S^5^S5^^i^S^^^^^ ONAC I STORY, AND 'oliticaijevelopemelnt OF THE UNITED States. SIMON STERNE. ■ LIBRARY OF CONGRESS.- ®|ap. - y3}a|rii!^i ;|ij,,_ ; Shelf Jl\£-^b - - r^83 DOTTED STATES OF AMERICA. CONSTITUTIONAL HISTORY AND POLITICAL DEYELOPMENT OF THE UNITED STATES. BY SIM0:N" STERNE, OF THE NEW YORK BAR. 24 1832 OFWASHlV*G;'S-^ CASSELL, PETTEE, GALPEST & CO., New York, London and Paris. K2¥fc Copyright, 1882, By O. M. DUNHA.M. PRESS OF J. J. LITTLE & CO., MOS. 10 TO 40 ASTOR PLACE, NEW YORK. PEEFACE. The request addressed to me by the publishers to write a popular book on the Constitution of the United States, naturally led me to inquire whether, in the multiplicity of works on this, as on every other conceivable subject touching large popular interests, there is any room to say some- thing novel, or put into a novel form the old matter which has been said and written over and over again by abler tongues and pens than mine. It occurred to me that a sketch of the Constitution of the United States as it stands in text, and as it is interpreted by the Supreme Court, accom- panied by a history of the political controversies which resulted in the formation of and chang^es in that instrument, together with the presentation of the actual situation of political parties and ques- tions, which, in their turn, may produce constitu- tional changes, would, if given within a limited space, present such a view of the institutional condition of the United States as to justify the book to the student of political history. At no time in the history of the United States have its institutions awakened such widespread IV PREFACE. and friendly interest as at present. It is true that during the great Civil War, from 1861 to 1865, the news from the contending armies was read with greater avidity than that which is awakened by items of a commercial, agricultural and indus- trial character, which now in the main fill the col- umns of the press ; but a far larger proportion of the human family are more largely interested in these very items than then were in our military contests, as since that period the United States have become the largest contributor to the food supply of the world. The period of the history of our country, begin- ning with the close of the war, is a most interest- ing one to the student of political institutions. European statesmen doubted and many thoughtful Americans at times had misgivings whether our institutions could bear the strain of the problems which the close of the war placed before the Na- tional Government. Every war issue has been met and successfully solved. The ills of an improperly laid and collected revenue, a bad civil service, and mischievous methods of taxation and corrupt munici- pal governments still exist, but not one of these evils, properly speaking, can be said to date from the war period, but the roots of them were planted many years before the slavery agitation was at its PEEFACE. V height. Nigh a million of men, who in the North and South were under arms, at the close of the war were disbanded and absorbed again by the agricul- tural and industrial enterprises of the country, and no appreciable increase of crime or lawlessness was visible in the community. The Government re- turned to a sound currency from a war currency of depreciated paper, notwithstanding the fact that great masses believed the return to specie payment to be the road to ruin of individual enterprise. A large proportion of the debt created by the war has already been paid off, and the remainder refunded, by the establishment of a financial credit second to none in the world, at so low a rate of interest, that the burden of the debt, taking into consideration the increase of population, is but a third of what it was a-t the close of the war ; the revenue of the country is so far in excess of its financial needs, that but for the ingenuity of poli- ticians to devise jobs to absorb public funds, the great debt of the United States, although the most recent of the great governmental debts of the world, would have been, and may, with an improved civil service and methods of representation, still be the first to be paid off. All these evidences of elasticity of institutions enabling us successfully to meet unlooked for VI . PREFACE. emergencies in our country's needs, have from time to time elicited the admiring expressions of pub- licists the world over, and caused them more closely to study institutions which, while they on the one hand secure individual freedom of action, seem not to be devoid of the power to produce such far reaching results as are supposed to be the special advantage of the more paternal forms of government. To attribute the whole of the prosperity of the people of the United States to their institutions would be puerile in the extreme. Any constitu- tional form of government securing freedom of action in dealing with its practically exhaustless resources and advantages, among which may be enumerated vast treasures of mineral wealth, fruit- ful soil and beneficent climate, coupled with a geographical situation which almost wholly pre- vents foreign complications, would have made for the inhabitants of the vast domain known as the United States, a home filled with comfort, luxury and wealth, and have attracted seekers of fortune from every quarter of the globe. That the institutions of the United States did, however, largely favor the growth of national wealth cannot be denied. !N"ot to speak of other advantages afforded to individual enterprise, the PKEFACE. VU entire absence of any inter-state Custom-liouse from Maine to Florida, and from tlie Atlantic to the Pacific coast, lias given tlie inestimable and incal- culable advantages of free-trade in its most absolute form over a larger surface and among more varied conditions of an industrial and agri- cultural character than exists elsewhere on the face of the globe. While it is true that in more recent years (since 1846) European nations have let down the barriers of protection towards each other by treaty and more liberal legislation, yet in the United States the practical advantage of the sys- tem of free-trade commenced almost synchronously with the teaching of the doctrine by Adam Smith in 1776. That the errors of protection still govern the legislation of the United States in their relations with foreign countries, and to a degree counter- balance in evil the benefits thus conferred, is true only to the limited extent that foreign commerce bears to a nation's internal exchanges ; and as the proportion of foreign commerce is at best not one to twenty of domestic interchange, the benefits conferred by the freedom of exchange within the United States, must have been out of all proportion greater than the injury inflicted by the protective system inaugurated in 1861, which is, if the signs of the times do not mislead, fast crumbling away. Vlll PEEFACE. Tliat there is ample scope for the- political re- former, and much material to work upon in the United States as elsewhere, and in some respects more than elsewhere, will in the following pages be frankly admitted. The methods of legislation are wofuUy defective, primitive and corrupt ; the exist- ing system of representation is faulty, inharmonious and unphilosophical ; the tariff legislation, a mass of injustice and incongruities, resulting in a collec- tion of revenue at the highest possible expense to the consumer. Municipal government is a prey to jobbery and venality of every description. The Civil Service goes by favor, not by merit, and polit- ical parties divide upon all conceivable questions except those of principle, and unite in almost every attack upon the public purse or against personal rights in favor of monopoly interests. But the one crowning merit of American institutions may be summed up in the fact that as an honest, earnest, and persistent appeal to the good sense of the people has in the past caused a spirit to arise able to cope with more formidable evils, these defects will in all probability be remedied by deliberately formulated constitutional changes adequate to extirpate them. Simon Sterne. 80 West 59tli Street, New York. CONTENTS. CHAPTER I. P^GE COKSTITUTIOI!T OF THE UNITED STATES 1 CHAPTER n. The Legislative Depahtment , 27 CHAPTER in. The Executive Poweb, 65 CHAPTER IV. The Judicial Power 96 CHAPTER V. The Post-Constitutioistal Histoky op the United States 145 CHAPTER VI. Cukrekt Questions Productive op Changes in the Constitution 333 CHAPTER VII. The State Constitutions : The Changes Therein, AND their Development 250 ix X CONTENTS. APPENDIX. PAGE Abticles of Confedekation and Perpetual Union between the states 275 Constitution of the United States 288 Articles in Addition to, and Amendment of, the Constitution of the United States 303 Index 309 CONSTITUTIONAL HISTORY OF THE United States, CHAPTEK I. CONSTITUTION OF THE UNITED STATES. It would far transcend the limits of a book intended for popular purposes, to enter into an elaborate investigation of all the causes which contributed to the creation of the United States Constitution, or to trace in detail the reasons why the constitutions of the American States all came to be written documents, instead of being unwritten and elastic principles of government, like the Consti- tution of Great Britain. Without much sacrifice of space, however, a few salient elements may prop- erly here have attention drawn to them. The powers of the governments of the English colonies in America, anterior to the Revolutionary war, beginning in 1775, were all written instruc- 1 2 CONSTITUTIONAL HISTOEY. tions, accompanied by cliarters and grants of title and formulated frameworks of government. The English colonists were thus accustomed to written documents as the source of governmental power, and the meaning of their provisions was the test of governmental limitations. At an early date in the history of the origin and settlement of Virginia no taxes were to be levied by the Governor without the consent of the Gen- eral Assembly, and when raised they were subject to an appropriation by the Legislature of the colony. The Plymouth colonists, who were the settlers of New England, acted originally under a form of voluntary compact ; but their descendants found it difficult to obtain proper respect for governmental authority under this voluntary form of association, and in January, 1629, by a patent from the Council under the charter of King James of 1620, obtained sanction and authority for the laws which they subsequently enacted. The fact that this charter lacked royal assent was the ex- cuse for its withdrawal by Charles II., and it was not until 1691, under the charter granted by William and Mary, that unquestioned royal authority was granted for the laws enacted by the New England colonists. At an early period in the history of the English CONSTITUTION OF THE UNITED STATES. 3 colonies in America the rights of the inhabitants to personal liberty were based upon Magna Charta and the Declaration of Eights ; and the common law, except in so far as it may have been modified by special charters, was the prevailing law of the land. The principle upon which the common law was thus recognized as the prevailing law, was that it was the birthright and inheritance of every emi- grant in so far as it was applicable to his condition. There were three classes of government, instituted in America by the English crown. One was the provincial establishments, in which the Governor was made supreme ; under this form of govern- ment New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia were adminis- tered. The second was called proprietary govern- ments, which embraced grants to individuals with governmental powers ; under this form, in their earliest history under the English crown, Mary- land, Pennsylvania, and Delaware were constituted. The third was charter governments, of which Massachusetts was the leading example, and Con- necticut and Rhode Island as derivative forms from the Massachusetts grant. Under all these forms, in process of time, local Legislatures were estab- lished, which drew to themselves a considerable 4 COl^STITUTIONAL HISTOEY. proportion of the governmental power whicli had originally been parceled out to' the governors of the colonies. In both the proprietary and charter governments, the colonists, during all the early struggles with the crown, insisted that they had an inherent right of representation ; the crown, on the other hand, insisted that it was a mere privilege, held at its will. In some of the colonies the laws were required to be sent to the King for his approval ; in others, they were not so required ; but the general feeling on the part of the colonists of their right to make their own laws is best expressed in the declaration drawn up by the Congress of the nine colonies assembled at New York in October, 1765, wherein they are made to say, " that they owe the same allegiance to the crown of Great Britain that is owing from his subjects born within the realm, and all due subordination to that august body, the Parliament of Great Britain ; that the colonists are entitled to all the inherent rights and liberties of his natural-born subjects within the kingdom of Great Britain ; that it is inseparably essential to the freedom of a people and the undoubted right of Englishmen that no taxes be imposed upon them but with their own consent, in person or by their representatives ; that the people of the colo- nies are not, and from their local circumstances COlSrSTITUTIOX OF THE UNITED STATES. 5 cannot, be represented in tlie House of Commons ; that the only representatives of the colonies are persons chosen by themselves ; that no taxes could be constitutionally imposed upon them but by their respective Legislatures ; that the supplies of the crown being free gifts of the people, it is unreason- able and inconsistent with the principle and spirit of the British Constitution for the people of Great Britain to grant to His Majesty the property of the colonies ; and that trial by jury is an inherent and invaluable right of every British subject in the colonies." The united colonies admitted the right of Par- liament to pass general acts for the amendment of the common law to which the colonies were sub- ject, or general acts for the regulation of trade and commerce throughout the whole empire, but de- nied the right of Parliament to pass special acts applicable only to a part of His Majesty's subjects, to wit, the inhabitants of the colonies, and more particularly special acts imposing taxation. The Stamp Act being such a special act, the colonies, in 1774, at the invitation of Massachusetts, assem- bled in September of that year at Philadelphia in a Congress, and thus inaugurated, for the first time in the history of the English-American colonies, a general deliberative body, deriving its authority 6 COjS^STITUTIONAL histoey. from the people of tlie colonies alone. This Con- gress was the revolutionary government, which continued to exercise power during the whole of the revolutionary struggle, and was only super- seded by the Articles of Confederation, which came into existence during the latter part of the war of Independence. The Continental Congress avoided creating jealousy between the several col- onies, by placing them all, independently of size or numerical strength, on the same footing; inasmuch as each combined delegation from each separate colony had but a single vote. The second session of this Congress of dele- gates met in May, 1775, immediately after the opening of the war of Independence by the battles of Lexington and Concord. This Congress then assumed supreme direction of the war of Inde- pendence, and was, to all intents and purposes, the gover:!;iment of the united colonies after the 4th of July, 1776, when the Declaration of Independ- ence was promulgated to declare their sever- ance from the British crown, to make treaties with foreign governments, and to establish a nation. They appointed the officers of the army; they pledged the credit of the united colonies for the payment of the expenses of military organization ; they apportioned the amounts which each State COKSTITUTIOIS^ OF THE UKITED STATES. 7 was to pay toward the general expenses ; they adopted rules for tlie government of the army and navy ; they granted commissions by letters of marque to capture the vessels of Great Britain; and exercised, in short, substantially all the powers which subsequently, first by the Articles of Confederation and then more fully by the Con- stitution of the United States, were ceded by the several States to the general or national government. The severance of the colonies from Great Britain, both by the facts of the war and by the formal Declaration of Independence, made each particular colony a sovereign and independent State, except in so far as it might voluntarily con- sent to subject its sovereignty, by cession, to the general government of all the States. Although this is true of the original thirteen States, it is scarcely true of the remaining twenty-five, as their very existence as States depended entirely upon the fiat of the Federal Congress. Several of the States, between the breaking out of the War of Independence and the formation of the Articles of Confederation, passed constitutions of their own, in which they formally declared their in- dependence from the mother country, and reenacted such parts of Magna Charta and the Declaration as were applicable to their condition, together 8 COT^STITUTIOJSTAL HISTOEY. with statements of the rights of man expressive of the wider views and the more revolutionary prin- ciples which had found acceptance with the colon- ists from the freedom of movement and independ- ence of character incident to and formed by American colonial conditions. These views, as to forms of expression, were very considerably influ- enced by the theoretical teachings of the French Encyclopaedists, whose works, to no small degree, contributed to quicken the thoughts and methods of expression of Jefferson, Adams, Madison, and Hamilton, who were the leading minds of the Con- tinental Congress. Yirginia, New Hampshire, New York, and South Carolina had, before 1778, passed constitutions for the people of their States as sovereignties, and subsequently every State of the Union, after the Articles of Confederation were formed, by a prop- erly delegated convention of its people, put in shape, and, by subsequent submission to the people, caused the passage of organic laws, called constitu- tions, by which the general framework of the institutions under which they were living was mapped out, the division of Executive, Judicial, and Legislative functions clearly defined, and the rights inherent in the people beyond governmental control, expressed and insisted upon. COlSrSTITUTIO]!^ OF THE UNITED STATES. 9 The revolutionary Congress, recognizing the fact that its existence would end with the struggle, and acting on the assumption that the struggle would result favorably to the colonies, appointed in June, 1776, a committee composed of one member from each colony, to consider the form of Articles of Con- federation to be entered into between the colonies, as a permanent form of government. These Articles of Confederation formed the subject of debate in Congress until the 15th of November, 1777, when they were adopted. A circular letter was prepared to the several States requesting authority from the States to authorize their delegates to Congress to subscribe the Articles of Confederation. The States proposed many amendments, which wereall rejected by Congress, because Congress deemed it inexpedi- ent to accept any amendments for fear of the delay. A draft was thereupon prepared and sent to all the States on the 26th of June, 1778, and was ratified by them all, except Delaware and Maryland, which respectively withheld their ratifications, the one until 1779 and the other until 1781. From the moment of the organization of govern- ment under the Articles of Confederation, the question of the ownership of the lands which theretofore had belonged to the crown, in the several States, was one irritating subject between 10 COIN^STITUTIOITAL HISTOEY. the States, and tlie not-clearly defined boundaries between the States was another. The only way to overcome the difficulty first named, was to conform to the suggestion of Congress, that the several States should cede the crown lands within their borders to the general government, as lands belong- ing to the people at large. The name of the con- federacy was the United States of America. Under it the following powers of government were secured to the nation and ceded by the States : Congress was empowered to determine on peace or war with foreign nations, of sending and receiving ambassadors, making treaties of commerce; but each State was free to levy whatever import or export duties it saw fit, to determine upon the rules of capture by land or sea, appointing courts for the trial of cases of captures on high seas and piracy. In all cases of dispute between the States, if the agents of the States could not by joint con- sent agree upon judges to try their causes as they might arise. Congress was empowered to constitute a court by a most cumbersome method. Three persons were appointed from each State, and then the disputing States struck one each, until thir- teen remained, from which number Congress drew out seven or nine by lot, a majority of which de- termined the cause finally. CONSTITUTIOjN^ of the UiSHTED STATES. 11 Congress was also empowered to regulate the coinage, to afford postal facilities, and to appoint the officers for the land and naval forces. During the recess of Congress, its powers were conferred upon a committee of the States — one from each State — with the limitation, however, that upon almost every important question it required the assent of nine States before the measure could become operative as a law. Under these Articles of Confederation the treaty of peace with England was concluded and the American nation was governed until the final adop- tion of the Constitution of the United States. The main defect of the Articles of Confederation was, that although powers sufficiently adequate to cre- ate a government were ceded, there was no power to raise revenue, to levy taxes, or to enforce the law, except with the consent of nine States ; and although the government had power to contract debts, there were no means by which to discharge them. The government had power to raise armies and navies, but no means wherewith to pay them, unless the means were voted by the States them- selves ; they could make treaties with foreign pow- ers, but had no means to coerce a State to obey such treaty. In short, it was a government which had the power to make laws, but no power to pun- 12 CONSTITUTIONAL HISTOEY. ish infractions thereof. Washington himself said . *' The Confederation appears to me to be little more than the shadow without the substance, and Congress a nugatory body." Chief Justice Story, in summing up the leading defects of the Articles of Confederation, says : " There was an utter want of all coercive authority to carry into effect its own constitutional measures ; this of itself was sufficient to destroy its whole efficiency aS a superintendent government, if that may be called a government which possessed no one solid attribute of power. In truth, Congress possessed only the power of recommendation. Congress had no power to exact obedience or pun- ish disobedience of its ordinances ; they could neither impose fines nor direct imprisonments, nor divest privileges, nor declare forfeitures, nor sus- pend refractory officers. There was no power to exercise force." This absence of all coercive power was most directly and injuriously felt in the financial adminis- tration of the nation. The requisitions of Congress for money were disregarded at will. The conse- quence was, that the treasury of the United States was empty ; the credit of the confederacy was gone ; and while public burdens were increasing, public faith was prostrate. Even the interest of the pub- COl^STITUTION OF THE UT^ITED STATES. 13 lie debt remained unpaid, and tlie bills of credit that had been issued during the Revolution and immediately subsequent thereto sank to so low a value that the public debt was substantially- repudiated. As an illustration of this fact, it may be remarked that of the requisitions for the pay- ment of the interest upon the domestic debt from 1782 to 1786, which amounted to more than six million dollars, only a million was paid. Each State saw fit to exercise its sovereign power to regulate commerce with the other States, and this created dissensions between the States ; so that in 1784 the national Congress formally declared its inability to maintain the public credit or to enforce obedience to its own dictates, and from time to time, up to 1787, declared in various public ordinances its inability even to enforce its own treaty power. This state of things became intolerable, and was, by the leading men who had guided the colonies through the struggles of the War of Independence and aided in the formation of the Articles of Con- federation, recognized as a mischief which would result in the disintegration of the union of the States. Hence an active propaganda was instituted in all the States for the preparation of more perfect articles of union and the creation of a government representing the States as a nation. In February, 14 CONSTITUTIONAL HISTORY. 1787, a resolution was adopted by Congress recom- mending a convention in Philadelphia of delegates from the several States for the purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such altera- tions and provisions therein as should, when agreed to in Congress and confirmed by the sev- eral States under the Federal Constitution, be ade- quate to the exigencies of government and the preservation of the Union. The convention met, and, after very full consid- eration, determined that amendments to the Ar- ticles of Confederation would be inadequate for the purposes of the government, and prepared a new Constitution, the ratification of the conventions of nine States to be deemed sufficient for the estab- lishment of the constitution between the States so ratifying the same. This Constitution was submitted to the several States, and was ratified by eleven of them. North Carolina and Ehode Island standing out, the former until November, 1789, and the latter until May, 1793. Although the government was organized by the ratification by eleven States, the ratification by all the States made that instrument the supreme law of the land, and that Constitution, with its amend- ments, from that time forth, remained the chart CO]S^STITUTIO]S' or THE UNITED STATES. 15 under whicli the government of the United States has been administered in all its foreign and inter- state relations. In the construction of this chart of government it must be remembered that the government of the United States is one of delegated powers ; that in theory the States possess all the sovereign powers not delegated, either expressly or by necessary implication, to the general government, and that the vast body of law, known as constitutional law, in the United States, deals first with the in- terpretation of these delegated powers to the gen- eral government, and secondly with the reserved rights of the States under their respective State constitutions, and the reserved rights of the peo- ple never delegated either to the State or to the general government. The history of the Constitution shows, first, that the compact between the States v/as intended to be indissoluble. The Articles of Confederation in terms said so, and when they were found inade- quate for the purpose, the Constitution was framed, "to form a more perfect union." Likewise the States are indestructible. The Constitution is a compact of States, and the States are, therefore, an integral part of the nation ; without them there is no compact which can bind other States. This has 16 COJS^STITUTIOJSTAL HISTOEY. been decided in a recent case (Texas vs. White) by the Supreme Court of the United States. The Constitution makes the national government, in all matters delegated to it, the supreme power of the land, and not only is it the supreme power in all such matters wherein the Congress of the United States has, in pursuance to constitutional authority, acted, but it is the supreme authority whenever it chooses to take up a subject which is delegated to the government of the United States, although the States, in the absence of such action on the part of the general government, have seen fit to pass laws of their own to meet the emergencies. A notable instance of this is bankruptcy. From time to time bankruptcy laws have existed in the United States, enacted by the general Congress, and have been repealed. During the period of re- peal the various States have enacted insolvency and bankrupt laws which, on the instant when the general government again took up the subject by passing a new bankruptcy law, were all ipso facto re- pealed and remained so repealed until the national law was in its turn repealed. The Territories of the United States have no re- served rights. They can be dealt with by the gen- eral government in such way as it may see fit, and not until a Territory becomes sufficiently populous coxstitiitio:n" of the ui^ited states. 