstances, betrayed a propensity to such combinations. experience rather taught a contrary lesson. among individuals of superior eminence & weight in society, rivalships were much more frequent than coalitions. among independent nations, pre-eminent over their neighbours, the same remark was verified. carthage & rome tore one another to pieces instead of uniting their forces to devour the weaker nations of the earth. the houses of austria & france were hostile as long as they remained the greatest powers of europe. england & france have succeeded to the pre-eminence & to the enmity. to this principle we owe perhaps our liberty. a coalition between those powers would have been fatal to us. among the principal members of antient & modern confederacies, we find the same effect from the same cause. the contentions, not the coalitions of sparta, athens & thebes, proved fatal to the smaller members of the amphyctionic confederacy. the contentions, not the combinations of prussia & austria, have distracted & oppressed the german empire. were the large states formidable _singly_ to their smaller neighbours? on this supposition the latter ought to wish for such a general gov^t as will operate with equal energy on the former as on themselves. the more lax the band, the more liberty the larger will have to avail themselves of their superior force. here again experience was an instructive monitor. what is y^e situation of the weak compared with the strong in those stages of civilization in which the violence of individuals is least controuled by an efficient government? the heroic period of antient greece, the feudal licentiousness of the middle ages of europe, the existing condition of the american savages, answer this question. what is the situation of the minor sovereigns in the great society of independent nations, in which the more powerful are under no controul but the nominal authority of the law of nations? is not the danger to the former exactly in proportion to their weakness. but there are cases still more in point. what was the condition of the weaker members of the amphyctionic confederacy. plutarch (life of themistocles) will inform us that it happened but too often that the strongest cities corrupted & awed the weaker, and that judgment went in favor of the more powerful party. what is the condition of the lesser states in the german confederacy? we all know that they are exceedingly trampled upon: and that they owe their safety as far as they enjoy it, partly to their enlisting themselves, under the rival banners of the pre-eminent members, partly to alliances with neighbouring princes which the constitution of the empire does not prohibit. what is the state of things in the lax system of the dutch confederacy? holland contains about / the people, supplies about / of the money, and by her influence, silently & indirectly governs the whole republic. in a word; the two extremes before us are a perfect separation & a perfect incorporation, of the states. in the first case they would be independent nations subject to no law, but the law of nations. in the last, they would be mere counties of one entire republic, subject to one common law. in the first case the smaller states would have every thing to fear from the larger. in the last they would have nothing to fear. the true policy of the small states therefore lies in promoting those principles & that form of gov^t which will most approximate the states to the condition of counties. another consideration may be added. if the gen^l gov^t be feeble, the large states distrusting its continuance, and foreseeing that their importance & security may depend on their own size & strength, will never submit to a partition. give to the gen^l gov^t sufficient energy & permanency, & you remove the objection. gradual partitions of the large, & junctions of the small states will be facilitated, and time may effect that equalization, which is wished for by the small states now, but can never be accomplished at once. m^r wilson. the leading argument of those who contend for equality of votes among the states is that the states as such being equal, and being represented not as districts of individuals, but in their political & corporate capacities, are entitled to an equality of suffrage. according to this mode of reasoning the representation of the boroughs in engl[~d] which has been allowed on all hands to be the rotten part of the constitution, is perfectly right & proper. they are like the states represented in their corporate capacity like the states therefore they are entitled to equal voices, old sarum to as many as london. and instead of the injury supposed hitherto to be done to london, the true ground of complaint lies with old sarum: for london instead of two which is her proper share, sends four representatives to parliament.[ ] [ ] according to king's notes, charles pinckney spoke after madison: "_charles pinckney._ the honors & offices may become the objects of strong desire and of combination to acquire them. if representatives be apportioned among the states in the ratio of numbers, the citizens will be free and equal but the states will be unequal, and their sovereignty will be degraded."--king's _life and correspondence of rufus king_, i., . m^r sherman. the question is not what rights naturally belong to man; but how they may be most equally & effectually guarded in society. and if some give up more than others in order to obtain this end, there can be no room for complaint. to do otherwise, to require an equal concession from all, if it would create danger to the rights of some, would be sacrificing the end to the means. the rich man who enters into society along with the poor man, gives up more than the poor man, yet with an equal vote he is equally safe. were he to have more votes than the poor man in proportion to his superior stake the rights of the poor man would immediately cease to be secure. this consideration prevailed when the articles of confederation were formed.[ ] [ ] according to yates, madison followed sherman: "mr. madison. there is danger in the idea of the gentleman from connecticut. unjust representation will ever produce it. in the united netherlands, holland governs the whole, although she has only one vote. the counties in virginia are exceedingly disproportionate, and yet the smaller has an equal vote with the greater, and no inconvenience arises."--yates, _secret proceedings_, etc., . the determination of the question from striking out the word "not" was put off till tomorrow at the request of the deputies of n. york. doc^r franklin. m^r president. the small progress we have made after or five weeks close attendance & continual reasonings with each other--our different sentiments on almost every question, several of the last producing as many noes as ays, is methinks a melancholy proof of the imperfection of the human understanding. we indeed seem to feel our own want of political wisdom, since we have been running about in search of it. we have gone back to ancient history for models of government, and examined the different forms of those republics which having been formed with the seeds of their own dissolution now no longer exist. and we have viewed modern states all round europe, but find none of their constitutions suitable to our circumstances. in this situation of this assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the father of lights to illuminate our understandings? in the beginning of the contest with g. britain, when we were sensible of danger we had daily prayer in this room for the divine protection.--our prayers, sir, were heard, & they were graciously answered. all of us who were engaged in the struggle must have observed frequent instances of a superintending providence in our favor. to that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. and have we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? i have lived, sir, a long time, and the longer i live, the more convincing proofs i see of this truth--_that god governs in the affairs of men_. and if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? we have been assured, sir, in the sacred writings that "except the lord build the house they labour in vain that build it." i firmly believe this; and i also believe that without his concurring aid we shall succeed in this political building no better than the builders of babel: we shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and bye word down to future ages. and what is worse, mankind may hereafter from this unfortunate instance, despair of establishing governments by human wisdom and leave it to chance, war and conquest. i therefore beg leave to move--that henceforth prayers imploring the assistance of heaven, and its blessings on our deliberations, be held in this assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service-- m^r sherman seconded the motion. m^r hamilton & several others expressed their apprehensions that however proper such a resolution might have been at the beginning of the convention, it might at this late day, . bring on it some disagreeable animadversions, & . lead the public to believe that the embarrassments and dissensions within the convention, had suggested this measure. it was answered by doc^r f. m^r sherman & others, that the past omission of a duty could not justify a further omission--that the rejection of such a proposition would expose the convention to more unpleasant animadversions than the adoption of it: and that the alarm out of doors that might be excited for the state of things within, would at least be as likely to do good as ill. m^r williamson, observed that the true cause of the omission could not be mistaken. the convention had no funds. m^r randolph proposed in order to give a favorable aspect to y^e measure, that a sermon be preached at the request of the convention on ^{th} of july, the anniversary of independence; & thenceforward prayers be used in y^e convention every morning. d^r frank^n ^{ded} this motion. after several unsuccessful attempts for silently postponing this matter by adjourn^g the adjournment was at length carried, without any vote on the motion. friday june ^{th} in convention. doc^r johnson. the controversy must be endless whilst gentlemen differ in the grounds of their arguments; those on one side considering the states as districts of people composing one political society; those on the other considering them as so many political societies. the fact is that the states do exist as political societies, and a gov^t is to be formed for them in their political capacity, as well as for the individuals composing them. does it not seem to follow, that if the states as such are to exist they must be armed with some power of self-defence. this is the idea of (col. mason) who appears to have looked to the bottom of this matter. besides the aristocratic and other interests, which ought to have the means of defending themselves, the states have their interests as such, and are equally entitled to like means. on the whole he thought that as in some respects the states are to be considered in their political capacity, and in others as districts of individual citizens the two ideas embraced on different sides, instead of being opposed to each other, ought to be combined; that in _one_ branch the _people_, ought to be represented, in the _other_ the _states_. m^r ghoram. the states as now confederated have no doubt a right to refuse to be consolidated, or to be formed into any new system. but he wished the small states which seemed most ready to object, to consider which are to give up most, they or the larger ones. he conceived that a rupture of the union w^d be an event unhappy for all, but surely the large states would be least unable to take care of themselves, and to make connections with one another. the weak therefore were most interested in establishing some general system for maintaining order. if among individuals, composed partly of weak, and partly of strong, the former most need the protection of law & government, the case is exactly the same with weak & powerful states. what would be the situation of delaware (for these things he found must be spoken out, & it might as well be done at first as last) what w^d be the situation of delaware in case of a separation of the states? would she not be at the mercy of pennsylvania? would not her true interest lie in being consolidated with her, and ought she not now to wish for such a union with p^a under one gov^t as will put it out of the power of pen^a to oppress her? nothing can be more ideal than the danger apprehended by the states from their being formed into one nation. mass^{ts} was originally three colonies, viz old mass^{ts} plymouth--& the province of mayne. these apprehensions existed then. an incorporation took place; all parties were safe & satisfied; and every distinction is now forgotten. the case was similar with connecticut & new haven. the dread of union was reciprocal; the consequence of it equally salutary and satisfactory. in like manner n. jersey has been made one society out of two parts. should a separation of the states take place, the fate of n. jersey w^d be worst of all. she has no foreign commerce & can have but little. p^a & n. york will continue to levy taxes on her consumption. if she consults her interest she w^d beg of all things to be annihilated. the apprehensions of the small states ought to be appeased by another reflection mass^{ts} will be divided. the province of maine is already considered as approaching the term of its annexation to it; and p^a will probably not increase, considering the present state of her population, & other events that may happen. on the whole he considered a union of the states as necessary to their happiness, & a firm gen^l gov^t as necessary to their union. he sh^d consider it as his duty if his colleagues viewed the matter in the same light he did to stay here as long as any other state would remain with them, in order to agree on some plan that could with propriety be recommended to the people. m^r elseworth, did not despair. he still trusted that some good plan of gov^t w^d be devised & adopted. m^r read. he sh^d have no objection to the system if it were truly national, but it has too much of a federal mixture in it. the little states he thought had not much to fear. he suspected that the large states felt their want of energy, & wished for a gen^l gov^t to supply the defect. mass^{ts} was evidently labouring under her weakness and he believed delaware w^d not be in much danger if in her neighbourhood. delaware had enjoyed tranquillity & he flattered himself w^d continue to do so. he was not however so selfish as not to wish for a good gen^l gov^t. in order to obtain one the whole states must be incorporated. if the states remain, the representatives of the large ones will stick together, and carry everything before them. the executive also will be chosen under the influence of this partiality, and will betray it in his administration. these jealousies are inseparable from the scheme of leaving the states in existence. they must be done away. the ungranted lands also which have been assumed by particular states must also be given up. he repeated his approbation of the plan of m^r hamilton, & wished it to be substituted in the place of that on the table. m^r madison agreed with doc^r johnson, that the mixed nature of the gov^t ought to be kept in view; but thought too much stress was laid on the rank of the states as political societies. there was a gradation, he observed from the smallest corporation, with the most limited powers, to the largest empire with the most perfect sovereignty. he pointed out the limitations on the sovereignty of the states, as now confederated their laws in relation to the paramount law of the confederacy were analagous to that of bye laws to the supreme law within a state. under the proposed gov^t the powers of the states will be much farther reduced. according to the views of every member, the gen^l gov^t will have powers far beyond those exercised by the british parliament, when the states were part of the british empire. it will in particular have the power, without the consent of the state legislatures, to levy money directly on the people themselves; and therefore not to divest such _unequal_ portions of the people as composed the several states, of an _equal_ voice, would subject the system to the reproaches & evils which have resulted from the vicious representation in g. b. he entreated the gentlemen representing the small states to renounce a principle w^{ch} was confessedly unjust, which c^d never be admitted, & if admitted must infuse mortality into a constitution which we wished to last forever. he prayed them to ponder well the consequences of suffering the confederacy to go to pieces. it had been s^d that the want of energy in the large states w^d be a security to the small. it was forgotten that this want of energy proceeded from the supposed security of the states ag^{st} all external danger. let each state depend on itself for its security, & let apprehensions arise of danger, from distant powers or from neighbouring states, & the languishing condition of all the states, large as well as small, w^d soon be transformed into vigorous & high toned gov^{ts}. his great fear was that their gov^{ts} w^d then have too much energy, that these might not only be formidable in the large to the small states, but fatal to the internal liberty of all. the same causes which have rendered the old world the theatre of incessant wars, & have banished liberty from the face of it, w^d soon produce the same effects here. the weakness & jealousy of the small states w^d quickly introduce some regular military force ag^{st} sudden danger from their powerful neighbours. the example w^d be followed by others, and w^d soon become universal. in time of actual war, great discretionary powers are constantly given to the executive magistrate. constant apprehension of war, has the same tendency to render the head too large for the body. a standing military force, with an overgrown executive will not long be safe companions to liberty. the means of defence ag^{st} foreign danger, have been always the instruments of tyranny at home. among the romans it was a standing maxim to excite a war, whenever a revolt was apprehended. throughout all europe, the armies kept up under the pretext of defending, have enslaved the people. it is perhaps questionable, whether the best concerted system of absolute power in europe c^d maintain itself, in a situation, where no alarms of external danger c^d tame the people to the domestic yoke. the insular situation of g. britain was the principal cause of her being an exception to the general fate of europe. it has rendered less defence necessary, and admitted a kind of defence w^{ch} c^d not be used for the purpose of oppression.--these consequences he conceived ought to be apprehended whether the states should run into a total separation from each other, or sh^d enter into partial confederacies. either event w^d be truly deplorable; & those who might be accessary to either, could never be forgiven by their country, nor by themselves. [ ]m^r hamilton observed that individuals forming political societies modify their rights differently with regard to suffrage. examples of it are found in all the states. in all of them some individuals are deprived of the right altogether, not having the requisite qualification of property. in some of the states the right of suffrage is allowed in some cases and refused in others. to vote for a member in one branch, a certain quantum of property, to vote for a member in another branch of the legislature, a higher quantum of property is required. in like manner states may modify their right of suffrage differently, the larger exercising a larger, the smaller a smaller share of it. but as states are a collection of individual men which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition. nothing could be more preposterous or absurd than to sacrifice the former to the latter. it has been s^d that if the smaller states renounce their _equality_, they renounce at the same time their _liberty_. the truth is it is a contest for power, not for liberty. will the men composing the small states be less free than those composing the larger. the state of delaware having , souls will _lose power_, if she has / only of the votes allowed to p^a having , : but will the people of del: _be less free_, if each citizen has an equal vote with each citizen of p^a he admitted that common residence within the same state would produce a certain degree of attachment; and that this principle might have a certain influence in public affairs. he thought however that this might by some precautions be in a great measure excluded: and that no material inconvenience could result from it, as there could not be any ground for combination among the states whose influence was most dreaded. the only considerable distinction of interests, lay between the carrying & non-carrying states, which divides instead of uniting the largest states. no considerable inconvenience had been found from the division of the state of n. york into different districts of different sizes. [ ] from this date he was absent till the ---- of ----.--madison's note. some of the consequences of a dissolution of the union, and the establishment of partial confederacies, had been pointed out. he would add another of a most serious nature. alliances will immediately be formed with different rival & hostile nations of europes, who will foment disturbances among ourselves, and make us parties to all their own quarrels. foreign nations having american dominion are & must be jealous of us. their representatives betray the utmost anxiety for our fate, & for the result of this meeting, which must have an essential influence on it.--it had been said that respectability in the eyes of foreign nations was not the object at which we aimed; that the proper object of republican government was domestic tranquillity & happiness. this was an ideal distinction. no government could give us tranquillity & happiness at home, which did not possess sufficient stability and strength to make us respectable abroad. this was the critical moment for forming such a government. we should run every risk in trusting to future amendments. as yet we retain the habits of union. we are weak & sensible of our weakness. henceforward the motives will become feebler, and the difficulties greater. it is a miracle that we were now here exercising our tranquil & free deliberations on the subject. it would be madness to trust to future miracles. a thousand causes must obstruct a reproduction of them. m^r pierce considered the equality of votes under the confederation as the great source of the public difficulties. the members of cong^s were advocates for local advantages. state distinctions must be sacrificed as far as the general good required, but without destroying the states. tho' from a small state he felt himself a citizen of the u. s. m^r gerry, urged that we never were independent states, were not such now, & never could be even on the principles of the confederation. the states & the advocates for them were intoxicated with the idea of their _sovereignty_. he was a member of congress at the time the federal articles were formed. the injustice of allowing each state an equal vote was long insisted on. he voted for it, but it was ag^{st} his judgment, and under the pressure of public danger, and the obstinacy of the lesser states. the present confederation he considered as dissolving. the fate of the union will be decided by the convention. if they do not agree on something, few delegates will probably be appointed to cong^s. if they do cong^s will probably be kept up till the new system should be adopted. he lamented that instead of coming here like a band of brothers, belonging to the same family, we seemed to have brought with us the spirit of political negotiators. m^r l. martin remarked that the language of the states being _sovereign & independent_, was once familiar & understood; though it seemed now so strange & obscure. he read those passages in the articles of confederation, which describe them in that language. on the question as moved by m^r lansing. shall the word "not" be struck out. mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d div^d. v^a no. n. c. no. s. c. no. geo. no. on the motion to agree to the clause as reported, "that the rule of suffrage in the ^{st} branch ought not to be according to that established by the articles of the confederation mass. ay. con^t no. n. y. no. n. j. no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. doc^r johnson & m^r elseworth moved to postpone the residue of the clause, & take up y^e resol: on question mas. no. con^t ay. n. y. ay. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r elseworth moved that the rule of suffrage in the ^d branch be the same with that established by the articles of confederation. "he was not sorry on the whole he said that the vote just passed, had determined against this rule in the first branch. he hoped it would become a ground of compromise with regard to the ^d branch. we were partly national; partly federal. the proportional representation in the first branch was conformable to the national principle & would secure the large states ag^{st} the small. an equality of voices was conformable to the federal principle and was necessary to secure the small states ag^{st} the large. he trusted that on this middle ground a compromise would take place. he did not see that it could on any other. and if no compromise should take place, our meeting would not only be in vain but worse than in vain. to the eastward he was sure mass^{ts} was the only state that would listen to a proposition for excluding the states as equal political societies, from an equal voice in both branches. the others would risk every consequence rather than part with so dear a right. an attempt to deprive them of it, was at once cutting the body of america in two, and as he supposed would be the case, somewhere about this part of it. the large states he conceived would notwithstanding the equality of votes, have an influence that would maintain their superiority. holland, as had been admitted (by m^r madison) had, notwithstanding a like equality in the dutch confederacy, a prevailing influence in the public measures. the power of self defence was essential to the small states. nature had given it to the smallest insect of the creation. he could never admit that there was no danger of combinations among the large states. they will like individuals find out and avail themselves of the advantage to be gained by it. it was true the danger would be greater if they were contiguous and had a more immediate common interest. a defensive combination of the small states was rendered more difficult by their great number. he would mention another consideration of great weight. the existing confederation was founded on the equality of the states in the article of suffrage: was it meant to pay no regard to this antecedent plighted faith. let a strong executive, a judiciary & legislative power be created, but let not too much be attempted; by which all may be lost. he was not in general a half-way man, yet he preferred doing half the good we could, rather than do nothing at all. the other half may be added, when the necessity shall be more fully experienced.[ ] [ ] in king's notes another speech of madison's is given after ellsworth's: "_madison._ one gentleman from connecticut has proposed doing as much as is prudent now, leaving future amendments to posterity,--this is a dangerous doctrine. the defects of the amphictionic league were acknowledged, but were reformed. the netherlands have four times attempted to make amendments in their confederation, but have failed in each attempt. the fear of innovation, the hue & cry in favour of the liberty of the people will as they have done prevent the necessary reforms. if the states have equal votes & influence in the senate we shall be in the utmost danger, the minority of the people will govern the majority. delaware during the late war opposed and defeated an embargo, to which twelve states had agreed, and continued to supply the enemy with provisions in time of war."--king's _life and times of rufus king_, i., . m^r baldwin[ ] could have wished that the powers of the general legislature had been defined, before the mode of constituting it had been agitated. he should vote against the motion of m^r elseworth, tho. he did not like the resolution as it stood in the report of the committee of the whole. he thought the second branch ought to be the representation of property, and that in forming it therefore some reference ought to be had to the relative wealth of their constituents, and to the principles on which the senate of mass^{ts} was constituted. he concurred with those who thought it w^d be impossible for the gen^l legislature to extend its cares to the local matters of the states.[ ] adj^d. [ ] "mr. baldwin is a gentleman of superior abilities, and joins in a public debate with great art and eloquence. having laid the foundation of a compleat classical education at harvard college, he pursues every other study with ease. he is well acquainted with books and characters, and has an accommodating turn of mind, which enables him to gain the confidence of men, and to understand them. he is a practising attorney in georgia, and has been twice a member of congress. mr. baldwin is about years of age."--pierce's notes _am. hist. rev._, iii., . [ ] according to yates, after baldwin spoke: "mr. madison. i would always exclude inconsistent principles in framing a system of government. the difficulty of getting its defects amended are great and sometimes insurmountable. the virginia state government was the first which was made, and though its defects are evident to every person, we cannot get it amended. the dutch have made four several attempts to amend their system without success. the few alterations made in it were by tumult and faction, and for the worse. if there was real danger, i would give the smaller states the defensive weapons--but there is none from that quarter. the great danger to our general government is the great southern and northern interests of the continent, being opposed to each other. look to the votes in congress, and most of them stand divided by the geography of the country, not according to the size of the states. "suppose the first branch granted money, may not the second branch, from state views, counteract the first? in congress, the single state of delaware prevented an embargo, at the time that all the other states thought it absolutely necessary for the support of the army. other powers, and those very essential, besides the legislative, will be given to the second branch--such as the negativing all state laws. i would compromise on this question, if i could do it on correct principles, but otherwise not--if the old fabric of the confederation must be the groundwork of the new, we must fall."--yates, _secret proceedings_, etc., . saturday june . . in convention m^r brearly moved that the presid^t write to the executive of n. hampshire, informing it that the business depending before the convention was of such a nature as to require the immediate attendance of the deputies of that state. in support of his motion he observed that the difficulties of the subject and the diversity of opinions called for all the assistance we could possibly obtain, (it was well understood that the object was to add n. hampshire to the n^o of states opposed to the doctrine of proportional representation, which it was presumed from her relative size she must be adverse to). m^r patterson seconded the motion. m^r rutlidge could see neither the necessity nor propriety of such a measure. they are not unapprized of the meeting, and can attend if they choose. rho. island might as well be urged to appoint & send deputies. are we to suspend the business until the deputies arrive? if we proceed he hoped all the great points would be adjusted before the letter could produce its effect. m^r king, said he had written more than once as a private correspondent, & the answers gave him every reason to expect that state would be represented very shortly, if it sh^d be so at all. circumstances of a personal nature had hitherto prevented it. a letter c^d have no effect. m^r wilson wished to know whether it would be consistent with the rule or reason of secrecy, to communicate to n. hampshire that the business was of such a nature as the motion described. it w^d spread a great alarm. besides he doubted the propriety of soliciting any state on the subject; the meeting being merely voluntary--on motion of m^r brearly mas^{ts} no. con^t no. n. y. ay. n. j. ay. p^a not on y^e floor. del. not on floor. m^d div^d v^a no. n. c. no. s. c. no. geo. not on floor. the motion of m^r elseworth resumed for allowing each state an equal vote in y^e ^d branch. m^r wilson did not expect such a motion after the establishment of y^e contrary principle in the ^{st} branch; and considering the reasons which would oppose it, even if an equal vote had been allowed in the ^{st} branch. the gentleman from connecticut (m^r elseworth) had pronounced that if the motion should not be acceded to, of all the states north of pen^a one only would agree to any gen^l government. he entertained more favorable hopes of conn^t and of the other northern states. he hoped the alarms exceeded their cause, and that they would not abandon a country to which they were bound by so many strong and endearing ties. but should the deplored event happen, it would neither stagger his sentiments nor his duty. if the minority of the people of america refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds. the votes of yesterday ag^{st} the just principle of representation, were as to of the people of america. taking the opinions to be the same on this point, and he was sure if there was any room for change, it could not be on the side of the majority, the question will be shall less than / of the u. states withdraw themselves from the union; or shall more than / renounce the inherent, indisputable and unalienable rights of men, in favor of the artificial systems of states. if issue must be joined, it was on this point he would chuse to join it. the gentleman from connecticut in supposing that the preponderancy secured to the majority in the ^{st} branch had removed the objections to an equality of votes in the ^d branch for the security of the minority, narrowed the case extremely. such an equality will enable the minority to controul in all cases whatsoever, the sentiments and interests of the majority. seven states will controul six: seven states, according to the estimates that had been used, composed / of the whole people. it would be in the power then of less than / to overrule / whenever a question should happen to divide the states in that manner. can we forget for whom we are forming a government? is it for _men_, or for the imaginary beings called _states_? will our honest constituents be satisfied with metaphysical distinctions? will they, ought they to be satisfied with being told, that the one-third compose the greater number of states? the rule of suffrage ought on every principle to be the same in the ^d as in the ^{st} branch. if the government be not laid on this foundation, it can be neither solid nor lasting. any other principle will be local, confined & temporary. this will expand with the expansion, and grow with the growth of the u. states.--much has been said of an imaginary combination of three states. sometimes a danger of monarchy, sometimes of aristocracy has been charged on it. no explanation however of the danger has been vouchsafed. it would be easy to prove both from reason & history that rivalships would be more probable than coalitions; and that there are no coinciding interests that could produce the latter. no answer has yet been given to the observations of (m^r madison) on this subject. should the executive magistrate be taken from one of the large states would not the other two be thereby thrown into the scale with the other states? whence then the danger of monarchy? are the people of the three large states more aristocratic than those of the small ones? whence then the danger of aristocracy from their influence? it is all a mere illusion of names. we talk of states, till we forget what they are composed of. is a real & fair majority, the natural hot-bed of aristocracy? it is a part of the definition of this species of gov^t or rather of tyranny, that the smaller number governs the greater. it is true that a majority of states in the ^d branch cannot carry a law ag^{st} a majority of the people in the ^{st}. but this removes half only of the objection. bad govern^{ts} are of two sorts. . that which does too little. . that which does too much: that which fails thro' weakness; and that which destroys thro' oppression. under which of these evils do the u. states at present groan? under the weakness and inefficiency of its govern^t. to remedy this weakness we have been sent to this convention. if the motion should be agreed to, we shall leave the u. s. fettered precisely as heretofore; with the additional mortification of seeing the good purposes of y^e fair representation of the people in the ^{st} branch, defeated in the ^d. twenty four will still controul sixty six. he lamented that such a disagreement should prevail on the point of representation, as he did not foresee that it would happen on the other point most contested, the boundary between the gen^l & the local authorities. he thought the states necessary & valuable parts of a good system. m^r elseworth. the capital objection of m^r wilson, "that the minority will rule the majority" is not true. the power is given to the few to save them from being destroyed by the many. if an equality of votes had been given to them in both branches, the objection might have had weight. is it a novel thing that the few should have a check on the many? is it not the case in the british constitution the wisdom of which so many gentlemen have united in applauding? have not the house of lords, who form so small a proportion of the nation a negative on the laws, as a necessary defence of their peculiar rights ag^{st} the encroachm^{ts} of the commons. no instance of a confederacy has existed in which an equality of voices has not been exercised by the members of it. we are running from one extreme to another. we are razing the foundations of the building, when we need only repair the roof. no salutary measure has been lost for want of _a majority of the states_, to favor it. if security be all that the great states wish for the ^{st} branch secures them. the danger of combinations among them is not imaginary. altho' no particular abuses could be foreseen by him, the possibility of them would be sufficient to alarm him. but he could easily conceive cases in which they might result from such combinations. suppose that in pursuance of some commercial treaty or arrangement, three or four free ports & no more were to be established would not combinations be formed in favor of boston--philad^a & some port of the chesapeak? a like concert might be formed in the appointment of the great officers. he appealed again to the obligations of the federal pact which was still in force, and which had been entered into with so much solemnity; persuading himself that some regard would still be paid to the plighted faith under which each state small as well as great, held an equal right of suffrage in the general councils. his remarks were not the result of partial or local views. the state he represented (connecticut) held a middle rank. m^r madison did justice to the able and close reasoning of m^r e. but must observe that it did not always accord with itself. on another occasion, the large states were described by him as the aristocratic states, ready to oppress the small. now the small are the house of lords requiring a negative to defend them ag^{st} the more numerous commons. m^r e. had also erred in saying that no instance had existed in which confederated states had not retained to themselves a perfect equality of suffrage. passing over the german system in which the k. of prussia has nine voices, he reminded m^r e. of the lycian confederacy, in which the component members had votes proportioned to their importance, and which montesquieu recommends as the fittest model for that form of government. had the fact been as stated by m^r e. it would have been of little avail to him, or rather would have strengthened the arguments ag^{st} him; the history & fate of the several confederacies modern as well as antient, demonstrating some radical vice in their structure. in reply to the appeal of m^r e. to the faith plighted in the existing federal compact, he remarked that the party claiming from others an adherence to a common engagement ought at least to be guiltless itself of a violation. of all the states however connecticut was perhaps least able to urge this plea. besides the various omissions to perform the stipulated acts from which no state was free, the legislature of that state had by a pretty recent vote, _positively refused_ to pass a law for complying with the requisitions of cong^s, and had transmitted a copy of the vote to cong^s. it was urged, he said, continually that an equality of votes in the ^d branch was not only necessary to secure the small, but would be perfectly safe to the large ones whose majority in the ^{st} branch was an effectual bulwark. but notwithstanding this apparent defence, the majority of states might still injure the majority of people. . they could _obstruct_ the wishes and interests of the majority. . they could _extort_ measures repugnant to the wishes & interest of the majority. . they could _impose_ measures adverse thereto; as the ^d branch will prob[~l]y exercise some great powers, in which the ^{st} will not participate. he admitted that every peculiar interest whether in any class of citizens, or any description of states, ought to be secured as far as possible. wherever there is danger of attack there ought to be given a constitutional power of defence. but he contended that the states were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. these two causes concurred in forming the great division of interests in the u. states. it did not lie between the large & small states: it lay between the northern & southern. and if any defensive power were necessary, it ought to be mutually given to these two interests. he was so strongly impressed with this important truth that he had been casting about in his mind for some expedient that would answer the purpose. the one which had occurred was that instead of proportioning the votes of the states in both branches, to their respective numbers of inhabitants computing the slaves in the ratio of to , they should be represented in one branch according to the number of free inhabitants only; and in the other according to the whole n^o counting the slaves as free. by this arrangement the southern scale would have the advantage in one house, and the northern in the other. he had been restrained from proposing this expedient by two considerations: one was his unwillingness to urge any diversity of interests on an occasion where it is but too apt to arise of itself--the other was, the inequality of powers that must be vested in the two branches, and which w^d destroy the equilibrium of interests. m^r elseworth assured the house that whatever might be thought of the representatives of connecticut the state was entirely federal in her disposition. he appealed to her great exertions during the war, in supplying both men & money. the muster rolls would show she had more troops in the field than virg^a. if she had been delinquent, it had been from inability, and not more so than other states. m^r sherman. m^r madison had animadverted on the delinquency of the states, when his object required him to prove that the constitution of cong^s was faulty. cong^s is not to blame for the faults of the states. their measures have been right, and the only thing wanting has been, a further power in cong^s to render them effectual. m^r davy was much embarrassed and wished for explanations. the report of the committee allowing the legislatures to choose the senate, and establishing a proportional representation in it, seemed to be impracticable. there will according to this rule be ninety members in the outset, and the number will increase as new states are added. it was impossible that so numerous a body could possess the activity and other qualities required in it. were he to vote on the comparative merits of the report as it stood, and the amendment, he should be constrained to prefer the latter. the appointment of the senate by electors chosen by the people for that purpose was he conceived liable to an insuperable difficulty. the larger counties or districts thrown into a general district, would certainly prevail over the smaller counties or districts, and merit in the latter would be excluded altogether. the report therefore seemed to be right in referring the appointment to the legislatures, whose agency in the general system did not appear to him objectionable as it did to some others. the fact was that the local prejudices & interests which could not be denied to exist, would find their way into the national councils whether the representatives should be chosen by the legislatures or by the people themselves. on the other hand if a proportional representation was attended with insuperable difficulties, the making the senate the representative of the states, looked like bringing us back to cong^s again, and shutting out all the advantages expected from it. under this view of the subject he could not vote for any plan for the senate yet proposed. he thought that in general there were extremes on both sides. we were partly federal, partly national in our union, and he did not see why the gov^t might not in some respects operate on the states, in others on the people. m^r wilson admitted the question concerning the number of senators, to be embarrassing. if the smallest states be allowed one, and the others in proportion, the senate will certainly be too numerous. he looked forward to the time when the smallest states will contain , souls at least. let there be then one senator in each for every , souls and let the states not having that n^o of inhabitants be allowed one. he was willing himself to submit to this temporary concession to the small states; and threw out the idea as a ground of compromise. doc^r franklin. the diversity of opinions turns on two points. if a proportional representation takes place, the small states contend that their liberties will be in danger. if an equality of votes is to be put in its place, the large states say their money will be in danger. when a broad table is to be made, and the edges of planks do not fit, the artist takes a little from both, and makes a good joint. in like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition. he had prepared one which he would read, that it might lie on the table for consideration. the proposition was in the words following "that the legislatures of the several states shall choose & send an equal number of delegates, namely ---- who are to compose the ^d branch of the general legislature-- that in all cases or questions wherein the sovereignty of individual states may be affected, or whereby their authority over their own citizens may be diminished, or the authority of the general government within the several states augmented, each state shall have equal suffrage. that in the appointment of all civil officers of y^e gen^l gov^t in the election of whom the ^d branch may by the constitution have part, each state shall have equal suffrage. that in fixing the salaries of such officers, and in all allowances for public services, and generally in all appropriations & dispositions of money to be drawn out of the general treasury; and in all laws for supplying that treasury, the delegates of the several states shall have suffrage in proportion to the sums which their respective states do actually contribute to the treasury." where a ship had many owners this was the rule of deciding on her expedition. he had been one of the ministers from this country to france during the joint war and w^d have been very glad if allowed a vote in distributing the money to carry it on. m^r king observed that the simple question was whether each state should have an equal vote in the ^d branch; that it must be apparent to those gentlemen who liked neither the motion for this equality, nor the report as it stood, that the report was as susceptible of melioration as the motion; that a reform would be nugatory & nominal only if we should make another congress of the proposed senate: that if the adherence to an equality of votes was fixed & unalterable, there could not be less obstinacy on the other side, & that we were in fact cut asunder already, and it was in vain to shut our eyes against it: that he was however filled with astonishment that if we were convinced that every _man_ in america was secured in all his rights, we should be ready to sacrifice this substantial good to the phantom of _state_ sovereignty: that his feelings were more harrowed & his fears more agitated for his country than he could express, that he conceived this to be the last opportunity of providing for its liberty & happiness: that he could not therefore but repeat his amazement that when a just govern^t founded on a fair representation of the _people_ of america was within our reach, we should renounce the blessing, from an attachment to the ideal freedom & importance of _states_: that should this wonderful illusion continue to prevail, his mind was prepared for every event, rather than to sit down under a gov^t founded in a vicious principle of representation, and which must be as short lived as it would be unjust. he might prevail on himself to accede to some such expedient as had been hinted by m^r wilson; but he never could listen to an equality of votes as proposed in the motion. m^r dayton. when assertion is given for proof, and terror substituted for argument, he presumed they would have no effect however eloquently spoken. it should have been shewn that the evils we have experienced have proceeded from the equality now objected to; and that the seeds of dissolution for the state governments are not sown in the gen^l government. he considered the system on the table as a novelty, an amphibious monster; and was persuaded that it never would be rec^d by the people. m^r martin w^d never confederate if it could not be done on just principles. m^r madison would acquiesce in the concession hinted by m^r wilson, on condition that a due independence should be given to the senate. the plan in its present shape makes the senate absolutely dependent on the states. the senate therefore is only another edition of cong^s. he knew the faults of that body & had used a bold language ag^{st} it. still he would preserve the state rights, as carefully as the trials by jury. m^r bedford, contended that there was no middle way between a perfect consolidation and a mere confederacy of the states. the first is out of the question, and in the latter they must continue if not perfectly, yet equally sovereign. if political societies possess ambition avarice, and all the other passions which render them formidable to each other, ought we not to view them in this light here? will not the same motives operate in america as elsewhere? if any gentleman doubts it let him look at the votes. have they not been dictated by interest, by ambition? are not the large states evidently seeking to aggrandize themselves at the expense of the small? they think no doubt that they have right on their side, but interest had blinded their eyes. look at georgia. though a small state at present, she is actuated by the prospect of soon being a great one. s. carolina is actuated both by present interest & future prospects. she hopes too to see the other states cut down to her own dimensions. n. carolina has the same motives of present & future interest. virg^a follows. mary^d is not on that side of the question. pen^a has a direct and future interest. mass^{ts} has a decided and palpable interest in the part she takes. can it be expected that the small states will act from pure disinterestedness. look at g. britain. is the representation there less unequal? but we shall be told again that that is the rotten part of the constitution. have not the boroughs however held fast their constitutional rights? and are we to act with greater purity than the rest of mankind. an exact proportion in the representation is not preserved in any one of the states. will it be said that an inequality of power will not result from an inequality of votes. give the opportunity, and ambition will not fail to abuse it. the whole history of mankind proves it. the three large states have a common interest to bind them together in commerce. but whether a combination as we suppose, or a competition as others suppose, shall take place among them, in either case, the small states must be ruined. we must like solon make such a govern^t as the people will approve. will the smaller states ever agree to the proposed degradation of them. it is not true that the people will not agree to enlarge the powers of the present cong^s. the language of the people has been that cong^s ought to have the power of collecting an impost, and of coercing the states where it may be necessary. on the first point they have been explicit &, in a manner, unanimous in their declarations. and must they not agree to this & similar measures if they ever mean to discharge their engagements. the little states are willing to observe their engagements, but will meet the large ones on no ground but that of the confederation. we have been told with a dictatorial air that this is the last moment for a fair trial in favor of a good governm^t. it will be the last indeed if the propositions reported from the committee go forth to the people. he was under no apprehensions. the large states dare not dissolve the confederation. if they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice. he did not mean by this to intimidate or alarm. it was a natural consequence, which ought to be avoided by enlarging the federal powers not annihilating the federal system. this is what the people expect. all agree in the necessity of a more efficient gov^t and why not make such an one as they desire. m^r elseworth. under a national gov^t he should participate in the national security, as remarked by (m^r king) but that was all. what he wanted was domestic happiness. the nat^l gov^t could not descend to the local objects on which this depended. it could only embrace objects of a general nature. he turned his eyes therefore for the preservation of his rights to the state gov^{ts}. from these alone he could derive the greatest happiness he expects in this life. his happiness depends on their existence, as much as a new born infant on its mother for nourishment. if this reasoning was not satisfactory, he had nothing to add that could be so. m^r king was for preserving the states in a subordinate degree, and as far as they could be necessary for the purposes stated by m^r elseworth. he did not think a full answer had been given to those who apprehended a dangerous encroachment on their jurisdictions. expedients might be devised as he conceived that would give them all the security the nature of things would admit of. in the establish^t of societies the constitution was to the legislature what the laws were to individuals. as the fundamental rights of individuals are secured by express provisions in the state constitutions; why may not a like security be provided for the rights of states in the national constitution. the articles of union between engl^d & scotland furnish an example of such a provision in favor of sundry rights of scotland. when that union was in agitation, the same language of apprehension which has been heard from the smaller states, was in the mouths of the scotch patriots. the articles however have not been violated and the scotch have found an increase of prosperity & happiness. he was aware that this will be called a mere _paper security_. he thought it a sufficient answer to say that if fundamental articles of compact, are no sufficient defence against physical power, neither will there be any safety ag^{st} it if there be no compact. he could not sit down, without taking some notice of the language of the honorable gentleman from delaware (m^r bedford). it was not he that had uttered a dictatorial language. this intemperance had marked the honorable gentleman himself. it was not he who with a vehemence unprecedented in that house, had declared himself ready to turn his hopes from our common country, and court the protection of some foreign hand. this too was the language of the honbl member himself. he was grieved that such a thought had entered into his heart. he was more grieved that such an expression had dropped from his lips. the gentleman c^d only excuse it to himself on the score of passion. for himself whatever might be his distress, he w^d never court relief from a foreign power. adjourned. monday july ^d in convention. on the question for allowing each state one vote in the second branch as moved by m^r elseworth, mass^{ts} no. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. m^r jenifer being not present m^r martin alone voted v^a no. n. c. no. s. c. no. geo. div^d. m^r houston no. m^r baldwin ay. m^r pinkney thought an equality of votes in the ^d branch inadmissible. at the same time candor obliged him to admit that the large states would feel a partiality for their own citizens & give them a preference, in appointments: that they might also find some common points in their commercial interests, and promote treaties favorable to them. there is a real distinction [between] the northern & south^n interests. n. carol^a s. carol: & geo. in their rice & indigo had a peculiar interest which might be sacrificed. how then shall the larger states be prevented from administering the gen^l gov^t as they please, without being themselves unduly subjected to the will of the smaller? by allowing them some but not a full, proportion. he was extremely anxious that something should be done, considering this as the last appeal to a regular experiment. cong^s have failed in almost every effort for an amendment of the federal system. nothing has prevented a dissolution of it, but the appointm^t of this convention; & he could not express his alarms for the consequence of such an event. he read his motion, to form the states into classes, with an apportionment of senators among them (see art: , of his plan). general pinkney was willing the motion might be considered. he did not entirely approve it. he liked better the motion of doc^r franklin (which see saturday june ). some compromise seemed to be necessary, the states being exactly divided on the question for an equality of votes in the ^d branch. he proposed that a committee consisting of a member from each state should be appointed to devise & report some compromise. m^r l. martin had no objection to a commitment, but no modifications whatever could reconcile the smaller states to the least diminution of their equal sovereignty. m^r sherman. we are now at a full stop, and nobody he supposed meant that we sh^d break up without doing something. a committee he thought most likely to hit on some expedient. [ ]mr. gov^r morris. thought a com^e adviseable as the convention had been equally divided. he had a stronger reason also. the mode of appointing the ^d branch tended he was sure to defeat the object of it. what is this object? to check the precipitation, changeableness, and excesses of the first branch. every man of observation had seen in the democratic branches of the state legislatures, precipitation--in congress changeableness, in every department excesses ag^{st} personal liberty private property & personal safety. what qualities are necessary to constitute a check in this case? _abilities_ and _virtue_, are equally necessary in both branches. something more then is now wanted, . the checking branch must have a personal interest in checking the other branch, one interest must be opposed to another interest. vices as they exist, must be turned ag^{st} each other. . it must have great personal property, it must have the aristocratic spirit; it must love to lord it thro' pride. pride is indeed the great principle that actuates both the poor & the rich. it is this principle which in the former resists, in the latter abuses authority. . it should be independent. in religion the creature is apt to forget its creator. that it is otherwise in political affairs, the late debates here are an unhappy proof. the aristocratic body, should be as independent & as firm as the democratic. if the members of it are to revert to a dependence on the democratic choice, the democratic scale will preponderate. all the guards contrived by america have not restrained the senatorial branches of the legislatures from a servile complaisance to the democratic. if the ^d branch is to be dependent we are better without it. to make it independent, it should be for life. it will then do wrong, it will be said. he believed so; he hoped so. the rich will strive to establish their dominion & enslave the rest. they always did. they always will. the proper security ag^{st} them is to form them into a separate interest. the two forces will then controul each other. let the rich mix with the poor and in a commercial country, they will establish an oligarchy. take away commerce, and the democracy will triumph. thus it has been all the world over. so it will be among us. reason tells us we are but men: and we are not to expect any particular interference of heaven in our favor. by thus combining & setting apart, the aristocratic interest, the popular interest will be combined ag^{st} it. there will be a mutual check and mutual security. . an independence for life, involves the necessary permanency. if we change our measures nobody will trust us: and how avoid a change of measures, but by avoiding a change of men. ask any man if he confides in cong^s if he confides in the state of pen^a if he will lend his money or enter into contract? he will tell you no. he sees no stability. he can repose no confidence. if g. b. were to explain her refusal to treat with us, the same reasoning would be employed.--he disliked the exclusion of the ^d branch from holding offices. it is dangerous. it is like the imprudent exclusion of the military officers during the war, from civil appointments. it deprives the executive of the principal source of influence. if danger be apprehended from the executive what a left-handed way is this of obviating it? if the son, the brother or the friend can be appointed, the danger may be even increased, as the disqualified father &c. can then boast of a disinterestedness which he does not possess. besides shall the best, the most able, the most virtuous citizens not be permitted to hold offices? who then are to hold them? he was also ag^{st} paying the senators. they will pay themselves if they can. if they can not they will be rich and can do without it. of such the ^d branch ought to consist; and none but such can compose it if they are not to be paid--he contended that the executive should appoint the senate & fill up vacancies. this gets rid of the difficulty in the present question. you may begin with any ratio you please; it will come to the same thing. the members being independ^t & for life, may be taken as well from one place as from another.