17 to be admitted as a State does it become clothed with all the reserved rights of States, and when so clothed it is as sovereign and independent a community as though it had been one of the origi- nal thirteen States which, had entered into the compact. Amendments to the Constitution are provided for in two ways. One, by giving to Congress the initiative by passing amendments by a vote of two- thirds of both Houses and subjecting such amend- ments to the ratification of the Legislatures of the several States, to be so ratified by three-fourths of the several States, or, by conventions of three- fourths thereof, as one or the other of the modes of ratification might be proposed by Congress. Another mode provided by the Constitution is, to call a convention for proposing amendments on the application of the Legislatures of the several States ; the work of which convention must be equally ratified by the Legislatures of three- fourths of the States or by conventions in three- fourths thereof. The only limitation upon the power of amendment of the Constitution is, that no State, without its consent, shall be deprived of its equal suffrage in the Senate. This provision was deemed necessary in order to prevent an amend- ment by the more powerful and larger States which 18 COIS^STITUTIOI^AL HISTOET. should deprive the few smaller States, such as Ehode Island or Delaware, o*f their equal repre- sentation in the Senate. This power of amendment takes away all excuse for revolution, because the in- strument which is the supreme law of the land pro- vides a method by which the popular will can act upon it so as to remedy or remove any existing or supposed abuses. The general provisions of the Constitution which do not fall under the divisions of Legislative, Ju- dicial and Executive functions, are enumerated in the fourth and sixth articles of the Constitution of 1789, the amendments of 1789, and 1790, 1794, 1798, 1804, and what are known as the thirteenth, fourteenth and fifteenth amendments, which were the result of the Civil War. These provisions in general terms provide that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ; that the citizens of each State shall be en- titled to the privileges and immunities of the citi- zens of the several States ; that persons who are fugitives from justice shall be delivered up to the State having jurisdiction of the crime ; a pro- vision by which persons who were held to labor in one State were required to be delivered up if they fled into another for the purpose of escap- COIS^STITUTION OF THE UJVTITED STATES. 19 ing from such, servitncle ; a section allowing States to be admitted into tlie Union, but prohibiting Con- gress from creating new States from existing States without the consent of the latter ; and that the United States shall guarantee to every State in the Union a republican form of government, shall pro- tect each against invasion, and on the application of the Legislature, or of the Executive of a State when the Legislature cannot be convened, protect it from domestic violence. The first amendments which were deemed neces- sary to the Constitution after its formation were proposed almost immediately after its adoption, and were rather in the nature of after-thoughts better to protect th3 rights of individual liberty. The first article of the amendments provided that Congress shall make no law respecting the estab- lishing of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to as- semble, or to petition the government for a redress of grievancos. The second one provides that a well- regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. The third, that no soldier shall in time of peace be quartered at any house without the consent of the owner, and 20 COIiSTITUTIO]SrAL HISTOET. in time of war, in a manner only to be prescribed by law. The fourth, the right of the people to be secure in their persona, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirma- tion, and particularly describing the place io be searched and the person or things to be seized. The fifth, that no person shall be held to answer for a capital or otherwise infamous crime unless upon a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, of the militia when in actual service in time of war, or public danger ; and that no person shall, for the same offense, be put twice in jeopardy of life or limb, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, and that private property shall not be taken for public use without just compensation. The sixth is to the effect that in all criminal prosecu- tions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been pre- viously ascertained by law, and to be informed of the nature and cause of the accusation, to be con- COl^STITUTION OF THE UNITED STATES. 21 fronted with, the witnesses against him, and to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. The seventh, that in all suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. The eighth is to the effect that exces- sive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted. The ninth, to prevent any misconstruction by the courts, that rights not specially reserved by the people are therefore withheld from arbitrary power, specifically says that the enumeration in the Con- stitution of certain rights shall not be construed to deny or disparage others retained by the people. The tenth, that powers not delegated to the United States by the Constitution, or prohibited by it to the States are reserved to the States respectively or to the people. The eleventh was proposed in Sep- tember, 1794, by Congress, and was ratified in January, 1798, and is to the effect that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. The force and effect of the twelfth amendment, which was adopted in 1804, in rela- 22 COI^STITUTIOI^AL HISTORY. tion to tlie election of tlie President of tlie United States, will be considered in connection with the creation and powers of the Executive department of the government. The thirteenth, fourteenth and fifteenth amendments were the result of the Civil War, 1861-1865. Their declared object, pur- pose and meaning were forever to abolish the sys- tem of slavery or domestic servitude, and to prevent thereafter all class distinctions or inequalities before the law arising from color, race, or previous condition of servitude. A stringent provision was made to prevent persons from holding office who had been in office and had taken an oath to sup- port the Constitution of the United States prior to the rebellion, but who, notwithstanding such oath, were engaged subsequent thereto in insurrection or rebellion. It was provided, however, that Congress, by a vote of two-thirds of each House, might remove such disability. A provision was made to pre- vent the validity of the public debt of the United States from being questioned, and to prevent the United States, or any State, from assuming any debt or obligation incurred in aid of insurrection or rebellion against the United States, or recognizing any claim for the loss or emancipation of any slave, and that all such debts and obligations and claims shall be held illegal and void. The representative cojS^stitutioit of the ui^ited states. 23 system, by the representation of the majority in geographically defined districts, was adopted as the cardinal and underlying principle of creating the law-making power under the Constitution of the United States, and of the several States, and wher- ever Congress is required to act, or the people of the several States are required to act, through their Legislatures, the meaning thereof is that such congressional action or legislative action shall be done by a mere majority, unless otherwise declared. In considering also the provisions of the Consti- tution, it must be borne in mind that they are largely the result of compromise. The jealousy of the States of each other was the cause of the threatened dissolution of the Confederacy under the system of government which prevailed in the United States of America from the close of the war in 1783 until 1789, the year of the adoption of the Constitution of the United States. When, in consequence of the pressure that was created by the evident inadequacy of the Articles of Confederation to create a permanent form of government, the people of the United States called a convention to consider provisions for the forma- tion of a more perfect union, the members of the convention were, more or less, under the influ- ence of this local jealousy, and the organization of 24 CONSTITUTIONAL HISTOEY. the Senate, giving to eacli State two members, independent of the numbers, wealth, or position of the State, was intended to placate the smaller States and to make them feel that, although nnder a system of representation dependent upon nu-' merical strength they would lose power in the lower House, they would still, by the veto power that the upper House had over the legislation of the lower, preserve their dignity as States and prevent the possibility of the passage of laws detrimental to their interests. Thus, it happens, for instance, that the new State of Colorado, although having two Senators, has but one Eepresentative, its numerical strength being just sufficient for a single Eepresentative in the House of Representatives ; yet its admission as a State entitles it to equal position in the Senate with the State of New York with its five millions of inhabitants. From an early period in the history of the United States, down to the commencement of the Civil War, the general theory of whether the Constitu- tion of the United States was a compact between the several States, or was a framework of govern- ment which did not admit of the idea of compact, was hotly disputed. On the one hand it was con- tended that, as there is no common umpire or tribunal authorized to decide as a last resort upon COISrSTITUTION OF THE UNITED STATES. 25 the powers and interpretation of the Constitution, each State had a right to construe the compact for itself. Such was the resolution of Virginia as earlj as 1829 ; such was the resolution of South Carolina when it attempted to nullify the tariff legislation of the United States in 1831. But this theory is refuted by the very wording of the Constitution itself, which says that it is ordained and established by the people of the United States to create a more perfect union ; and, as all the States were parties to it, no one State could construe it against the rights of the other States. Such an interpretation is against the theory of government itself, which pro- hibits any State which has once delegated its powers to a sovereign, from reasserting such power, with- out the consent of such sovereign ; and leads to the reductio ad absurdum of claiming the possibility of carrying on a government which would give to each member thereof the right to deny the very existence of the government itself whenever it feels the pressure of the governmental hand. On all constitutional questions the Constitution itself appointed a tribunal which was to interpret and expound its provisions, and, therefore, no province was left to the Legislatures of the various States that for an instant admitted their interven- tion to determine the limit, the extent, and the 2 26 CONSTITUTIOlSrAL HISTOEY. functions of tlie United States Government. The Supreme Court of the United States was ,tlie final and only interpreter of all the powers con- ferred by the various States upon the general government. The Civil War of 1861-1865 origin- ating from the desire to preserve slavery on the part of the Southern States, uninterfered with by the sentiments or feelings of the Northern States, and also to maintain the doctrine of State rights, resulting disastrously to the South, took that branch of constitutional controversy out of Ameri- can politics. Since the thirteenth, fourteenth, and fifteenth amendments the political fact has been established that the United States Government is indissoluble, and that the Constitution of the United States created not a partnership between the States, but a form of government for the States, from which such States could not withdraw; and that, instead of remitting questions between the States to the arbitrament of the sword, they had to find peaceful solution after argument before the Supreme Court of the United States, or by agitation for amendment of the Constitution itself. CHAPTEE II. THE LEGISLATIVE DEPAKTMENT. We have thus far, in our examination of the pro- visions of the Constitution of the United States, shown that the reason why the Articles of Confed- eration failed to accomplish their purpose to create a nation, was because the national authority, as created by such Articles, was stripped of the ele- ment of sanction. There was, in the first place, no supreme executive power ; in the second place, the Federal Congress had simply power, until the adoption of the Constitution of 1789, to pass laws without enforcing them, and they were there- fore in the nature of mere recommendations. The clear and unequivocal surrender of power on the part of the States of certain well-defined govern- mental functions to the national government, and the general transfer of power involved in that grant of the Constitution which says " that all legislative power by the Constitution granted shall be vested in a Congress of the United States which shall con- 27 28 COI^STITUTIONAL HISTOEY. sist of a Senate ancLHouse of Representatives," as in- terpreted by the Supreme Court of tlie United States, gives to the national Legislature power to pass laws on all subjects of which the United States has jurisdiction either by direct grant or by implication. The members of the House of Representatives are composed of members chosen every second year by the people of the several States, and the qualifica- tions requisite for electors are the same as those which the State constitutions require for electors of members in the same branch of the respective State Legislatures. The qualification of representatives are that each representative shall have attained the age of ' twenty-five years, that he shall have been seven years a citizen of the United States ; and that he be an inhabitant of the State in which he shall be chosen. Under the Constitution of 1789 the rep- resentatives as well as direct taxes were apportioned among the several States according to the number of their inhabitants, which included all free persons and those bound to service for a term of years ; three-fourths of all other persons, which of course meant slaves, and excluded Indians not taxed. The first enumeration after the adoption of the Constitu- tion was to be made within three years after the first meeting of the Congress, and thereafter every ten years. The number of representatives then fixed v/as THE LEaiSLATIYE DEPAETMENT. 29 to be one for every thirty thousand, but each State was to have at least one representative. This provi- sion was subsequently chttngecl by the fourteenth amendment, to the requirement that the represen- tatives should be apportioned among the several States according to their respective numbers, count- ing the whole number of persons in each State, ex- cluding Indians not taxed ; and that when the right to vote at any election for the choice of electors for President and Vice-President of the United States, of Kepresentatives in Congress, of the Executive and Judicial officers of a State, or members of the Legislature thereof, is denied to any one of the male inhabitants of such State, being twenty-one years of age and a citizen of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the num- ber of male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. The object of this amendment, which was adopted in 1866, was to prevent the slave States, which theretofore had been in rebellion, from abrido-ino^ or limitins^ the rigjht of su&asfe on the part of the negroes for State offices, without incur- ring the penalty of diminishing thereby their rep- resentation in the House of Representatives of the 30 co:nstitutional histoey. United States. Under the Constitution as it origin- ally stood the States were at liberty to determine as they saw fit the manner in which these repre- sentatives were to be elected within the States, or Congress was at liberty to legislate upon the sub- ject in furtherance of the constitutional provision as to representation. Congress did from time to time apportion the num- ber of representatives to each State in conformity with the census of each decade, so that in 1872, under the census of 1870, an apportionment was made by which the number of the members of the House of Representatives was fixed at 292. As the population of the United States from time to time increased. Congress likewise by law advanced the limitation of the number of persons who were entitled to single representatives, in order that the popular body should not become too numerous for purposes of deliberation ; so that under the census of 1870, by act of 1872, each 130,000 of the population is entitled to one representative. By the act of 1872 making such apportionment, following the preceding acts of apportionment, it is required that Representatives to Congress shall be elected by districts composed of contigu- ous territory, containing as nearly as practicable an equal number of inhabitants, and equal in THE LEGISLATIVE DEPAETMEl^T. 31 number to the number of representatives to wliicli tlie State in which they lie may be entitled in Con- gress, no one district electing more than one rep- resentative. This is followed by a provision that as to the then immediately succeeding Congress the additional re]Dresentatives to which each State should be entitled under the apportionment might, until otherwise provided for by the Legislature, be voted for upon a ticket at large. The only national requirement, therefore, as to election of representa- tives is, that they shall be elected by contiguous territories, one from each district. The manner in which the apportionment is to be made, the way in which districts are to be apportioned, the lines forming such districts, are all left to the legislative bodies of the several States. The apportionment act of 1872, which is the last apportionment act in force, provides the Tuesday after the first Monday in November of every second year as the day of election in all the States and Territories for rep- resentatives and delegates to the Congress of the fourth day of March next thereafter. The time for holding elections in any such district or territory for representative or delegate to fill the vacancy is prescribed by the laws of the several States and Territories. The vote for representatives is re- quired under the provisions of Congress to be by 32 COI^STITUTIOj^AL histoey. ballot. The compensation of members of Congress is $7,500 a year, and an allowance for actual travel- ing expenses. At the first session of Congress after every general election of representatives, the oath of office may be administered by any member of the House of Representatives to the Speaker, and by the Speaker to all the members and delegates present, and to the Clerk, previous to entering on any business, and to members and delegates as they afterward appear, previous to their taking their seats. Before the first meeting of each Con- gress the Clerk of the next preceding House of Eepresentatives makes the roll of the representa- tives elected, placing thereon the names of those persons only whose credentials show that they were regularly elected, in accordance Avith the laws of their States, respectively, or laws of the United States. The Serge ant-at-arms is charged with the duties of the Clerk in the event of any vacancy in that office, in the event of the disability or absence of the Clerk, and in the event of the disability or absence of both Clerk and Sergeant-at-arms, the Door-keeper of the next preceding House of Representatives is charged with this duty. In the event of Congress being prevented, by a contagious disease or the existence of other circumstances, THE LEGISLATIVE DEPAETMETTT. 33 making it, in the opinion of the President, hazard- ous to the lives of members to convene at the seat of government, he is authorized to convene them at such other place as he may judge proper. The Senate is constituted of the senators elected by the Legislature of each State. The election takes place on the second Tuesday after the meet- ing and organization of the Legislature ; and if an election fails to be made on the first day, at least one vote is required to be taken every day there- after, during the session of the Legislature, until a senator is chosen. An existing vacancy is filled in the same manner and in the same way, and if any vacancy occurs during the session it is filled by election, the proceedings for which are to be commenced on the second Tuesday after the Legis- lature has organized and has notice of such vacancy. The number of senators is fixed at two from each State, independent and irrespective of the size of the State or the number of its in- habitants; so that there are several instances of States, notably Oregon and Delaware and Nevada, which have two senators and but one representa- tive. No person can be a senator who has not attained the age of thirty years, been nine years a citizen of the United States, and who shall not have 34 COI^STITUTIOI^AL HISTOEY. been, when elected, an inhabitant of the State from which he shall be chosen. Senators are chosen for six years. They are divided into three classes, one class being chosen every second year. If vacancies happen, the Exe- cutive of a State may make a temporary appoint- ment until the next meeting of the Legislature. The Yice-President of the United States is the President of the Senate, but without a vote, except in cases of equal division. The Senate chooses its other officers and also a President pro tempore in the absence of the Vice-President, or when he shall exercise the office of President. The organization of the Senate is provided for by the act of June 1, 1789. The oath of office is ad- ministered by the President of the Senate to the senators elected previous to his taking his seat. When a President of the Senate has not taken the oath of office, it is administered to him by any member of the Senate. Congress is the law-making power. One House contains the direct, immediate representatives of the people, the other the indirect representatives of the people ; i.e., the direct representatives of the States. Besides being part of the law-making power, the Senate shares with the President the power of appointment to office, of making treaties THE LEGISLATIVE DEPARTMEI^T. 35 of peace and declarations of war. Altliougli Con- gress cannot be said to be superior to tlie co- ordinate Judicial and Executive departments of the Government, it nevertheless lias, from tlie nature of its functions, the sujDerior power. The history of the United States since 1865 gives several instances of the manner by which both the Judicial and Executive departments of the United States Government may, in cases of conflict, be coerced to a considerable degree by the law-making power. Notable instances of this coercion are the acts of Congress interfering with the Executive dis- cretion of President Johnson when he was in direct conflict with the majority of both Houses of Con- gress, and his subsequent imj)eachment and all but conviction and removal ; and the increase in the number of the judges of the Supreme Court of the United States, when a decision had been rendered upon a quasi-political subject — the constitutionality of the Legal Tender act, which did not conform to the opinions of the Executive and Legislative departments, and which was, therefore, to be re- argued and reversed, an increase of personnel of the court of last resort being: the coercive method found effective to secure such a result. Among the formalities of the organization of Congress, not heretofore referred to, are constitu- 36 CONSTITUTIONAL HISTORY. tional provisions to tlie effect that Congress shall assemble at least once in every "year, and that the meeting shall commence on the first Monday in December, unless by law a different day be ap- pointed. Each House is made the judge of the elections, return, and qualifications of its own members. A majority is constituted a quorum: for the transaction of business, but power is given to a smaller number to adjourn from day to day and to compel the attendance of absent members. Congress is empowered to make rules for its own government, and each House makes its own rules. The expulsion of a member is given to two-thirds of either House. Neither House has the power during the session to adjourn, without the consent of the other House, for more than three days, nor to any other place than the one appointed by law. No senator or representative is permitted, during the term for which he is elected, to be appointed to any civil office under the authority of the United States, which shall have been created or the emol- uments whereof shall have been increased dur- ing such term of service, and no person holding any office under the United States shall be a member of either House during his continuance in office. All revenue laws must originate in the House of Eepresentatives. This includes all appropriation THE LEGISLATIVE DEPAETMENT. 37 bills, but the Senate is permitted to propose or concur with amendments in the same manner as on other bills. Power is given to Congress to levy and collect taxes, duties, imposts, and excises ; to pay the debts, and provide for the common defense and general welfare of the United States ; but such duties, imposts, and excises must be uniform throughout the United States. We have already referred to the fact that the absence of such a power given in express terms, or even by necessary implication, and the absence of any power to enforce a system of taxation, was the main cause of the failure of the United States to form a stable government under the Articles of Confederation. In many forms has the question of the consti- tutional exercise of this power been before the Supreme Court of the United States. The result of these decisions may be summed up as follows : Congress has power to levy such taxes and imposts as it may see fit for public purposes. It was claimed that customs duties levied with the ulterior purpose of protecting home industry, were an un- constitutional exercise of power under this grant, for the reason that such duties are not levied with the view to the raising of revenue, but, on 'the con- trary, for the purpose of enabling manufacturers within the United States to increase profits on 38 CONSTITUTIOl^AL HISTOEY. products for the benefit of their private operations. It was held by the Supreme Court of the United States, that if any revenue whatever was raised from this source, the motive could not be inquired into, and that the indirect benefit to classes in the community of this mode of raising revenue v/as one of the consequences which did not come within judicial cognizance It was held, however, by the Supreme Court of the United States in the case of Loan Association against Topeka, 20 Wallace, 655, that where, however, the tax is avowedly laid for a private purpose, it is illegal and void. In this case the tax, having been avowedly laid to aid a private corporation in creating a manufacturing establish- ment, was held to be an illegal exercise of the tax- ing power. This case has been followed in several of the States, and creates a line of cases which in time, as public opinion in the United States may be ripened and educated by politico economical studies, may lead to a reversal by the Supreme Court of the United States of its opinion that taxa- tion for incidental protection under the guise of revenue laws is a constitutional exercise of power. Thus may possibly be given to the United States the full benefit of free-trade doctrines through an interpretation by the Supreme Court of the United States, namely, that all customs duties must be THE LEGISLATIVE DEPARTMEls^T. 39 levied for purposes of revenue only, and that if it appears to the court that the object is not one of revenue, but the incidental benefit of persons or classes in the community, it is unequal taxa- tion ; is a burden laid not for purposes of govern- ment, but for private purposes, and is, therefore, unconstitutional and void. Where Congress has the power to tax, the States are inhibited from exercising the same power, under the general exposition that what is granted to the government of the United States is taken away from the several States ; and when Congress exempts from taxation in express terms, the States are ipso facto inhibited from imposing taxation upon the same commodity or asset. For instance, the bonds of the United States are, by the contract of the bondholder with the federal government, incor- porated into the law creating the bonds, exempted from taxation. Under those circumstances it would be an illegal exercise of power on the part of the States or municipalities to tax such bonds. In a recent case decided by the Supreme Court of the United States it was fully recognized that the power to tax involved the power to destroy. As the Union and the State governments are coor- dinate branches of the polity of the United States, and as to tax the State governments or the muni- 40 COT^STITUTIOITAL HISTORY. cipalities created thereunder, would involve the power to destroy the States or such muncipalities, Congress is by the very nature of such institutions inhibited from levying any such tax. Congress, therefore, cannot tax the salaries of State officers, franchises created by a State, municipal corpora- tion, of a State, processes of State courts, etc. Congress is empowered to borrow money on the credit of the United States. The meaning of this clause is too clear to require judicial interpretation, and gives constitutional sanction to the funded debt of the United States. Congress is authorized to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. This power to regulate commerce with foreign nations involves, of course, the treaty-making poTf er ; to make such arrangements in relation to the commerce, resting on mutual comity, as exi- gencies may from time to time demand. The power to regulate commerce between the several States involves, of course, the power to regulate commerce on the navio'able rivers and streams which run be- tween the several States. And more recently, in consequence of the growth of inter state traffic and the establishment of railways which run through many States, and of telegraphic lines which spread their net-work over the whole of the domain of the THE LEGISLATIVE DEPARTMENT. 