--it should be considered too how the scheme could be carried through the states. he hoped there was strength of mind eno' in this house to look truth in the face. he did not hesitate therefore to say that loaves & fishes must bribe the demagogues. they must be made to expect higher offices under the general than the state gov^{ts}. a senate for life will be a noble bait. without such captivating prospects, the popular leaders will oppose & defeat the plan. he perceived that the ^{st} branch was to be chosen by the people of the states; the ^d by those chosen by the people. is not here a gov^t by the states, a govern^t by compact between virg^a in the ^{st} & ^d branch, mass^{ts} in the ^{st} & ^d branch &c. this is going back to mere treaty. it it no gov^t at all. it is altogether dependent on the states, and will act over again the part which cong^s has acted. a firm govern^t alone can protect our liberties. he fears the influence of the rich. they will have the same effect here as elsewhere if we do not by such a gov^t keep them within their proper sphere. we should remember that the people never act from reason alone. the rich will take the advantage of their passions & make these the instruments for oppressing them. the result of the contest will be a violent aristocracy, or a more violent despotism. the schemes of the rich will be favored by the extent of the country. the people in such distant parts cannot communicate & act in concert. they will be the dupes of those who have more knowledge & intercourse. the only security ag^{st} encroachments will be a select & sagacious body of men, instituted to watch ag^{st} them on all sides. he meant only to hint these observations, without grounding any motion on them. [ ] he had just returned from n. y. hav^g left y^e convention a few days after it commenced business.--madison's note. m^r randolph favored the commitment though he did not expect much benefit from the expedient. he animadverted on the warm & rash language of m^r bedford on saturday; reminded the small states that if the large states should combine some danger of which he did not deny there would be a check in the revisionary power of the executive, and intimated that in order to render this still more effectual, he would agree that in the choice of an executive each state should have an equal vote. he was persuaded that two such opposite bodies as m^r morris had planned, could never long co-exist. dissentions would arise, as has been seen even between the senate and h. of delegates in maryland, appeals would be made to the people; and in a little time commotions would be the result--he was far from thinking the large states could subsist of themselves any more than the small; an avulsion would involve the whole in ruin, and he was determined to pursue such a scheme of government as would secure us ag^{st} such a calamity. m^r strong was for the co[~m]itment; and hoped the mode of constituting both branches would be referred. if they should be established on different principles, contentions would prevail, and there would never be a concurrence in necessary measures. doc^r williamson. if we do not concede on both sides, our business must soon be at an end. he approved of the co[~m]itment, supposing that as the com^e w^d be a smaller body, a compromise would be pursued with more coolness. m^r wilson objected to the committee, because it would decide according to that very rule of voting which was opposed on one side. experience in cong^s had also proved the inutility of committees consisting of members from each state. m^r lansing w^d not oppose the commitment, though expecting little advantage from it. m^r madison opposed the co[~m]itment. he had rarely seen any other effect than delay from _such_ committees in cong^s. any scheme of compromise that could be proposed in the committee might as easily be proposed in the house; and the report of the committee where it contained merely the _opinion_ of the com^e would neither shorten the discussion, nor influence the decision of the house. m^r gerry was for the commitm^t. something must be done, or we shall disappoint not only america, but the whole world. he suggested a consideration of the state we should be thrown into by the failure of the union. we should be without an umpire to decide controversies and must be at the mercy of events. what too is to become of our treaties--what of our foreign debts, what of our domestic? we must make concessions on both sides. without these the constitutions of the several states would never have been formed. on the question "for co[~m]iting," generally: mass^{ts} ay. con^t ay. n. y. ay. n. j. no. p. ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. on the question for co[~m]iting it "to a member from each state," mass^{ts} ay. con^t ay. n. y. ay. n. j. ay. p^a no. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. the co[~m]ittee elected by ballot, were m^r gerry, m^r elseworth, m^r yates, m^r patterson, d^r franklin, m^r bedford, m^r martin, m^r mason, m^r davy, m^r rutlidge, mr. baldwin. that time might be given to the co[~m]ittee, and to such as chose to attend to the celebrations on the anniversary of independence, the convention adjourned till thursday.[ ] [ ] "tuesday, _july , _. "the _grand committee_ met. mr. gerry was chosen chairman. "the committee proceeded to consider in what manner they should discharge the business with which they were intrusted. by the proceedings in the convention, they were so equally divided on the important question of _representation in the two branches_, that the idea of a conciliatory adjustment must have been in contemplation of the house in the appointment of this committee. but still, how to effect this salutory purpose was the question. many of the members, impressed with the utility of a general government, connected with it the indispensable necessity of a representation from the states according to their numbers and wealth; while others, equally tenacious of the rights of the states, would admit of no other representation but such as _was strictly federal_, or, in other words, _equality of suffrage_. this brought on a discussion of the principles on which the house had divided, and a lengthy recapitulation of the arguments advanced in the house in support of these opposite propositions. as i had not openly explained my sentiments on any former occasion on this question, but constantly, in giving my vote, _showed my attachment to the national government on federal principles, i took this occasion to explain my motives_. "these remarks gave rise to a motion of dr. franklin, which after some modification was agreed to, and made the basis of the following report of the committee."--yates, _secret proceedings_, etc., . the report is given by madison. * * * * * hamilton, who had gone to new york, wrote to washington under date of july d: "in my passage through the jerseys, and since my arrival here, i have taken particular pains to discover the public sentiment, and i am more and more convinced that this is the critical opportunity for establishing the prosperity of this country on a solid foundation. i have conversed with men of information, not only in this city, but from different parts of the state, and they agree that there has been an astonishing revolution for the better in the minds of the people. "the prevailing apprehension among thinking men is, that the convention, from the fear of shocking the popular opinion, will not go far enough. they seem to be convinced that a strong, well-mounted government will better suit the popular palate than one of a different complexion. men in office are indeed taking all possible pains to give an unfavorable impression of the convention, but the current seems to be moving strongly the other way. "a plain but sensible man, in a conversation i had with him yesterday, expressed himself nearly in this manner: the people begin to be convinced that 'their excellent form of government,' as they have been used to call it, will not answer their purpose, and that they must substitute something not very remote from that which they have lately quitted. "these appearances, though they will not warrant a conclusion that the people are yet ripe for such a plan as i advocate, yet serve to prove that there is no reason to despair of their adopting one equally energetic, if the convention should think proper to propose it. they serve to prove that we ought not to allow too much weight to objections drawn from the supposed repugnance of the people to an efficient constitution. i confess i am more and more inclined to believe that former habits of thinking are regaining their influence with more rapidity than is generally imagined. "not having compared ideas with you, sir, i cannot judge how far our sentiments agree; but, as i persuade myself the genuineness of my representations will receive credit with you, my anxiety for the event of the deliberations of the convention induces me to make this communication of what appears to be the tendency of the public mind. "i own to you, sir, that i am seriously and deeply distressed at the aspect of the counsels which prevailed when i left philadelphia. i fear we shall let slip the golden opportunity of rescuing the american empire from disunion, anarchy, and misery. "no motley or feeble measure can answer the end, or will finally receive the public support. decision is true wisdom, and will not be less reputable to the convention than salutary to the community. "i shall of necessity remain here ten or twelve days. if i have reason to believe that my attendance at philadelphia will not be mere waste of time, i shall, after that period, rejoin the convention."--_hamilton's works_ (lodge). thursday july ^{th} in convention m^r gerry delivered in from the committee appointed on monday last the following report. "the committee to whom was referred the ^{th} resol. of the report from the committee of the whole house, and so much of the ^{th} as has not been decided on, submit the following report: that the subsequent propositions be recommended to the convention on condition that both shall be generally adopted. i. that in the ^{st} branch of the legislature each of the states now in the union shall be allowed member for every , inhabitants of the description reported in the ^{th} resolution of the com^e of the whole house: that each state not containing that number shall be allowed member: that all bills for raising or appropriating money, and for fixing the salaries of the officers of the govern^t of the u. states shall originate in the ^{st} branch of the legislature, and shall not be altered or amended by the ^d branch; and that no money shall be drawn from the public treasury but in pursuance of appropriations to be originated in the ^{st} branch. "ii. that in the ^d branch each state shall have an equal vote."[ ] [ ] this report was founded on a motion in the co[~m]itte made by d^r franklin. it was barely acquiesced in by the members from the states opposed to an equity of votes in the ^d branch and was evidently considered by the members on the other side, as a gaining of their point. a motion was made by m^r sherman. he acted in the place of m^r elseworth who was kept away by indisposition, in the committee to the following effect "that each state should have an equal vote in the ^d branch; provided that no decision therein should prevail unless the majority of states concurring should also comprise a majority of the inhabitants of the u. states." this motion was not much deliberated on nor approved in the committee. a similar proviso had been proposed in the debates on the articles of confederation in , to the articles giving certain powers to "nine states." see journals of cong^s for , p. .--madison note. m^r ghoram observed that as the report consisted of propositions mutually conditional he wished to hear some explanations touching the grounds on which the conditions were estimated. m^r gerry. the committee were of different opinions as well as the deputations from which the com^e were taken, and agreed to the report merely in order that some ground of accommodation might be proposed. those opposed to the equality of votes have only assented conditionally; and if the other side do not generally agree will not be under any obligation to support the report. mr. wilson thought the committee had exceeded their powers. m^r martin was for taking the question on the whole report. m^r wilson was for a division of the question; otherwise it w^d be a leap in the dark. m^r madison could not regard the privilege of originating money bills as any concession on the side of the small states. experience proved that it had no effect. if seven states in the upper branch wished a bill to be originated, they might surely find some member from some of the same states in the lower branch who would originate it. the restriction as to amendments was of as little consequence. amendments could be handed privately by the senate to members in the other house. bills could be negatived that they might be sent up in the desired shape. if the senate should yield to the obstinacy of the ^{st} branch the use of that body as a check would be lost. if the ^{st} branch should yield to that of the senate, the privilege would be nugatory. experience had also shewn both in g. b. and the states having a similar regulation that it was a source of frequent & obstinate altercations. these considerations had produced a rejection of a like motion on a former occasion when judged by its own merits. it could not therefore be deemed any concession on the present, and left in force all the objections which had prevailed ag^{st} allowing each state an equal voice. he conceived that the convention was reduced to the alternative of either departing from justice in order to conciliate the smaller states, and the minority of the people of the u. s. or of displeasing these by justly gratifying the larger states and the majority of the people. he could not himself hesitate as to the option he ought to make. the convention with justice & the majority of the people on their side, had nothing to fear. with injustice and the minority on their side they had every thing to fear. it was in vain to purchase concord in the convention on terms which would perpetuate discord among their constituents. the convention ought to pursue a plan which would bear the test of examination, which would be espoused & supported by the enlightened and impartial part of america, & which they could themselves vindicate and urge. it should be considered that altho' at first many may judge of the system reco[~m]ended, by their opinion of the convention, yet finally all will judge of the convention by the system. the merits of the system alone can finally & effectually obtain the public suffrage. he was not apprehensive that the people of the small states would obstinately refuse to accede to a gov^t founded on just principles, and promising them substantial protection. he could not suspect that delaware would brave the consequences of seeking her fortunes apart from the other states, rather than submit to such a gov^t; much less could he suspect that she would pursue the rash policy of courting foreign support, which the warmth of one of her representatives (m^r bedford) had suggested, or if she sh^d, that any foreign nation w^d be so rash as to hearken to the overture. as little could he suspect that the people of n. jersey notwithstanding the decided tone of the gentlemen from that state, would choose rather to stand on their own legs, and bid defiance to events, than to acquiesce under an establishment founded on principles the justice of which they could not dispute, and absolutely necessary to redeem them from the exactions levied on them by the co[~m]erce of the neighbouring states. a review of other states would prove that there was as little reason to apprehend an inflexible opposition elsewhere. harmony in the convention was no doubt much to be desired. satisfaction to all the states, in the first instance still more so. but if the principal states comprehending a majority of the people of the u. s. should concur in a just & judicious plan, he had the firmest hopes, that all the other states would by degrees accede to it.[ ] [ ] yates, and his colleague, lansing, left the convention july , despairing of the result of its labors being satisfactory to them. madison's speech is the last one reported by yates.--yates, _secret proceedings_, etc. m^r butler said he could not let down his idea of the people, of america so far as to believe they would from mere respect to the convention adopt a plan evidently unjust. he did not consider the privilege concerning money bills as of any consequence. he urged that the ^d branch ought to represent the states according to their property. m^r gov^r morris, thought the form as well as the matter of the report objectionable. it seemed in the first place to render amendments impracticable. in the next place, it seemed to involve a pledge to agree to the ^d part if the ^{st} sh^d be agreed to. he conceived the whole aspect of it to be wrong. he came here as a representative of america; he flattered himself he came here in some degree as a representative of the whole human race; for the whole human race will be affected by the proceedings of this convention. he wished gentlemen to extend their views beyond the present moment of time; beyond the narrow limits of place from which they derive their political origin. if he were to believe some things which he had heard, he should suppose that we were assembled to truck and bargain for our particular states. he can not descend to think that any gentlemen are really actuated by these views. we must look forward to the effects of what we do. these alone ought to guide us. much has been said of the sentiments of the people. they were unknown. they could not be known. all that we can infer is that if the plan we recommend be reasonable & right; all who have reasonable minds and sound intentions will embrace it, notwithstanding what had been said by some gentlemen. let us suppose that the larger states shall agree; and that the smaller refuse; and let us trace the consequences. the opponents of the system in the smaller states will no doubt make a party, and a noise for a time, but the ties of interest, of kindred & of common habits which connect them with other states will be too strong to be easily broken. in n. jersey particularly he was sure a great many would follow the sentiments of pen^a & n. york. this country must be united. if persuasion does not unite it, the sword will. he begged that this consideration might have its due weight. the scenes of horror attending civil commotion cannot be described, and the conclusion of them will be worse than the term of their continuance. the stronger party will then make traytors of the weaker; and the gallows & halter will finish the work of the sword. how far foreign powers would be ready to take part in the confusions he would not say. threats that they will be invited have it seems been thrown out. he drew the melancholy picture of foreign intrusions as exhibited in the history of germany, & urged it as a standing lesson to other nations. he trusted that the gentlemen who may have hazarded such expressions, did not entertain them till they reached their own lips. but returning to the report he could not think it in any respect calculated for the public good. as the ^d branch is now constituted, there will be constant disputes & appeals to the states which will undermine the gen^l government & controul & annihilate the ^{st} branch. suppose that the delegates from mass^{ts} & rho i. in the upper house disagree, and that the former are outvoted. what results? they will immediately declare that their state will not abide by the decision, and make such representations as will produce that effect. the same may happen as to virg^a & other states. of what avail then will be what is on paper. state attachments, and state importance have been the bane of this country. we cannot annihilate; but we may perhaps take out the teeth of the serpents. he wished our ideas to be enlarged to the true interest of man, instead of being circumscribed within the narrow compass of a particular spot. and after all how little can be the motive yielded by selfishness for such a policy. who can say whether he himself, much less whether his children, will the next year be an inhabitant of this or that state. m^r bedford. he found that what he had said as to the small states being taken by the hand, had been misunderstood; and he rose to explain. he did not mean that the small states would court the aid & interposition of foreign powers. he meant that they would not consider the federal compact as dissolved untill it should be so by the acts of the large states. in this case the consequences of the breach of faith on their part, and the readiness of the small states to fulfill their engagements, would be that foreign nations having demands on this country would find it their interest to take the small states by the hand, in order to do themselves justice. this was what he meant. but no man can foresee to what extremities the small states may be driven by oppression. he observed also in apology that some allowance ought to be made for the habits of his profession in which warmth was natural & sometimes necessary. but is there not an apology in what was said by (m^r gov^r morris) that the sword is to unite: by m^r ghorum that delaware must be annexed to penn^a and n. jersey divided between pen^a and n. york. to hear such language without emotion, would be to renounce the feelings of a man and the duty of a citizen--as to the propositions of the committee, the lesser states have thought it necessary to have a security somewhere. this has been thought necessary for the executive magistrate of the proposed gov^t who has a sort of negative on the laws; and is it not of more importance that the states should be protected, than that the executive branch of the gov^t sh^d be protected. in order to obtain this, the smaller states have conceded as to the constitution of the first branch, and as to money bills. if they be not gratified by correspondent concessions as to the ^d branch is it to be supposed they will ever accede to the plan; and what will be the consequence if nothing should be done? the condition of the u. states requires that something should be immediately done. it will be better that a defective plan should be adopted, than that none should be recommended. he saw no reason why defects might not be supplied with meetings , , or years hence. m^r elseworth said he had not attended the proceedings of the committee, but was ready to accede to the compromise they had reported. some compromise was necessary; and he saw none more convenient or reasonable. m^r williamson hoped that the expressions of individuals would not be taken for the sense of their colleagues, much less of their states which was not & could not be known. he hoped also that the meaning of those expressions would not be misconstrued or exaggerated. he did not conceive that (m^r gov^r morris) meant that the sword ought to be drawn ag^{st} the smaller states. he only pointed out the probable consequences of anarchy in the u. s. a similar exposition ought to be given of the expressions of (m^r ghorum). he was ready to hear the report discussed; but thought the propositions contained in it, the most objectionable of any he had yet heard. m^r patterson said that he had when the report was agreed to in the com^e reserved to himself the right of freely discussing it. he acknowledged that the warmth complained of was improper; but he thought the sword & the gallows little calculated to produce conviction. he complained of the manner in which m^r m and m^r gov^r morris had treated the small states. m^r gerry. tho' he had assented to the report in the committee, he had very material objections to it. we were however in a peculiar situation. we were neither the same nation nor different nations. we ought not therefore to pursue the one or the other of these ideas too closely. if no compromise should take place what will be the consequence. a secession he foresaw would take place; for some gentlemen seem decided on it: two different plans will be proposed; and the result no man could foresee. if we do not come to some agreement among ourselves some foreign sword will probably do the work for us. m^r mason. the report was meant not as specific propositions to be adopted; but merely as a general ground of accommodation. there must be some accommodation on this point, or we shall make little further progress in the work. accommodation was the object of the house in the appointment of the committee; and of the committee in the report they had made. and however liable the report might be to objections, he thought it preferable to an appeal to the world by the different sides, as had been talked of by some gentlemen. it could not be more inconvenient to any gentleman to remain absent from his private affairs, than it was for him; but he would bury his bones in this city rather than expose his country to the consequences of a dissolution of the convention without any thing being done. the ^{st} proposition in the report for fixing the representation in the ^{st} branch, "one member for every , inhabitants," being taken up. m^r gov^r morris objected to that scale of apportionment. he thought property ought to be taken into the estimate as well as the number of inhabitants. life & liberty were generally said to be of more value than property. an accurate view of the matter would nevertheless prove that property was the main object of society. the savage state was more favorable to liberty than the civilized; and sufficiently so to life. it was preferred by all men who had not acquired a taste for property; it was only renounced for the sake of property which could only be secured by the restraints of regular government. these ideas might appear to some new, but they were nevertheless just. if property then was the main object of gov^t certainly it ought to be one measure of the influence due to those who were to be affected by the govern^t. he looked forward also to that range of new states which w^d soon be formed in the west. he thought the rule of representation ought to be so fixed as to secure to the atlantic states a prevalence in the national councils. the new states will know less of the public interest than these, will have an interest in many respects different, in particular will be little scrupulous of involving the community in wars the burdens & operations of which would fall chiefly on the maritime states. provision ought therefore to be made to prevent the maritime states from being hereafter outvoted by them. he thought this might be easily done by irrevocably fixing the number of representatives which the atlantic states should respectively have, and the number which each new state will have. this w^d not be unjust, as the western settlers w^d previously know the conditions on which they were to possess their lands. it would be politic as it would reco[~m]end the plan to the present as well as future interest of the states which must decide the fate of it. m^r rutlidge. the gentleman last up had spoken some of his sentiments precisely. property was certainly the principal object of society. if numbers should be made the rule of representation, the atlantic states will be subjected to the western. he moved that the first proposition in the report be postponed in order to take up the following viz "that the suffrages of the several states be regulated and proportioned according to the sums to be paid towards the general revenue by the inhabitants of each state respectively: that an apportionment of suffrages, according to the ratio aforesaid shall be made and regulated at the end of ---- years from the ^{st} meeting of the legislature of the u. s., and at the end of every ---- years but that for the present, and until the period above mentioned, the suffrages shall be for n. hampshire ---- for massach^{ts} ---- &c. col. mason said the case of new states was not unnoticed in the committee; but it was thought and he was himself decidedly of opinion that if they made a part of the union, they ought to be subject to no unfavorable discriminations. obvious considerations required it. m^r randolph concurred with col. mason. on question on m^r rutlidges motion, mas^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. no. mary^d no. v^a no. n. c. no. s. c. ay. geo. not on floor. friday july ^{th} in convention m^r gov^r morris moved to commit so much of the report as relates to " member for every , inhabitants." his view was that they might absolutely fix the number for each state in the first instance; leaving the legislature at liberty to provide for changes in the relative importance of the states, and for the case of new states. m^r wilson ^{ded} the motion; but with a view of leaving the committee under no implied shackles. m^r ghorum apprehended great inconveniency from fixing directly the number of representatives to be allowed to each state. he thought the number of inhabitants the true guide; tho' perhaps some departure might be expedient from the full proportion. the states also would vary in their relative extent by separations of parts of the largest states. a part of virg^a is now on the point of a separation. in the province of mayne a convention is at this time deliberating on a separation from mas^{ts}. in such events the number of representatives ought certainly to be reduced. he hoped to see all the states made small by proper divisions, instead of their becoming formidable as was apprehended, to the small states. he conceived that let the gen^l government be modified as it might, there would be a constant tendency in the state governm^{ts} to encroach upon it: it was of importance therefore that the extent of the states sh^d be reduced as much & as fast as possible. the stronger the gov^t shall be made in the first instance the more easily will these divisions be effected; as it will be of less consequence in the opinion of the states whether they be of great or small extent. m^r gerry did not think with his colleague that the large states ought to be cut up. this policy has been inculcated by the middling and smaller states, ungenerously & contrary to the spirit of the confederation. ambitious men will be apt to solicit needless divisions, till the states be reduced to the size of counties. if this policy should still actuate the small states, the large ones cou'd not confederate safely with them; but would be obliged to consult their safety by confederating only with one another. he favored the commitment and thought that representation ought to be in the combined ratio of numbers of inhabitants and of wealth, and not of either singly. m^r king wished the clause to be committed, chiefly in order to detach it from the report with which it had no connection. he thought also that the ratio of representation proposed could not be safely fixed, since in a century & a half our computed increase of population would carry the number of representatives to an enormous excess; that y^e number of inhabitants was not the proper index of ability & wealth; that property was the primary object of society; and that in fixing a ratio this ought not to be excluded from the estimate.--with regard to new states, he observed that there was something peculiar in the business which had not been noticed. the u. s. were now admitted to be proprietors of the country n. west of the ohio. cong^s by one of their ordinances have impoliticly laid it out into ten states, and have made it a fundamental article of compact with those who may become settlers, that as soon as the number in any one state shall equal that of the smallest of the original states, it may claim admission into the union. delaware does not contain it is computed more than , souls, and for obvious reasons will not increase much for a considerable time. it is possible then that if this plan be persisted in by cong^s new votes may be added, without a greater addition of inhabitants than are represented by the single vote of pen^a. the plan as it respects one of the new states is already irrevocable, the sale of the lands having commenced, and the purchasers & settlers will immediately become entitled to all the privileges of the compact. m^r butler agreed to the commitment if the committee were to be left at liberty. he was persuaded that the more the subject was examined, the less it would appear that the number of inhabitants would be a proper rule of proportion. if there were no other objection the changeableness of the standard would be sufficient. he concurred with those who thought some balance was necessary between the old & the new states. he contended strenuously that property was the only just measure of representation. this was the great object of govern^t; the great cause of war; the great means of carrying it on. m^r pinkney saw no good reason for committing. the value of land had been found on full investigation to be an impracticable rule. the contributions of revenue including imports & exports must be too changeable in their amount; too difficult to be adjusted; and too injurious to the non-commercial states. the number of inhabitants appeared to him the only just & practicable rule. he thought the blacks ought to stand on an equality with the whites: but w^d agree to the ratio settled by cong^s. he contended that cong^s had no right under the articles of confederation to authorize the admission of new states; no such case having been provided for. m^r davy was for committing the clause in order to get at the merits of the question arising on the report. he seemed to think that wealth or property ought to be represented in the ^d branch; and numbers in the ^{st} branch. on the motion for committing as made by m^r gov^r morris, mass^{ts} ay. con^t ay. n. y. no. n. j. no. p^a ay. del. no. m^d div^d. v^a ay. n. c. ay. s. c. ay. geo. ay. the members app^d by ballot were m^r gov^r morris, m^r gorham, m^r randolph, m^r rutlidge, m^r king. m^r wilson signified that his view in agreeing to the co[~m]itm^t was that the com^e might consider the propriety of adopting a scale similar to that established by the constitution of mass^{ts} which w^d give an advantage to y^e small states without substantially departing from the rule of proportion. m^r wilson & m^r mason moved to postpone the clause relating to money bills in order to take up the clause relating to an equality of votes in the second branch. on the question mass^{ts} no. con^t no. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay. the clause relating to equality of votes being under consideration, doc^r franklin observed that this question could not be properly put by itself, the co[~m]ittee having reported several propositions as mutual conditions of each other. he could not vote for it if separately taken, but should vote for the whole together. col. mason perceived the difficulty & suggested a reference of the rest of the report to y^e committee just appointed, that the whole might be brought into one view. m^r randolph disliked y^e reference to that committee, as it consisted of members from states opposed to the wishes of the smaller states, and could not therefore be acceptable to the latter. m^r martin & m^r jenifer moved to postpone the clause till the com^e last appointed sh^d report. m^r madison observed that if the uncommitted part of the report was connected with the part just committed, it ought also to be committed; if not connected, it need not be postponed till report should be made. on the question for postponing, moved by m^r martin & m^r jenifer,--con^t n. j. del. m^d v^a geo. ay. p^a n. c. s. c. no. mass. n. y. divided. the ^{st} clause relating to the originating of money bills was then resumed. m^r govern^r morris was opposed to a restriction of this right in either branch, considered merely in itself and as unconnected with the point of representation in the ^d branch. it will disable the ^d branch from proposing its own money plans, and giving the people an opportunity of judging by comparison of the merits of those proposed by the ^{st} branch. m^r wilson could see nothing like a concession here on the part of the smaller states. if both branches were to say yes or no, it was of little consequence which should say yes or no first, which last. if either was indiscriminately to have the right of originating, the reverse of the report, would he thought be most proper; since it was a maxim that the least numerous body was the fittest for deliberation; the most numerous for decision. he observed that this discrimination had been transcribed from the british into several american constitutions. but he was persuaded that on examination of the american experiments it would be found to be a trifle light as air. nor could he ever discover the advantage of it in the parliamentary history of g. britain. he hoped if there was any advantage in the privilege, that it would be pointed out. m^r williamson thought that if the privilege were not common to both branches it ought rather to be confined to the ^d as the bills in that case would be more narrowly watched, than if they originated with the branch having most of the popular confidence. m^r mason. the consideration which weighed with the committee was that the ^{st} branch would be the immediate representatives of the people, the ^d would not. should the latter have the power of giving away the people's money, they might soon forget the source from whence they received it. we might soon have an aristocracy. he had been much concerned at the principles which had been advanced by some gentlemen, but had the satisfaction to find they did not generally prevail. he was a friend to proportional representation in both branches; but supposed that some points must be yielded for the sake of accomodation. m^r wilson. if he had proposed that the ^d branch should have an independent disposal of public money, the observations of (col. mason) would have been a satisfactory answer. but nothing could be farther from what he had said. his question was how is the power of the ^{st} branch increased or that of the ^d diminished by giving the proposed privilege to the former? where is the difference, in which branch it begins, if both must concur, in the end? m^r gerry would not say that the concession was a sufficient one on the part of the small states. but he could not but regard it in the light of a concession. it w^d make it a constitutional principle that the ^d branch were not possessed of the confidence of the people in money matters, which w^d lessen their weight & influence. in the next place if the ^d branch were dispossessed of the privilege, they w^d be deprived of the opportunity which their continuance in office times as long as the ^{st} branch would give them of making three successive essays in favor of a particular point. m^r pinkney thought it evident that the concession was wholly on one side, that of the large states, the privilege of originating money bills being of no account. m^r gov^r morris had waited to hear the good effects of the restriction. as to the alarm sounded, of an aristocracy, his creed was that there never was, nor ever will be a civilized society without an aristocracy. his endeavor was to keep it as much as possible from doing mischief. the restriction if it has any real operation, will deprive us of the services of the ^d branch in digesting & proposing money bills of which it will be more capable than the ^{st} branch. it will take away the responsibility of the ^d branch, the great security for good behavior. it will always leave a plea, as to an obnoxious money bill that it was disliked, but could not be constitutionally amended; nor safely rejected. it will be a dangerous source of disputes between the two houses. we should either take the british constitution altogether or make one for ourselves. the executive there has dissolved two houses as the only cure for such disputes. will our executive be able to apply such a remedy? every law directly or indirectly takes money out of the pockets of the people. again what use may be made of such a privilege in case of great emergency? suppose an enemy at the door, and money instantly & absolutely necessary for repelling him, may not the popular branch avail itself of this duress, to extort concessions from the senate destructive of the constitution itself. he illustrated this danger by the example of the long parliament's exped^{ts} for subverting the h. of lords; concluding on the whole that the restriction would be either useless or pernicious. doc^r franklin did not mean to go into a justification of the report, but as it had been asked what would be the use of restraining the ^d branch from medling with money bills, he could not but remark that it was always of importance that the people should know who had disposed of their money, & how it had been disposed of. it was a maxim that those who feel, can best judge. this end would, he thought, be best attained, if money affairs were to be confined to the immediate representatives of the people. this was his inducement to concur in the report. as to the danger or difficulty that might arise from a negative in the ^d where the people w^d not be proportionately represented, it might easily be got over by declaring that there should be no such negative; or if that will not do, by declaring that there shall be no such branch at all. m^r martin said that it was understood in the committee that the difficulties and disputes which had been apprehended, should be guarded ag^{st} in the detailing of the plan. m^r wilson. the difficulties & disputes will increase with the attempts to define & obviate them. queen anne was obliged to dissolve her parliam^t in order to terminate one of these obstinate disputes between the two houses. had it not been for the mediation of the crown, no one can say what the result would have been. the point is still sub judice in england. he approved of the principles laid down by the honble president (doct^r franklin) his colleague, as to the expediency of keeping the people informed of their money affairs. but thought they would know as much, and be as well satisfied, in one way as in the other. gen^l pinkney was astonished that this point should have been considered as a concession. he remarked that the restriction to money bills had been rejected on the merits singly considered, by states ag^{st} . and that the very states which now called it a concession, were then ag^{st} it as nugatory or improper in itself. on the question whether the clause relating to money bills in the report of the com^e consisting of a member from each state, sh^d stand as part of the report mass^{ts} divid^d con^t ay. n. y. div^d. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. div^d a question was then raised whether the question was carried in the affirmative; there being but ays out of . states present. the words of the rule are (see may ). on this question: mas. con^t n. j. p^a del. m^d n. c. s. c. geo. ay. n. y. v^a no (in several preceding instances like votes had sub silentio been entered as decided in the affirmative.) adjourned saturday, july . in convention. "shall the clause allowing each state one vote in the ^d branch, stand as part of the report,"? being taken up-- m^r gerry. this is the critical question. he had rather agree to it than have no accommodation. a govern^t short of a proper national plan, if generally acceptable, would be preferable to a proper one which if it could be carried at all, would operate on discontented states. he thought it would be best to suspend the question till the comm^e yesterday appointed, should make report. m^r sherman supposed that it was the wish of every one that some gen^l gov^t should be established. an equal vote in the ^d branch would, he thought, be most likely to give it the necessary vigor. the small states have more vigor in their gov^{ts} than the large ones, the more influence therefore the large ones have, the weaker will be the gov^t. in the large states it will be most difficult to collect the real & fair sense of the people. fallacy & undue influence will be practised with most success; and improper men will most easily get into office. if they vote by states in the ^d branch, and each state has an equal vote, there must be always a majority of states as well as a majority of the people on the side of public measures, & the gov^t will have decision and efficacy. if this be not the case in the ^d branch there may be a majority of states ag^{st} public measures, and the difficulty of compelling them to abide by the public determination, will render the government feebler than it has ever yet been. m^r wilson was not deficient in a conciliating temper, but firmness was sometimes a duty of higher obligation. conciliation was also misapplied in this instance. it was pursued here rather among the representatives, than among the constituents; and it w^d be of little consequence if not established among the latter; and there could be little hope of its being established among them if the foundation should not be laid in justice and right. on question shall the words stand as part of the report? mass^{ts} div^d. con^t ay. n. y. ay. n. j, ay. p^a no. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. div^d (note. several votes were given here in the affirmative or were div^d because another final question was to be taken on the whole report.) m^r gerry[ ] thought it would be proper to proceed to enumerate & define the powers to be vested in the gen^l gov^t before a question on the report should be taken as to the rule of representation in the ^d branch. [ ] king gives the three speeches of gerry, madison and patterson as follows: "_gerry._ i agree to the measure, provided that the first br. (h. of reps.) shall originate money bills and money appropriations. the prejudices as well as the interest of our constituents must be regarded--two or three thousand men are in office in the states--their influence will be in favor of an equality of votes among the states. "_madison._ equality in the senate will enable a minority to hold a majority, and to oblige them to submit to their interests, or they will withdraw their assent to measures essential and necessary to the general good. i have known one man, when the state was represented by only two, and they were divided, oppose six states in congress on an important occasion for three days, and finally compel them to gratify his caprice in order to obtain his suffrage. the senate will possess certain exclusive powers, such as the appointments to office, if the states have equal votes; a minority of people will appoint the great offices. besides the small states may be near the seat of govt.--a bare quorum of the h. of r. may be easily assembled, and carry a bill against the sense of a majority if all were present, and the senate, tho' all were present, might confirm such bill. virginia has objected to every addition of the powers of congress, because she has only / of the power when she ought to have one sixth. "_paterson._ i hope the question will be taken: if we do not give equal votes in the senate to the states, the small states agreeing that money bills and appropriations shall originate in the h. of reps., elected according to numbers, it must not be expected that the small states will agree to the amendments of the confederation. let us decide this question and lose no more time. i think that i shall vote against the provision, because i think that the exclusive originating of money bills & appropriations by the h. of reps. is giving up too much on the part of the small states."--king's _life and correspondence of rufus king_, i., . m^r madison, observed that it w^d be impossible to say what powers could be safely & properly vested in the gov^t before it was known, in what manner the states were to be represented in it. he was apprehensive that if a just representation were not the basis of the gov^t it would happen, as it did when the articles of confederation were depending, that every effectual prerogative would be withdrawn or withheld, and the new gov^t w^d be rendered as impotent and as shortlived as the old. m^r patterson would not decide whether the privilege concerning money bills were a valuable consideration or not: but he considered the mode & rule of representation in the ^{st} branch as fully so; and that after the establishment of that point, the small states would never be able to defend themselves without an equality of votes in the ^d branch. there was no other ground of accommodation. his resolution was fixt. he would meet the large states on that ground and no other. for himself he should vote ag^{st} the report, because it yielded too much. m^r gov^r morris. he had no resolution unalterably fixed except to do what should finally appear to him right. he was ag^{st} the report because it maintained the improper constitution of the ^d branch. it made it another congress, a mere whisp of straw. it had been s^d (by m^r gerry) that the new govern^t would be partly national, partly federal; that it ought in the first quality to protect individuals; in the second, the states. but in what quality was it to protect the aggregate interest of the whole. among the many provisions which had been urged, he had seen none for supporting the dignity and splendor of the american empire. it had been one of our greatest misfortunes that the great objects of the nation had been sacrificed constantly to local views; in like manner as the general interests of states had been sacrificed to those of the counties. what is to be the check in the senate? none; unless it be to keep the majority of the people from injuring particular states. but particular states ought to be injured for the sake of a majority of the people, in case their conduct should deserve it. suppose they should insist on claims evidently unjust, and pursue them in a manner detrimental to the whole body. suppose they should give themselves up to foreign influence. ought they to be protected in such cases. they were originally nothing more than colonial corporations. on the declaration of independence, a governm^t was to be formed. the small states aware of the necessity of preventing anarchy, and taking advantage of the moment, extorted from the large ones an equality of votes. standing now on that ground, they demand under the new system greater rights as men, than their fellow citizens of the large states. the proper answer to them is that the same necessity of which they formerly took advantage, does not now exist, and that the large states are at liberty now to consider what is right, rather than what may be expedient. we must have an efficient gov^t and if there be an efficiency in the local gov^{ts} the former is impossible. germany alone proves it. notwithstanding their common diet, notwithstanding the great prerogatives of the emperor as head of the empire, and his vast resources, as sovereign of his particular dominions, no union is maintained; foreign influence disturbs every internal operation, & there is no energy whatever in the general governm^t. whence does this proceed? from the energy of the local authorities; from its being considered of more consequence to support the prince of hesse, than the happiness of the people of germany. do gentlemen wish this to be y^e case here. good god, sir, is it possible they can so delude themselves. what if all the charters & constitutions of the states were thrown into the fire, and all their demagogues into the ocean. what would it be to the happiness of america. and will not this be the case here if we pursue the train in w^{ch} the business lies. we shall establish an aulic council without an emperor to execute its decrees. the same circumstances which unite the people here, unite them in germany. they have there a common language, a common law, common usages and manners, and a common interest in being united; yet their local jurisdictions destroy every tie. the case was the same in the grecian states. the united netherlands are at this time torn in factions. with these examples before our eyes shall we form establishments which must necessarily produce the same effects. it is of no consequence from what districts the ^d branch shall be drawn, if it be so constituted as to yield an asylum ag^{st} these evils. as it is now constituted he must be ag^{st} its being drawn from the states in equal portions. but still he was ready to join in devising such an amendment of the plan, as will be most likely to secure our liberty & happiness. m^r sherman & m^r elseworth moved to postpone the question on the report from the committee of a member from each state, in order to wait for the report from the com^e of last appointed. mass^{ts} ay. con^t ay. n. y. no. n. j. ay. p^a ay. del. ay. maryland ay. v^a no. n. c. no. s. c. no. geo. no. adj^d. monday july ^{th} in convention. m^r daniel carroll, from maryland took his seat. m^r gov^r morris delivered a report from the com^e of members to whom was committed the clause in the report of the com^e consisting of a member from each state, stating the proper ratio of representatives in the ^{st} branch, to be as to every , inhabitants, as follows viz "the committee to whom was referred the ^{st} clause of the ^{st} proposition reported from the grand committee, beg leave to report: i. that in the ^{st} meeting of the legislature the ^{st} branch thereof consist of . members of which number n. hampshire shall have , mass^{ts} , r. i^d , con^t , n. y. , n. j. , p^a , del. , m^d , v^a , n. c. , s. c. , geo. . ii. but as the present situation of the states may probably alter as well in point of wealth as in the number of their inhabitants, that the legislature be authorized from time to time to augment y^e number of representatives. and in case any of the states shall hereafter be divided, or any two or more states united, or any new states created within the limits of the united states, the legislature shall possess authority to regulate the number of representatives in any of the foregoing cases, upon the principles of their wealth and number of inhabitants." m^r sherman wished to know on what principles or calculations the report was founded. it did not appear to correspond with any rule of numbers, or of any requisition hitherto adopted by cong^s m^r gorham. some provision of this sort was necessary in the outset. the number of blacks & whites with some regard to supposed wealth was the general guide. fractions could not be observed. the legisl^{re} is to make alterations from time to time as justice & propriety may require. two objections prevailed ag^{st} the rate of member for every , inh^{ts}. the ^{st} was that the representation would soon be too numerous: the ^d that the west^n states who may have a different interest, might if admitted on that principle by degrees, outvote the atlantic. both these objections are removed. the number will be small in the first instance and may be continued so. and the atlantic states having y^e gov^t in their own hands, may take care of their own interest, by dealing out the right of representation in safe proportions to the western states. these were the views of the committee. m^r l. martin wished to know whether the com^e were guided in the ratio, by the wealth or number of inhabitants, of the states, or by both; noting its variations from former apportionments by cong^s m^r gov^r morris & m^r rutlidge moved to postpone the ^{st} paragraph relating to the number of members to be allowed each state in the first instance, and to take up the ^d paragraph authorizing the legisl^{re} to alter the number from time to time according to wealth & inhabitants. the motion was agreed to nem. con. on question on the ^d parag^h taken without any debate mass^{ts} ay. con^t ay. n. y. no. n. j. no. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r sherman moved to refer the ^{st} part apportioning the representatives, to a comm^e of a member from each state. m^r gov^r morris seconded the motion; observing that this was the only case in which such committees were useful. m^r williamson thought it would be necessary to return to the rule of numbers, but that the western states stood on different footing. if their property shall be rated as high as that of the atlantic states, then their representation ought to hold a like proportion. otherwise if their property was not to be equally rated. m^r gov^r morris. the report is little more than a guess. wealth was not altogether disregarded by the com^e. where it was apparently in favor of one state, whose n^{os} were superior to the numbers of another, by a fraction only, a member extraordinary was allowed to the former: and so vice versa. the committee meant little more than to bring the matter to a point for the consideration of the house. m^r reed asked why georgia was allowed members, when her number of inhabitants had stood below that of delaware. m^r gov^r morris. such is the rapidity of the population of that state, that before the plan takes effect, it will probably be entitled to representatives. m^r randolph, disliked the report of the com^e but had been unwilling to object to it. he was apprehensive that as the number was not be changed, till the nat^l legislature should please, a pretext would never be wanting to postpone alterations, and keep the power in the hands of those possessed of it. he was in favor of the commitm^t to a member from each state. m^r patterson considered the proposed estimate for the future according to the combined rules of numbers and wealth, as too vague. for this reason n. jersey was ag^{st} it. he could regard negroes slaves in no light but as property. they are no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, & like other property entirely at the will of the master. has a man in virg^a a number of votes in proportion to the number of his slaves? and if negroes are not represented in the states to which they belong, why should they be represented in the gen^l gov^t. what is the true principle of representation? it is an expedient by which an assembly of certain individ^{ls} chosen by the people is substituted in place of the inconvenient meeting of the people themselves. if such a meeting of the people was actually to take place, would the slaves vote? they would not. why then sh^d they be represented. he was also ag^{st} such an indirect encouragem^t of the slave trade; observing that cong^s in their act relating to the change of the art: of confed^n had been ashamed to use the term "slaves" & had substituted a description. m^r madison reminded m^r patterson that his doctrine of representation which was in its principle the genuine one, must forever silence the pretensions of the small states to an equality of votes with the large ones. they ought to vote in the same proportion in which their citizens would do, if the people of all the states were collectively met. he suggested as a proper ground of compromise, that in the first branch the states should be represented according to their number of free inhabitants; and in the ^d which had for one of its primary objects the guardianship of property, according to the whole number, including slaves. m^r butler urged warmly the justice & necessity of regarding wealth in the apportionment of representation. m^r king had always expected that as the southern states are the richest, they would not league themselves with the north^n unless some respect were paid to their superior wealth. if the latter expect those preferential distinctions in commerce, & other advantages which they will derive from the connexion they must not expect to receive them without allowing some advantages in return. eleven out of of the states had agreed to consider slaves in the apportionment of taxation; and taxation and representation ought to go together. on the question for committing the first paragraph of the report to a member from each state mass^{ts} ay. con^t ay. n. y. no. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. ay. the com^e appointed were m^r king, m^r sherman, m^r yates, m^r brearly, m^r gov^r morris, m^r reed, m^r carrol, m^r madison, m^r williamson, m^r rutlidge, m^r houston. adj^d. tuesday july . in convention. m^r king reported from the com^e yesterday appointed that the states at the ^{st} meeting of the general legislature, should be represented by members, in the following proportions, to wit n. hampshire by , mass^{ts} , r. is^d , con^t , n. y. , n. j. , p^a , del. , m^d , v^a , n. c. , s. c. , georgia . m^r rutlidge moved that n. hampshire be reduced from to . members. her numbers did not entitle her to and it was a poor state. gen^l pinkney seconds the motion. m^r king. n. hampshire has probably more than , inhab^{ts} and has an extensive country of tolerable fertility. its inhab^{ts} therefore may be expected to increase fast. he remarked that the four eastern states, having , souls, have / fewer representatives than the four southern states, having not more than , souls, rating the blacks as for . the eastern people will advert to these circumstances, and be dissatisfied. he believed them to be very desirous of uniting with their southern brethren, but did not think it prudent to rely so far on that disposition as to subject them to any gross inequality. he was fully convinced that the question concerning a difference of interests did not lie where it had hitherto been discussed, between the great & small states; but between the southern & eastern. for this reason he had been ready to yield something in the proportion of representatives for the security of the southern. no principle would justify the giving them a majority. they were brought as near an equality as was possible. he was not averse to giving them a still greater security, but did not see how it could be done. gen^l pinkney. the report before it was committed was more favorable to the s. states than as it now stands. if they are to form so considerable a minority, and the regulation of trade is to be given to the gen^l government, they will be nothing more than overseers for the northern states. he did not expect the s. states to be raised to a majority of representatives, but wished them to have something like an equality. at present by the alterations of the com^e in favor of the n. states they are removed farther from it than they were before. one member indeed had been added to virg^a which he was glad of as he considered her as a southern state. he was glad also that the members of georgia were increased. m^r williamson was not for reducing n. hampshire from to , but for reducing some others. the south^n interest must be extremely endangered by the present arrangement. the north^n states are to have a majority in the first instance and the means of perpetuating it. m^r dayton observed that the line between north^n & southern interest had been improperly drawn; that p^a was the dividing state, there being six on each side of her. gen^l pinkney urged the reduction, dwelt on the superior wealth of the southern states, and insisted on its having its due weight in the government. m^r gov^r morris regretted the turn of the debate. the states he found had many representatives on the floor. few he fears were to be deemed the representatives of america. he thought the southern states have by the report more than their share of representation. property ought to have its weight, but not all the weight. if the south^n states are to supply money. the north^n states are to spill their blood. besides, the probable revenue to be expected from the s. states has been greatly overrated. he was ag^{st} reducing n. hampshire. m^r randolph was opposed to a reduction of n. hampshire, not because she had a full title to three members; but because it was in his contemplation . to make it the duty instead of leaving it in the discretion of the legislature to regulate the representation by a periodical census. . to require more than a bare majority of votes in the legislature in certain cases & particularly in commercial cases. on the question for reducing n. hampshire from to represent^s it passed in the negative mass^{ts} no. con^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. no.