41 United States, tliis power has been invoked by the people of the United States as a means of assert- ing uniform jurisdiction over corporate franchises coextensive in their exercise with the United States of America, although chartered under the several State laws. The question of railway and telegraph monopoly has in recent years become an agitated one in the United States, in consequence of the growth of those several interests, and the power of the United States to regulate such industrial enterprises, acting under State corporate franchises, but really carrying on inter-state commerce, has, by the Supreme Court of the United States, been recognized as a power vested in Congress ; and although ordinarily the safer course of legislation is toward decentraliza- tion of power, it is nevertheless true that in the case of industrial enterprises having a tendency to centralization within the area of the vast territory of the United States, the uniform power to regulate these enterprises, if they partake in the least of a monopoly character, must be equally coextensive with the territory they occupy. As the several States have shown themselves powerless to deal with the subject either in an efficient way or upon a uniform plan, the power of the United States, now placed beyond question by the decisions of the 42 CO]^STITUTIO]^AL HISTORY. Supreme Court of the United States, to regulate these gigantic industrial enterprises is well lodged in the United States Congress. Power is given to the Congress of the United States to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcy throughout the United States. The grant of this power of naturalization has been followed by- national legislation from time to time, by which persons who are residents of the United States for five years can become citizens thereof by following certain prescribed forms of identification, declara- tion of intentions, etc. Exceptions of an unim- portant character are made in cases of minors. The bankruptcy legislation of the United States has been extremely spasmodic. When a bank- ruptcy law exists the States are prohibited, by necessary imjDlication, from having insolvency laws in conflict with the bankruptcy laws. When the bankruptcy laws are repealed, as they frequently have been and as is the case at present, the State insolvent laws once more come into force. While the federal bankruptcy laws are on the statute book and in force, all State insolvent laws are for the time being suspended. Congress is empowered to coin money and to regulate the value thereof and of foreign coin, and THE LEGISLATIVE DEPAETMENT. 43 fix a standard of weights and measures. Under this grant of power, the right of the issue of the United States Treasury notes made legal tender at the beginning of the Civil War was seriously con- tested. At first a decision was had, under the pre- siding justiceship of Mr. Chase, who w^as Secretary of the Treasury when such notes were issued, de- claring such issue to be in contravention of the Constitution of the United States. This decision was subsequently reversed by a court which had in the interim become enlarged, and it was held that this issue of legal tender notes, made during the war, though not justified strictly under the power granted, was the exercise of a war power, and was naturally limited to a condition either of domestic insurrection or foreign invasion. While this decision stands, there is no cause to appre- hend that under the j)ower to coin money and to regulate its value, any addition will be made to the legal tender issue of the United States. Congress is empov/ered to provide for the punish- ment of counterfeitino; securities and current coin of the United States ; to establish post-offices and post roads ; promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Under this power the 44 constitutio:n^al histoey. Patent Office was organized, and patent, trade mark, and copy-right laws passed, securing for limited periods of time the rights of inventors and authors in their respective inventions and books. Congress is empowered also to constitute tribu- nals inferior to the Supreme Court. In the third article creating the judicial power of the United States, such power is vested in the Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. This article further provides that the judges, both of the Supreme and inferior courts, shall hold their office during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office. Under these two several sections of the Constitution of the United States, Congress, from 1789 to 1876, from time to time, passed judiciary laws under which district courts were organized, which give to each State, substantially, one district judge (to Pennsylvania, however, two, to New York two, to Ohio two, to Illinois two), and circuit courts of nine circuits with one judge for each circuit. The judges of the Supreme Court of the United States when not sitting in banc likewise hold circuit courts. The Judicial department of the United States being created under a separate article THE LEGISLATIVE DEPARTMENT. 45 of the Constitution, we will reserve our further examination into the organization of these courts and their jurisdiction until we reach that head. Congress has exclusive jurisdiction in defining and punishing felonies committed on the high seas, and offenses against the law of nations ; to declare war, and grant letters of marque and reprisal, and to make rules concerning captures on land and water ; to raise and support armies, but no appropriation of money to that end shall be for a longer term than two years ; to pro- vide and maintain a navy ; to make rules for the government and regulation of the land and naval forces ; to provide for calling forth the militia for executing the laws of the Union ; to suppress in- surrections and repel invasions ; to provide for organizing the army and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, re- serving to the States respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress. Under the power to make rules for the government of the land and naval forces, Congress has not the power to make any rules inconsistent with the position of the President of the United States as Commander-in-chief. The Constitution 46 CONSTITUTIOISrAL HISTOEY. appoints ]ii*m tlie first officer of the army, and the laws of war give to the first officer powers, of which, under the guise of rules and regulations, he cannot be stripped. The manner in which the President makes his requisition for militia is by a call upon the Executive of a State, but he is not required to recognize the chief Executive of a State; he can make his call directly upon the militia officers. Although the States have the power to appoint officers for the militia, they are all outranked by the 'Commander-in-chief, when called by him to the service of the United States, and outranked by any general or other officer who may be appointed over them. The object had in view that no appropriation of money for army purposes shall be for a longer period than two years, is obviously that no Con- gress subservient to the Executive power shall create a standing army to be placed under the con- trol of the chief Executive of the Union and make one perpetual appropriation therefor. The neces- sity to ask from time to time the popular consent for army appropriations through the instrumen- tality of Congress, will, it is supposed, forever pre- vent an army being created which will be used in a manner opposed to the popular will. Congress has power to exercise exclusive legisla- THE LEGISLATIVE DEPARTMENT. 47 tion in all cases whatsoever oyer such district, not exceeding ten miles square, as may, by a cession of particular States and the acceptance of Con- gress, become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the Legisla- ture of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock- yards, and other needful buildings. Under this section of the Constitution the District of Columbia was ceded by the State of Maryland to the United States for the establishment of the seat of govern- ment at Washington on the Potomac, and Congress has exclusive jurisdiction over the government in that district. It provided the district with a mu- nicipal administration, which, however, in conse- quence of the abuses incident thereto, was abol- ished, and it is now governed directly by a committee .of Congress. Crimes committed within a fort, magazine, ar- senal, or dock-yard, or other building of the United States, are cognizable only in the United States courts within their respective districts. Congress is empowered to declare the punish- ment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except dur- ing the life of the person attainted. 48 COl^STITUTIOTTAL HISTOEY. Congress is further empowered to make all laws whicli shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the govern- ment of the United States, or in any department or officer thereof. Although under this general grant of all power necessary to carry into execution the powers specif- ically enumerated, no new power has been granted, such a clause was, nevertheless, necessary for the purpose of preventing captious objections to the exercise of power by necessary implication arising from powers already granted, simply because such powers were not expressed in set terms. Under this grant of implied powers, it was held that Congress could charter a national bank, and that it could make appropriations for internal improve- ments. Under this grant of implied power, it was held by the Supreme Court of the United States that Congress might organize a form of State gov- ernment for the States which were in insurrec- tion, and which immediately after the Civil War for the time being had thereby lost their frame- work of government. Shortly after the adoption of the Constitution, by reason of the serious controversy which was then threatening war with France, the so-called THE LEGISLATIVE DEPAETMEIS^T. 49 Alien and Sedition laws were passed, by the first of which the President of the United States was empowered to order any aliens out of the country whose presence was supposed to be dangerous to the community, and this in time of peace. The Sedition laws made it a crime for persons unlaw- fully to combine or conspire together with the intent to oppose any measure or measures of the United States, etc., or to write, print, utter, or publish, or cause or procure to be written, etc., any false, scandalous and malicious articles against the government of the United States, or either House of Congress, so as to stir up sedition, etc. These laws, although upheld by the judiciary, were so obnoxious to many of the States of the Union that their presence upon the statute book resulted in the passage of resolutions by the Legislatures of several States — Yirginia and Kentucky — by which they nullified such laws within their own States. Rather than force a conflict upon this point, the laws were repealed. Under the ninth section of the first article of the Constitution, restricting the powers of Congress and of the States, it is provided that the migra- tion or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by Congress prior to the 3 50 COI^STITITTIOTTAL HISTOET. year 1808, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. This was an awkward and obscure pro- vision, adopted to prohibit Congress from prevent- ing the importation of slaves until 1808. In that respect it resembles the provision requiring the States to surrender fugitives who were held to service in other States. The framers of the Con- stitution were evidently extremely anxious not to use the term slave in the instrument, and so in several instances resorted to a para]3hrase. Congress was forbidden to suspend the writ of habeas corpus, except when, in case of rebellion or invasion, the public safety may require it. It has, however, been expressly held by the Supreme Court of the United States that the power to suspend the writ of habeas corpus exists only in the case of war or insurrection as to the district which is the theatre of war or insurrection, and not where the civil tribunals exercise full and undisputed authority. Congress is forbidden to pass any bill of attainder or ex post facto law. Although there is secured to each man accused of a crime the right to be con- fronted by his accusers, and to a trial by a jury, which would seem necessarily to forbid the passage of any bill of attainder, yet, to place the rights THE LEGISLATIVE DEPAETMEIN'T. 51 of the people beyond doubt, it was deemed expe- dient to put in express terms that no man stall be convicted by bill, and that no man shall be con- victed of a criminal offense under a law passed subsequent to the committing of the act. Under this prohibition as to the passage of ex post facto laws, it has, however, been held that this does not forbid Congress from passing retroactive laws in civil matters. No capitation or other direct tax is permitted to be laid unless in proportion to the decennial census or enumeration. No tax or duty shall be laid on articles exported from any State. Under this clause of the Constitution, it was held by the Supreme Court of the United States that the export duty on cotton, levied after the close of the Civil War, was unconstitutionally levied. No preference is permitted to be given by any regulation of commerce or revenue to the ports of one State over those of another ; nor are vessels bound to or from one State obliged to enter, clear, or pay duties in another. No money is permitted to be drawn from the Treasury except in conse- quence of appropriations made by law, and a regular statement of account of the receipts and expendi- tures of all public money is required to be published from time to time. 52 COI^STITUTIOl^AL HISTORY. No title of nobility is permitted to be granted by tlie United States, and no person holding any office of profit or trust under its laws is allowed, with- out the consent of Congress, to accept any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state. No State is permitted to enter into any treaty, alliance, or confederation ; to grant letters of marque or re- prisal, coin money or emit bills of credit, or make anything but gold and silver coin a tender in pay- ment of debts ; nor to pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. Under this inhibition upon the powers of the States, the question which has been most fre- quently before the Supreme Court of the United States for interpretation has been, " What is a law impairing the obligation of contracts, and what contracts are under the protection of the Constitu- tion of the United States ? " While it is true that no one Legislature can tie the hands of a subsequent Legislature in matters strictly governmental, never- theless the Legislature of a State may pass a law which constitutes a contract with individuals or cor- porations binding upon the State. Such a law can- not be subsequently impaired, changed or modified to the detriment of the other contracting party THE LEGISLATIVE DEPAETMET^T. 53 without the consent of such contracting party or its assigns. Under this head it has been held by the Supreme Court of the United States, that the State, as to a particular jDroperty, may forever surrender its taxing power. In a leading case, decided as early as 1819, known as the Dartmouth College case, it was held that the charter granted by a State to a college was a contract which the Constitution of the United States would not per- mit to be impaired. As the result of this decision restricting the powers of States to alter and modify franchises granted by them, the States hastened to alter their respective Constitutioi^s, so that it was thenceforth provided that all grants to corporations and all charters of corporations were subject to modification, alteration, and repeal at the will of the Legislature. This made the right of the Legislature to alter, modify, or repeal franchises granted to corporations, a part of the contract originally entered into with the corporation, and therefore the exercise of that right, however detrimental to the interests of the corporation, could not be said to be an impairment of the obligation of the contract embodied in its charter subsequently enacted to such constitutional amendment. When some of the Western States of the United States recently enacted laws by virtue 54 COJSrSTITUTIONAL HISTOEY. of wMcL. commissioners were appointed to regulate the tariff of charges for freight and passengers to be charged by the railway corporations which had been chartered within the State, it was argned before the Supreme Court of the United States, by the bondholders and stockholders of the corpora- tion, that such legislation was an impairment of the original contract made with the corporation, and that under such contract the bondholders and stockholders acquired rights which could not be subsequently destroyed by a reassertion of sov- ereign power on the part of the State, which had been impliedly bargained away. In those States, however, the constitutions provided .that grants by the Legislature of corporate franchises were subject to modification and repeal, and the Supreme Court held that the bond and stock holders were without remedy. It has also been held that the remedial provisions of law by which the creditor could collect from his debtor within the respective States by judgment and execution a claim due him, could not be so altered as substantially to impair his rights ; that the remedial legislation of the State under which contracts are made form part of the contract, and that to alter them to the detri- ment of the creditor was an impairment of his rights. On the other hand, it has been held by the THE LEGISLATIVE DEPAETME:^rT. 55 Supreme Court of the United States, in construing this provision of the Constitution, that a municipal corporation, being a subordinate branch of the sovereignty of the State, having delegated powers only, is subject to have its charter modified, altered or repealed at the will of the Legislature, and that such legislation never partakes of the nature of a contract. This is likewise true of all officers of the States whose salaries are fixed by the State, and whose functions are prescribed by State laws. It has also been held that a State cannot by contract bargain away the essential powers of sovereignty. The State, therefore, cannot deprive itself of the right to appropriate private property to public use under the power of eminent domain. Even exclusive privileges in the nature of legis- lative contracts are upheld. If the State, for instance, grants a privilege to a corporation to build a bridge, and couples such grant with an agreement not to charter a bridge within a certain given point, the State is held to such a contract after the bridge is built. On the other hand, whatever may ap]oropriately be deemed to fall within police powers cannot be contracted away. A man who buys a large stock of liquors under existing laws by which no license is required, cannot claim as against the State that his contract 56 CONSTITUTIONAL HISTOEY. is impaired because the State subsequently either restricts the sale or imposes conditions upon the business in whicli lie is engaged. No State is permitted, without the consent of Congress, to lay any imposts or duties on imports or exports except such as may be absolutely neces- sary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of Congress. No State is permitted, without the consent of Congress, to lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or contract with another State or with a foreign power, or to engage in war unless actually invaded or in such imminent danger as will not admit of delay. Under these provisions it has been held that an emigrant tax imposed by State law upon vessels entering the port of New York, of one dollar per head, collected from ships which brought the emigrants, and the purpose and object of the expenditure of which head-money was undoubt- edly of an extremely useful character to both emigrants and ship owners, was an unconsti- THE LEGISLATIVE DEPAETMENT. 57 tutional impost. The Emigration Commission, wliich for many years in the City of New York performed a very praiseworthy function in protect- ing the emigrants, from the moment of their land- ing until their departure from the City of New York, from frauds and swindles of every description which had theretofore been practiced upon them, providing hospitable accommodations for them, and for a year after their landing exercising some degree of guardianship in relation to their affairs, had its usefulness, after thirty years' duration, suddenly endangered by a decision of the Supreme Court of the United States adverse to the levy of the fund which supported it. Full faith and credit is required to be given in each State to the public acts, records, and judicial proceedings of every other State, and Congress is required by general laws to prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Under this section exemplification acts exist under which the acts and records of the several States are made evidence in the courts of law of other States. The citizens of each State are, under the Consti- tution, entitled to all the privileges and immunities of citizens in the several States. Under this clause special license laws, by which citizens of one State 58 COI^STITUTIONAL HISTOEY. were proMbited from seeking trade in other States except on taking ont licenses which were not re- quired to be taken out by the citizens of the State, were held to be unconstitutional. In some of the courts of the United States, however, it has been held that by the term citizens of each State who are entitled to such provisions is meant natural citizens, and not artificial creations like corpora- tions, and that, therefore, a State is at liberty to impose terms upon corporations of other States as a condition of their doing business therein which they do not impose upon their own corpora- tions. A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime. This creates without treaty between the States a condi- tion of extradition by which all criminals are delivered by one State to another, so that such criminals can be tried within the State where the crime has been committed. The constitutional provision that no person held to service or labor in one State under the laws thereof, escaping into another, shall, in con- THE LEGISLATIVE DEPAETMEIS^T. 59 sequence of any law or regulation tlierein, be dis- charged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due, was mainly applicable to a condition of slavery, now happily passed away, when negro bondmen escaped from the Southern to the Northern States, and is now useful only in cases of apprenticeship, for which it is not likely to be invoked. The United States is required to guarantee to every State in the Union a republican form of government, and to protect each of them against invasion, and on application of the Legislature, or of the Executive when the Legislature cannot be convened, against domestic violence. The provision requiring that full faith and credit shall be given in each State to the acts, etc., of every other State has for its object to prevent any such weakening of the bonds of the Federal Union as might follow from the States disregarding what was due to courtesy and comity when their respect- ive proceedings should come under consideration, and thus opening anew the controversies and ques- tions which, in the jurisdiction having properly and primarily the control of them, had once been determined. This clause relates only to judgments in civil actions, and not to judgments on criminal 60 COI^STITUTIONAL HISTOEY. prosecutions. In the latter respect the relation of the States to each other is wholly unaffected by the Constitution. The clause giving to the citizens of each State all the privileges and immunities of citizens in the several States, was not intended to give the laws in one State the slightest force in another State. It simply secures to the citizens of each State in every other State, not the laws or peculiar privileges which they may be entitled to in their own State, but such protection and benefit of the laws of every and any other State as are common to the citizens thereof in virtue of their being citizens. Under the section making it imperative upon the United States to guarantee to every State in the Union a republican form of government, a ques- tion was raised by the friends of woman's suffrage, before the Supreme Court of the United States, whether a government that excluded women from the suffrage was a republic, and the court held that it was. When the senators and representatives of a State are admitted to the council of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. Congress has power to dispose of and make all THE LEGISLATIVE DEPAETMENT. 61 needful rules and regulations respecting the terri- tory or otlier property belonging to the United States. Under this grant of power it has been held that Congress has the absolute right to prescribe the times, the conditions, and the mode of trans- ferring the public domain, or any part of it, and to designate the persons to whom the transfer shall be made ; that no State legislation can interfere with this right, or embarrass this exercise, and that no State law, whether by limitation or otherwise, can defeat the title of the United States to public lands within the limits of the State. By the sixth article of the Constitution, it is pro- vided that all debts contracted and engagements entered into before the adoption of the Constitution shall be as valid against the United States under the Constitution as under the Confederation. The second section provides that the Constitu- tion and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. This supremacy gives to the United States Govern- ment, as contradistinguished from a State Govern- 62 CONSTITUTIO]N^AL HISTOEY. ment, its true sovereignty. Without it tlie Union could not maintain itself. There would have been a constant clashing of interests and of laws, and endless interpretations by the several State courts conflicting with each other as to the meaning of clauses of the Constitution of the United States. The declaration of supremacy of the Constitution of the United States and the laws thereunder, and the organization of the Supreme Court of the United States to determine all questions arising under the Constitution of the United States, or under a United States law, or when the Constitution of the United States, or the United States statutes is invoked, or is called into question, has created a homogeneity of decisions and interpretation which gives stability to and respect for its laws. A treaty is regarded as equivalent to an act of Congress, and has precisely the same validity. Congress has, therefore, the power by a subse- quent law to repeal clauses in a treaty if the sub- sequent enactments are in necessary conflict with the treaty. It is only the foreign governments, the compact with which has been violated, which has a ground of complaint for an infraction of the treaty, not the citizens of the United States. Although the Constitution thus places the United States government and its legislation above that THE LEGISLATIVE DEPAETMEjS^T. 63 of States, it nevertlieless takes from the States but three cases in which they have no power to legis- late. First, where they are expressly jDrohibited from legislation ; second, where exclusive power is expressly vested in the United States ; and third, where power vested in the United States is in its nature exclusive. It has now been expressly held by the Supreme Court of the United States, that when a State be- comes one of the United States, she enters into an indissoluble relation. The act which consummates her admission into the Union is something more than a compact ; it is the incorporation of a new member into the political body; it is final. The union is as complete, as perpetual, and as indis- soluble as the union betweeu the original States. The senators and representatives, and the members of the several State Legislatures, and all Executive and Judicial officers both of the United States and of the several States, are required by the Constitution to be bound by an oath or affirma- tion to support the Constitution ; but no religious test is ever required as a qualification for any office or public trust under the United States. Shortly after the war of the rebellion a new oath was prescribed by Congress to all office-holders, known as the " iron-clad " oath, by which the 64 CO:^rSTITUTIO]S^AL histoey. officer swore that lie had not aided or abetted the rebellion in any form or manner, and abjured the heresy of secession. This oath was, after solemn argument, declared to be an unconstitutional im- position as a test for office, as the Constitution required nothing further than an oath to support the Constitution. Shortly after the adoption of the Constitution a series of amendments were proposed, and by the States in due form ratified, which limited the powers of Congress, and the first eleven of which were in their nature a sort of Declaration of Rights of the people against arbitrary interference by the federal authority, and have hereinbefore been com- mented upon. CHAPTER III. THE EXECUTIVE POWER. The Executive power of the Federal Government under the Constitution of the United States is vested in a President, who is to hold his office for the period of four years, and who, together with the Vice-President chosen for the same term, is elected by an Electoral College composed of electors of each State equal to the whole number of senators and representatives to which the State is at the time of such election entitled in Congress. The manner of the election of the members of the Electoral College is determinable by the Legislatures of the several States, with the limitation only that no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. Under the Consti- tution, Congress was vested with power to deter- mine the time of choosing the electors and the day on which they shall give their votes ; such day, however, to be the same throughout the United 65 66 COI^STITUTIOJTAL HISTOEY. States. By an amendment to the Constitution, adopted in September, 1804, these electors were constituted into electoral colleges, to meet not as one body, but in their respective States, and to vote by ballot for President and Yice-President, one of whom at least shall not be an inhabitant of the same State with themselves. The ballots for Pres- ident shall be separate from those for Vice-Pres- ident, and after having made distinct lists of all persons voted for as President and of all persons voted for as Yice-President, and of the numbers of votes for each, the lists are required to be signed and certified and transmitted sealed to the seat of government of the United States, directed to the President of the Senate. The President of the Senate then shall, in the presence of the Senate and House of Representatives, open all the certi- ficates, and the votes shall then be counted. The person having the greatest number of votes for President shall be President, if such number be a majority of the whole number of electors appointed. If no person have such majority, then from the persons having the highest number of votes, not exceeding three, on the list thus voted for as Presi- dent, the House of Eepresentatives shall immedi- ately choose by ballot the President. When that contingency arises the members of the House of THE EXECUTIVE POWEE. 67 Kepresentatives cease to vote in tlieir individual capacity, but vote by States, eacli delegation or a majority of each delegation, casting the vote of the State. For this purpose the quorum to constitute the House of Representatives must consist of a member or members from two-thirds of the States, and a majority of all the States is necessary to a choice. In the event of the House of Representatives failing to choose a President, when the right of choice thus devolves upon them, before the fourth day of March next following the election, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. The person having the greatest number of votes as Yice-President shall be the Yice-President, if such number be a majority of the whole number of electors. If no person has a majority, then from the two highest numbers on the list the Senate shall choose the Yice-President. A quorum for this purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. No person is eligible for the position of President unless he be a natural-born citizen or a citizen of the United States at the time of the adoption of 68 CONSTITUTIOI^AL HISTORY. tlie Constitution. He must be at least thirty-five years of age, and liave been fourteen years a resi- dent within the United States. The difference between the amendment and the Constitution as it originally stood, lies mainly in the fact that under the original Constitution the electors voted by ballot for two persons, and that they made a list of all the persons voted for and the number of votes for each, and the person having the highest number of votes, if such number was a majority of the whole number, became the Presi- dent, and the next person having the highest number of votes became the Yice-President. The idea which the framers of the Constitution enter- tained as to the manner in which these electoral colleges should exercise their function was that the people of each State would, in such manner as the Legislature directed, select the wisest and best men in the State to determine upon the fittest and best citizens for the offices of President and Vice- President respectively. Alexander Hamilton says in the Federalist, '' It was desirable that the sense of the people should operate in the choice of the persons to whom so important a trust was to be confided. This end will be answered by commit- ting the right of making it not to any preestab- lished body, but to men chosen by the people for THE EXECUTIVE POWEE. 69 the special purpose at a particular juncture. It was equally desirable that the immediate election should be made by men most capable of analyzing qualities adapted to the station. ... A small number of persons selected by their fellow-citizens from the general mass would be most likely to possess the information and discernment necessary for so complicated an investigation." The end which was intended to be achieved by the non-merger of the State electors in any general body, was to preserve State action to such a degree as to prevent State jealousy in the selection of the President, so that each State should feel that in the performance of so important a task as the selection of a President of the United States it pre- served its separate action ; secondly, by this sjs- tem of double election to secure the best possible result as to persons to fill the important offices of President and Yice-President. At a very early period after the adoption of the Constitution the practical result of this method of selection was the very opposite from that which was intended by the framers of that instrument. National conventions of parties predetermined who the nominees of the party should be for such offices, and the election of electors under the forms of the Constitution at a subsequent period was 70 COITSTITUTIOT^AL HISTOEY. merely a metliod whereby to test the party strength in the several States ; the electors to be yoted for were likewise to be determined by a party conven- tion within the State ; and the majority in any State would elect either Federal or Eepublican electors, subsequently Whig or Democratic, and at a still later period Republican or Democratic electors, by a majority vote which determined which party should prevail in each particular State. The electors so elected became and are mere registering machines to cast the vote of the party in conformity with the nomination of the party ; and so strong are party ties in the United States, that there is no instance of any elector so elected disregarding his obligation to his party and exercising an independent choice for President of the United States. Therefore, after the Novem- ber election preceding the March when the Presi- dent of the United States is to be inaugurated, and considerably preceding the period of the meeting of the electoral colleges, the .selection of electors is deemed the conclusion of the contest, and when such electors are elected, who is to become the President and Yice-Presidenfc of the United States is immediately thereupon declared and known. The subsequent meeting of the electoral colleges on the first Wednesday in December following the THE EXECUTIVE POWER. 71 Tuesday after the first Monday of November, wlien the election takes place, has degenerated into a mere matter of form, to which nobody pays anything more than a mere passing attention. The Eevised Statutes of the United States, sections 132- 151, provide a uniform time for the choice of the electors, their number, the manner for filling vacan- cies, the certificates for the electors, the manner of making their returns, their compensation, a provision for the contingency of a new election in the event of the Presidency and Yice-Presidency both becoming vacant, and a provision that, in the event of the resignation of the President or Yice- President, it shall be in writing. The manner of counting the electoral vote has thus far been determined by joint resolution of the House of Representatives and the Senate. Immediately after the election of 1876, a contro- versy arose as to whether Mr. Tilden or Mr. Hayes had a clear majority of the electoral vote, and when the electoral colleges subsequently met in their respective States, two returns came from several States, and ^by the counting of either one of those electoral returns, or the rejection of both, the result of the election would be changed. The country was considerably disturbed by the then condition of affairs ; grave suspicions were enter- 73 CONSTITUTIONAL HISTOET. tained that fraudulent electoral colleges were con- stituted by violently disregarding or rejecting votes which should properly have been registered for the successful candidate, and the country was sup- posed by many to be upon the eve of another civil strife as to the Presidential succession, when an extra-judicial tribunal was organized, known as the Electoral Commission, composed of five Judges of the Supreme Court of the United States, five mem- bers of the House, and five Senators, from both parties, fifteen in all, whose determination upon the question was accepted as final. It is well known, that by a majority of one vote Mr. Hayes was declared elected, and duly inaugurated. This condition of affairs is unlikely ever to happen again, because the semi-territorial government to which some of the States which theretofore had been in rebellion were subjected, created a condition of affairs in such States favorable to frauds in election returns, and which made it doubtful for a time whether the nominal State government was really represent- ative of the people of the State, and the acts of the government officials were regarded with grave suspicion by both parties. The Kevised Statutes also provide that the time for which a President and Yice -President shall be elected shall in all cases commence on the fourth THE EXECUTIVE POWEE. 73 day of Marcli next succeeding the day on which the votes of the electors have been given, and that that term shall be four years ; that the compensa- tion of the President shall be $50,000 a year, and that of the Yice-President $10,000; the increase of the President's salary from the amount originally fixed by the act of 1793 at $25,000, having been made in March 1873. It also contains a provision authorizing the appointment, and limits the expen- diture of the President's official household. The functions of the President, as defined in the second article of the Constitution, make him Com- mander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States ; give him power to grant reprieves and pardons for ofi'enses against the United States except in cases of impeachment only, and authorize him to require the opinion in writing of the prin- cipal officers in ea.ch of the Executive departments upon any subject relating to the duties of their respective offices. Power is given him, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators con- cur ; with him rests the nomination, and by and with the advice and consent of the Senate, the appointment of all ambassadors, all public minis- 4 74 CO^STITUTIOI^AL HISTOEY, ters and consuls. He also appoints the Judges of the Supreme Court, and all other officers of the United States the appointment ox which is not otherwise provided for in the Constitution, and which may subsequently be established by law. Power is, however, reserved to Congress by law to vest the appointment of such inferior officers as they may think proper in the President alone, in the courts of law, or in the heads of departments. The President is also empowered to fill all vacan- cies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session. He is re- quired from time to time to give to Congress infor- mation of the state of the Union and to recom- mend to their consideration such measures as he shall judge necessary and expedient, and he may on extraordinary occasions convene both Houses, or either of them, and in case of disagreement between them as to the time of adjournment he may adjourn them to such time as he may think proper. The President receives ambassadors, dip- lomatic agents and other public ministers, and is in general terms entrusted with the duty to see that the laws are faithfully executed and to grant com- missions to all the officers of the United States. Provision is made for the removal of both the THE EXECUTIVE POWEE. 75 President and Yice-President and all civil officers of tlie United States on impeachment for and con- viction of treason, bribery, or other high, crimes and misdemeanors. He has also the high and im- portant prerogative to veto all legislation of Con- gress, which veto power is, however, subjected to the condition that in the event of his failure to approve a bill he shall return it with his objection to the House in which it shall have originated, which shall enter the objection at large upon its journal and proceed to reconsider the bill. If, after such reconsideration, two-thirds of the House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House it shall become a law notwithstanding the Presidential veto. In all such cases the votes of the Houses are determined by yeas and nays, and the names of the persons voting for and against the bill are entered upon the journal of each House. Should the President fail to return the bill, or fail to sign it within ten days after it shall have been presented to him, it be- comes a law as though he had signed it, unless Congress by adjournment prevents its return, in which case it does not become a law without the President's signature. 76 CO^STITUTIOIN^AL HISTOEY. The power to make appointments to office by and with the advice and consent of the Senate has, in practice, also largely deviated from the inten- tions of the draftsmen of the Constitution. By giving the President this power, it was intended to place upon him the responsibility of the nomina- tion, and to give the Senate the power to consider the fitness of the nomination by a canvass of the merits of the nominee, so as to act as ^ check upon the President's personal favoritism, nepotism, lack of information, or any other influence result- ing in an injudicious nomination. When, however, by the growth of the population and the enor- mous increase of federal offices consequent upon such growth, it became practically impossible for the President to arrive at a judicious conclusion as to the vast number of appointments which had to be made with each change of administration, under the pernicious doctrine that the prevailing party had a right to all the federal offices, a habit at first grew up of asking the* advice of the sen- ators of the States in which the officers were to exercise their functions as to the proper nominee ; and this habit in time grew into a custom, which gave to the senators, as they supposed, the right to suggest to the President the names of the persons who were to exercise federal functions THE EXECUTIVE POWEE. 77 witliin tlie State from which they were commis- sioned. This became so established a rule of action on the part of the Presidents that, during President Garfield's administration, the two sena- tors from New York resigned their seats in 1881, because what they termed " the courtesy of the Senate " — a euphonious name which was given to this abuse which had arisen under the Constitu- tion — had been disregarded in their cases, and the Collector of the Port of New York had been appointed by the President without consultation with them, and in disregard of their wishes. An active movement is now proceeding in the United States to institute some system of civil service re- form which will relieve the President from the neces- sity of making nominations to the Senate of a vast number of officers which are periodically to be appointed under the " spoils " system, and which, from the neccessities of the situation, com- pels the nominations of inefficient men by the President if he acts entirely upon his own judg- ment, in disregard and without consultation with the senators from all the States in advance of the nomination, because it is impossible for him to know much of the persons thus to be nominated, or places him entirely in the hands of the senators of the several States for suggestion and advice as 78 COlSrSTITUTIOIN^AL HISTOEY. to the nominations, and tlms constitutes tlie sena- tors the heads of the great political machines of the States, and who are, instead of the President, the fountains of federal honor and office within their respective States. The civil service reform movement, therefore, in the United States will, if successful, deal a blow at the " spoils " system, which makes each Presidential election a raffle for one hundred thousand offices, and the in- cumbents a vast, hungry horde of office-holders, upon whom assessments for campaign funds can be levied by the party in power, which are promptly paid, because the incumbents know full well that in the event of a change of administration, par- ticularly if that change of administration brings into power the opposition party, their offices must be vacated. This movement is also an attack upon the " courtesy of the Senate," which constitutes senators, instead of mere judges of proper or im- proper nominations, a cabal or junta to dictate nomi- nations to the President, and, in the event of the failure of the President to accept such dictation, to decline confirmation, irrespective of the merits of the nominees. Each term of the Presidental office begins on the fourth day of March succeeding the election, and continues for a period of four years. The people of THE EXECUTIVE POWEE. 79 the United States are at liberty to reelect the in- cumbent if they see fit : there is no constitutional inhibition upon them in regard to the number of times he may be reelected. But as Wash- ington declined a nomination after his second term had expired, and pointed out, in so declining, the impropriety of repeated elections of the same officer, however popular, it has become part of the unwritten law of the United States that the Presidential term shall not be extended beyond eight years. In case of the removal of the President from office, or of his death, resignation or inability to discharge its powers and duties, it is provided that the same shall devolve upon the Yice-President. And it is further provided that Congress may by law provide for the case of the removal, death, resignation or inability of both Presi- dent and Yice-President, and declare what officer shall then act as President, and such officer shall act accordingly until the disability be re- moved or a President be elected. Congress did provide, that in such a case the President of the Senate, or, if there be none, the Speaker of the House of Representatives for the time being, shall act as President until the disability is removed or a President elected ; and in the event 80 COI^STITUTIOI^AL HISTOEY. of botli the office of President and Yice-President becoming yacant, tlie Secretary of State sliall thereupon cause a notification to be made to the Executive of every State, and a new election shall thereupon be ordered. There is no provision for succession, in the event of there being no President of the Senate and no Speaker of the House of Representatives. The death of President Garfield, at a time when there was neither President of the Senate nor Speaker of the House of Representatives, created a case when, in the event of the death of President Arthur before the Senate could be convened, no succession for the Presidency had been provided for. It is therefore clear that a further pro- vision must be made by law for such a possible contingency. Another question which arose during the pro- longed disability of President Garfield, inter- mediate between his wounding and his death, is one which has never yet received complete and satisfactory solution, and may create trouble unless anticipated by lav/. The Constitution provides that, in the event of a President- ial disability, the office of President shall devolve upon the Yice-President ; but there is no provision that such a devolution of the office THE EXECUTIVE POWEE. 81 shall be simply temporary in character, and that the Yice-President shall resign the same when the disability ceases to exist. The great per- sonal popularity of President Garfield, the hope of speedy recovery from his disability, and the widespread sympathy for his condition, made it inexpedient for the Yice-President to claim the office of President during this inability of the President to perform the duties of his office. But had the Yice-Presidency then been held by a per- son of less delicacy of sentiment and appreciation of j)opular opinion, the questions of who should determine when an inability arises, and for what term the Yice-President should hold office in the event of the disability being removed, might have become very serious ones. These recent events, therefore, point to some further amendments of the Revised Statutes in relation to the Presidential office. The President is not subject in the exercise of his discretion to any judicial interference. The Supreme Court of the United States cannot com- pel his signature to any act, nor cause him to refrain from doing any act. There is but one way to reach an abuse of his authority, and that is by impeachment. There is but one example in the history of the United States of an impeachment of 82 COl^STITUTIOl^AL HISTOEY. the President, and that is the impeachment of Andrew Johnson. The House has the sole power of impeachment. The Senate has the sole power to try impeach- ments. When sitting for that purpose, they are on oath or affirmation. When the President of the United States is tried the Chief Justice of the United States presides, and no conviction can be had without the concurrence of two-thirds of the members present. The English precedents are followed in the trial by impeachment of the House appointing triers, and the impeached officer having counsel, either assigned to him or appointed by him, to try the cause in his behalf. Until 1868 the President had the power to create vacancies of the offices of heads of depart- ments and their first assistants, »by demanding resignations and filling vacancies temporarily until the Senate's consent could be obtained. In con- sequence of the conflict which then existed be- tween the Legislative and Executive departments, eventually resulting in the impeachment of Presi- dent Johnson, an act was passed preventing the President from making removals from office and making temporary appointments, except in the actual cases of death, voluntary resignation, absence or sickness of the chief of any bureau. THE EXECUTIVE POWEE. 83 Under the implied powers wliicli the President of the United States has received by the general investiture of power as the chief Executive officer of the United States, may be enumerated the fol- lowing : As Commander-in-Chief of the Army and Navy of the United States, he has power to engage in hostilities, to institute a blockade, and to authorize captures and condemnations on the high seas. He has power to recognize a State Government in so far as to recognize whether the government organized in a State is the duly con- stituted government of that State. He has power to protect aliens, as the care of our foreign rela- tions is committed to . him ; to remit forfeitures under his pardoning power ; to order a nolle prosequi to be entered at any stage in a criminal proceeding in the name of the United States ; to order a new trial on the sentence of a court martial ; and in time of war to suspend the writ of habeas corpus in any district where for the time being the civil authorities are powerless. He is authorized by the Constitution to appoint heads of departments in his official household. This is likewise done by and with the advice and consent of the Senate. This official household constitutes the Cabinet. The term Cabinet is not known to the Constitution of the United States, and has 84 CONSTITUTIONAL HISTOEY. been adopted in American political parlance in imitation of the' term for tlie ctiiefs of the depart- ments of the English Goyernment. The Execu- tive officers, who are the more immediate advisers of the President, and in the selection of whom greater latitude is allowed by the Senate than in that of any other officer, are the Secretary of State, Secretary of Interior, Secretary of the Treasury, Secretary of War, Secretary of Navy, Postmaster General, and Attorney General. The Departments respectively under the direc- tion of the secretaries are known as the Depart- ment of State, the Department of War, Department of the Treasury, Department of the Navy, Depart- ment of the Interior, the Post-office Department, and that under the Attorney General as the Department of Justice, and a Department of Agri- culture, the head of which is, however, not a Cabinet officer. The duties of the several Departments of State are by law dejB.ned to be correspondences, com- missions, and instructions to or with public ministers and consuls from the United States ; carrying on of negotiations with public ministers of foreign states or princes, or memorials or other applications of foreign public ministers or other foreigners, or such other matters respecting THE EXECUTIVE POWEE. 85 foreign affairs as the President of the United States shall assign to the department, and the Secretary shall conduct the business of the depart- ment in such manner as the President shall direct. To the Secretary of State is also entrusted the custody and charge of the seal of the United States and the seal of the Department of State. It is his duty to promulgate the laws ; to publish the same ; to give notice of intended or proposed amendments to the Constitution of the United States ; to give notice of the adoption of constitutional amendments, and to promulgate the same ; to lay before Congress, within ten days after the commencement of each regular session, a statement of the returns of collectors and of foreign agents ; a report of the foreign regulations of commerce and other commercial information, and of consular fees ; and a synopsis of such of his com- munications to and from diplomatic officers as he may deem expedient to give for public informa- tion ; a full list of all consular offices, &c. The Department of the Treasury is charged by law with the duty of adjusting all claims and demands whatsoever by the United States or against them ; to keep an account of all appropria- tions, receipts and expenditures, and make esti- mates of the expenses of all the departments of 86 COI^STITUTIOlSrAL HISTOEY. the Government ; to keep accounts of all receipts of internal revenue, and the accounts of all officers collecting revenue ; to keep an account of all ex- penditures for contingent expenses ; an account of all expenditures for furniture, repairs for bureaus ; and an account of all the funded indebtedness. The Secretary signs all warrants on the Treasury of the United States, and is charged with the duty, from time to time to digest and prepare plans for the improvement and management of the revenue, and for the support of the public credit. It is his duty to prescribe the forms of keeping and render- ing all public accounts and making returns ; he is charged with the collection of all duties on imports and tonnage ; and all accounts of the expenditures of public moneys are to be settled within each fis- cal year, except where the distance of the places where such expenditure is to be made shall make further time necessary. It is his duty to interpret the revenue and custom laws of the country, and to make proper regulations not inconsistent with law in relation to such collection. He is charged with the duty of preparing proper statistics showing the amounts of goods that are imported and exported ; and also what regulations he has made in relation thereto. He is authorized to receive deposits of gold and THE EXECUTIVE POWEE. 