[ ] [ ] in printed journal. n. c. no. geo. ay. note in madison's hand. gen^l pinkney and m^r alex^r martin moved that rep^s instead of be allowed to n. carolina. on the question, it passed in the negative mass^{ts} no. con^t no. n. j. no. p^a no. del. no. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. gen^l pinkney & m^r butler made the same motion in favor of s. carolina on the question it passed in the negative mass^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. ay. s. c. ay. geo. ay. gen^l pinckney & m^r houston moved that georgia be allowed instead of rep^s urging the unexampled celerity of its population. on the question, it passed in the negative mass^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r madison, moved that the number allowed to each state be doubled. a _majority_ of a _quorum_ of _ _ members, was too small a number to represent the whole inhabitants of the u. states; they would not possess enough of the confidence of the people, and w^d be too sparsely taken from the people, to bring with them all the local information which would be frequently wanted. double the number will not be too great, even with the future additions from new states. the additional expence was too inconsiderable to be regarded in so important a case. and as far as the augmentation might be unpopular on that score, the objection was overbalanced by its effect on the hopes of a greater number of the popular candidates. m^r elseworth urged the objection of expence, & that the greater the number, the more slowly would the business proceed; and the less probably be decided as it ought, at last. he thought the number of representatives too great in most of the state legislatures; and that a large number was less necessary in the gen^l legislature than in those of the states, as its business would relate to a few great national objects only. m^r sherman would have preferred to . the great distance they will have to travel will render their attendance precarious and will make it difficult to prevail on a sufficient number of fit men to undertake the service. he observed that the expected increase from new states also deserved consideration. m^r gerry was for increasing the number beyond . the larger the number, the less the danger of their being corrupted. the people are accustomed to & fond of a numerous representation, and will consider their rights as better secured by it. the danger of excess in the number may be guarded ag^{st} by fixing a point within which the number shall always be kept. col. mason admitted that the objection drawn from the consideration of expence, had weight both in itself, and as the people might be affected by it. but he thought it outweighed by the objections ag^{st} the smallness of the number. , will he supposes, as being a majority of . form a quorum. will be a majority of . this was certainly too small a number to make laws for america. they would neither bring with them all the necessary information relative to various local interests, nor possess the necessary confidence of the people. after doubling the number, the laws might still be made by so few as almost to be objectionable on that account. m^r read was in favor of the motion. two of the states (del. & r. i.) would have but a single member if the aggregate number should remain at . and in case of accident to either of these one state w^d have no representative present to give explanations or informations of its interests or wishes. the people would not place their confidence in so small a number. he hoped the objects of the gen^l gov^t would be much more numerous than seemed to be expected by some gentlemen, and that they would become more & more so. as to new states the highest number of rep^s for the whole might be limited, and all danger of excess thereby prevented. m^r rutlidge opposed the motion. the representatives were too numerous in all the states. the full number allotted to the states may be expected to attend, & the lowest possible quorum sh^d not therefore be considered. the interests of their constituents will urge their attendance too strongly for it to be omitted: and he supposed the gen^l legislature would not sit more than or weeks in the year. on the question for doubling the number, it passed in the negative mas^{ts} no. con^t no. n. y. no. n. j. no. p^a no. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no. on the question for agreeing to the apportionment of rep^s as amended by the last committee, it passed in the affirmative mas. ay. con^t ay. n. y. ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. m^r broom gave notice to the house that he had concurred with a reserve to himself of an intention to claim for his state an equal voice in the ^d branch; which he thought could not be denied after this concession of the small states as to the first branch. m^r randolph moved as an amendment to the report of the comm^e of five "that in order to ascertain the alterations in the population & wealth of the several states the legislature should be required to cause a census, and estimate to be taken within one year after its first meeting; and every ---- years thereafter, and that the legisl^{re} arrange the representation accordingly." m^r gov^r morris opposed it as fettering the legislature too much. advantage may be taken of it in time of war or the apprehension of it, by new states to extort particular favors. if the mode was to be fixed for taking a census, it might certainly be extremely inconvenient: if unfixt the legislature may use such a mode as will defeat the object: and perpetuate the inequality. he was always ag^{st} such shackles on the legisl^{re}. they had been found very pernicious in most of the state constitutions. he dwelt much on the danger of throwing such a preponderancy into the western scale, suggesting that in time the western people w^d outnumber the atlantic states. he wished therefore to put it in the power of the latter to keep a majority of votes in their own hands. it was objected he said that if the legisl^{re} are left at liberty, they will never readjust the representation. he admitted that this was possible; but he did not think it probable unless the reasons ag^{st} a revision of it were very urgent & in this case, it ought not to be done. it was moved to postpone the proposition of m^r randolph in order to take up the following, viz. "that the committee of eleven, to whom was referred the report of the committee of five on the subject of representation, be requested to furnish the convention with the principles on which they grounded the report," which was disagreed to; s. c. alone voting in the affirmative. adjourned wednesday july . in convention. m^r randolph's motion requiring the legisl^{re} to take a periodical census for the purpose of redressing inequalities in the representation was resumed. m^r sherman was ag^{st}. shackling the legislature too much. we ought to choose wise & good men, and then confide in them. m^r mason. the greater the difficulty we find in fixing a proper rule of representation, the more unwilling ought we to be, to throw the task from ourselves on the gen^l legisl^{re}. he did not object to the conjectural ratio which was to prevail in the outset; but considered a revision from time to time according to some permanent & precise standard as essential to y^e fair representation required in the ^{st} branch. according to the present population of america, the north^n part of it had a right to preponderate, and he could not deny it. but he wished it not to preponderate hereafter when the reason no longer continued. from the nature of man we may be sure that those who have power in their hands will not give it up while they can retain it. on the contrary we know that they will always when they can rather increase it. if the s. states therefore should have / of the people of america within their limits, the northern will hold fast the majority of representatives. / will govern the / . the s. states will complain; but they may complain from generation to generation without redress. unless some principle therefore which will do justice to them hereafter shall be inserted in the constitution, disagreable as the declaration was to him, he must declare he could neither vote for the system here, nor support it, in his state. strong objections had been drawn from the danger to the atlantic interests from new western states. ought we to sacrifice what we know to be right in itself, lest it should prove favorable to states which are not yet in existence. if the western states are to be admitted into the union, as they arise, they must, he w^d repeat, be treated as equals, and subjected to no degrading discriminations. they will have the same pride & other passions which we have and will either not unite with or will speedily revolt from the union, if they are not in all respects placed on an equal footing with their brethren. it has been said they will be poor, and unable to make equal contributions to the general treasury. he did not know but that in time they would be both more numerous & more wealthy than their atlantic brethren. the extent & fertility of their soil, made this probable; and though spain might for a time deprive them of the natural outlet for their productions, yet she will, because she must, finally yield to their demands. he urged that numbers of inhabitants; though not always a precise standard of wealth was sufficiently so for every substantial purpose. m^r williamson was for making it a duty of the legislature to do what was right & not leaving it at liberty to do or not to do it. he moved that m^r randolph's propositions be postpon^d in order to consider the following "that in order to ascertain the alterations that may happen in the population & wealth of the several states, a census shall be taken of the free white inhabitants and / ^{ths} of those of other descriptions on the ^{st} year after this government shall have been adopted and every ---- year thereafter; and that the representation be regulated accordingly." m^r randolph agreed that m^r williamson's proposition should stand in the place of his. he observed that the ratio fixt for the ^{st} meeting was a mere conjecture, that it placed the power in the hands of that part of america, which could not always be entitled to it, that this power would not be voluntarily renounced; and that it was consequently the duty of the convention to secure its renunciation when justice might so require; by some constitutional provisions. if equality between great & small states be inadmissible, because in that case unequal numbers of constituents w^d be represented by equal number of votes; was it not equally inadmissible that a larger & more populous district of america should hereafter have less representation, than a smaller & less populous district. if a fair representation of the people be not secured, the injustice of the gov^t will shake it to its foundations. what relates to suffrage is justly stated by the celebrated montesquieu, as a fundamental article in republican gov^t. if the danger suggested by m^r gov^r morris be real, of advantage being taken of the legislature in pressing moments, it was an additional reason, for tying their hands in such a manner that they could not sacrifice their trust to momentary considerations. cong^s have pledged the public faith to new states, that they shall be admitted on equal terms. they never would or ought to accede on any other. the census must be taken under the direction of the general legislature. the states will be too much interested to take an impartial one for themselves. m^r butler & gen^l pinkney insisted that blacks be included in the rule of representation _equally_ with the whites; and for that purpose moved that the words "three-fifths" be struck out. m^r gerry thought that / of them was to say the least the full proportion that could be admitted. m^r ghorum. this ratio was fixed by cong^s as a rule of taxation. then it was urged by the delegates representing the states having slaves that the blacks were still more inferior to freemen. at present when the ratio of representation is to be established, we are assured that they are equal to freemen. the arguments on y^e former occasion convinced him that / was pretty near the just proportion and he should vote according to the same opinion now. m^r butler insisted that the labour of a slave in s. carol^a was as productive & valuable as that of a freeman in mass^{ts}, that as wealth was the great means of defence and utility to the nation they were equally valuable to it with freemen; and that consequently an equal representation ought to be allowed for them in a government which was instituted principally for the protection of property, and was itself to be supported by property. m^r mason could not agree to the motion, notwithstanding it was favorable to virg^a because he thought it unjust. it was certain that the slaves were valuable, as they raised the value of land, increased the exports & imports, and of course the revenue, would supply the means of feeding & supporting an army, and might in cases of emergency become themselves soldiers. as in these important respects they were useful to the community at large, they ought not to be excluded from the estimate of representation. he could not however regard them as equal to freemen and could not vote for them as such. he added as worthy of remark, that the southern states have this peculiar species of property over & above the other species of property common to all the states. m^r williamson reminded m^r ghorum that if the south^n states contended for the inferiority of blacks to whites when taxation was in view, the eastern states on the same occasion contended for their equality. he did not however either then or now concur in either extreme, but approved of the ratio of / . on m^r butler's motion for considering blacks as equal to whites in the apportionm^t of representation mass^{ts} no. con^t no. (n. y. not on floor). n. j. no. p^a no. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. m^r gov^r morris said he had several objections to the proposition of m^r williamson. . it fettered the legislature too much. . it would exclude some states altogether who would not have a sufficient number to entitle them to a single representative. . it will not consist with the resolution passed on saturday last authorizing the legislature to adjust the representation from time to time on the principles of population & wealth or with the principles of equity. if slaves were to be considered as inhabitants, not as wealth then the s^d resolution would not be pursued. if as wealth, then why is no other wealth but slaves included? these objections may perhaps be removed by amendments. his great objection was that the number of inhabitants was not a proper standard of wealth. the amazing difference between the comparative numbers & wealth of different countries, rendered all reasoning superfluous on the subject. numbers might with greater propriety be deemed a measure of strength, than of wealth, yet the late defence made by g. britain, ag^{st} her numerous enemies proved in the clearest manner, that it is entirely fallacious even in this respect. m^r king thought there was great force in the objections of m^r gov^r morris: he would however accede to the proposition for the sake of doing something. m^r rutlidge contended for the admission of wealth in the estimate by which representation should be regulated. the western states will not be able to contribute in proportion to their numbers; they sh^d not therefore be represented in that proportion. the atlantic states will not concur in such a plan. he moved that "at the end of ---- years after the ^{st} meeting of the legislature, and of every ---- years thereafter, the legislature shall proportion the representation according to the principles of wealth & population." m^r sherman thought the number of people alone the best rule for measuring wealth as well as representation; and that if the legislature were to be governed by wealth, they would be obliged to estimate it by numbers. he was at first for leaving the matter wholly to the discretion of the legislature; but he had been convinced by the observation of (m^r randolph & m^r mason), that the _periods_ & the _rule_, of revising the representation ought to be fixt by the constitution. m^r reed thought the legislature ought not to be too much shackled. it would make the constitution like religious creeds, embarrassing to those bound to conform to them & more likely to produce dissatisfaction and scism, than harmony and union. m^r mason objected to m^r rutlidge's motion, as requiring of the legislature something too indefinite & impracticable, and leaving them a pretext for doing nothing. m^r wilson had himself no objection to leaving the legislature entirely at liberty. but considered wealth as an impracticable rule. m^r ghorum. if the convention who are comparatively so little biassed by local views are so much perplexed, how can it be expected that the legislature hereafter under the full biass of those views, will be able to settle a standard. he was convinced by the arguments of others & his own reflections, that the convention ought to fix some standard or other. m^r gov^r morris. the arg^{ts} of others & his own reflections had led him to a very different conclusion. if we can't agree on a rule that will be just at this time, how can we expect to find one that will be just in all times to come. surely those who come after us will judge better of things present, than we can of things future. he could not persuade himself that numbers would be a just rule at any time. the remarks of (m^r mason) relative to the western country had not changed his opinion on that head. among other objections it must be apparent they would not be able to furnish men equally enlightened, to share in the administration of our common interests. the busy haunts of men not the remote wilderness, was the proper school of political talents. if the western people get the power into their hands they will ruin the atlantic interests. the back members are always most averse to the best measures. he mentioned the case of pen^a formerly. the lower part of the state had y^e power in the first instance. they kept it in y^r own hands & the country was y^e better for it. another objection with him ag^{st} admitting the blacks into the census, was that the people of pen^a would revolt at the idea of being put on a footing with slaves. they would reject any plan that was to have such an effect. two objections had been raised ag^{st} leaving the adjustment of the representation from time, to time, to the discretion of the legislature. the . was, they would be unwilling to revise it at all. the that by referring to _wealth_ they would be bound by a rule which if willing, they would be unable to execute. the ^{st} obj^n distrusts their fidelity. but if their duty, their honor & their oaths will not bind them, let us not put into their hands our liberty, and all our other great interests; let us have no gov^t at all. . if these ties will bind them, we need not distrust the practicability of the rule. it was followed in part by the com^e in the apportionment of representatives yesterday reported to the house. the best course that could be taken would be to leave the interests of the people to the representatives of the people. m^r madison was not a little surprised to hear this implicit confidence urged by a member who on all occasions, had inculcated so strongly, the political depravity of men, and the necessity of checking one vice and interest by opposing to them another vice & interest. if the representatives of the people would be bound by the ties he had mentioned, what need was there of a senate? what of a revisionary power? but his reasoning was not only inconsistent with his former reasoning, but with itself. at the same time that he recommended this implicit confidence to the southern states in the northern majority, he was still more zealous in exhorting all to a jealousy of a western majority. to reconcile the gentl^n with himself, it must be imagined that he determined the human character by the points of the compass. the truth was that all men having power ought to be distrusted to a certain degree. the case of pen^a had been mentioned where it was admitted that those who were possessed of the power in the original settlement, never admitted the new settlem^{ts} to a due share of it. england was a still more striking example. the power there had long been in the hands of the boroughs, of the minority; who had opposed & defeated every reform which had been attempted. virg^a was in a lesser degree another example. with regard to the western states, he was clear & firm in opinion, that no unfavorable distinctions were admissible either in point of justice or policy. he thought also that the hope of contributions to the treas^y from them had been much underrated. future contributions it seemed to be understood on all hands would be principally levied on imports & exports. the extent and fertility of the western soil would for a long time give to agriculture a preference over manufactures. trials would be repeated till some articles could be raised from it that would bear a transportation to places where they could be exchanged for imported manufactures. whenever the mississippi should be opened to them, which would of necessity be y^e case as soon as their population would subject them to any considerable share of the public burden, imposts on their trade could be collected with less expence & greater certainty, than on that of the atlantic states. in the mean time, as their supplies must pass through the _atlantic states_, their contributions would be levied in the same manner with those of the atlantic states. he could not agree that any substantial objection lay ag^{st} fix^g numbers for the perpetual standard of representation. it was said that representation & taxation were to go together; that taxation and wealth ought to go together, that population & wealth were not measures of each other. he admitted that in different climates, under different forms of gov^t and in different stages of civilization the inference was perfectly just. he would admit that in no situation, numbers of inhabitants were an accurate measure of wealth. he contended however that in the u. states it was sufficiently so for the object in contemplation. altho' their climate varied considerably, yet as the gov^{ts} the laws, and the manners of all were nearly the same, and the intercourse between different parts perfectly free, population, industry, arts, and the value of labour, would constantly tend to equalize themselves. the value of labour might be considered as the principal criterion of wealth and ability to support taxes; and this would find its level in different places where the intercourse should be easy & free, with as much certainty as the value of money or any other thing. wherever labour would yield most, people would resort, till the competition should destroy the inequality. hence it is that the people are constantly swarming from the more to the less populous places--from europe to am^a--from the north^n & middle parts of the u. s. to the southern & western. they go where land is cheaper, because there labour is dearer. if it be true that the same quantity of produce raised on the banks of the ohio is of less value, than on the delaware, it is also true that the same labor will raise twice or thrice, the quantity in the former, that it will raise in the latter situation. col. mason. agreed with m^r gov^r morris that we ought to leave the interests of the people to the representatives of the people; but the objection was that the legislature would cease to be the representatives of the people. it would continue so no longer than the states now containing a majority of the people should retain that majority. as soon as the southern & western population should predominate, which must happen in a few years, the power w^d be in the hands of the minority, and would never be yielded to the majority, unless provided for by the constitution. on the question for postponing m^r williamson's motion, in order to consider that of m^r rutlidge, it passed in the negative, mass^{ts} ay. con^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. no. s. c. ay. geo. ay. on the question on the first clause of m^r williamson's motion as to taking a census of the free inhabitants, it passed in the affirmative; mass^{ts} ay. con^t ay. n. j. ay. p^a ay. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. the next clause as to / of the negroes considered. m^r king being much opposed to fixing numbers as the rule of representation, was particularly so on account of the blacks. he thought the admission of them along with whites at all, would excite great discontents among the states having no slaves. he had never said as to any particular point that he would in no event acquiesce in & support it; but he w^d say that if any in case such a declaration was to be made by him, it would be in this. he remarked that in the temporary allotment of representatives made by the committee, the southern states had received more than the number of their white & three fifths of their black inhabitants entitled them to. m^r sherman. s. carol^a had not more beyond her proportion than n. york & n. hampshire, nor either of them more than was necessary in order to avoid fractions or reducing them below their proportions. georgia had more; but the rapid growth of that state seemed to justify it. in general the allotment might not be just, but considering all circumstances, he was satisfied with it. m^r ghorum. supported the propriety of establishing numbers as the rule. he said that in mass^{ts} estimates had been taken in the different towns, and that persons had been curious enough to compare these estimates with the respective numbers of people; and it had been found even including boston, that the most exact proportion prevailed between numbers & property. he was aware that there might be some weight in what had fallen from his colleague, as to the umbrage which might be taken by the people of the eastern states. but he recollected that when the proposition of cong^s for changing the ^{th} art: of the confed^n was before the legislature of mass^{ts} the only difficulty then was to satisfy them that the negroes ought not to have been counted equally with whites instead of being counted in ratio of three-fifths only.[ ] [ ] they were then to have been a rule of taxation only. note in madison's handwriting. m^r wilson did not well see on what principle the admission of blacks in the proportion of three fifths could be explained. are they admitted as citizens? then why are they not admitted on an equality with white citizens? are they admitted as property? then why is not other property admitted into the computation? these were difficulties however which he thought must be overruled by the necessity of compromise. he had some apprehensions also from the tendency of the blending of the blacks with the whites, to give disgust to the people of pen^a, as had been intimated by his colleague (m^r gov^r morris). but he differed from him in thinking numbers of inhab^{ts} so incorrect a measure of wealth. he had seen the western settlem^{ts} of p^a and on a comparison of them with the city of philad^a could discover little other difference, than that property was more unequally divided among individuals here than there. taking the same number in the aggregate in the two situations he believed there would be little difference in their wealth and ability to contribute to the public wants. m^r gov^r morris was compelled to declare himself reduced to the dilemma of doing injustice to the southern states or to human nature, and he must therefore do it to the former. for he could never agree to give such encouragement to the slave trade as would be given by allowing them a representation for their negroes, and he did not believe those states would ever confederate on terms that would deprive them of that trade. on question for agreeing to include / of the blacks mass^{ts} no. con^t ay. n. j. no. p^a no. del. no. m^d[ ] no. v^a ay. n. c. ay. s. c. no. geo. ay. [ ] (m^r carrol s^d in explanation of the vote of m^d that he wished the phraseology to be so altered as to obviate if possible the danger which had been expressed of giving umbrage to the eastern & middle states.) note in madison's hand. on the question as to taking census "the first year after the meeting of the legislature" mass^{ts} ay. con^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. ay. s. c. ay. geo. no. on filling the blank for the periodical census, with years. agreed to nem. con. m^r madison moved to add, after " years," the words "at least" that the legislature might anticipate when circumstances were likely to render a particular year inconvenient. on this motion for adding "at least," it passed in the negative the states being equally divided. mas. ay. con^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. ay. geo. ay. a change of the phraseology of the other clause so as to read, "and the legislature shall alter or augment the representation accordingly," was agreed to nem. con. on the question on the whole resolution of m^r williamson as amended, mas. no. con^t no. n. j. no. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. thursday, july . in convention. m^r gov^r morris moved to add to the clause empowering the legislature to vary the representation according to the principles of wealth & numbers of inhab^{ts} a "proviso that taxation shall be in proportion to representation." m^r butler contended again that representation s^d be according to the full number of inhab^{ts} including all the blacks; admitting the justice of m^r gov^r morris's motion. m^r mason also admitted the justice of the principle, but was afraid embarrassments might be occasioned to the legislature by it. it might drive the legislature to the plan of requisitions. m^r gov^r morris, admitted that some objections lay ag^{st} his motion, but supposed they would be removed by restraining the rule to _direct_ taxation. with regard to indirect taxes on _exports_ & imports & on consumption the rule would be inapplicable. notwithstanding what had been said to the contrary he was persuaded that the imports & consumption were pretty nearly equal throughout the union. general pinkney liked the idea. he thought it so just that it could not be objected to. but foresaw that if the revision of the census was left to the discretion of the legislature, it would never be carried into execution. the rule must be fixed, and the execution of it enforced by the constitution. he was alarmed at what was said[ ] yesterday, concerning the negroes. he was now again alarmed at what had been thrown out concerning the taxing of exports. s. carol^a has in one year exported to the amount of £ , sterling all which was the fruit of the labor of her blacks. will she be represented in proportion to this amount? she will not. neither ought she then to be subject to a tax on it. he hoped a clause would be inserted in the system, restraining the legislature from taxing exports. [ ] by m^r gov^r morris. note in madison's handwriting. m^r wilson approved the principle, but could not see how it could be carried into execution; unless restrained to direct taxation. m^r gov^r morris having so varied his motion by inserting the word "direct." it pass^d nem. con. as follows--"provided always that direct taxation ought to be proportioned to representation." m^r davie said it was high time now to speak out. he saw that it was meant by some gentlemen to deprive the southern states of any share of representation for their blacks. he was sure that n. carol^a would never confederate on any terms that did not rate them at least as / . if the eastern states meant therefore to exclude them altogether the business was at an end. d^r johnson, thought that wealth and population were the true, equitable rule of representation; but he conceived that these two principles resolved themselves into one; population being the best measure of wealth. he concluded therefore that y^e number of people ought to be established as the rule, and that all descriptions including blacks _equally_ with the whites, ought to fall within the computation. as various opinions had been expressed on the subject, he would move that a committee might be appointed to take them into consideration and report thereon. m^r gov^r morris. it has been said that it is high time to speak out, as one member, he would candidly do so. he came here to form a compact for the good of america. he was ready to do so with all the states. he hoped & believed that all would enter into such a compact. if they would not he was ready to join with any states that would. but as the compact was to be voluntary, it is in vain for the eastern states to insist on what the south^n states will never agree to. it is equally vain for the latter to require what the other states can never admit; and he verily believed the people of pen^a will never agree to a representation of negroes. what can be desired by these states more than has been already proposed; that the legislature shall from time to time regulate representation according to population & wealth. gen^l pinkney desired that the rule of wealth should be ascertained and not left to the pleasure of the legislature; and that property in slaves should not be exposed to danger under a gov^t instituted for the protection of property. the first clause in the report of the first grand committee was postponed. m^r elseworth. in order to carry into effect the principle established, moved that to add to the last clause adopted by the house the words following, "and that the rule of contribution by direct taxation for the support of the government of the u. states shall be the number of white inhabitants, and three fifths of every other description in the several states, until some other rule that shall more accurately ascertain the wealth of the several states can be devised and adopted by the legislature." m^r butler seconded the motion in order that it might be committed. m^r randolph was not satisfied with the motion. the danger will be revived that the ingenuity of the legislature may evade or pervert the rule so as to perpetuate the power where it shall be lodged in the first instance. he proposed in lieu of m^r elseworth's motion, "that in order to ascertain the alterations in representation that may be required from time to time by changes in the relative circumstances of the states, a census shall be taken within two years from the ^{st} meeting of the gen^l legislature of the u.s. and once within the term of every ---- year afterwards, of all the inhabitants in the manner & according to the ratio recommended by congress in their resolution of the ^{th} day of ap^l , (rating the blacks at / of their number) and that the legislature of the u. s. shall arrange the representation accordingly." he urged strenuously that express security ought to be provided for including slaves in the ratio of representation. he lamented that such a species of property existed. but as it did exist the holders of it would require this security. it was perceived that the design was entertained by some of excluding slaves altogether; the legislature therefore ought not to be left at liberty. m^r elseworth withdraws his motion & seconds that of m^r randolph. m^r wilson observed that less umbrage would perhaps be taken ag^{st} an admission of the slaves into the rule of representation, if it should be so expressed as to make them indirectly only an ingredient in the rule, by saying that they should enter into the rule of taxation; and as representation was to be according to taxation, the end would be equally attained. he accordingly moved & was ^{ded} so to alter the last clause adopted by the house, that together with the amendment proposed the whole should read as follows--provided always that the representation ought to be proportioned according to direct taxation, and in order to ascertain the alterations in the direct taxation which may be required from time to time by the changes in the relative circumstances of the states, resolved that a census be taken within two years from the first meeting of the legislature of the u. states, and once within the term of every ---- years afterwards of all the inhabitants of the u.s. in the manner and according to the ratio recommended by congress in their resolution of april . ; and that the legislature of the u.s. shall proportion the direct taxation accordingly. m^r king. altho' this amendment varies the aspect somewhat, he had still two powerful objections ag^{st} tying down the legislature to the rule of numbers. . they were at this time an uncertain index of the relative wealth of the states. . if they were a just index at this time it can not be supposed always to continue so. he was far from wishing to retain any unjust advantage whatever in one part of the republic. if justice was not the basis of the connection it could not be of long duration. he must be shortsighted indeed who does not foresee that whenever the southern states shall be more numerous than the northern, they can & will hold a language that will awe them into justice. if they threaten to separate now in case injury shall be done them, will their threats be less urgent or effectual, when force shall back their demands. even in the intervening period, there will be no point of time at which they will not be able to say, do us justice or we will separate. he urged the necessity of placing confidence to a certain degree in every gov^t and did not conceive that the proposed confidence as to a periodical readjustment of the representation exceeded that degree. m^r pinkney moved to amend m^r randolph's motion so as to make "blacks equal to the whites in the ratio of representation." this he urged was nothing more than justice. the blacks are the labourers, the peasants of the southern states: they are as productive of pecuniary resources as those of the northern states. they add equally to the wealth, and considering money as the sinew of war, to the strength of the nation. it will also be politic with regard to the northern states, as taxation is to keep pace with representation. gen^l pinkney moves to insert years instead of two, as the period computing from the ^{st} meeting of y^e legis^e within which the first census should be taken. on this question for inserting six, instead of "two" in the proposition of m^r wilson, it passed in the affirmative mass^{ts} no. c^t ay. n. j. ay. p^a ay. del. div^d. may^d ay. v^a no. n. c. no. s. c. ay. geo. no. on a question for filling the blank for y^e periodical census with years, it passed in the negative mass^{ts} no. c^t ay. n. j. ay. p. ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. on a question for years, it passed in the affirmative. mass. ay. con^t no. n. j. no. p. ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. on m^r pinkney's motion for rating blacks as equal to whites instead of as / . mass. no. con^t no. (d^r johnson ay) n. j. no. p^a no. ( ag^{st} .) del. no. m^d no. v^a no. n. c. no. s. c. ay. geo--ay. m^r randolph's proposition as varied by m^r wilson being read for question on the whole-- m^r gerry, urged that the principle of it could not be carried into execution as the states were not to be taxed as states. with regard to taxes in imposts, he conceived they would be more productive where there were no slaves than where there were; the consumption being greater-- m^r elseworth. in case of a poll tax there w^d be no difficulty. but there w^d probably be none. the sum allotted to a state may be levied without difficulty according to the plan used by the state in raising its own supplies. on the question of y^e whole proposition; as proportioning representation to direct taxation & both to the white & / of black inhabitants, & requiring a census within six years--& within every ten years afterwards. mass. div^d. con^t ay. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. div^d. geo. ay. friday, july . in convention. it being moved to postpone the clause in the report of the committee of eleven as to the originating of money bills in _the first_ branch, in order to take up the following--"that in the ^d branch each state shall have an equal voice," m^r gerry, moved to add as an amendment to the last clause agreed to by the house, "that from the first meeting of the legislature of the u.s. till a census shall be taken all monies to be raised for supplying the public treasury by direct taxation shall be assessed on the inhabitants of the several states according to the number of their representatives respectively in the ^{st} branch." he said this would be as just before as after the census; according to the general principle that taxation & representation ought to go together. m^r williamson feared that n. hampshire will have reason to complain. members were allotted to her as a liberal allowance, for this reason among others, that she might not suppose any advantage to have been taken of her absence. as she was still absent, and had no opportunity of deciding whether she would chuse to retain the number on the condition, of her being taxed in proportion to it, he thought the number ought to be reduced from three to two, before the question was taken on m^r g's motion. m^r read could not approve of the proposition. he had observed he said in the committee a backwardness in some of the members from the large states, to take their full proportion of representatives. he did not then see the motive. he now suspects it was to avoid their due share of taxation. he had no objection to a just & accurate adjustment of representation & taxation to each other. m^r gov^r morris & m^r madison answered that the charge itself involved an acquittal; since notwithstanding the augmentation of the number of members allotted to mass^{ts} & v^a the motion for proportioning the burdens thereto was made by a member from the former state & was approved by m^r m. from the latter who was on the com^e. m^r gov^r morris said that he thought p^a had her due share in members; and he could not in candor ask for more. m^r m. said that having always conceived that the difference of interest in the u. states lay not between the large & small, but the n. & south^n states, and finding that the number of members allotted to the n. states was greatly superior, he should have preferred, an addition of two members to the s. states, to wit one to n. & to s. carl^a rather than of one member to virg^a. he liked the present motion, because it tended to moderate the views both of the opponents & advocates for rating very high, the negroes. m^r elseworth hoped the proposition would be withdrawn. it entered too much into detail. the general principle was already sufficiently settled. as fractions can not be regarded in apportioning the _n^o of representatives_, the rule will be unjust, until an actual census shall be made. after that taxation may be precisely proportioned according to the principle established, to the _number of inhabitants_. m^r wilson hoped the motion would not be withdrawn. if it sh^d it will be made from another quarter. the rule will be as reasonable & just before, as after a census. as to fractional numbers, the census will not destroy, but ascertain them. and they will have the same effect after as before the census; for as he understands the rule, it is to be adjusted not to the number of _inhabitants_, but of _representatives_. m^r sherman opposed the motion. he thought the legislature ought to be left at liberty: in which case they would probably conform to the principles observed by cong^s. m^r mason did not know that virg^a would be a loser by the proposed regulation, but had some scruple as to the justice of it. he doubted much whether the conjectural rule which was to precede the census, would be as just, as it would be rendered by an actual census. m^r elseworth & m^r sherman moved to postpone the motion of m^r gerry. on y^e question, it passed in the negative. mass. no. con^t ay. n. j. ay. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. question on m^r gerry's motion, it passed in the negative, the states being equally divided. mass. ay. con^t no. n. j. no. _p^a ay._ del. no. m^d no. _v^a no._ n. c. ay. s. c. ay. geo. ay. m^r gerry finding that the loss of the question had proceeded from an objection with some, to the proposed assessment of direct taxes on the _inhabitants_ of the states, which might restrain the legislature to a poll tax, moved his proposition again, but so varied as to authorize the assessment on the _states_, which leaves the mode to the legislature, viz "that from the ^{st} meeting of the legislature of the u. s. untill a census shall be taken, all monies for supplying the public treasury by direct taxation shall be raised from the said several states according to the number of their representatives respectively in the ^{st} branch." on this varied question, it passed in the affirmative mas. ay. con^t no. n. j. no. _p^a div^d_ del. no. m^d no. _v^a ay._ n. c. ay. s. c. ay. geo. ay. on the motion of m^r randolph, the vote of saturday last authorizing the legisl^{re} to adjust from time to time, the representation upon the principles of _wealth_ & numbers of inhabitants, was reconsidered by common consent in order to strike out "wealth" and adjust the resolution to that requiring periodical revisions, according to the number of whites & three fifths of the blacks: the motion was in the words following:--"but as the present situation of the states may probably alter in the number of their inhabitants, that the legislature of the u. s. be authorized from time to time to apportion the number of representatives; and in case any of the states shall hereafter be divided or any two or more states united or new states created within the limits of the u. s. the legislature of u. s. shall possess authority to regulate the number of representatives in any of the foregoing cases, upon the principle of their number of inhabitants; according to the provisions hereafter mentioned." m^r gov^r morris opposed the alteration as leaving still incoherence. if negroes were to be viewed as inhabitants, and the revision was to proceed on the principle of numbers of inhab^{ts} they ought to be added in their entire number, and not in the proportion of / . if as property, the word wealth was right, and striking it out would produce the very inconsistency which it was meant to get rid of.--the train of business & the late turn which it had taken, had led him he said, into deep meditation on it, and he w^d candidly state the result. a distinction had been set up & urged, between the n^n and south^n states. he had hitherto considered this doctrine as heretical. he still thought the distinction groundless. he sees however that it is persisted in, and the south^n gentlemen will not be satisfied unless they see the way open to their gaining a majority in the public councils. the consequence of such a transfer of power from the maritime to the interior & landed interest will he foresees be such an oppression of commerce that he shall be obliged to vote for y^e vicious principle of equality in the ^d branch in order to provide some defence for the n. states ag^{st} it. but to come more to the point; either this distinction is fictitious or real; if fictitious let it be dismissed & let us proceed with due confidence. if it be real, instead of attempting to blend incompatible things, let us at once take a friendly leave of each other. there can be no end of demands for security if every particular interest is to be entitled to it. the eastern states may claim it for their fishery, and for other objects, as the south^n states claim it for their peculiar objects. in this struggle between the two ends of the union, what part ought the middle states in point of policy to take: to join their eastern brethren according to his ideas. if the south^n states get the power into their hands, and be joined as they will be with the interior country, they will inevitably bring on a war with spain for the mississippi. this language is already held. the interior country having no property nor interest exposed on the sea, will be little affected by such a war. he wished to know what security the north^n & middle states will have ag^{st} this danger. it has been said that n. c. s. c., and georgia only will in a little time have a majority of the people of america. they must in that case include the great interior country, and every thing was to be apprehended from their getting the power into their hands. m^r butler. the security the south^n states want is that their negroes may not be taken from them, which some gentlemen within or without doors, have a very good mind to do. it was not supposed that n. c. s. c. & geo. would have more people than all the other states, but many more relatively to the other states than they now have. the people & strength of america are evidently bearing southwardly & s. westw^{dly}. m^r wilson. if a general declaration would satisfy any gentleman he had no indisposition to declare his sentiments. conceiving that all men wherever placed have equal rights and are equally entitled to confidence, he viewed without apprehension the period when a few states should contain the superior number of people. the majority of people wherever found ought in all questions to govern the minority. if the interior country should acquire this majority, it will not only have the right, but will avail itself of it whether we will or no. this jealousy misled the policy of g. britain with regard to america. the fatal maxims espoused by her were that the colonies were growing too fast, and that their growth must be stinted in time. what were the consequences?, first, enmity on our part, then actual separation. like consequences will result on the part of the interior settlements, if like jealousy & policy be pursued on ours. further, if numbers be not a proper rule, why is not some better rule pointed out. no one has yet ventured to attempt it. cong^s have never been able to discover a better. no state as far as he had heard, had suggested any other. in , after elaborate discussion of a measure of wealth all were satisfied then as they are now that the rule of numbers, does not differ much from the combined rule of numbers & wealth. again he could not agree that property was the sole or primary object of gov^t & society. the cultivation & improvement of the human mind was the most noble object. with respect to this object, as well as to other _personal_ rights, numbers were surely the natural & precise measure of representation. and with respect to property, they could not vary much from the precise measure. in no point of view however could the establishm^t of numbers as the rule of representation in the ^{st} branch vary his opinion as to the impropriety of letting a vicious principle into the ^d branch.--on the question to strike out _wealth_, & to make the change as moved by m^r randolph, it passed in the affirmative. mas. ay. con^t ay. n. j. ay. p^a ay. del div^d. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. ay. m^r reed moved to insert after the word "divided," "or enlarged by addition of territory" which was agreed to nem con. (his object probably was to provide for such cases as an enlargem^t of delaware by annexing to it the peninsula on the east side of the chesapeak.) adjourned. saturday, july . in convention. m^r l. martin called for the question on the whole report, including the parts relating to the origination of money bills, and the equality of votes in the ^d branch. m^r gerry, wished before the question should be put, that the attention of the house might be turned to the dangers apprehended from western states. he was for admitting them on liberal terms, but not for putting ourselves in their hands. they will if they acquire power like all men, abuse it. they will oppress commerce, and drain our wealth into the western country. to guard ag^{st} these consequences, he thought it necessary to limit the number of new states to be admitted into the union, in such a manner, that they should never be able to outnumber the atlantic states. he accordingly moved "that in order to secure the liberties of the states already confederated, the number of representatives in the ^{st} branch, of the states which shall hereafter be established, shall never exceed in number, the representatives from such of the states as shall accede to this confederation. m^r king, seconded the motion. m^r sherman, thought there was no probability that the number of future states would exceed that of the existing states. if the event should ever happen, it was too remote to be taken into consideration at this time. besides we are providing for our posterity, for our children & our grand children; who would be as likely to be citizens of new western states, as of the old states. on this consideration alone, we ought to make no such discrimination as was proposed by the motion. m^r gerry. if some of our children should remove, others will stay behind, and he thought it incumbent on us to provide for their interests. there was a rage for emigration from the eastern states to the western country, and he did not wish those remaining behind to be at the mercy of the emigrants. besides foreigners are resorting to that country, and it is uncertain what turn things may take there.--on the question for agreeing to the motion of m^r gerry, it passed in the negative. mass. ay. con^t ay. n. j. no. p^a div^d. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r rutlidge proposed to reconsider the two propositions touching the originating of money bills in the first & the equality of votes in the second branch. m^r sherman was for the question on the whole at once. it was he said a conciliatory plan, it had been considered in all its parts, a great deal of time had been spent upon it, and if any part should now be altered, it would be necessary to go over the whole ground again. m^r l. martin urged the question on the whole. he did not like many parts of it. he did not like having two branches, nor the inequality of votes in the ^{st} branch. he was willing however to make trial of the plan, rather than do nothing. m^r wilson traced the progress of the report through its several stages, remarking y^t when on the question concerning an equality of votes, the house was divided, our constituents had they voted as their representatives did, would have stood as / ag^{st} the equality, and / only in favor of it. this fact would ere long be known, and it will appear that this fundamental point has been carried by / ag^{st} / . what hopes will our constituents entertain when they find that the essential principles of justice have been violated in the outset of the governm^t. as to the privilege of originating money bills, it was not considered by any as of much moment, and by many as improper in itself. he hoped both clauses w^d be reconsidered. the equality of votes was a point of such critical importance, that every opportunity ought to be allowed, for discussing and collecting the mind of the convention upon it. m^r l. martin denies that there were / ag^{st} the equality of votes. the states that please to call themselves large, are the weakest in the union. look at mas^{ts}. look at virg^a. are they efficient states? he was for letting a separation take place if they desired it. he had rather there should be two confederacies, than one founded on any other principle than an equality of votes in the ^d branch at least. m^r wilson was not surprised that those who say that a minority is more than a majority should say the minority is stronger than the majority. he supposed the next assertion will be that they are richer also; though he hardly expected it would be persisted in when the states shall be called on for taxes & troops. m^r gerry also animadverted on m^r l. martins remarks on the weakness of mas^{ts}. he favored the reconsideration with a view not of destroying the equality of votes; but of providing that the states should vote per capita, which he said would prevent the delays & inconveniences that had been experienced in cong^s and would give a national aspect & spirit to the management of business. he did not approve of a reconsideration of the clause relating to money bills. it was of great consequence. it was the corner stone of the accommodation. if any member of the convention had the exclusive privilege of making propositions, would any one say that it would give him no advantage over other members. the report was not altogether to his mind. but he would agree to it as it stood rather than throw it out altogether. the reconsideration being tacitly agreed to m^r pinkney moved that instead of an equality of votes, the states should be represented in the ^d branch as follows: n. h. by members. mass. . r. i. . con^t . n. y. . n. j. . p^a . del. ; m^d . virg^a . n. c. . s. c. . geo. . making in the whole . m^r wilson seconds the motion m^r dayton. the smaller states can never give up their equality. for himself he would in no event yield that security for their rights. m^r sherman, urged the equality of votes not so much as a security for the small states; as for the state gov^{ts} which could not be preserved unless they were represented & had a negative in the gen^l government. he had no objection to the members in the ^d b. voting per capita, as had been suggested by (m^r gerry). m^r madison concurred in this motion of m^r pinkney as a reasonable compromise. m^r gerry said he should like the motion, but could see no hope of success. an accommodation must take place, and it was apparent from what had been seen that it could not do so on the ground of the motion. he was utterly against a partial confederacy, leaving other states to accede or not accede, as had been intimated. m^r king said it was always with regret that he differed from his colleagues, but it was his duty to differ from (m^r gerry) on this occasion. he considered the proposed government as substantially and formally, a general and national government over the people of america. there never will be a case in which it will act as a federal government on the states and not on the individual citizens. and is it not a clear principle that in a free gov^t those who are to be the objects of a gov^t ought to influence the operations of it? what reason can be assigned why the same rule of representation s^d not prevail in the ^d branch as in the ^{st}.? he could conceive none. on the contrary, every view of the subject that presented itself, seemed to require it. two objections had been raised ag^{st} it, drawn . from the terms of the existing compact. . from a supposed danger to the smaller states.