87 to give certificates therefor, and tlie coin of the country is placed under his supervision and con- trol. He is authorized to appoint disbursing agents ; to appoint persons who are authorized to recover moneys due to the United States, and to see to it that the revenue laws of the country are enforced. The Secretary of the Treasury is re- quired to make an annual report to Congress, which report shall contain, according to the pro- visions of law, an estimate of the public revenue and public expenditure for the fiscal year then cur- rent ; plans for improving and increasing the revenues from time to time, for the purpose of giving information to Congress, and adopting modes of raising moneys requisite to meet the public expenditures ; he is also to report all con- tracts for the supplies of the service which have been made by him under his direction during the year preceding, and also a statement of all expendi- tures of moneys appropriated for the discharge of miscellaneous claims not otherwise provided for, and paid by the Treasury ; he is to report to Con- gress his rules and regulations in relation to the appraisal of goods imported into the United States, and to make a report showing the value of such goods, and how much duty was collected; a complete statement of the amounts collected from 88 COI^STITUTIOITAL HISTOEY. seamen and the amounts expended for seamen ; the amount expended at each Custom-house and the number employed thereat. A Bureau of Statistics is created under his direction and control, which is required to collect statistics of the agricultural, manufacturing, and domestic trade ; of the currency and banks of the several States and Territories ; and the Secretary is required to accompany his annual statement of public expenditure with re- ports which may be made to him by the auditors charged with the examination of the accounts of the Department of War and the Department of Navy respectively, showing the application of moneys appropriated for those departments for the respective year. He is required to lay before Congress annually an abstract of the separate amounts of moneys received from internal duties or taxes in each of the respective States and Territories or election districts of the United States. He is also required to cause an annual report of statistics of commerce and navigation to be prepared by the chief of the Bureau of Statistics, to be likewise laid before Congress an- nually ; to report the number of persons employed in the Coast Survey and the business connected therewith, and the amount of compensation of every kind paid therefor. Every quarter he is required THE EXECUTIVE POWER. 89 to publish in some newspaper at the seat of Government a statement of the whole receipts of such quarter, and the whole expenditures of such quarter ; also showing the amount to the credit of the Treasury, in the sub-Treasuries, in the differ- ent banks, in the Mint, and other depositories ; the amount for which drafts have been given, and those remaining unpaid ; and the balances remain- ing subject to draft ; likewise to note all changes made in the public depositories, and the reasons for such change. The law provides for the appointment of con- trollers, auditors and treasurers in the department, and specifies their duties. It also provides for the appointment of registers. Commissioners of Cus- toms, Commissioners of Internal Revenue, Con- troller of the Currency, and of the Bureau of Statistics, and Bureau of the Mint. The heads of these several departments are appointed by the President, by and with the advice and consent of the Senate, but the officers so appointed are placed under the direction of the S.ecretary of the Treasury, The Department of Justice, at the head of which stands the Attorney-General of the United States, consists, in addition to the Attorney-General, of an Assistant Attorney-General, a Solicitor-General, a 90 COI^STITUTIOIN^AL HISTOET. Solicitor of the Treasury, an Assistant Solicitor of the Treasury, a Solicitor of Internal Revenue, a Naval Solicitor, and Examiner of Claims, all of which are appointed by the President, but are under the direction of the Attorney-General. The Attorney-General is required to give his advice and opinion upon all questions whenever required by the President. No public money is to be ex- pended upon any site or land purchased by the United States for any purpose until the written opinion of the Attorney- General is had in favor of the validity of the title, and the District Attorneys of the United States in the various judicial dis- tricts of the United States are required, upon the application of the Attorney-General, to furnish any assistance or information in their power in rela- tion to the title of public property lying within their respective districts. Both the War and Navy Departments are au- thorized to ask for advice from the Attorney- General on any question of law upon which the heads of those departments may have doubt. The Attorney-General and Solicitor-General are re- quired to argue suits and writs of error and appeals to the Supreme Court of the United States, and suits in the Court of Claims in which the United States is interested. And the officers of THE EXECUTIVE POWER. 91 the Department of Justice, -ander the direction of the Attorney-General, are required to give all opinions and render all services requiring skill of persons learned in the law, necessary to enable the President and heads of Departments, heads of Bureaus, and other officers in the departments to discharge their respective duties. They are re- quired to procure proper evidence for, and to con- duct and prosecute all suits and proceedings in the Supreme Court and Court of Claims, in which any officer of the United States is a party or may be interested. General superintendence is given to the Attorney-General over all the United States attorneys and marshals of all districts in the United States as to the manner of the discharge of their respective duties. The Attorney-General is authorized to employ counsel in such cases as in his discretion may require additional counsel. The Solicitor of the Treasury has a general supervision over the bonds and actions of all per- sons charged Avith the collection of taxes and in- ternal duties. He has power to take cognizance of, and to take measures to prevent and detect all frauds or attempted frauds upon the revenue, and to make such rules in relation to the collection of the revenue as in his judgment, and with the ap- probation of the Attorney-General, he may see fit. 92 COJN^STITUTIOI^AL HISTOEY. The Attorney-General is required annually to print an edition of such opinions as may be deemed by him worthy of permanent record ; and to make annually a report of the conduct of his office and of his subordinates, to Congress. The Post-office Department consists of the Post- master-General and three Assistant Postmasters- General, appointed by the President. It is the duty of the Postmaster-General to establish and discontinue post-offices, to prescribe the manner of keeping accounts and rendering returns, to make contracts for postal service ; by and with the con- sent of the President, to negotiate postal treaties and conventions ; reduce or increase the rate of postage or mail matter conveyed between the United States and foreign countries ; make rules and regulations as to fines, penalties, forfeitures or disabilities in relation to his department. He is required to make an annual report to Congress of all contracts made for carrying the mail within the preceding year ; the prices paid, etc., of all land and water mails established or ordered within the preceding year ; the names of persons em- ployed to transport it, price paid etc., and all allowances made to contractors within the preced- ing year in addition to the sum originally stipu- lated in their respective contracts, and the reasons THE EXECUTIVE POTTER. 93 for the same; a report of all the curtailment of expenses effected within the preceding jear; a report of the revenues of the department for the preceding year, and the amount actually paid for carrying the mail, and comparing the same with preceding years. The Postmaster is required to report to Congress all contracts made for the car- riage of mail matter, and give a detailed account of the postal business and agencies in foreign countries, which report is first to be submitted to the Secretary of the Treasury, and then printed and submitted to Congress as part of the Treasur- er's Eeport. The Department of the Navy consists of the Secretary of the Navy and Assistant Secretary of the Navy and a large executive force. The War Department consists of the Secretary of War and a large executive force. It is unnecessary to enter into detail as to the duties and functions of the Naval and War Departments, as the terms in- dicate what their functions are. The Department of the Interior is a much more complica-ted one. The Secretary of the Interior has an Assistant Secretary, appointed by the President. The Secretary of the Interior is charged with the supervision of public business relating to the following subjects : 1. The census ; 94 COTTSTITUTTOJS-AL HISTOEY. therefore a Census Bureau with its staff of officers is under his direction and control. 2. The public lands, including mines. 3. Indians. 4 All pen- sions and bounty lands. 5. All patents for inven- tions. 6. The custody and distribution of all publications. 7. The Education Department. 8. The Government Hospital for the Insane. 9. The Columbia Asylum for the Deaf and Dumb. Under him, therefore, there is a Commissioner of the Land Office ; a Commissioner of Indian Affairs ; a Commissioner of Pensions ; a Commissioner of Patents, and Assistant Commissioners; Superin- tendent of Public Documents, and Commissioner of Education, — all appointed by the President and confirmed by the Senate. A supplemental Executive Department was created in 1862, independent of the other depart- ments, but the head of which is not a member of the cabinet, called the Department of Agriculture. This commissioner is charged with the duty of procuring and preserving all information concern- ing agriculture which can be obtained by means of books and correspondence, and by practical and scientific experiments ; to collect new and valuable seeds and plants, and shall test by cultivation the value of such of them as may require such tests, and shall propagate such as may be worthy of THE EXECUTIVE POWEE. 95 propagation, and shall distribute them among agriculturists. This purchase and distribution of seeds by the department is confined to rare and uncommon ones, or such as can be made more profitable by frequent changes from one part of the country to another, and the purchase for propa- gation of trees, plants, shrubs, vines, and cuttings, are confined to those which are adapted to general cultivation, and to promote the interests of agri- culture and horticulture throughout the United States. CHAPTEE lY. THE JUDICIAL POWEE. One of tlie main reasons wliy the Articles of Confederation failed to bring about a permanent national entity, was because no proper judicial organization existed thereunder to enforce the law ; Congress was made the tribunal of last resort in controversies between the States, and the only power given to Congress to create judicial tribunals was to create prize courts. ■ Alexander Hamilton, in treating of the Judiciary department of the United States and the necessity for its creation, with reference to the power to adjudge acts void which are passed by a coordi- nate department — the Legislature — says: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution I understand one which contains certain specified exceptions to legislative authority, such for instance, as that it shall pass no bill of attainder, no ex post facto law and the 96 THE JUDICIAL POWER. 97 like. Limitations of tliis kind can be preserved in practice in no other way than through the medium of the conrts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void ; without this all the reser- vations of particular rights or privileges would amount to nothing. " ^ ^ It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American Constitu- tions, a brief discussion of the ground on which it rests cannot be unacceptable." " There is no position which depends on clearer principles than that every act of delegated authority contrary to the tenor of the commission under which it is exercised is void. No legisla- tive act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal ; that the servant is above his master ; that the represen- tatives of the people are superior to the people themselves ; that men acting by virtue of powers may do not only what their powers do not author- ize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construe- 98 COlSrSTITUTIONAL HISTOET. tion that they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption where it is not to be collected from any particular provision in the Constitution. It is not otherwise to be sup- posed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the Legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A Constitution is in fact, and must be regarded by the judges as a fundamental law. It must, there- fore, belong to them to ascertain its meaning as well as the meaning of any particular act proceed- ing from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought to be preferred. In other words, the Constitution ought to be preferred to the statute, the intention of the people to the inten- tion of their agents. Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the THE JUDICIAL POWEE. 99 power of the people is superior to both, and that where the will of the Legislature declared in its statutes stands in opposition to the will of the people declared in the Constitution, the judges ought to be governed by the latter rather than by the former ; they ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental. ^^ * ^ It can be of no weight to say that the courts on the pretence of a repugnancy may substitute their own pleasure to the constitutional intentions of the Legislature. This might as well happen in the case of two con- tradictory statutes, or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law, and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legis- lative body. The observation, if it proved anything, would prove that there ought to be no judges dis- tinct from that body. If, then, the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial officers, since nothing will contribute so much as this to that in- dependent spirit in the judges which must be 100 CO]S'STITUTIONAL HISTORY. essential to the faithful performance of so ardnoiis a duty." — Federalist No. 78. I have cited the foregoing passage at length be- cause vesting courts with power to declare the acts of the highest law-making power unconstitutional would, at first blush, seem to be dangerous. In the mother country, from which the United States derived their institutions, such a power is not given to the courts. Violent constructions of the meaning of words employed by the Legislature are sometimes resorted to, on the theory that Parlia- ment could not have intended to mean anything repugnant to natural justice ; yet no British Court ever declared an act of Parliament void on the ground of a violation of the English Constitution. But for the fact that there is a check upon the judges to prevent them from wantonly vetoing leg- islation by declaring it to be unconstitutional, the judiciary would be the supreme governing power of the land, and that as there is no power superior to the judicial one, to revise their errors of judgment or to make inquiry whether they have reasonably exer- cised that power or not, it is within the power of the court of last resort of the United States to declare every act unconstitutional, however violent such a declaration may be and thus nullify all legislation. There is, however, in the Constitution of the United THE JUDICIAL POWEE. 101 States a check upon this power, lodged in tlie leg- islative body itself. The pov/er to impeach and to remove for any cause appearing sufficient to two- thirds of the Senate upon presentment by the House, makes all the members of the Supreme Court of the United States subject to removal if they are guilty of a gross violation of the judicial discretion lodged by the Constitution in them. And as the members of the Senate, who are charged with the duty of trying the impeachment are responsible to their States, and the members of the House who make the presentment are in their turn responsible to their constitutents — the people of the States — (by this system of checks and balances thus created by the Constitution for the purpose of preserving each department within its proper sphere) are finally called upon to deter- mine whether their servants have acted within the limits of the powers respectively delegated to them. The reasoning of Hamilton seems to be conclu- sive — that no written Constitution deputing limited powers can, by any possibility, be enforced against the deputed agents exercising for the time such powers, unless a court of judges, sitting for life or during good behavior, is interposed between the people and their legislative agents, clothed with 102 COI^STITUTIONAL HISTORY. the power to declare a final opinion on tlie consti- tutionality of the statutes emanating from the Legislature. The Constitution of the United States does not stand alone in that particular. All the State Constitutions grant to the State Courts of last resort the power finally to declare upon the constitutionality of State legislation, and every statute, therefore, passed in the United States may be called into question, as to the constitutional power to enact the same, either before a State or federal court, or before both. The judicial power of the United States is lodged under the Constitution in a Supreme Court and such inferior tribunals as Congress may from time to time ordain and establish. The judges of the Supreme Court and inferior courts hold their offices during good behavior, and they are entitled to receive a compensation which, during their continuance in office, is not permitted to be diminished. The judicial power conferred upon the Supreme Court extends to all cases in law and in equity arising under the Constitution, the laws of the United States and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors and other public min- isters and consuls; to all cases of admiralty and mari- time jurisdiction to which the United States shall THE JUDICIAL POWEE. 103 be a party ; to controversies between two or more States ; between a State and citizens of another State ; between citizens of different States ; be- tween citizens of tlie same State claiming: lands under grants of different States ; and between a State or the citizens thereof and foreign States, citizens or subjects. By the eleventh amendment to the Constitution, however, it was enacted that the judicial power of the United States was not to be construed to extend to any suits in law or in equity, commenced or prosecuted against one of the States by citizens of another State, or by citizens or subjects of any foreign State. It is further provided in the Constitution, that in all cases affecting ambassadors and other public ministers, consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court has appellate jurisdiction, both as to law and fact, with such restrictions and regu- lations as Congress may make. As the Constitu- tion itself declared wherein the original jurisdic- tion of the Supreme Court shall consist. Congress thereafter became powerless to assign original jurisdiction to that court in cases other than those specified in the article. A State may bring 104 COI^STITUTIOJ^AL HISTOEY. an original snit in tlie SujDreme Court against a citizen of another State, bnt not against one of her own citizens. Although the Constitution vests the Supreme Court with original jurisdiction in certain cases mentioned, which may not be enlarged by Con- gress, Congress, nevertheless, may lodge concur- rent jurisdiction in some of the inferior courts created by it under the powers conferred by the Constitution. Under the Constitution, the States are prohibited from doing a number of things, some of which are incompatible with the interests of the Union. There would be no possibility to keep the States within the limitations thus imposed if the States themselves were to be the judges of the extent of such inhibition, or its application to a particular case ; and, therefore, the Supreme Court of the United States is necessarily lodged with the power to correct and prevent infractions thereof. *' This body," says Hamilton, " must have either a direct negative on the State laws, or authority in the federal courts to over-rule such as might be a manifest contravention of the articles of the Union. There is no third course that I can imagine. ^ * * Controversies between the nation and its members or citizens can only be properly referred to national THE JUDICIAL POWER. 105 tribunals. Any other plan would be contrary to reason, to precedent, and decorum." "The peace of the whole," again says Hamilton, " ought not to be left at the disposal of a part. The Union will undoubtedly be answerable to foreign powers for the conduct of its members, and the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. Therefore, the federal judiciary ought to have cog- nizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of public faith than to the security of public tranquility. The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has just been examined. The institution of the Imperial Chamber by Maximillian, towards the close of the fifteenth century, did much to prevent the dissensions and private wars which had there- tofore harried Germa^ny. It may be esteemed a basis of the Union, that the citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States, and if it be a just principle that every Government ought to possess the means of execut- 5* 106 CONSTITUTIOI^AL HISTORY. ing its own provisions, by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens." The jurisdiction conferred in the case of treaties is so necessary a one that it is almost too clear for argument. The cognizance of maritime causes is a necessary part of the power of the National Government as a matter of public peace. It is the only jurisdiction that was conferred by the Articles of Confederation on national courts. The only case where citizens of the same State can go into the courts of the United States, is where they claim lands under grants of different States. Shortly after the adoption of the Constitution, the Judiciary Act was passed, constituting national tribunals inferior to the Supreme Court, the powers and duties of which, under judicial interpretation, we propose now to examine. When the question to which the judicial power of the Federal Government extends under the Constitution forms an ingredient of the original cause, it is in the power of Congress to give the THE JUDICIAL POWEE. . 107 t federal courts jurisdiction of that cause, altliougli other questions of fact or law may be involved in it. The other questions may be decided as incidental to that which gives the jurisdiction. Cases may arise under the laws of the United States by im- plication, so that they come under the judicial power of the Federal Government. It is not unus- ual for a legislative act to involve consequences not expressed. Where a defendant seeks protec- tion of the laws of the United States or under the Constitution in any of the States, it is a case aris- ing under the law, and gives to the United States courts jurisdiction. The Constitution not only confers admiralty jurisdiction to the courts of the United States, but as it superadds the word maritime, every latent doubt is removed thereby as to the extent of the jurisdiction, and it has, therefore, been held to in- clude all maritime contracts, torts and injuries which are, in the understanding of the common law as well as of the admiralty law, maritime causes. The grant, therefore, of admiralty power to the federal courts was not intended to be limited or interpreted by the theory of cases of admiralty jurisdiction in England when the Constitution was adopted. The admiralty, therefore, has jurisdic- tion over maritime contracts, although the power 108 CONSTITUTIOIS^AL HISTOEY. n contemplated begins and ends in tlie State, and is prescribed only in waters within the State ; and the admiralty jurisdiction extends to torts com- mitted on the navigable waters although they are within the body of a county within the State. As to the original jurisdiction of the Supreme Court of the United States, Congress cannot add to nor diminish that jurisdiction ; but in the crea- tion of the inferior federal courts, it may so regulate the jurisdiction conferred by the Constitution as to deprive one court of it, substitute another court, or change the courts upon which jurisdiction has been conferred at its own will ; and of course it can modify the practice of the court in any other respect that it may deem conducive to the admin- istration of justice. It is not competent for the States, by any local legislation, to enlarge or limit, or narrow the ad- miralty and maritime jurisdiction of the federal courts. In exercising this jurisdiction they are exclusively governed by the legislation of Congress, and in the absence thereof, by the general princi- ples of the maritime law. The State Legislatures have no right to prescribe the rule by which the federal courts shall act, nor the jurisprudence which they shall administer. If any other doc- trine were established it would amount to a com- THE JUDICIAL POWEE. 109 plete surrender of the jurisdiction of tlie federal courts, to the fluctuating policy and legislation of the States. If the States have a right to pre- scribe any rule, they have a right to prescribe all rules, to limit, control, or bar suits in national courts. In an early case before the Supreme Court of the United States it was claimed that an Indian nation with which the Government had entered into en- gagements analogous to treaties, was a foreign state in the sense of the Constitution; but this claim was negatived by the court, and the exist- ence of such tribe as an independent power denied. The Indians in that respect form an anomaly in American jurisprudence, because they are neither citizens nor aliens while in their tribal condition. They are under the exclusive jurisdiction of a sub- department of the Interior Department of United States government known as the Indian Depart- ment, but during a brief period they were under the jurisdiction of the War Department. There are many cases where the State courts have concurrent jurisdiction with the United States courts, such as where the United States sues, where a State sues a citizen of another State, where a State sues an alien, where a citizen of one State sues another State, where a citizen sues an alien 110 CONSTITUTIOIS^AL HISTOEY. and wliere an alien sues a citizen. In all such cases, however, it is provided by United States statute, that a removal can be had of such causes either before or after issue joined and before trial, into the United States courts by either party to the record. The reader's attention has already been drawn to the Amendment of the Constitution which pro- vides that a State cannot be made a party at the suit of a citizen of its own State or of another State, adopted for the purpose of guarding against the impairment of the dignity of the State by being constantly subjected at the instance of any private individual to being dragged before the Supreme Court of the United States as a delinquent. Al- though this provision guards a State, as such, from being made a party, nevertheless the construction given by the United States courts to this clause, allows State officers, upon vv^hom rests the duty to perform an act under the direction either of the Constitution of the United States or a statutory law of the United States, to be subjected to man- datory proceedings on the part of the Supreme Court of the United States, compelling them to con- form to judgments and decrees, and to perform or not to perform a particular act. At the time of the formation of the Constitution THE JUDICIAL POWEE. Ill considerable criticism was made upon tlie clause which secured a jury trial in criminal cases alone ; but as the common law of England was part of the heritage of the people of the United States, and as a large part of the system of jurisprudence which was thus transferred to the American people from England was that which was administered by chancellors without a jury, it was deemed wise not to interfere with the body of law wherein jury trials were unknown, for which no substitute could readily be found. Besides, as the Constitution of the United States was mainly intended to guard against tyranny, and as the tyrannical powers of government would be exercised not in private personal claims cognisable in equity courts, but through the criminal courts, and might be attempted to be exercised by bills of attainder passed by pliant legislative bodies, the provision preventing the pas- sage of ex post facto laws and bills of attainder and securing to every man the right to a trial by jury at the place where the alleged crime was supposed to be committed, was a sufficient safeguard against the tyranny of executive and legislative power. A statute was therefore held to be unconstitutional which provided that a party might be tried by the court without a jury on a charge of libel, although that statute gave him the right to appeal to another 112 CONSTITUTIONAL HISTOEY. court where the charge must be tried by a jury, be- cause the accused was entitled in the first instance to be tried by a jury without having his cause prej- udiced by a conviction by a court prior to such trial ; and although the statute gave the prisoner power to determine how he should be tried, yet as the constitutional provision was intended not for the protection of one individual, but for the pro- tection of the community, such a waiver of his rights was not conclusive : the courts would look at the record alone, and if the trial was unconsti- tutional the individual waiver made no difference as to the illegality of the conviction. No provision in the United States Constitution is perhaps more conservative of individual liberty, or more carefully worded in that particular than that which relates to treason. No case of con- structive treason can arise under the plain provision of the Constitution in that particular. No con- spiracy against the Government, however clear, un- less it consists of the actual levying of war, can be construed to be treason. Even resistance to the execution of the laws of the United States accom- panied with force, if such resistance is for a j)rivate purpose only, is not treason. To constitute the offence of treason, the resistance must be of a public nature. THE JUDICIAL POWEK. 113 Under the section which gives to the citizen of each State the privileges, and immunities of the citizens of the several States, it has been held that a citizen of one State cannot claim the right to vote for an election to office in another State in which he is not a citizen under the special laws of that State. Each State has the right to declare who its citizens in a political sense shall be. The meaning of these rights of a citizen of one State in other States has been limited to the right to hold and dispose of real and personal property, to trade, and to transact all the private affairs of life ; but it is held that it was not intended by the Constitution to obliterate the privileges and immunities which arise from citizenship in the several States, nor to interfere with the rights of the States to pass such laws as they may see fit by which they can properly determine whom to admit to the right of suffrage, the time of residence within the State necessary to constitute citizenship, nor to limit the power of the States to subject their citizens, and therefore the citizens of all other States, to certain regulations and limitations as to political rights arising from property or residence considerations. Nor can a citizen of one State claim immunity from the laws to which the State subjects its own citizens. The main purpose of this provision is to inhibit dis- 114 CONSTITUTIONAL HISTOET. criminating legislation against citizens of one by otiier States, and to secure for them the equal protection of the laws of all States. Nor can a citizen claim protection of the laws of his own State in another State, because were he permitted to do so, his rights would be superior in the State of which he is not a citizen to those which he has wherein he is a citizen. Another limitation exists, that the word citizen means citizen of the United States. If either of the States recognized certain persons as citizens who are not so recognized by the United States, such classes thus created have not the immunities and privileges accorded to the citizens of the United States. If a State were to recognize as citizens of the State women or minors who are not admitted to the rights of citizenship in the United States, they could not claim this general citizenship by reason of the special law creating them citizens within the domain of a single State. Under the clause of the Constitution of the United States which gives Congress the power to dispose of and make all needful rules and regula- tions respecting the territory belonging to the United States, a considerable body of legislation and of judicial decisions has sprung up in relation to the public lands of the country. At the time of THE JUDICIAL POWEE. 115 the adoption of the Constitution a vast body of land was ceded by several States to the general Government. By the Louisiana and Florida pur- chases, the Texas acquisitions, and subsequently by the purchases from Mexico under the Guadalu23e Hidalgo treaty of a large proportion of the present western coast of the United States, and finally by the j)ur chase of Alaska, an enormous territory, covering three and a half million square miles, came into the possesion of the United States to act with as it saw fit. With this domain the Government dealt ; first, in selecting vast tracts for the Indian tribes ; secondly, in reserving miners' rights ; thirdly, in providing homesteads for actual set- tiers ; fourthly, in granting concessions to soldiers in the Indian, Mexican, and Civil wars by way of bounty ; fifthly, in gifts to States for educational and other purposes ; sixthly, in making enormous grants to railway corporations as inducements to build the trans-continental lines which connect the Pacific with the Atlantic coasts ; seventhly, by the sale of the public lands as a source of revenue. Under the homestead laws any person may select one hundred and sixty acres, and after a specified time, if he erects thereon a house and actually tills the soil and gives notice of his intention to occupy the same, he can for a mere nominal payment cov- 116 CONSTITUTIONAL HISTOEY. ering expense of issue of patent, etc., become the owner of the land he had in possession. Under the Florida, Louisiana, and Mexican purchases the United States was called upon to deal with grants of great bodies of land which had been by the Spanish and French Crowns and Mexican Government ceded to individuals, colonies and adventurers during the prior occupation of that territory by these foreign governments. Under the promise given by the treaties by which the purchases were made, that full faith and credit would be given to titles theretofore acquired in good faith, the United States has issued patents for vast tracts of those territories to individuals whose claims of title antedated the cession to the United States. An attempt has been made in recent years to limit the rights acquired under such patent to eleven square leagues, but such' efforts have been rejected by Congress, on the ground, that however desirable it may be to pre- vent the public domain from being monopolized, good faith demanded and the treaties compelled respect for such prior titles by immunity from the claim of the United States to lands thus segregated from the public domain. Under the provision of the Constitution which gives to the Constitution of the United States and THE JUDICIAL POWEE. 117 the laws of Congress supreme power, only such power is meant which has been specifically or by necessary implication conferred upon Congress by the Constitution. The States are sovereign and independent governments in all matters not dele- gated to the general Congress. Their power to tax is unrestricted unless they exercise it in such a way as to impede the operation of proper United States legislation or the functions of United States officers. In this power the State is sovereign and supreme, and its wisdom or fairness cannot be in- quired into by federal tribunals. The amendments to the Constitution, with the exception of the last three, are mainly intended to secure personal rights against infringement by the United States Government. Under the first amendment which inhibits Congress from passing any law respecting the establishment of religion or prohibiting the free exercise of speech, of the press, or of the people peaceably to assemble, it has been held that Congress has no power to punish indi- viduals for disturbing assemblies of peaceable citizens ; that this is the prerogative of the several States, and that it belongs to the preservation of the public peace entrusted to local legislation. Although the right of the people to keep and bear arms is secured by the Constitution of the 118 COIS'STITUTIOT^AL HISTOEY. United States, the provision lias been held not to prevent the passage of a law to prevent the carry- ing of concealed weapons. Under the provision which secures the right of the people against unreasonable searches and seizures, it has been held that those provisions of the United States revenue laws which authorize a revenue officer to issue a summons for the produc- tion of books and papers were valid, and that this provision in itself does not prevent the Legislatures of the several States in absence of any State and con- stitutional inhibition from passing such seizure laws as they see fit. The provisions securing all persons held to answer for a capital or otherwise infamous crime against conviction except by a presentment or indictment of a grand jury, except in cases aris- ing under the land and naval forces in time of war, or public danger, have been construed not to apply to misdemeanors, and not to apply to trials in a State court for an alleged crime without any pre- vious indictment by a grand jury. And although a man may not be twice put in jeopardy of life or limb for the same offence, nevertheless he may be twice tried for the same crime, if no acquittal or conviction has been had by a prior jury because of a disagreement or mis-trial. In the provision THE JUDICIAL POWEE. 119 that no man's property or person sliall be subjected to trial except by due process of law, process lias been held to mean some form of judicial proceed- ing known to the common law. Therefore, an order of the President is not due procees, nor is a statute which deprives a man of his property by the repeal of a prior grant of land due pro- cess. Bights once acquired cannot be divested without a process known to judicial forms, result- ing in a trial of some kind. In the same amendment it is provided that no private property shall be taken for public use without just compensation. This of course implies that no private property shall be taken for private use at all, with or without compensation. Public use, of course, implies all use made necessary by war, in which event property may be taken without compensation ; and also for all public purposes, when there is no war, which arise under the exer- cise of the power of eminent domain. This need not be exercised directly by the general Congress, but may be deputed to corporations by giving grants of power to them to perform functions public in its character, such as building of roads, bridges, water-ways, &c., and who may be empowered to exercise the right of eminent domain on making compensation in a manner provided by a statute. 120 CONSTITUTIOIS-AL HISTOET. No State nor the United States can take property from indiyiduals for ends which are not public. Thus it has been held that to exercise the taxing power in aid of private enterprises, however desir- able the encouragement of such enterprises may be for the general prosperity of the community, is un- constitutional and improper legislation. It is pos- sible that at some future day the Supreme Court of the United States may reverse its former de- cisions under the regulating of commerce clause and upon the ground just stated declare protective tariff legislation under the guise of revenue laws, unconstitutional. No State can condemn the property of the United States. The power in that respect of the Federal Government is complete in itself. It can neither be enlarged nor diminished by a State, nor can any State prescribe the manner in which it must be exercised, and the consent of a State can never be a condition precedent to its exercise. In case of criminal prosecutions the Constitution limits the power of the courts to trials within the district where the crime has been committed, gives to the accused the right to be confronted with the witnesses against him, secures for him the compul- sory process of courts to obtain witnesses in his favor, and compels the courts to assign counsel for THE JUDICIAL POWER. 121 his defence. Under this provision it has been held by the United States courts, that no persons, except those who are connected with the army or navy, in districts where the courts are open can be charged with crime and tried before a military commission. One of the most important protections to indi- vidual liberty embodied in the Constitution of the United States is in the seventh article of the amendments, which provides that no fact tried by a jury shall be reexamined by any court in the United States otherwise than accord- ing to the rules of common law. This secures citizens of the United States against vexatious proceedings by which they may be again and again harassed on the same subject matter of complaint, after the matter has once been judicially deter- mined. When so judicially determined both the laws of the States and the procedures of the courts of the United States provide for proper appeals by means of which the question of errors may be considered and determined, and thus alone the subject matter of the controversy maybe reviewed. When determined, however erroneously, by a court of last resort or by a competent judicial tribunal from whose judgment no appeal has been taken, the judgment is to be considered final, and in the 6 « \ 122 CONSTITUTIONAL HISTORY. interests of justice not to be shaken nor to be re- examined by any department or any special court or by any other court, as between the same parties. Trial by jury is so often referred to in the United States Constitutions that what is a trial by jury has been the subject of judicial examination, and it has been held that a decision by a jury in which three -fourths of a jury are permitted to determine, is not such a trial by a jury ; that the only proper judgment known to the Constitution that can be rendered in a trial by a jury, is that which requires unanimity on the part of the jury. The eighth amendment, which provides that excessive bail shall not be required, nor excessive fines be imposed, nor cruel or unusual punishments be inflicted, has been held to apply only to the im- positions of fines and punishments by United States tribunals for offences against United States, and that it was not intended to protect the citizens of the several States from the penal codes of such States, although the fines or punishments may be considered both excessive and cruel. The thirteenth, fourteenth, and fifteenth amend- ments, and which were the result of the civil war, had for their object the abolishing of slavery, the securing to all persons who were citizens of the United States, the position of citizens of the States THE JUDICIAL POWER. 123 wherein they resided, and to prevent any State from not giving the equal protection of its laws to any of the citizens of the United States by reason of any distinction of race, color, or previous con- dition of servitude. They also had for their object to abolish the apportionment of congressional seats which had previously been based upon popu- lation unrepresented as citizens ; the slaves in the Southern States, counting as part of the population prior to the war for purposes of representation, although treated as chattels for all other purposes, gave to the South an undue proportion of represen- tation as compared with the free white population of the North. These amendments were also in- tended to prevent persons from becoming officers of the United States, who had actually engaged in rebellion unless the disability was removed ; and finally their provisions are clear and unmistakable declarations forever to prevent the questioning of the validity of the public debt of the United States which had been created to suppress the rebellion, and on the other hand forev-er to prevent the United Spates from assuming to pay, or the States from ever permitting the payment of, any debt which had been created or incurred in aid of the insurrection or re- bellion. Every claim for loss or emancipation of any slaves, or losses of rebels in property, are forever 124 COI^STITUTIO]S"AL HISTOEY. barred by these amendments, and all courts have the duty imposed upon them to declare all such debts, obligations and claims illegal and void. Under the foregoing amendments it has been held that the States are not permitted, under public edu- cational laws, to exclude colored children from its benefits merely because of their African descent, but that separate schools might be maintained wherein such children may be educated apart from the whites. Under the provision that the rights of the citi- zens of the United States shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of ser- vitude, it has been held by the Supreme Court of the United States that the right of suffrage is not thereby conferred upon any one ; that it simply pre- vents the States from giving preference to one citizen of the United States over another on account of race, color, or previous condition of servitude, - and that it leaves the States as free as theretofore to regulate the right to vote, but prevents them from making any distinction by reason of race, color, or previous condition. "We have now passed in review the leading articles of the Constitution of the United States, and the main questions that have arisen for judicial THE JUDICIAL POWER. 125 determination under them. The apprehension that was originally felt that the Supreme Court of the United States would not faithfully declare the principles of the Constitution, and that it either on the one side would be under the domination of the legislatiye body, or, on the other, attempt to domi- nate the Legislature by improperly declaring such measures unconstitutional which could be so declared only by a violent misinterpretation of the fundamental law, has proved unfounded. The duty has thus far been performed with conscientious firmness, and so thoroughly do the people of the United States, including its Legislatures, rely upon the fearless performance of Jhat duty on the part of the courts of last resort, that when an objection is made in a legislative body, that a certain provision in Sb proposed law is of doubtful constitutionality, the ready answer is made that if it is so the courts will so declare it, and thus eliminate it from the law. We have seen that the Supreme Court of the United States itself is established by the Constitu- tion. The power to establish inferior tribunals was given to Congress. The Supreme Court having original jurisdiction in two classes of cases only, viz., in cases affecting ambassadors, other public ministers and consuls, and in cases in which the 126 COITSTITUTIONAL HISTOEY. State is a party, Congress could not vest any portion of the judicial power of tlie United States except in the courts ordained and established by itself. The appointment is vested by the Constitu- tion in the President, but the organization of these inferior tribunals was made by the Judiciary Act of 1789. This act repeats the language of the Consti- tution of the United States in creating the Supreme Court, and extends the power of the court so as to include the right to issue writs of prohibition to the district courts when proceeding as a court of admiralty and maritime jurisdiction, and writs of mandamus in cases warranted by the principles and usages of law to any courts appointed by the authority of the United States or to persons hold- ing office under the authority of the United States, where a State or an ambassador or other public minister, or a consul or vice-consul is a party. It defines the appellate jurisdiction of the Supreme Court to be by appeal, or writ of error from the final judgments of circuit courts or district courts acting as circuit courts ; in civil actions brought there by original process or removed there from the courts of the several States ; all final judgments in the Circuit Court in civil causes removed there from any district court by appeal or writ of error where the amount in dispute exceeds two THE JUDICIAL POWER. 127 thousand dollars ; also in cases of equity where the amount in dispute exceeds two thousand dollars ; all prize cases where the matter in dispute exceeds the sum of two thousand dollars, an appeal lies to the Supreme Court from the judgments of the dis- trict courts. Likewise the Supreme Court is to entertain appeals of prize causes which were depending in the Circuit Courts. It is provided that if the judges are divided in opinion in any Circuit Court, the point shall be certified to the Supreme Court, and its decision or order in the premises shall be remitted back to the Circuit Court and there entered of record. An appeal is provided by the act of 1863 from final judgments or decrees of the District of Columbia to the Supreme Court of the United States. By subse- quent legislation under which the Court of Claims was created, appeals were provided to the Supreme Court of the United States from decisions of the Court of Claims when such decisions are adverse to the United States in every case, and where ad- verse to the claimants when the amount in contro- versy exceeds three thousand dollars. It was further provided by the Judiciary Act that in case of a final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the 128 CONSTITUTIOI^AL HISTOET. validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against its validity, or where is drawn in ques- tion the validity of a statute or an authority exercised under any statute, on the ground of being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity, or where any title, right, privilege or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under the United States, and the decision is against the title, right, privilege or immunity, especially a set-off or claim by either party under such Constitution, treaty, statute, commission or authority, in such case the final judgment or decree may be reexamined, and re- versed or affirmed in the Supreme Court of the United States on a writ of error, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed upon in a court of the United States, and the proceed- ings upon the reversal shall be the same except that the Supreme Court may in its discretion pro- ceed to a final decision of the cause and award execution, or remand the same to the court from which it was removed ; and the Supreme Court may reaffirm, reverse, modify or affirm the judgment or THE JUDICIAL POWEK. 129 decree of such State court, and may award execu- tion or remand the same to the court from which it was removed by the writ. This was a most important addition to and clear dejQ.nition of the powers of the Supreme Court, for without it State courts, when once having acquired jurisdiction of a case, the same not having been removed or not being removable under the law to the federal courts, would have had the final power to determine upon the interpretation of an act of Congress or of a treaty, or of the application of the Constitution to any particular case ; and how- ever strenuously a litigant might have invoked the protection of the Constitution of the United States against the wrong which was attempted to be done him, and however correct his views might have been, it would still have been in the power of the court to have denied, as against a statute of the State, any relief, and wilfully to have shut its eyes to the protection which was intended to be given by the Constitution of the United States to the litigant, and its decision would have been final, but for the fact that the Judiciary Act secures to every litigant the right to spread upon the record the questions applicable to his case, arising under the act of Congress or under the Constitution of the United States, and thus open to himself an 6* 130 CONSTITUTION^AL HISTOEY. appeal to the court of last resort of tlie United States. Not only was this provision necessary for the purpose of securing the supremacy of the Con- stitution and the acts of Congress thereunder over the Constitutions and laws of the several States, but it was also necessary for the purpose of secur- ing uniformity of decisions and of interpretation of the Constitution of the United States itself. A vast number of questions have arisen under this power of appeal to the Supreme Court of the United States, and the business of that court became so encumbered by reason of the numerous appeals from State courts on the mere suggestions on the record of a United States question, that it became necessary for the court, somewhat arbitrarily, to limit the appeals in such cases, and to limit the inquiry arising from such an appeal from a State court to the one question, "Is there a United States question involved, and if so has it been properly decided by the State courts ? " The Supreme Court of the United States have there- fore declared that when an appeal is made from, or writ of error taken to a court of last resort of a State, they will not reexamine as an appellate court the correctness of the decision of the court of last resort upon any other point than the consti- tutional one or one arising under the act of Con- THE JUDICIAL POWEE. 131 gress ; so that if they should come to the conclusion that the case was correctly decided on the consti- tutional question, however erroneously the decision may have been arrived at ©n questions which arose entirely under the law of the State independent of the Constitution of the United States and of the United States laws, they will allow the decision to stand. This action of the Supreme Court prevents appeals to the Supreme Court of the United States being taken by simply suggesting a constitutional question in order to have the advantage of that court's reexamination of the whole record, and if error be found to send it back to be cor- rected. In cases, however, where the State itself is a party or so directly interested that the bias of the State court may be supposed to be in favor of the State's views as against the United States Constitution or. the act of Congress, then the court v^ill look into the record sufficiently to see whether the decision upon other points was not merely colorable, and not deem itself concluded by the facts as found by the court below ; in other words, whether the appellate juris- diction of the Supreme Court applies in such a case or not is not to be determined for the Supreme Court by the findings of fact on the part of the lower court which would preclude its jurisdiction, 132 CONSTITUTIONAL HISTOEY. but tlie Supreme Court of tlie United States will itself examine into facts sufficiently to ascertain whether or not its jurisdiction attaches. The Judiciary Act further provides for writs of ne exeat by the Supreme Court and circuit judges, and of writs of injunction by the supreme, circuit and district judges ; a limitation upon the power to issue writs of injunction to State courts except in cases of bankruptcy ; and for the sake of uniformity in the various districts and circuits of the United States, the laws of the several States, except where the Constitution of the United States and statutes of the United States otherwise require, are re- garded as rules of decision at common law in the courts of the United States where they apply ; and a recent Judiciary Act has made even the forms of procedure in common law proceedings of the several State courts in the various districts where the courts sit, the forms of pleading and procedure of the United States courts. Provision is made to prevent injustice by the dragging of persons out of the district in which they reside, by compelling plaintiffs, residents of the same State, to commence their actions v/ithin the district where the defendant resides, and all parties are permitted in the United States courts to manage their own cases personally or by counsel. The THE JUDICIAL POWER. 