--as to the first objection he thought it inapplicable. according to the existing confederation, the rule by which the public burdens is to be apportioned is _fixed_, and must be pursued. in the proposed govern^t it cannot be fixed, because indirect taxation is to be substituted. the legislature therefore will have full discretion to impose taxes in such modes & proportions as they may judge expedient. as to the ^d objection, he thought it of as little weight. the gen^l govern^t can never wish to intrude on the state govern^{ts}. there could be no temptation. none had been pointed out. in order to prevent the interference of measures which seemed most likely to happen, he would have no objection to throwing all the state debts into the federal debt, making one aggregate debt of about , , of dollars, and leaving it to be discharged by the gen^l gov^t. according to the idea of securing the state gov^{ts} there ought to be three distinct legislative branches. the ^d was admitted to be necessary, and was actually meant, to check the ^{st} branch, to give more wisdom, system, & stability to the gov^t and ought clearly as it was to operate on the people, to be proportioned to them. for the third purpose of securing the states, there ought then to be a ^d branch, representing the states as such, and guarding by equal votes their rights & dignities. he would not pretend to be as thoroughly acquainted with his immediate constituents as his colleagues, but it was his firm belief that mas^{ts} would never be prevailed on to yield to an equality of votes. in n. york, (he was sorry to be obliged to say any thing relative to that state in the absence of its representatives, but the occasion required it), in n. york he had seen that the most powerful argument used by the considerate opponents to the grant of the impost to congress, was pointed ag^{st} the vicious constitution of cong^s with regard to representation & suffrage. he was sure that no gov^t could last that was not founded on just principles. he preferred the doing of nothing, to an allowance of an equal vote to all the states. it would be better he thought to submit to a little more confusion & convulsion, than to submit to such an evil. it was difficult to say what the views of different gentlemen might be. perhaps there might be some who thought no governm^t co-extensive with the u. states could be established with a hope of its answering the purpose. perhaps there might be other fixed opinions incompatible with the object we are pursuing. if there were, he thought it but candid that gentlemen should speak out that we might understand one another. m^r strong. the convention had been much divided in opinion. in order to avoid the consequences of it, an accommodation had been proposed. a committee had been appointed: and though some of the members of it were averse to an equality of votes, a report had been made in favor of it. it is agreed on all hands that congress are nearly at an end. if no accommodation takes place, the union itself must soon be dissolved. it has been suggested that if we cannot come to any general agreement, the principal states may form & recommend a scheme of government. but will the small states in that case ever accede it. is it probable that the large states themselves will under such circumstances embrace and ratify it. he thought the small states had made a considerable concession in the article of money bills, and that they might naturally expect some concessions on the other side. from this view of the matter he was compelled to give his vote for the report taken altogether. m^r madison expressed his apprehensions that if the proper foundation of governm^t was destroyed, by substituting an equality in place of a proportional representation, no proper superstructure would be raised. if the small states really wish for a government armed with the powers necessary to secure their liberties, and to enforce obedience on the larger members as well as themselves he could not help thinking them extremely mistaken in their means. he reminded them of the consequences of laying the existing confederation on improper principles. all the principal parties to its compilation joined immediately in mutilating & fettering the governm^t in such a manner that it has disappointed every hope placed in it. he appealed to the doctrine & arguments used by themselves on a former occasion. it had been very properly observed by (m^r patterson) that representation was an expedient by which the meeting of the people themselves was rendered unnecessary; and that the representatives ought therefore to bear a proportion to the votes which their constituents if convened would respectively have. was not this remark as applicable to one branch of the representation as to the other? but it had been said that the govern^t would in its operation be partly federal, partly national; that altho' in the latter respect the representatives of the people ought to be in proportion to the people; yet in the former it ought to be according to the number of states. if there was any solidity in this distinction he was ready to abide by it, if there was none it ought to be abandoned. in all cases where the gen^l governm^t is to act on the people, let the people be represented and the votes be proportional. in all cases where the govern^t is to act on the states as such in like manner as cong^s now acts on them, let the states be represented & the votes be equal. this was the true ground of compromise if there was any ground at all. but he denied that there was any ground. he called for a single instance in which the gen^l gov^t was not to operate on the people individually. the practicability of making laws, with coercive sanctions, for the states as political bodies, had been exploded on all hands. he observed that the people of the large states would in some way or other secure to themselves a weight proportioned to the importance accruing from their superior numbers. if they could not effect it by a proportional representation in the gov^t they would probably accede to no gov^t which did not in a great measure depend for its efficacy on their voluntary cooperation; in which case they would indirectly secure their object. the existing confederacy proved that where the acts of the gen^l gov^t were to be executed by the particular gov^{ts} the latter had a weight in proportion to their importance. no one would say that either in cong^s or out of cong^s. delaware had equal weight with pennsylv^a. if the latter was to supply ten times as much money as the former, and no compulsion could be used, it was of ten times more importance, that she should voluntarily furnish the supply. in the dutch confederacy the votes of the provinces were equal. but holland which supplies about half the money, governed the whole republic. he enumerated the objections ag^{st} an equality of votes in the ^d branch, notwithstanding the proportional representation in the first. . the minority could negative the will of the majority of the people. . they could extort measures by making them a condition of their assent to other necessary measures. . they could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the senate. . the evil instead of being cured by time, would increase with every new state that should be admitted, as they must all be admitted on the principle of equality. . the perpetuity it would give to the preponderance of the north^n ag^{st} the south^n scale was a serious consideration. it seemed now to be pretty well understood that the real difference of interests lay, not between the large & small but between the n. & south^n states. the institution of slavery & its consequences formed the line of discrimination. there were states on the south, on the north^n side of this line. should a proport^l representation take place it was true, the n. side would still outnumber the other; but not in the same degree, at this time; and every day would tend towards an equilibrium. m^r wilson would add a few words only. if equality in the ^d branch was an error that time would correct, he should be less anxious to exclude it being sensible that perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided. a vice in the representation, like an error in the first concoction, must be followed by disease, convulsions, and finally death itself. the justice of the general principle of proportional representation has not in argument at least been yet contradicted. but it is said that a departure from it so far as to give the states an equal vote in one branch of the legislature is essential to their preservation. he had considered this position maturely, but could not see its application. that the states ought to be preserved he admitted. but does it follow that an equality of votes is necessary for the purpose? is there any reason to suppose that if their preservation should depend more on the large than on the small states the security of the states ag^{st} the gen^l government would be diminished? are the large states less attached to their existence more likely to commit suicide, than the small? an equal vote then is not necessary as far as he can conceive: and is liable among other objections to this insuperable one: the great fault of the existing confederacy is its inactivity. it has never been a complaint ag^{st} cong^s that they governed over much. the complaint has been that they have governed too little. to remedy this defect we were sent here. shall we effect the cure by establishing an equality of votes as is proposed? no: this very equality carries us directly to congress; to the system which it is our duty to rectify. the small states cannot indeed act, by virtue of this equality, but they may controul the gov^t as they have done in cong^s. this very measure is here prosecuted by a minority of the people of america. is then the object of the convention likely to be accomplished in this way? will not our constituents say? we sent you to form an efficient gov^t and you have given us one more complex indeed, but having all the weakness of the former govern^t. he was anxious for uniting all the states under one govern^t. he knew there were some respectable men who preferred three confederacies, united by offensive & defensive alliances. many things may be plausibly said, some things may be justly said, in favor of such a project. he could not however concur in it himself; but he thought nothing so pernicious as bad first principles. m^r elseworth asked two questions, one of m^r wilson, whether he had ever seen a good measure fail in cong^s for want of a majority of states in its favor? he had himself never known such an instance: the other of m^r madison whether a negative lodged with the majority of the states even the smallest, could be more dangerous than the qualified negative proposed to be lodged in a single executive magistrate, who must be taken from some one state? m^r sherman, signified that his expectation was that the gen^l legislature would in some cases act on the _federal principle_, of requiring quotas. but he thought it ought to be empowered to carry their own plans into execution, if the states should fail to supply their respective quotas. on the question for agreeing to m^r pinkney's motion for allowing n. h. . mas. . &c.--it passed in the negative, mass. no. m^r king ay. m^r ghorum absent. con^t no. n. j. no. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. no. adjourned.[ ] [ ] "memorandum. "july , ' . "about twelve days since the convention appointed a grand comee, consisting of gerry, ellsworth, yates, paterson, franklin, bedford, martin, mason, rutledge & baldwin to adjust the representation in the two brs. of the legislature of the u. s. they reported yt. every , inhabs. taken agreeably to the resolution of cong. of ye ap. , shd. send one member to the first br. of the legislature, yt. this br. shd. originate exclusively money bills, & also originate ye appropriations of money; and that in ye senate or upper br. each state shd. have one vote & no more. the representation as to the first br. was twice recommitted altho' not to the same committee; finally it was agreed yt taxation of the direct sort & representation shd. be in direct proportion with each other--that the first br. shd. consist of members, viz. n. h. , m. , r. i. , c. , n. y. , n. j. , p. , d. , m. , v. , n. c. , s. c. , g. ,--and that the origination of money bills and the appropriations of money shd. belong in the first instance to yt. br., but yt in the senate or nd br. each state shd. have an equal vote. in this situation of the report it was moved by s. car. that in the formation of the nd br., instead of an equality of votes among the states, that n. h. shd. have , m. , r. i. , c. , n. y. , n. j. , p. , d. , m. , v. , n. c. , s. c. , g. = total . "on the question to agree to this apportionment, instead of the equality (mr. gorham being absent) mass., con., n. jer., del., n. car., & georg--no. penn., mar., virg. & s. car. aye. "this question was taken and to my mortification by the vote of mass. lost on the th july. "(endorsed 'inequality lost by vote of mass.')"--king's note, king's _life and correspondence of rufus king_, i., . monday, july . in convention. on the question for agreeing to the whole report as amended & including the equality of votes in the ^d branch, it passed in the affirmative. mass. divided m^r gerry, m^r strong. ay. m^r king, m^r ghorum no. con^t ay. n. j. ay. pen^a no. del. ay. m^d ay. v^a no. n. c. ay. m^r spraight no. s. c. no. geo. no. the whole thus passed is in the words following, viz. "resolved, that in the original formation of the legislature of the u. s. the first branch thereof shall consist of sixty five members, of which number n. hampshire shall send . mass^{ts} . rh. i. . conn^t . n. y. . n. j. . pen^a . del. . mary^d . virg^a . n. c. . s. c. . geo. .--but as the present situation of the states may probably alter in the number of their inhabitants, the legislature of the u. s. shall be authorized from time to time to apportion the number of rep^s and in case any of the states shall hereafter be divided, or enlarged by addition of territory, or any two or more states united, or any new states created within the limits of the u. s. the legislature of the u. s. shall possess authority to regulate the number of rep^s in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned. namely--provided always that representation ought to be proportioned according to direct taxation; and in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the states-- resolved, that a census be taken within six years from the ^{st} meeting of the legislature of the u. s., and once within the term of every years afterwards of all the inhabitants of the u. s. in the manner and according to the ratio recommended by congress in their resolution of april . , and that the legislature of the u. s. shall proportion the direct taxation accordingly-- resolved, that all bills for raising or appropriating money, and for fixing the salaries of officers of the gov^t of the u. s. shall originate in the first branch of the legislature of the u. s. and shall not be altered or amended in the ^d branch: and that no money shall be drawn from the public treasury, but in pursuance of appropriations to be originated in the ^{st} branch. _resolv^d_, that in the ^d branch of the legislature of the u. s., each state shall have an equal vote. the ^{th} resol: in the report from the com^e of the whole house, which had been postponed in order to consider the & ^{th} resol^{ns}.; was now resumed. see the resol^n: the ^{st} member "that the nat^l legislature ought to possess the legislative rights vested in cong^s by the confederation" was agreed to nem. con. the next, "and moreover to legislate in all cases to which the separate states are incompetent; or in which the harmony of the u. s. may be interrupted by the exercise of individual legislation," being read for a question. m^r butler calls for some explanation of the extent of this power; particularly of the word _incompetent_. the vagueness of the terms rendered it impossible for any precise judgment to be formed. m^r ghorum. the vagueness of the terms constitutes the propriety of them. we are now establishing general principles, to be extended hereafter into details which will be precise & explicit. m^r rutlidge, urged the objection started by m^r butler and moved that the clause should be committed to the end that a specification of the powers comprised in the general terms, might be reported. on the question for commitment, the states were equally divided mas. no. con^t ay. n. j. no. p^a no. del. no. m^d ay. v^a ay. n. c. no. s. c. ay. geo. ay: so it was lost. m^r randolph. the vote of this morning (involving an equality of suffrage in ^d branch) had embarrassed the business extremely. all the powers given in the report from the com^e of the whole, were founded on the supposition that a proportional representation was to prevail in both branches of the legislature. when he came here this morning his purpose was to have offered some propositions that might if possible have united a great majority of votes, and particularly might provide ag^{st} the danger suspected on the part of the smaller states, by enumerating the cases in which it might lie, and allowing an equality of votes in such cases.[ ] but finding from the preceding vote that they persist in demanding an equal vote in all cases, that they have succeeded in obtaining it, and that n. york, if present would probably be on the same side, he could not but think we were unprepared to discuss this subject further. it will probably be in vain to come to any final decision with a bare majority on either side. for these reasons he wished the convention might adjourn, that the large states might consider the steps proper to be taken in the present solemn crisis of the business, and that the small states might also deliberate on the means of conciliation. [ ] see the paper, in the appendix, co[~m]unicated by m^r r. to j. m. july .--note in madison's hand. m^r patterson, thought with m^r r. that it was high time for the convention to adjourn that the rule of secrecy ought to be rescinded, and that our constituents should be consulted. no conciliation could be admissible on the part of the smaller states on any other ground than that of an equality of votes in the ^d branch. if m^r randolph would reduce to form his motion for an adjournment sine die, he would second it with all his heart. gen^l pinkney wished to know of m^r r. whether he meant an adjournment sine die, or only an adjournment for the day. if the former was meant, it differed much from his idea. he could not think of going to s. carolina and returning again to this place. besides it was chimerical to suppose that the states if consulted would ever accord separately, and beforehand. m^r randolph, had never entertained an idea of an adjournment sine die; & was sorry that his meaning had been so readily & strangely misinterpreted. he had in view merely an adjournment till to-morrow, in order that some conciliatory experiment might if possible be devised, and that in case the smaller states should continue to hold back, the larger might then take such measures, he would not say what, as might be necessary. m^r patterson seconded the adjournment till to-morrow, as an opportunity seemed to be wished by the larger states to deliberate further on conciliatory expedients. on the question for adjourning till tomorrow, the states were equally divided, mas. no. con^t no. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no, so it was lost. m^r broome thought it his duty to declare his opinion ag^{st} an adjournment sine die, as had been urged by m^r patterson. such a measure he thought would be fatal. something must be done by the convention, tho' it should be by a bare majority. m^r gerry observed that mas^{ts} was opposed to an adjournment, because they saw no new ground of compromise. but as it seemed to be the opinion of so many states that a trial sh^d be made, the state would now concur in the adjournm^t. m^r rutlidge could see no need of an adjourn^t because he could see no chance of a compromise. the little states were fixt. they had repeatedly & solemnly declared themselves to be so. all that the large states then had to do was to decide whether they would yield or not. for his part he conceived that altho' we could not do what we thought best, in itself, we ought to do something. had we not better keep the gov^t up a little longer, hoping that another convention will supply our omissions, than abandon every thing to hazard. our constituents will be very little satisfied with us if we take the latter course. m^r randolph & m^r king renewed the motion to adjourn till tomorrow. on the question. mas. ay. con^t no. n. j. ay. p^a ay. del. no. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. div^d. adjourned * * * * * on the morning following before the hour of the convention a number of the members from the larger states, by common agreement met for the purpose of consulting on the proper steps to be taken in consequence of the vote in favor of an equal representation in the ^d branch, and the apparent inflexibility of the smaller states on that point. several members from the latter states also attended. the time was wasted in vague conversation on the subject, without any specific proposition or agreement. it appeared indeed that the opinions of the members who disliked the equality of votes differed much as to the importance of that point, and as to the policy of risking a failure of any general act of the convention by inflexibly opposing it. several of them supposing that no good governm^t could or would be built on that foundation, and that as a division of the convention into two opinions was unavoidable; it would be better that the side comprising the principal states, and a majority of the people of america, should propose a scheme of gov^t to the states, than that a scheme should be proposed on the other side, would have concurred in a firm opposition to the smaller states, and in a separate recommendation, if eventually necessary. others seemed inclined to yield to the smaller states, and to concur in such an act however imperfect & exceptionable, as might be agreed on by the convention as a body, tho' decided by a bare majority of states and by a minority of the people of the u. states. it is probable that the result of this consultation satisfied the smaller states that they had nothing to apprehend from a union of the larger, in any plan whatever ag^{st} the equality of votes in the ^d branch. tuesday july . in convention. m^r govern^r morris, moved to reconsider the whole resolution agreed to yesterday concerning the constitution of the branches of the legislature. his object was to bring the house to a consideration in the abstract of the powers necessary to be vested in the general government. it had been said, let us know how the gov^t is to be modelled, and then we can determine what powers can be properly given to it. he thought the most eligible course was, first to determine on the necessary powers, and then so to modify the govern^t as that it might be justly & properly enabled to administer them. he feared if we proceeded to a consideration of the powers, whilst the vote of yesterday including an equality of the states in the ^d branch, remained in force, a reference to it, either mental or expressed, would mix itself with the merits of every question concerning the powers.--this motion was not seconded. (it was probably approved by several members who either despaired of success, or were apprehensive that the attempt would inflame the jealousies of the smaller states.) the ^{th} resol^n in the report of the com^e of the whole relating to the powers, which had been postponed in order to consider the & ^{th} relating to the constitution of the nat^l legislature, was now resumed. m^r sherman observed that it would be difficult to draw the line between the powers of the gen^l legislature, and those to be left with the states; that he did not like the definition contained in the resolution, and proposed in place of the words "individual legislation" line . inclusive, to insert "to make laws binding on the people of the united states in all cases which may concern the common interests of the union; but not to interfere with the government of the individual states in any matters of internal police which respect the gov^t of such states only, and wherein the general welfare of the u. states is not concerned." m^r wilson ^{ded} the amendment as better expressing the general principle. m^r gov^r morris opposed it. the internal police, as it would be called & understood by the states ought to be infringed in many cases, as in the case of paper money & other tricks by which citizens of other states may be affected. m^r sherman, in explanation of his idea read an enumeration of powers, including the power of levying taxes on trade, but not the power of _direct taxation_. m^r gov^r morris remarked the omission, and inferred that for the deficiencies of taxes on consumption, it must have been the meaning of mr. sherman, that the gen^l gov^t should recur to quotas & requisitions, which are subversive of the idea of gov^t. m^r sherman acknowledged that his enumeration did not include direct taxation. some provision he supposed must be made for supplying the deficiency of other taxation, but he had not formed any. on question on m^r sherman's motion it passed in the negative mas. no. con^t ay. n. j. no. p^a no. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. no. m^r bedford moved that the ^d member of resolution . be so altered as to read, "and moreover to legislate in all cases for the general interests of the union, and also in those to which the states are severally incompetent, or in which the harmony of the u. states may be interrupted by the exercise of individual legislation." m^r gov^r morris ^{ds} the motion. m^r randolph. this is a formidable idea indeed. it involves the power of violating all the laws and constitutions of the states, and of intermeddling with their police. the last member of the sentence is also superfluous, being included in the first. m^r bedford. it is not more extensive or formidable than the clause as it stands: _no state_ being _separately_ competent to legislate for the _general interest_ of the union. on question for agreeing to m^r bedford's motion it passed in the affirmative. mas. ay. con^t no. n. j. ay. p^a ay. del. ay. m^d ay. v^a no. n. c. ay. s. c. no. geo. no. on the sentence as amended, it passed in the affirmative. mas. ay. con^t ay. n. j. ay. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. no. geo. no. the next. "to negative all laws passed by the several states contravening in the opinion of the nat: legislature the articles of union, or any treaties subsisting under the authority of y^e union." m^r gov^r morris opposed this power as likely to be terrible to the states, and not necessary, if sufficient legislative authority should be given to the gen^l government. m^r sherman thought it unnecessary; as the courts of the states would not consider as valid any law contravening the authority of the union, and which the legislature would wish to be negatived. m^r l. martin considered the power as improper & inadmissible. shall all the laws of the states be sent up to the gen^l legislature before they shall be permitted to operate? m^r madison, considered the negative on the laws of the states as essential to the efficacy & security of the gen^l gov^t. the necessity of a general gov^t proceeds from the propensity of the states to pursue their particular interests in opposition to the general interest. this propensity will continue to disturb the system, unless effectually controuled. nothing short of a negative on their laws will controul it. they will pass laws which will accomplish their injurious objects before they can be repealed by the gen^l legisl^{re} or be set aside by the national tribunals. confidence can not be put in the state tribunals as guardians of the national authority and interests. in all the states these are more or less depend^t on the legislatures. in georgia they are appointed annually by the legislature. in r. island the judges who refused to execute an unconstitutional law were displaced, and others substituted, by the legislature who would be the willing instruments of the wicked & arbitrary plans of their masters. a power of negativing the improper laws of the states is at once the most mild & certain means of preserving the harmony of the system. its utility is sufficiently displayed in the british system. nothing could maintain the harmony & subordination of the various parts of the empire, but the prerogative by which the crown, stifles in the birth every act of every part tending to discord or encroachment. it is true the prerogative is sometimes misapplied thro' ignorance or a partiality to one particular part of y^e empire; but we have not the same reason to fear such misapplications in our system. as to the sending all laws up to the nat^l legisl: that might be rendered unnecessary by some emanation of the power into the states, so far at least as to give a temporary effect to laws of immediate necessity. m^r gov^r morris was more & more opposed to the negative. the proposal of it would disgust all the states. a law that ought to be negatived will be set aside in the judiciary departm^t and if that security should fail; may be repealed by a nation^l law. m^r sherman. such a power involves a wrong principle, to wit, that a law of a state contrary to the articles of the union would if not negatived, be valid & operative. m^r pinkney urged the necessity of the negative. on the question for agreeing to the power of negativing laws of states &c. it passed in the negative. mas. ay. c^t no. n. j. no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c. no. geo. no. m^r luther martin moved the following resolution "that the legislative acts of the u. s. made by virtue & in pursuance of the articles of union and all treaties made & ratified under the authority of the u. s. shall be the supreme law of the respective states, as far as those acts or treaties shall relate to the said states, or their citizens and inhabitants--& that the judiciaries of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual states to the contrary notwithstanding" which was agreed to nem: con: ^{th} resol: "that nat^l executive consist of a single person," ag^d to nem. con. "to be chosen by the national legisl:" m^r govern^r morris was pointedly ag^{st} his being so chosen. he will be the mere creature of the legisl: if appointed & impeachable by that body. he ought to be elected by the people at large, by the freeholders of the country. that difficulties attend this mode, he admits. but they have been found superable in n. y. & in con^t and would he believed be found so, in the case of an executive for the u. states. if the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. if the legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment. he moved to strike out "national legislature," & insert "citizens of the u. s." m^r sherman thought that the sense of the nation would be better expressed by the legislature, than by the people at large. the latter will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man. they will generally vote for some man in their own state, and the largest state will have the best chance for the appointment. if the choice be made by the legisl^{re} a majority of voices may be made necessary to constitute an election. m^r wilson. two arguments have been urged ag^{st} an election of the executive magistrate by the people. the example of poland where an election of the supreme magistrate is attended with the most dangerous commotions. the cases he observed were totally dissimilar. the polish nobles have resources & dependants which enable them to appear in force, and to threaten the republic as well as each other. in the next place the electors all assemble in one place; which would not be the case with us. the ^d arg^t is that a _majority_ of the people would never concur. it might be answered that the concurrence of a majority of the people is not a necessary principle of election, nor required as such in any of the states. but allowing the objection all its force, it may be obviated by the expedient used in mass^{ts}, where the legislature by majority of voices, decide in case a majority of people do not concur in favor of one of the candidates. this would restrain the choice to a good nomination at least, and prevent in a great degree intrigue & cabal. a particular objection with him ag^{st} an absolute election by the legisl^{re} was that the exec: in that case would be too dependent to stand the mediator between the intrigues & sinister views of the representatives and the general liberties & interests of the people. m^r pinkney did not expect this question would again have been brought forward: an election by the people being liable to the most obvious & striking objections. they will be led by a few active & designing men. the most populous states by combining in favor of the same individual will be able to carry their points. the nat^l legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution. m^r gov^r morris. it is said that in case of an election by the people the populous states will combine & elect whom they please. just the reverse. the people of such states cannot combine. if there be any combination it must be among their representatives in the legislature. it is said the people will be led by a few designing men. this might happen in a small district. it can never happen throughout the continent. in the election of a gov^r of n. york, it sometimes is the case in particular spots, that the activity & intrigues of little partizans are successful, but the general voice of the state is never influenced by such artifices. it is said the multitude will be uninformed. it is true they would be uninformed of what passed in the legislative conclave, if the election were to be made there; but they will not be uninformed of those great & illustrious characters which have merited their esteem & confidence. if the executive be chosen by the nat^l legislature, he will not be independent on it; and if not independent, usurpation & tyranny on the part of the legislature will be the consequence. this was the case in england in the last century. it has been the case in holland, where their senates have engrossed all power. it has been the case every where. he was surprised that an election by the people at large should ever have been likened to the polish election of the first magistrate. an election by the legislature will bear a real likeness to the election by the diet of poland. the great must be the electors in both cases, and the corruption & cabal w^{ch} are known to characterize the one would soon find their way into the other. appointments made by numerous bodies, are always worse than those made by single responsible individuals, or by the people at large. col. mason. it is curious to remark the different language held at different times. at one moment we are told that the legislature is entitled to thorough confidence, and to indefinite power. at another, that it will be governed by intrigue & corruption, and cannot be trusted at all. but not to dwell on this inconsistency he would observe that a government which is to last ought at least to be practicable. would this be the case if the proposed election should be left to the people at large. he conceived it would be as unnatural to refer the choice of a proper character for chief magistrate to the people, as it would, to refer a trial of colours to a blind man. the extent of the country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the candidates. m^r wilson, could not see the contrariety stated (by col. mason.) the legisl^{re} might deserve confidence in some respects, and distrust in others. in acts which were to affect them & y^r constituents precisely alike confidence was due. in others jealousy was warranted. the appointment to great offices, where the legisl^{re} might feel many motives, not common to the public confidence was surely misplaced. this branch of business it was notorious, was the most corruptly managed of any that had been committed to legislative bodies. m^r williamson, conceived that there was the same difference between an election in this case, by the people and by the legislature, as between an app^t by lot, and by choice. there are at present distinguished characters, who are known perhaps to almost every man. this will not always be the case. the people will be sure to vote for some man in their own state, and the largest state will be sure to succeed. this will not be virg^a however. her slaves will have no suffrage. as the salary of the executive will be fixed, and he will not be eligible a ^d time, there will not be such a dependence on the legislature as has been imagined. question on an election by the people instead of the legislature, which passed in the negative. mas. no. con^t no. n. j. no. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. no. m^r l. martin moved that the executive be chosen by electors appointed by the several legislatures of the individual states. m^r broome ^{ds}. on the question, it passed in the negative. mas. no. con^t no. n. j. no. p^a no. del. ay. m^d ay. v^a no. n. c. no. s. c. no. geo. no. on the question on the words, "to be chosen by the nation^l legislature" it passed unanimously in the affirmative "for the term of seven years"--postponed nem. con. on motion of m^r houston and gov. morris "to carry into execution the nation^l laws"--agreed to nem. con. "to appoint to offices in cases not otherwise provided for,"--agreed to nem. con. "to be ineligible a second time"--m^r houston moved to strike out this clause. m^r sherman ^{ds} the motion. m^r gov^r morris espoused the motion. the ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. it was saying to him, make hay while the sun shines. on the question for striking out, as moved by m^r houston, it passed in the affirmative mas. ay. con^t ay. n. j. ay. p^a ay. del. no. m^d ay. v^a no. n. c. no. s. c. no. geo. ay. "for the term of years," resumed. m^r broom was for a shorter term since the executive magistrate was now to be re-eligible. had he remained ineligible a ^d time, he should have preferred a longer term. doc^r m^cclurg moved[ ] to strike out years, and insert "during good behavior." by striking out the words declaring him not re-eligible, he was put into a situation that would keep him dependent forever on the legislature; and he conceived the independence of the executive to be equally essential with that of the judiciary department. [ ] the probable object of this motion was merely to enforce the argument against the re-eligibility of the executive magistrate by holding out a tenure during good behaviour as the alternate for keeping him independent of the legislature.--note in madison's handwriting. m^r gov^r morris ^{ded} the motion. he expressed great pleasure in hearing it. this was the way to get a good government. his fear that so valuable an ingredient would not be attained had led him to take the part he had done. he was indifferent how the executive should be chosen, provided he held his place by this tenure. m^r broome highly approved the motion. it obviated all his difficulties m^r sherman considered such a tenure as by no means safe or admissible. as the executive magistrate is now re-eligible, he will be on good behavior as far as will be necessary. if he behaves well he will be continued; if otherwise, displaced, on a succeeding election. m^r madison.[ ] if it be essential to the preservation of liberty that the legisl: execut: & judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. the executive could not be independent of the legislure, if dependent on the pleasure of that branch for a re-appointment. why was it determined that the judges should not hold their places by such a tenure? because they might be tempted to cultivate the legislature, by an undue complaisance, and thus render the legislature the virtual expositor, as well as the maker of the laws. in like manner a dependence of the executive on the legislature, would render it the executor as well as the maker of laws; & then according to the observation of montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. there was an analogy between the executive & judiciary departments in several respects. the latter executed the laws in certain cases as the former did in others. the former expounded & applied them for certain purposes, as the latter did for others. the difference between them seemed to consist chiefly in two circumstances-- . the collective interest & security were much more in the power belonging to the executive than to the judiciary department. . in the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter. but if the ^d consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the execut: than the judges, & forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a union between the executive & legisl: powers, than between the judiciary & legislative powers. he conceived it to be absolutely necessary to a well constituted republic that the two first sh^d be kept distinct & independent of each other. whether the plan proposed by the motion was a proper one was another question, as it depended on the practicability of instituting a tribunal for impeachm^{ts} as certain & as adequate in the one case as in the other. on the other hand, respect for the mover entitled his proposition to a fair hearing & discussion, until a less objectionable expedient should be applied for guarding ag^{st} a dangerous union of the legislative & executive departments. [ ] the view here taken of the subject was meant to aid in parrying the animadversions likely to fall on the motion of d^r m^cclurg, for whom j. m. had a particular regard. the doc^r though possessing talents of the highest order was modest & unaccustomed to exert them in public debate.--note in madison's handwriting. col. mason. this motion was made some time ago & negatived by a very large majority. he trusted that it w^d be again negatived. it w^d be impossible to define the misbehaviour in such a manner as to subject it to a proper trial; and perhaps still more impossible to compel so high an offender holding his office by such a tenure to submit to a trial. he considered an executive during good behavior as a softer name only for an executive for life. and that the next would be an easy step to hereditary monarchy. if the motion should finally succeed, he might himself live to see such a revolution. if he did not it was probable his children or grand children would. he trusted there were few men in that house who wished for it. no state he was sure had so far revolted from republican principles as to have the least bias in its favor. m^r madison, was not apprehensive of being thought to favor any step towards monarchy. the real object with him was to prevent its introduction. experience had proved a tendency in our governments to throw all power into the legislative vortex. the executives of the states are in general little more than cyphers; the legislatures omnipotent. if no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable. the preservation of republican gov^t therefore required some expedient for the purpose, but required evidently at the same time that in devising it, the genuine principles of that form should be kept in view. m^r gov^r morris was as little a friend to monarchy as any gentleman. he concurred in the opinion that the way to keep out monarchical gov^t was to establish such a repub. gov^t as w^d make the people happy and prevent a desire of change. doc^r mcclurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to republican gov^t as not to be sensible of the tyrannies that had been & may be exercised under that form. it was an essential object with him to make the executive independent of the legislature; and the only mode left for effecting it, after the vote destroying his ineligibility a second time, was to appoint him during good behavior. on the question for inserting "during good behavior" in place of ' years (with a re-eligibility)' it passed in the negative, mas. no. c^t no. n. j. ay. p^a ay. del. ay. m^d no. v^a ay. n. c. no. s. c. no. geo. no.[ ] [ ] (this vote is not considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the executive on the legislature, & thereby facilitate some final arrangement of a contrary tendency. the avowed friends of an executive, during good behaviour were not more than three or four, nor is it certain they would finally have adhered to such a tenure, an independence of the three great departments of each other, as far as possible, and the responsibility of all to the will of the community seemed to be generally admitted as the true basis of a well constructed government.)--note in madison's hand, except from the words "nor is it certain" etc., which is in the hand of his wife's brother, john c. payne. on the motion "to strike out seven years" it passed in the negative, mas. ay. c^t no. n. j. no. p^a ay. del. ay. m^d no. v^a no. n. c. ay. s. c. no. geo. no.[ ] [ ] (there was no debate on this motion. the apparent object of many in the affirmative was to secure the re-eligibility by shortening the term, and of many in the negative to embarrass the plan of referring the appointment and dependence of the executive to the legislature.)--note in madison's hand. it was now unanimously agreed that the vote which had struck out the words "to be ineligible a second time" should be reconsidered to-morrow. adj^d. wednesday july . in convention. on motion of m^r l. martin to fix tomorrow for reconsidering the vote concerning "eligibility of the exec^{tive} a ^d time" it passed in the affirmative. mas. ay. con^t ay. n. j. absent. p^a ay. del. ay. m^d ay. v^a ay. n. c. ay. s. c. ay. geo. absent. the residue of the resol. . concerning the executive was postp^d till tomorrow. resol. . that executive sh^l have a right to negative legislative acts not afterwards passed by / of each branch, agreed to nem. con. resol. . "that a nat^l judiciary shall be estab^d to consist of one supreme tribunal", ag^d to nem. con. "the judges of which to be appoint^d by the ^d branch of the nat^l legislature," m^r ghorum, w^d prefer an appointment by the ^d branch to an appointm^t by the whole legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. he suggested that the judges be appointed by the execu^{ve} with the advice & consent of the ^d branch, in the mode prescribed by the constitution of mas^{ts}. this mode had been long practised in that country, & was found to answer perfectly well. m^r wilson, still w^d prefer an appointm^t by the executive; but if that could not be attained, w^d prefer in the next place, the mode suggested by m^r ghorum. he thought it his duty however to move in the first instance "that the judges be appointed by the executive." m^r gov^r morris ^{ded} the motion. m^r l. martin was strenuous for an app^t by the ^d branch. being taken from all the states it w^d be best informed of characters & most capable of making a fit choice. m^r sherman concurred in the observations of m^r martin, adding that the judges ought to be diffused, which would be more likely to be attended to by the ^d branch, than by the executive. m^r mason. the mode of appointing the judges may depend in some degree on the mode of trying impeachments of the executive. if the judges were to form a tribunal for that purpose, they surely ought not to be appointed by the executive. there were insuperable objections besides ag^{st} referring the appointment to the executive. he mentioned as one, that as the seat of gov^t must be in some one state, and as the executive would remain in office for a considerable time, for . . or years at least, he would insensibly form local & personal attachments within the particular state that would deprive equal merit elsewhere, of an equal chance of promotion. m^r ghorum. as the executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the states for proper characters. the senators will be as likely to form their attachments at the seat of gov^t where they reside, as the executive. if they cannot get the man of the particular state to which they may respectively belong, they will be indifferent to the rest. public bodies feel no personal responsibility, and give full play to intrigue & cabal. rh. island is a full illustration of the insensibility to character produced by a participation of numbers in dishonorable measures, and of the length to which a public body may carry wickedness & cabal. m^r gov^r morris supposed it would be improper for an impeachm^t of the executive to be tried before the judges. the latter would in such case be drawn into intrigues with the legislature and an impartial trial would be frustrated. as they w^d be much about the seat of gov^t they might even be previously consulted & arrangements might be made for a prosecution of the executive. he thought therefore that no argument could be drawn from the probability of such a plan of impeachments ag^{st} the motion before the house. m^r madison suggested that the judges might be appointed by the executive, with the concurrence of / at least, of the ^d branch. this would unite the advantage of responsibility in the executive with the security afforded in the ^d branch ag^{st} any incautious or corrupt nomination by the executive. m^r sherman, was clearly for an election by the senate. it would be composed of men nearly equal to the executive, and would of course have on the whole more wisdom. they would bring into their deliberations a more diffusive knowledge of characters. it would be less easy for candidates to intrigue with them, than with the executive magistrate. for these reasons he thought there would be a better security for a proper choice in the senate than in the executive. m^r randolph. it is true that when the app^t of the judges was vested in the ^d branch an equality of votes had not been given to it. yet he had rather leave the appointm^t there than give it to the executive. he thought the advantage of personal responsibility might be gained in the senate by requiring the respective votes of the members to be entered on the journal. he thought too that the hope of receiving app^{ts} would be more diffusive if they depended on the senate, the members of which w^d be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the system, would be so far weakened. m^r bedford thought there were solid reasons ag^{st} leaving the appointment to the executive. he must trust more to information than the senate. it would put it in his power to gain over the larger states, by gratifying them with a preference of their citizens. the responsibility of the executive so much talked of was chimerical. he could not be punished for mistakes. m^r ghorum remarked that the senate could have no better information than the executive. they must like him, trust to information from the members belonging to the particular state where the candidate resided. the executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. he did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one. on the question for referring the appointment of the judges to the executive, instead of the ^d branch mas. ay. con^t no. p^a ay. del. no. m^d no. v^a no. n. c. no. s. c. no. geo. absent. m^r ghorum moved "that the judges be nominated and appointed by the executive, by & with the advice & consent of the ^d branch & every such nomination shall be made at least ---- days prior to such appointment." this mode he said had been ratified by the experience of a years in massachus^{ts}. if the app^t should be left to either branch of the legislature, it will be a mere piece of jobbing. m^r gov^r morris ^{ded} & supported the motion. m^r sherman thought it less objectionable than an absolute appointment by the executive; but disliked it, as too much fettering the senate. question on m^r ghorum's motion mas. ay. con^t no. p^a ay. del. no. m^d ay. v^a ay. n. c. no. s. c. no. geo. absent. m^r madison moved that the judges should be nominated by the executive & such nomination should become an appointment if not disagreed to within ---- days by / of the ^d branch. m^r gov^r morris ^{ded} the motion. by co[~m]on consent the consideration of it was postponed till tomorrow. "to hold their offices during good behavior" & "to receive fixed salaries" agreed to nem: con:. "in which (salaries of judges) no increase or diminution shall be made so as to affect the persons at the time in office." m^r gov^r morris moved to strike out "or increase." he thought the legislature ought to be at liberty to increase salaries as circumstances might require, and that this would not create any improper dependence in the judges. doc^r franklin was in favor of the motion. money may not only become plentier, but the business of the department may increase as the country becomes more populous. m^r madison. the dependence will be less if the _increase alone_ should be permitted, but it will be improper even so far to permit a dependence. whenever an increase is wished by the judges, or may be in agitation in the legislature, an undue complaisance in the former may be felt towards the latter. if at such a crisis there should be in court suits to which leading members of the legislature may be parties, the judges will be in a situation which ought not to be suffered, if it can be prevented. the variations in the value of money, may be guarded ag^{st} by taking for a standard wheat or some other thing of permanent value. the increase of business will be provided for by an increase of the number who are to do it. an increase of salaries may easily be so contrived as not to affect persons in office. m^r gov^r morris. the value of money may not only alter but the state of society may alter. in this event the same quantity of wheat, the same value would not be the same compensation. the amount of salaries must always be regulated by the manners & the style of living in a country. the increase of business can not be provided for in the supreme tribunal in the way that has been mentioned. all the business of a certain description whether more or less must be done in that single tribunal. additional labor alone in the judges can provide for additional business. additional compensation therefore ought not to be prohibited. on the question for striking out "or increase" mas. ay. con^t ay. p^a ay. del. ay. m^d ay. v^a no. n. c. no. s. c. ay. geo. absent the whole clause as amended was then agreed to nem: con: . resol: "that nat^l legislature be empowered to appoint inferior tribunals" m^r butler could see no necessity for such tribunals. the state tribunals might do the business. m^r l. martin concurred. they will create jealousies & oppositions in the state tribunals, with the jurisdiction of which they will interfere. m^r ghorum. there are in the states already federal courts with jurisdiction for trial of piracies &c. committed on the seas. no complaints have been made by the states or the courts of the states. inferior tribunals are essential to render the authority of the nat^l legislature effectual. m^r randolph observed that the courts of the states can not be trusted with the administration of the national laws. the objects of jurisdiction are such as will often place the general & local policy at variance. m^r gov^r morris urged also the necessity of such a provision. m^r sherman was willing to give the power to the legislature but wished them to make use of the state tribunals whenever it could be done with safety to the general interest. col. mason thought many circumstances might arise not now to be foreseen, which might render such a power absolutely necessary. on question for agreeing to . resol: empowering the national legislature to appoint "inferior tribunals," ag^d to nem. con. "impeachments of national officers," were struck out on motion for the purpose. . resol: "the jurisdiction of the nat^l judiciary." several criticisms having been made on the definition; it was proposed by m^r madison so to alter it as to read thus--"that the jurisdiction shall extend to all cases arising under the nat^l laws; and to such other questions as may involve the nat^l peace & harmony," which was agreed to, nem. con. resol. . providing for the admission of new states agreed to, nem. con. resol. . that provision ought to be made for the continuance of cong^s &c. & for the completion of their engagements." m^r gov^r morris thought the assumption of their engagements might as well be omitted; and that cong^s ought not to be continued till all the states should adopt the reform; since it may become expedient to give effect to it whenever a certain number of states shall adopt it. m^r madison the clause can mean nothing more than that provision ought to be made for preventing an interregnum; which must exist in the interval between the adoption of the new gov^t and the commencement of its operation, if the old gov^t should cease on the first of these events. m^r wilson did not entirely approve of the manner in which the clause relating to the engagements of cong^s was expressed; but he thought some provision on the subject would be proper in order to prevent any suspicion that the obligations of the confederacy might be dissolved along with the govern^t under which they were contracted. on the question on the ^{st} part--relating to the continuance of cong^s. mas. no. con^t no. p^a no. del. no. m^d no. v^a ay. n. c. ay. s. c.[ ] ay. geo. no. [ ] in the printed journal, s. carolina--no. note in madison's hand. the ^d part as to completion of their engagements, disag^d to, nem. con. resol. . "that a republican constitution & its existing laws ought to be guaranteed to each state by the u. states." m^r gov^r morris, thought the resol: very objectionable. he should be very unwilling that such laws as exist in r. island should be guaranteed. m^r wilson. the object is merely to secure the states ag^{st} dangerous commotions, insurrections and rebellions. col. mason. if the gen^l gov^t should have no right to suppress rebellions ag^{st} particular states, it will be in a bad situation indeed. as rebellions ag^{st} itself originate in & ag^{st} individual states, it must remain a passive spectator of its own subversion. m^r randolph. the resol^n has . objects. . to secure a republican government. . to suppress domestic commotions. he urged the necessity of both these provisions. m^r madison moved to substitute "that the constitutional authority of the states shall be guaranteed to them respectively ag^{st} domestic as well as foreign violence." doc^r mcclurg seconded the motion. m^r houston was afraid of perpetuating the existing constitutions of the states. that of georgia was a very bad one, and he hoped would be revised & amended. it may also be difficult for the gen^l gov^t to decide between contending parties each of which claim the sanction of the constitution. m^r l. martin was for leaving the states to suppress rebellions themselves. m^r ghorum thought it strange that a rebellion should be known to exist in the empire, and the gen^l gov^t sh^d be restrained from interposing to subdue it. at this rate an enterprising citizen might erect the standard of monarchy in a particular state, might gather together partizans from all quarters, might extend his views from state to state, and threaten to establish a tyranny over the whole & the gen^l gov^t be compelled to remain an inactive witness of its own destruction. with regard to different parties in a state; as long as they confine their disputes to words, they will be harmless to the gen^l gov^t & to each other. if they appeal to the sword, it will then be necessary for the gen^l gov^t, however difficult it may be to decide on the merits of their contest, to interpose & put an end to it. m^r carrol. some such provision is essential. every state ought to wish for it. it has been doubted whether it is a casus federis at the present. and no room ought to be left for such a doubt hereafter. m^r randolph moved to add as an amend^t to the motion; "and that no state be at liberty to form any other than a republican gov^t." m^r madison seconded the motion. m^r rutlidge thought it unnecessary to insert any guarantee. no doubt could be entertained but that cong^s had the authority if they had the means to co-operate with any state in subduing a rebellion. it was & would be involved in the nature of the thing. m^r wilson moved as a better expression of the idea, "that a republican form of governm^t shall be guaranteed to each state & that each state shall be protected ag^{st} foreign & domestic violence. this seeming to be well received, m^r madison & m^r randolph withdrew their propositions & on the question for agreeing to m^r wilson's motion, it passed nem. con. adj^d. end of vol. . transcriber notes: passages in italics were indicated by _underscores_. small caps were replaced with all caps. throughout the document, the oe ligature was replaced with "oe". throughout the document, a tilded m is represented by [~m], and a tilded nn is represented by [~nn]. throughout the document, a single superscripted letter is represented by that single letter preceded by a caret, and more than one superscripted letters are represented by the letters enclosed by curly brackets. thus, the word "y^e" represents a word where the "y" is normal and the "e" is superscripted; and the word " ^{dnd}" represents a word where the " " is normal and the "dnd" is superscripted. in both conventions, it is assumed that a dot appeared below the superscripted letters, since in the original text a dot was often (but not always) present under the superscripted letters. thus, " ^{dnd}" in the present text would represent a normal digit " " followed directly by the superscripted letters "dnd" with a single dot below the set of three letters. the contents of volume i. page incorrectly lists the chronology as starting on page xix, where it starts on page xv. the illustrations have been moved so that they do not break up paragraphs and so that they are next to the text they illustrate. thus the page number of the illustration might not match the page number in the list of fac-similes, and the order of illustrations may not be the same in the list of fac-similes and in the book. this document was filled with errors and inconsistencies in punctuations and hyphenation. for example, usually the word re-eligible is hyphenated, but sometimes it is not; sometimes; reinstated is hyphenated but sometimes it is not; and usually the comma is used as a thousand mark, but sometimes a period is used for that purpose. also, the abbreviations were not uniform (e.g., mas. v. mass.), which were only corrected when it was clear which abbreviation was considered correct at the time printed. another example is the abbreviation for resolution, which was sometimes resol:^n, sometimes resol^n, and sometimes resol.^n sometimes "nem: con." was used, and sometimes "nem. con." was used. the only time errors were corrected was when it was very clear that an error was made, and it was clear how the error should be corrected, and those corrections are listed below. two exceptions are the case where a period is missing at the end of a sentence or missing at the end of an abbreviation, both of which happened so often that those corrections were made but were not listed below. similarly, since the english language has changed so much in the past two hundred years, variations in spelling were only corrected was when it was very clear that an error was made, and it was clear how the error should be corrected. those corrections are listed below. in footnote , two instances of "thier" was replaced with "their". on page , a comma was added after "massachusetts". on page , a comma was added after "new york". on page , a comma was added after "savannah georgian". on page , the semicolon after "for general propositions" was replaced with a period. on page , a quotation mark was added after "be instituted.". on page , "tranquility" was replaced with "tranquillity". on page , "is to to be" was replaced with "is to be". on page , a period was added after " ". on page , a period was added after " ". on page , a comma was added after "the landed". on page , "that" was replaced with "than". on page , "m^r bedford in" was replaced with "m^r bedford, in". on page , "m^r randolph, urged" was replaced with "m^r randolph urged". on page , "against the ." was replaced with "against the ,". on page , "it was formerly practised" was replaced with "it was formerly practised". on page , "wilsons" was replaced with "wilson's". on page , a closing quotation mark was placed after " years." on page , a period was added after " ". on page , "unamimous" was replaced with "unanimous". on page , the quotation mark was removed before "the supreme legislative power". in footnote , "conpensation" was replaced with "compensation". in footnote , "misdemesnor" was replaced with "misdemeanor". in footnote , "where shall be" was replaced with "there shall be". in footnote , "§[ ]" was replaced with "§ .". on page , "comittee" was replaced with "committee". on page , "tranquility" was replaced with "tranquillity". on page , "necessaryly" was replaced with "necessarily". in footnote , "posseses" was replaced with "possesses". on page , "wiliamson" was replaced with "williamson". on page , in two instances, "masst^s" was replaced with "mass^{ts}". on page , a comma was deleted after "m^r sherman". on page , a period was placed after " ". on page , a quotation mark was placed after "behaviour". on page , a comma was placed after "antient greece". on page , a semicolon was replaced with a period. on page , "comittee" was replaced with "committee". on page , "prepondenancy" was replaced with "preponderancy". on page , "elsewth" was replaced with "elseworth". on page , "contstitution" was replaced with "constitution". on page , "honorabl" was replaced with "honorable". on page , "occcasion" was replaced with "occasion". on page , "n j." was replaced with "n. j.". on page , "teusday" was replaced with "tuesday". on page , "hamshire" was replaced with "hampshire". on page , "hamshire" was replaced with "hampshire". on page , "inhabts" was replaced with "inhab^{ts}". on page , "brethern" was replaced with "brethren". on page , "brethern" was replaced with "brethren". on page , "mississpi" was replaced with "mississippi". on page , "mard" was replaced with "m^d". on page , "s." was replaced with "s. c.". on page , "hamshire" was replaced with "hampshire". on page , "weekest" was replaced with "weakest". on page , "orginal" was replaced with "original". on page , the quotation mark was removed before "or in which the harmony". throughout the document, there are instances of missing quotation marks, but it is unclear where quotation marks should be added. in those cases, the quotation marks were left as-is. throughout the document, "maddison" was replaced with "madison", and "sharman" was replaced with "sherman". although the document refers more often to a mr. patterson, instead of mr. paterson, some external sources indicate that the delegate's name was mr. paterson. both spellings were retained as-is.