133 Judiciary Act of 1789 makes ample provisiou for the issue of writs of habeas corpus^ empowering and com- pelling all judges of the United States courts to issue this writ of privilege ; it gives an elaborate and de- tailed procedure for the return of the writ and the adjudications thereupon, and apjDeals to circuit courts and Supreme Court of the United States, and stays all proceedings on the part of the State courts pending the consideration of the habeas corpus by the court below and the proceedings on appeal. Except in the Court of Claims the United States cannot involuntarily be made a party in a proceeding at law. The jurisdiction of the Court of Claims, as has been stated, is confined to claims founded upon any law of Congress or upon any regulation of an execu- tive department, or upon any contract express or implied with the Government of the United States, and all claims which may specially be referred to it by either House of Congress ; all set-offs, counter- claims and claims for damages, whether liquidated or unliquidated on the part of the Government of the United States against any persons making claim against the Government in the courts. By the acts of 1863, 1864, and 1868, the large claims arising from the seizure of cotton in the Southern States towards the close of the rebellion, were specially referred to the Court of Claims for 134 COI^STITUTIOIN^AL HISTOEY. action. The lobbies of tbe Houses of Congress prior to the organization of the Court of Claims had been so beset bj claimants that it was found necessary to organize a special tribunal to take into consideration some of the cases which prior to that time were constantly presented to Congress. As the court, however, is one of limited jurisdiction and as numerous cases of claims asfainst the United States Government arise, of which the court has no jurisdiction, the committees of Congress are still besieged by claimants, and appropriations are annually made by acts, arising from reports of committees wherein such committees sit as a court of judicature determining upon contested claims against the United States. Such a committee lacks the dignity and power of an ordinary court of jus- tice, is subjected to influences which courts of justice are not ordinarily subjected to, and has not the machinery of a trained bar and regular sessions and continuous investigations by which the truth is ascertained in ordinary courts of justice. Hence meritorious claims are overlooked and meretricious ones are so often paid through the instrumentality of Congress, that the question has recently been considerably agitated whether it would not be wiser to have the sovereignty of the United States Government sufficiently unbend as to allow it to be THE JUDICIAL POWER. 135 sued in its own courts in the same manner as a private litigant. Both before and shortly after the adoption of the Constitution it was subjected to very severe criticism on the ground that it did not contain a Bill of Bights. A careful examination of the first twelve amendments will show that they were mainly passed to satisfy that objection. The objection that was urged to their adoption was that they were unnecessary; that the Constitution begins with the declaration, "We, the people of the United States, to secure the bles- sings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America ; " that as the very pur- pose of the Constitution was to secure the bles- sings of liberty this declaration was, as Alexander Hamilton thought, a better recognition of popular rights than that which is contained in the elaborate declaration of rights in every State Constitution. It was, however, thought wiser to direct, enlighten and quicken public opinion as to the rights which were intended to be reserved to the people, and which w^ere not intended to be delegated to the general Congress, that they be in terms so specifi- cally declared that any infraction thereof would be immediately recognized as unconstitutional and void. The first amendment, which related to free- 136 COlSrSTITUTIOlSrAL histoey. dom of religion " was enacted under the solemn consciousness," says Story, " of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, and it was therefore deemed advisable to exclude from the national Government all power to act upon the subject. One of the reasons, too, for the necessity and wisdom of this course was the fact of the dif- ferent religious complications of the majorities in different States. In some of the States the Catholics predominated ; in others. Episcopalians ; in others, Presbyterians ; in others, Quakers ; and any recognition on the part of the Government of any religion, except in the vaguest possible sort of way, would have given rise to considerable amount of jealousy and bickering." The same amendment contains the security for freedom of the press and of speech. It is necessary to say that this security was not intended to give to any citizen an absolute right to speak or write or print whatever he saw fit without personal responsibility to the person aggrieved thereby. Every man was intended to have the right to speak and the right to print his opinions upon any sub- ject whatever without any prior restraint by way of censorship ; but if he injure any other person in his rights of person, property or reputation, he is THE JUDICIAL POWEE. 137 subject to civil and criminal prosecution for such injury precisely as lie would be for any otlier injury to person or property. " Without such limitation," says Story, " it might become the scourge of the republic." The question how far the Government has the right to interfere with the press under the security thus afforded, and where licentiousness begins and liberty ends, is one which has often been mooted, but has not yet found a satisfactory solution. There is, however, much force in the contention that if the Government is to determine at any time what is liberty and what is license, then the constitutional provision is but a tissue of empty words, because every government, however autocratic, admits of certain strictures ; the ques- tion is simply as to where the line should be drawn. The sounder doctrine in the United States now seems to be this : that the Government cannot ex- ercise a restraint upon publications ; in other words, no censorship of the press can be exercised under the constitutional guaranty that men may speak and write freely what they please ; and however danger- ous and bad the doctrine may be which is being advocated or promulgated by the press, it is not within the power of the Government to prevent its publication. On the other hand if the press at- tacks private rights, calumniates individual char- 138 CONSTITUTIONAL HISTOET. acter, or destroys domestic peace, it is responsible to the individual aggrieved both by criminal in- dictment for libel and by private prosecution for libel for the injury thus sustained. And the equity courts have power to restrain the intended pub- lication of articles if they are injurious to private rights, and are not merely the discussion of a public question. Whether the United States Gov- ernment can be forced to carry through the mails literature which is confessedly immoral, is a ques- tion which has not yet received final adjudication. Upon the instigation of the New York Society for the Suppression of Yice, the object of which is mainly directed against immoral publications, the United States Government has refused to carry cer- tain libidinous and clearly immoral sheets. This refusal is of course destructive of the business of the publications, and as the refusal was generally accompanied by declining to redeliver the sheets in question, it practically amounted to a confisca- tion of private property. In the lower courts this course on the part of the Government has been held to be constitutional and proper, as it was in part the exercise of police surveillance and super- vision, and no man's right to speak or write what he pleased was impaired by the refusal of the Gov- ernment to carry such writings. The argument, THE JUDICIAL POWER. 139 however, against this position is that as the general Government through its revenue laws maintains a postal department to which all are supposed equal- ly to contribute, to deny the facility of the postal department is to impose in fact a punishment for a particular writing, and is thus an impairment of the freedom to publish, which was intended to be secured by the Constitution. The question will probably receive final adjudication by the Supreme Court before long. During the war of the rebel- lion, 1861-1865, several of the metropolitan papers were imposed upon by a forged proclamation of President Lincoln calling for an additional draft of four hundred thousand men, to repair the disasters to the Union arms. This pretended proclamation greatly intensified the feeling of despondency that had already taken possession of the people in the North at that particular juncture of the war. The newspapers publishing the proclamation were or- gans of the Democratic party, and were therefore subjects of suspicion on the part of the general Gov- ernment. They were suspended by military orders, and a military force took possession of their prem- ises and stopped for a short time the publication of these journals. The question of the right or authority of the Government in time of war so to suspend a paper was never judicially raised. The 140 COIfSTITUTIONAL HISTOET. order suspending tliem was recalled on the discov- ery by the Executive Department of the Govern- ment that the mistake was an innocent one and that it was not intended wilfully to embarrass the Government in its military operations, as it was wholly the consequence of an imposition. Under the authority of the case known as the Milligan case, decided in 1866, we are bound to assume that the ■ Supreme Court of the United States would have declared such a suspension illegal and unwarranted by the Constitution at any point where the ^civil tribunals were in full force, even in time of war. At the theatre of war, of course, a different rule prevails ; but because a nation is at war every part thereof is not necessarily under the domination of the drum-head court-martial. The right of the people peaceably to assemble and petition the Government for the redress of grievances is one which was borrowed from the Declaration of Rights in England, with very little change in phraseology. No judicial opinions have ever been given upon this clause, because the right has never been denied. The right of the States to have a militia, and the right of the people to keep and bear arms, is the subject of the following amendment. This is also to be found in the Bill of Eights of 1688. That this THE JUDICIAL POWER. 141 proyision simply means arms necessary for the militia and not to secure to each man the right to keep a private arsenal, goes without saying. That no soldier shall in time of peace be quartered in any house without the consent of the owner was to prevent the billeting of soldiers in time of peace upon the people. This amendment has in practice been found to be unnecessary. The army of the United States in time of peace is so small and the public property of the United States so vast that there is no necessity ever to billet soldiers upon the inhabitants. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and to prevent such searches and seizures, except upon due warrant issued by a court of justice, is one which would seem to be essential for the preserva- tion of personal liberty, and has been twice assailed in the United States, once under the Alien and Sedition laws during the administration of Jeffer- son, and the second time during the war of the re- bellion by the State and War Departments. In both cases the Executive Departments sought ref- uge under the principle of solus popuU siiprema lex ; that the country was in peril and that it was neces- sary to disregard a single constitutional provision for the purpose of saving the whole structure. 142 COI^STITIJTIONAL HISTOEY. The revenue laws of the United States contain many clauses of questionable authority by which revenue officers are entitled to search and seize books and papers of merchants and private citizens, and the question is not yet fully determined whether such inquisitorial proceedings and seizures are not, both in spirit and in letter, repugnant to this pro- vision of the Constitution. That excessive bail shall not be required, nor ex- cessive fines imposed, nor cruel or unusual punish- ments inflicted, is again a transcript of a clause of the Bill of Eights of the Revolution of 1688. This clause operates as a restriction upon the powers of the United States courts alone, and not upon the State courts. The various amendments have from time to time been the subject of judicial decision, but the most important of the amendments are the last two of the first eleven, which are to the effect that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Were it not for this clause it might have been argued with considerable plausi- bility, that as the people saw fit, by amendments, to incorporate into the Constitution, a Bill of Eights, whatever they failed to preserve or mention they ceased to have. This provision was made to guard THE JUDICIAL POWER. 143 against the evil suggested in the Federalist when it gave a reason why the Constitution had not given a Bill of Eights, because the reservation of powers without a Bill of Bights was larger than the reser- vation of powers with a Bill of Bights. The next and last amendment of the first eleven is that the powers not delegated to the United States by the Constitution, nor prohibited to it by the Constitution, are reserved to the States respec- tively or to the people. This is a rule of interpre- tation of the Constitution which probably would have been followed by the courts without this ex- press declaration. The Constitution is an instru- ment of limited and enumerated powers, and, therefore, whatever power is not given is withheld; but the declaration has been productive of much good, and took the matter of whether the United States is a government of merely delegated powers out of the range of controversy. One great step in advance, however, must here be noted between the old Articles of Confederation and the Constitution of the United States, inas- much as here the expression is "the powers not delegated to the United States by the Constitu- tion," and in the Articles of Confederation it was " powers not expressly delegated or prohibited." Therefore, as a large proportion of the powers ex- 144 CONSTITUTIOl^AL HISTOET. ercised by Congress arises from powers wMcli it derives by necessary implication from the powers expressly conferred, the United States government differs in that respect from the Govei^ment under the Articles of Confederation, inasmuch as that had no power which had not been specially con- ferred, and therefore had no powers by implication. Hence it was crippled at every turn because the organic law which constituted it did not in express terms confer the right to pass a particular bill. CHAPTEE V. THE POST-CONSTITUTIONAL HISTOEY OF THE UNITED STATES. The foregoing chapters give a succinct state- ment of the provisions of the Constitution and of the leading questions that have been decided under that instrument. An understanding, how- ever, of the institutional history of the United States would be incomplete if the political and constitutional questions entering into politics from the time of the adoption of the Constitution down to the present day were not sketched, in however superficial and rapid a form. The political divis- ions of parties in the United States unquestionably exerted a very strong influence upon judicial de- cisions and the interpretation of the provisions of the Constitution of the United States. There is an unconscious influence exercised by public opinion upon the minds of those who are called upon to decide finally constitutional questions, which is neither corrupt nor sinister, but which causes a written constitution to approximate more closely 7 145 146 COl^STITUTIOT^AL HISTOKY. to an unwritten one, like tliat of England, by mak- ing tlie written word bend and yield to the neces- sities of tlie hour, as a large and influential majority may determine, and that without constitutional amendment. The limits of this book do not per- mit so analytical a survey of the whole field as to show in detail the influence and pressure of public opinion upon the Supreme Court of the United States and the gradual yielding of the court to the pressure of that opinion, or the influence of the opinions held by the members of the court on po- litical subjects upon their decisions as a court. The reader must make those applications for him- self when the story of the political parties in the United States will have been told. It will be remembered that the Constitution came into existence under an almost irresistible pressure of necessity either to disestablish the Government of the United States and to leave each State free as an independent sovereignty to make such alliances as it might see fit — because the Articles of Confede- ration proved but a rope of sand — or to organize a Government clothed with sufficient power to enforce obedience to its laws ; with power to assess and col- lect revenue, with power to make war, treaties of peace and foreign alliances, and having both towards the States and as against foreign nations all the attri- THE POST-COIN-STITUTIOI^AL HISTOEY. 147 butes of sovereignty. The jealousy of the States, however, which caused the principal difficulty under the Articles of Confederation, and the ambition of local State leaders, who were apprehensive that the formation of the Constitution of the United States would be destructive of their influence, and who opposed therefore the Constitution after its adoption, survived sufficiently to cause within an early period thereafter a renewal of hostility to the pact, no longer in the form of open opposition to the Union, but under the form of urging a strict and limited construction of the powers conferred upon the federal Government, and to make an ex- aggerated claim of sovereignty on the parts of the States. Under the Constitution of the United States Washington was unanimously elected first Presi- dent, and he so continued for the period of eight years, and probably would have continued to hold the office during the period of his life, if he had not voluntarily seen fit to withdraw at the end of his second term, presumably for the purpose of creating an example to limit the Presidential term, so that thereafter there should be a sufficiently frequent change of the Executive head of the Government to prevent future elections from being mere idle forms, and also to prevent a con- 148 OOlvrSTITUTIONAL IIISTOET. solidation of power in the hands of the Executive, which long continuance in office would inevitably bring about. Durinsf Washinsfton's administration differences of opinion were held largely in abeyance. The commanding personal dignity of Washington and the complete confidence reposed in him by the body of the people, his unimpeachable personal character and his remarkable good sense and moderation, gave to the country during such first eight years that peace, quiet, and freedom from political agita- tion which were above all things needful for the purpose of establishing the Government, rehabili- tating its financial condition which had become almost hopeless under the Confederation, placing foreign relations upon a sound footing, and allowing the people of the United States and its Government a tranquil growth unharassed by internal con- flict. The adoption itself of the Constitution was of course accompanied with considerable opposition. But ten States had adopted the Constitution at the time of the inauguration of the Government, and in some of the States the Constitution was adopted by but slight majorities. There was naturally, there- fore, after the Constitution, as well as before, two parties — Federalist and Anti-Eederalist — the lines THE POST-CO]S"STITUTIO]S"AL HISTOEY. 149 of which were, on the whole, retained after the Government was inaugurate cl. The Anti-Federalist party claimed, after the Constitution was adopted, as strong a loyalty to the government as the Fed- eralist party itself, but the form of opposition it then adopted was to limit the general Government to the strict letter of its powers. The first Congress met in the City of New York. The first questions that engrossed its attention after the adoption of the Constitution were the organization of the Judiciary, the revenue duties on imports and exports, a system of taxation for the replenishment of the Treasury to carry on the necessary purposes of government. The discussion in Congress on the tariff laws shows that at the very outset the question of using the tariff as a means of protecting "infant" manufacturers was one which entered into the method of formulating the legisla- tion as part of the system. Fitzsimmons, of Penn- sylvania, was mainly the author of the first tariff list. James Madison, although he owned himself, as he said in the debate, " the friend of a very free sys- tem of commerce, and that if industry and labor are left to take their own course, they will generally be directed to those objects which are most productive, and that, in a manner more conservative and direct than the wisdom of the most enlightened Legislature 150 CONSTITUTIOlSrAL HISTOEY. could point out," nevertheless conceded (a concession which, by the light since thrown upon these ques- tions by scientific research, appears to have been an error) that as to the navigation element of the tariff, if American citizens were left without restraint, and the law made no discrimination between vessels owned by citizens and those owned by foreigners, while other nations made such discrimination, such a policy would go to exclude American shipping from foreign ports. He conceded the necessity that every nation should have in itself the means of de- fence, and that in the period antedating the Con- stitution, establishments had grown up under the powers which those States had of regulating trade, which ought not to be allowed to perish in conse- quence of recent alterations, and as he was the leader of the House, his surrender to the idea of making protection a^n incidental consideration in the raising of the revenue of the United States en- grafted that system upon the legislation of the country. A discrimination was imposed in favor of teas imported in American bottoms ; a tonnage duty was imposed, discriminating in favor of American products ; a discriminating duty on spirits was passed in favor of nations having commercial treat- ies with the United States. In the first Congress the slavery question made its earliest appearance THE POST-CONSTITUTIONAL HISTOEY. 151 in tlie shape of a proposition, emanating from Mr. Parker, of Virginia, to insert a clause, imposing a duty of ten dollars on every slave imported, with a view of discouraging the slave trade. The motion was not agreed to, but the discussion which it raised, in which Madison took an important part, is inter- esting, as showing that at that time many of the Southern States were anxious to limit the growth of the slave power, and looked forward to the period when slavery might become entirely obliterated. The same Congress passed a Navigation law for-the registering of American vessels ; created a Coast Survey ; organized Departments ; and placed the power of appointment and removal in the hands of the President. The power of removal by the Pre- sident was strongly opposed, and the measure conferring it passed the Senate only by the casting vote of the Vice-President, Mr. Adams. The dis- cussions which preceded and accompanied the adoption of the Constitution by the various States, so unmistakably demonstrated the apprehensions of great masses of the people, that the Constitution was not sufficiently guarded by the declaration of the rights of the people, which were to be free from any possible impairment at the hands of authority, that Mr. Madison at once proposed amendments to lay those fears at rest, and the amendments which 152 COITSTITUTIOKAL HISTOEY. have been the subject of consideration in the last chapter, were the result of this action. Jefferson's oppositions to the Constitution as it stood in 1789, were mainly met by the amendments, except the one in reference to which he was extremely strenu- ous, that the Executive shall not be reeligible to office. The important subject of the national debt was laid over until the following session for the purpose of receiving the report of the Secretary of the Treasury upon a plan for its liquidation. On the subject of the public lands nothing was done except to effect the passage of an act for the government of the Northwest territory. The most stormy debate of the session was upon the question of the permanent seat of the federal Government. The Southern members wanted a site on the Poto- mac ; Pennsylvania wanted a return to Philadel- phia, which had been the seat of the Continental Congress. The House agreed, as a matter of com- promise, to fix the seat of Government on the Susquehanna. The bill came back from the Senate so altered as to substitute for the Susquehanna the district ten miles square adjoining Philadelphia. The House agreed to this, with a slight amendment which made it necessary to have the bill go back to the Senate ; but by that time the dissatisfaction of the Southern members had made itself so apparent THE POST-CONSTITUTIONAL HISTORY. 153 that it was deemed wiser to lay the whole matter over to the following session. The only important administrative question that characterized the first year of Washington's admin- istration in addition to the mere selection of persons to fill the various offices, was the making of treaties with the Indian nations ; and as along the whole western frontier the Indian affairs were in a most unsettled state, it was necessary to take immediate measures to prevent a general outbreak among the Indians against the new Government. "Washington appointed commissioners to treat with them, and these commissioners confirmed some of the old Indian treaties that had been made by the various States, and promised the Indians immunity from taxation and forcible prevention of settlers from trespassing upon their lands. At the opening of the following session Alex- ander Hamilton, the Secretary of the Treasury, reported the debt due to the Court of France and to private individuals and foreign nations, some- thing below twelve million dollars, and the do- mestic debt at $42,500,000. The highest possible tone was adopted by Hamilton as to the obligation of the United States for the payment of the debt and the expediency for doing so, and not to lend ear to the suggestions which were made to scale 7* 154 COIS'STITUTIOIS'AL HISTOET. the debt because of tlie depreciated prices at wliicli the then holders had bought up its evidences on speculation. The State debts arising out of the war, which were practically repudiated, made an- other addition of $26,000,000. He proposed the funding of the debt at six per cent., and to receive in payment of the new bonds the evidences of the old debt, and to create a sinking fund from post- office proceeds for the gradual extinction of the new debt. The Continental paper money, which amounted to $200,000,000, had by the Continental Congress itself been reduced by a system of scaling at the rate of forty for one. There were $78,000,- 000 of the Continental paper money yet outstand- ing, and it was intended not to disturb that re- duction, but to accept the Continental paper money upon the basis of two and one-half cents on the dollar. It was finally agreed that the Government would pay the holders of the certificates of the United States the face thereof, and the question arose on the assumption of the State debts. This led to an extremely acrimonious debate, arising from the fact that some of the States had largely provided for the expenses of the war by taxation, while others ran recklessly into debt, and it was evidently unfair to the inhabitants of the States who had borne the burden of taxation during: the THE POST-CON^STITUTIONAL HISTOEY. 155 war for the purpose of preventing tlie accumulation of a debt, that they should be now called uj)on to pay the interest and eyentually the principal of bonds representing the reckless issues of bills of credit by sister States, and thus to tax themselves for the free- dom from taxation which their neighbors had enjoyed. The plan of Hamilton finally prevailed on a very close vote. During the second year of the Union under the Constitution a bill was passed to locate the seat of Government for ten years at Philadel- phia, and thereafter permanently on the Potomac. This measure was passed only by combining there- with the assumption of the State debts, as a com- promise measure. During the third year of Wash- ington's administration a division arose in the Cabinet, which subsequently resulted in a party division on the bill to incorporate the Bank of the United States. Jefferson and Madison were of the conviction that it was an unconstitutional measure and had a tendency to corrupt the powers of gov- ernment. Hamilton and Knox, members of the Cabinet, gave their written opinions in favor of the President signing the bill. Ptandolph was also opposed to it. It is fair to say, however, that the Republican party, which subsequently became the Democratic-Pepublican, and later the Democratic party, drew considerable accession of strength from 156 COITSTITUTIONAL HISTOEY. the Federalist party in process of time, because the loyalty of the Republican party to the Con- stitution since its adoption could scarcely be questioned. Opposition to the Constitution itself had well-nigh died out. There was room and reason, however, for the existence of a party of strict constructionists of the powers conferred, actuated by a strong determination to confine in every possible way the Federal party to keep within the limits of federal power and to assert the local rights of States as to all matters not con- ferred by the Constitution to federal control. The firm conviction had taken root in the minds of many able men in the Unifced States, of which Jefferson was the leader, that State organizations were the only form in which the liberty of the cit- izen could be preserved, and that a nation of the territorial extent and diversity of interests of the United States would in time become a centralized power sufficently strong to crush out individual liberty unless there existed in the form of States quasi independent governments — as imperium in imperio sufficiently powerful to make head against the centralized Government. During the administration of Washington, the divergence of the ideas represented by Thomas Jefferson and those represented by Alexander THE POST-CONSTITUTIOIS^AL HISTOEY. 157 Hamilton, became more and more marked, so that as early as June, 1794, Jefferson felt constrained to retire from Washington's Cabinet. During part of the time of Washington's administration, the rela- tions towards both France and England had become critical, but Washington's tact overcame tho diffi- culties, and the causes of irritation, although not entirely removed, were for the time being avoided. Washington refusing to be a candidate for a third term, caused the election, in 1796, of John Adams and Thomas Jefferson as respectively President and Vice-President of the United States. It will be remembered that the election was then held be- fore the new amendment took effect under the original clause of the Constitution, by which both great parties in the United States were substan- tially represented in the offices respectively of President and Yice-President ; because under the original clause he who had the largest number of votes became President, and the one next in number became Yice-President. Therefore, Adams, representing the Federalist party, be- came President of the United States, and Thomas Jefferson, who was then the leader of the Repub- lican party, became the Yice-President. Madison, who had heretofore acted between the two parties, became at that time, with Jefferson, one of the 158 COlN'STITUTIOIfAL HISTOEY. leaders of tlie Republican party. During Adams' administration the party lines became more closely drawn, and there was considerable accession of strength to the Republican party as measure after measure was introduced and debated, which seemed to indicate a centralization of political power. Another one of the reasons why the Republican party grew in strength about that period, was, that there were incessant petitions for the abolition of slavery introduced in Congress, and whilst Congress protested in several instances that it had no right to interfere with domestic slavery in the United States, the Southern and Middle States felt that their safety against the ultimate interference in that particular by the United States Government rested upon the general acceptance of the States rights doctrine insisted upon by the Republican leaders. During the first year of Adams' administration (1797) affairs with France became complicated by reason of the war then waging between France and England, in which France insisted that America, her former ally, should, if not openly aid the French republic, at least take a position of armed neutrality as against England. The decrees of the French republic which injuriously affected American commerce led to a rupture of diplomatic relations, and caused, in the following year, the THE POST-COIS'STITUTIOIS'AL HISTOEY. 159 passage of tlie Alien and Sedition laws, the Alien law empowering the President to expel such per- sons as he might find who were plotting against the public peace, and the Sedition act being designed to restrict the freedom of speech and liberty of the press. The passage of these measures by the Fed- eral party added to its unpopularity. The desire on the part of the people of the United States to preserve peace, caused them to look with grave suspicion upon the active preparations which were then made for war. In the year 1800 a condition of irritation, almost of war, already existed between France and the United States. But with the disso- lution of the French Directory in 1799, and the ac- cession of Napoleon as First Consul of the French republic, a treaty was soon concluded. The year 1800 also witnessed the first caucus nomination for Presidential candidates in the United States under the Constitution. In 1800 an election took place for President of the United States, to take the place of Adams. When the electoral votes were counted, in February of the following year, it was found that no election had taken place, as Aaron Burr and Thomas Jefferson had an equal number of votes, and the choice under the Constitution devolved on the House of Eepresentatives, which, on the thirty- sixth ballot, elected Mr. Jefferson President. 160 COlSrSTITUTIOITAL HISTOEY. A breach had taken place between the two great leaders of the Federal party, Adams and Hamilton, immediately prior to the election of Jefferson, which weakened the Federal party considerably, and caused the success of the Republicans. Dur- ing this contest between Jefferson and Burr for the Presidency, each one having had seventy-three votes in the Electoral College, Hamilton cast his in- fluence in favor of Jefferson and led to his election. This and subsequent acrimonious contests between Hamilton and Burr, caused the unfortunate duel between them in 1804, which cost Hamilton his life. The dangers to the country which this struggle for the Presidency disclosed, led to the adoption of the twelfth amendment, by which the President and Yice-President are voted for by the Electoral College separately on distinct lists, and each inde- pendently of the other. Jefferson introduced, when Congress met after his election, the innovation to send a message to Congress instead of opening Congress in person. It savored too much of British forms for the Presi- dent to open Congress in person, and hence the Republican paity, to show its contempt for mon- archical institutions, adopted, through the instru- mentality of Jefferson, the form which has since been followed by every President of the United THE POST-CONSTITUTIO]SrAL HISTORY. 161 States, of not meeting Congress in person, but of sending messages, as from time to time his views to Congress are to be expressed. The leading incident of Jefferson's first few years of administration was the purchase of Louisiana from Napoleon for $15,000,000. Louisiana as then ceded was a territory out of which ten States (in- clusive of Avhat is now known as Louisiana), three Territories, and a large part of two other States have since been carved. Jefferson continued in office during two terms, at the end of which the electoral votes were cast for James Madison and George Clinton. This was again a Republican triumph. As early as 1805 the Federal party was reduced to seven senators and twenty-five members of the House. The parties divided on the Embargo Act, and already what sub- sequently developed into a war with Great Britain, arising from the impressment of American seamen and interference with American ships, was looming up, as it was claimed that in the war between Eng- land and France almost six thousand American- seamen had become impressed in the British navy. The embargo was intended as an act of retaliation against both England and France for the mischie- vous effect upon American commerce of the Milan- Berlin decrees and the British Orders in Council. 162 COiq^STITUTIONAL HISTOEY. During tlie administration of Madison war was declared against England on the 18th of June, 1812, which lasted until December 24th, 1814, when a treaty of peace was signed at Ghent, although the actual hostilities continued until February, 1815, when the news of the signing of a treaty first reached America. During the war the Federal party fell into utter con- fusion and disgrace in consequence of its opposition to the war and because of the call of the convention known as the Hartford Convention, in which some of the New England federalists strongly announced, through their representatives there, the theory of secession, if the war should be prosecuted much longer, as it was claimed that the war was destruc- tive of the interests of the Eastern States, while it but remotely affected the Middle and Western States. The successful termination of the war strengthened the Republican, or Republican-Democratic party, as it was then called, to such a degree that it domi- nated in almost every State in the Union. The result of the war was the swelling of tho debt to more than $127,000,000, but the moral results from it were on the whole beneficial, because the gal- lantry with which the navy was handled, and the battle of New Orleans, fought under General Jack- son on the American side, gave to the American THE POST-COXSTITUTIO^AL HISTOET. 1G3 people a degree of self-reliance whicli largely de- veloped the growth of a spirit of national feeling in the United States. The charter of the Bank of the United States having expired in 1811, it was reorganized in 1816, with a capital of $35,000,000. Within a compara- tively short period the method of its administration produced a speculative era which brought in its train a financial crisis and distress. The main political questions which agitated the 'people of the United States during the period of Madison's administration concerning the relations of the United States with England vfere war or anti-war before the war broke out, and a vigorous prosecution of the war or a discontinuance of it whilst it was in operation. It was during the latter part of this period that Webster made his first ap- pearance in the Congress of the United States, and commanded immediate attention by his eloquence and talent for debate. At the close of Madison's administration the thir- teen States of the Union had already grown into nineteen, the population of 4,000,000 had grovv^n to almost 10,000,000, and the House of Representa- tives had grown to a body of 213 members. In 1816 James Monroe, the Eepublican-Demo- cratic candidate, was elected President. The second 164 COI^STITUTIOiS^AL HISTORY. year of Monroe's administration witnessed the com- mencement of tlie struggle on the slavery question between the Northern and the Southern States, which culminated in the War of the Rebellion in 1861. On the bill to authorize the people of the Territory of Missouri to form a constitution and State government, and for its admission into the Union, Mr. Talmage, of New York, offered the fol- lowing proviso : " Provided that the further intro- duction of slavery or involuntary servitude be pro- hibited, except for the punishment of crimes whereof the party shall have been convicted, and that all children born within said State after the admission thereof into the Union shall be free at the age of 25 years." This raised a storm, which was only quieted for a time in the year following by the Missouri Compromise. This came about by an attempt to pass the bills to admit Missouri and Maine as States together, in one bill, restricting slavery in them. The measure which was passed eventually was the prohibition of slavery from the rest of the Louisiana accession north of the 36° 30' north latitude. During this year Florida was ceded by Spain, and the eastern boundary of Mexico was fixed at the Sabine River, thus transferring Texas, which was debatable ground as to whether or not it came to the United States with the Louisiana THE POST-COjS^STITUTIOJN^AL HISTORY. 165 purchase, to Spanish rule as part of the nego- tiation which resulted in the Florida purchase. The actual exchange of ratifications, however, did not take place until 1821. In 1821 Monroe entered upon his second term. During that year the Mis- souri struggle came up again on the 'application of Missouri for admission, after the passage by her of a State Constitution. During that year Henry Clay, by reason of his great services as pacificator between the North and the South, became a recog- nized leader in American politics. The message of Monroe to Congress in 1823 announced for the first time the doctrine of oppo= sition on the part of the United States to in- tervention on the part of European governments in the affairs of states and governments othan than the United States on the North American con- tinent, claiming a sort of protectorate in that particular for the United States, at least in so far as to insist against non-intervention of European powers in the affairs of governments on the North American continent. This doctrine has become known as the "Monroe doctrine," and was ex- pressed in these terms : "We owe it, therefore, to candor and to amicable relations existing between the United States and those powers (the European powers) to declare that we shall consider any 166 CO]S^STITTJTIO]S"AL HISTOEY. attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. With the existing colonies or dependencies of any European power we have not interfered, but with the Govern- ments which have declared their independence, we have, on great consideration, and on just principles, acknowledged, we could not view any interposition for the purpose of oppressing them or controlling in any other manner their destiny as any other than an unfriendly dis- position towards the United States." This was called out by what was supposed to be the design of the Holy Alliance to extend a fostering care to the young American republics of Spanish orisfin. The year 1824 witnessed the first sectional struggle upon the tariff question, the North and Middle States voting in favor of a protective tariff, the South voting solidly against it. At the end of Monroe's administration the pub- lic debt had been reduced from $123,000,000 to $90,000,000, and the country was in a state of re- markable prosperity. In the autumn of 1825 John Quincy Adams, again a Republican, was elected President of the United States by the House of Representatives, THE POST-CO]S'STITUTIO]^AL HISTOEY. 167 in consequence of a failure to elect by the Elect- oral College. John C. Calhonn was elected Yice- President. An attempt was made during the early years of President Adams' administration to amend the Constitution as to the mode of electing the Presi- dent of the United States by having him elected directly by the people in Congressional districts. Although the proposition met with approval in both branches of the American Legislature, it failed to obtain the necessary two-thirds vote in both branches, and therefore no further steps were taken. In February, 1826, the republics of South America made a proposition to the United States to deliber- ate with them upon measures for common advan- tage, at a Congress to be held at Panama. This led to serious opposition on the part of the South, for the reason that as some of the South American republics had recognized the equality of the negro by admitting him to citizenship, it was, as they claimed, an indirect way of recognizing negroes as citizens. The debate upon this pro- position intensified the feeling in Congress on the slavery question, and was the clearest possible demonstration that the Missouri ComDromise, which was intended forever to allay all bitterness upon 168 CONSTITUTIO]N^AL HISTOEY. tliis subject, fell sliort of what was expected from it. Tlie feeling of mutual distrust between the Noxthern and Southern States was still further in- creased by the tariff legislation of 1828. The duties were made higher, and the people of South Carolina petitioned their Legislature "to save them if possible from the conjoint grasp of usurpation and poverty." They declared that the citizens of South Carolina would be condemned to work as tributaries of the Northern and Middle sections of the Union under such tariff legislation. The Leg- islature of Georgia protested against the tariff act in 1829, and the Legislature of South Carolina during the same year made a solemn protest against the same measure. Andrew Jackson was elected President of the United States in 1828, with Calhoun again as Yice- President during his first term, and Martin Yan Buren as Yice -President during his second term. General Juckson in his inaugural address stated that the popular sentiment declared in a manner too legible to be overlooked, the task of reform, the duty of the administration. This, he inter- preted in practice, meant that he was to remove the office-holders of the former administration, and during the first year of his administration he made upwards of seven hundred removals from office on THE POST-CONSTITUTIONAL HISTOEY. 169 political grounds, without including subordinate clerks, whereas during the forty years preceding there had been but sixty-four removals. This system of wholesale removal, not on the ground of the unfitness of the occupant for the position, but because his views were not entirely in harmony with the administration, on matters which but re- motely, if at all, affected the duties of his office, inaugurated the "spoils " system in American poli- tics. Subsequently upon every change of Presi- dential incumbents, by the election of chiefs of party differing from the party then in^ower, a decapitation of public officials took place, so that it became an accepted principle as to tenure of office in the United States, that appointments were for the four years only during which the President was elected, and whether the appointment was to continue thereafter depended entirely upon the accident whether there would either be a subse- quent term for the same Presidential incumbent, or whether the same party would remain in power, and therefore the same influences which caused the appointment could be kept at work to continue the incumbent in his position. In his very first message to Congress General Jackson again recommended an amendment to the Constitution, giving to the people the direct election 170 CONSTITUTIOITAL HISTOEY. of the President. No steps, howeyer, were taken by Congress to submit that question for ratification to the people. The nullification doctrines, by which is meant the doctrine of the right of the States to refuse obe- dience to laws of the United States when they are supposed to be inimical to their interests, were openly avowed by some of the Southern States, notably South Carolina, and the Yice-President of the United States. Mr. Calhoun was the recognized chief of the party of nullification, and gave to it whatever intellectual impulse and theoretical basis it had. The feeling between President Jackson and the Yice-President upon this subject became so marked, that in March, 1831, the entire Cabinet, with the exception of the Postmaster-General, re- signed. The charter of the United States Bank once more expiring by limitation, the President of the United States took a determined stand against its re- newal. In his annual message, he said : " Nothing has occurred to lessen in any degree the dangers which many of our citizens apprehend from that institution as at present organized." 1831 also witnessed the organization of the Mormon settle- ment at Kirtland, and also in Missouri. During the session of 1832 the Senate and House THE POST-COlSrSTITUTIOlS'AL HISTORY. 171 of Eepresentatives passed a bill to re-charter the bank of tlie United States, but the President vetoed it, and the vote two- thirds of both branches conld not be obtained to pass the act over the President's veto. In November of the same year, South Carolina passed an act to nullify the tariff bill of Congress on the ground that it was an unconstitutional measure, and in December of the same year, the President issued a proclamation to warn the citizens of South Carolina from engaging in acts of resistance, sent troops to Charleston under General Scott to enforce the laws, and stated in his declaration that if South Carolina could nullify the revenue laws of the United States, every other State could do so, and therefore no revenue could by any possibility be collected, as all imposts must be equal. In January following. President Jackson published his nulli- fication message, and there was danger of an im- mediate conflict between the State of South Caro- lina and the United States Government, which was avoided only by the passage of a modification of the tariff of 1828, by an agreement annually to reduce one-tenth of the duties for seven years, at the end of which time all of the. excess of the duties above twenty per cent, should be equally divided into two parts, and one part struck off at the 172 CONSTITUTIONAL HISTOEY. end of one year and tlie ofher at the end of the fol- lowing year ; so that at the end of nine years all duties should be reduced to twenty per cent, on value. It was declared that this act was to be per- manent. The bill passed both Houses, and allayed the discontent, and prevented at that time the ne- cessity for resort to arms. During the recess of Congress, after his inaugu- ration for the second time in 1833, Jackson removed the deposits from the United States banks. This caused the bank, as a matter of retaliation to con- tract its loans, which in turn produced a commer- cial crisis, and great financial distress, which con- tinued down to 1838. In the interval, the United States Bank suspended payment, and finally became insolvent. During Jackson's administration there were three parties in the United States : the Democratic, of which Jackson was at the head ; the Anti-Masonic, and the National Eiepublican. The old Republican party had before that time changed its name to the Democratic party, and was technically known as the Democratic-Republican party, by which name it has preserved its organiza- tion down to the present time. Martin Yan Buren became the nominee of the Democratic party towards the end of the Jackson THE POST-CO]^STITUTIO]N"AL HISTORY. 173 administration, and then for the first time the "Whig party made its appearance as an offshoot of the National Republican party — the name Whig, for the last named party, appeared for the first time in an election in 1834. During the administration of Jackson the United States debt was substantially extinguished. When his administration commenced the public debt amounted to $58,500,000, and when it ended it amounted to but $291,089. The debt was not wholly extinguished, simply because the bonds were not handed in for payment. The exports of the United States had risen from $72,000,000 to $128,000,000, at the end of his administration, and the imports from $74,000,000 to $190,000,000. The division of parties at this time arose mainly from the difference of construction of the powers of the United States Government, and was in another form the continuation of the struggle which commenced before the Constitution of the United States was framed, between the powers of the States and of the United States, and after it was adopted the contest continued upon the con- struction to be given to the Constitution of the United States. It will be remembered that at the time of the formation of the Constitution a large proportion of the leading and influential citizens of 174 COITSTITUTIOIJTAL HISTOEY. the country were opposed to the merging of the State sovereignties and that of the United States under the form in which this was accomplished by the Constitution of the United States. After the Constitution was adopted and the power of the United States grew both at home and abroad, and the prosperity of the community developed, this form of opposition was entirely extinguished, but was transmitted into a strict construction of the Con- stitutional powers granted. When the Republican party, however, came into power, the Federalists or Loose Constructionists, for the purpose of limit- ing the power of their opponents, found themselves in a position to be compelled to adopt almost wholly the language of their former opponents, and thus strangely enough became the Strict Constructionists, in the earlier period of the Republican success under Jefferson to the extent that in the Hartford Conven- tion they asserted in as ultra form as was subse- quently asserted by some of the Southern State's, the right of the States to nullify Congressional legisla- tion if they deemed it unconstitutional. The success of the war of 1812 caused the Federalist party so utterly to fall into disgrace that it became extin- guished as a party organization. The desire to use the credit of the United States for purposes of Internal improvement, and the growing influence of THE POST-CONSTITUTIOIS^AL HISTOEY. 175 the manufacturing classes, caused a new organiza- tion — the Whig organization — to arise, which again in its tenets and its tendencies resembled the Fed- eral party. They claimed the right to use the funds of the Union for purposes of internal improvements, and to have the United States subscribe or loan its credit for the purpose of internal improvements in various States, and to use the revenue system of the United States for the purpose of encouraging domestic manufactures, to grant subsidies and to build up manufacturing industries of the nation at the expense of the commercial and agricultural in- terests. At the time of the inauguration of Martin Van Buren as President of the United States, the con- test which theretofore had been carried on between Congress and the President, by the passage of bills favoring internal improvements and which were vetoed by the President, continued, so that at the time of the opening of the 13th administration the lines between the Whigs and Democrats were closely drawn upon those questions. Yan Buren's administration began under circumstances of extreme financial distress. Excessive issues of paper- money had caused reckless speculation and raised the prices of lands far beyond their actual value, and the sudden calling in of loans in the spring of 1837 176 COl^STITUTTOKAL HISTOEY. resulted in a suspension of specie payments by the banks wbicli precipitated a commercial and financial panic of tlie utmost severity. The President then for the first time recommended a plan of sub-treasury deposits, for the purpose of preventing at any future time a further copartnership between the Govern- ment and the banks, and to have for the Govern- ment substantially its own depository and disburs- ing agents throughout the United States. In 1840, by a small majority, this independent treasury scheme became successful ; but indications were already but too abundant that the Whig party, making capital of the financial and commercial dis- tresses of the Van Buren administration, and at- tributing it largely to the fact that the Government refused to lend its aid to internal improvements, and that it had bankrupted the banks in consequence of the organization of the independent treasury plan, was gaining ground in the United States, and would probably obtain control of the Government at the next Presidential election. In 1839 the Abolitionist, or the Liberty party, made, for the first time, Presidential nominations. At the Presidential election in November the Whig electors were elect- ed throughout the United States, except in two Northern and ^Ye Southern States. In these the Democratic electors were chosen. The nominees THE POST-COlSrSTITUTIOlN'AL HISTOEY. 177 of the "Whig party, Gen. Harrison and John Tyler, were elected respectively President and Yice-Presi- dent of the United States. Just one month after his inauguration, President Harrison died. This was the first time that a President died in office, and the Yice-President, John Tyler, under the Consti- tution became the chief Executive officer for the unexpired term. Mr. Tyler was known at the time of the election not to be strongly in sympathy with the Whig party, and he was placed upon the ticket as a matter of concession to the Southern element and with the view of catching Democratic votes. The breach between him and the party that elected him was precipitated almost immediately after his accession to the Presidential chair, by his veto of the bill to incorporate the fiscal bank of the United States. The Whig party succeeded in the next congres- sional election, upon the platform of the reestablish- ment of a national bank and its promise to pass in- ternal improvement bills. The veto of the bill caused a conference between the President and the leaders of the House and of the Senate, to bring about an agreement as to a bill that he would consent to. Such a bill was drawn, and it was claimed that it re- ceived the approval of the President ; but after its passage he vetoed it, in consequence of which his 8* 178 CO]S^STITUTIO]S"AL HISTOEY. whole Cabinet, with, the exception of Mr. "Webster, resigned. The President was then thrown entirely into the hands of the Democratic party, and the Whigs who had the majority in Congress, re- garded him as an antagonistic and democratic President. The northeastern boundary controversy, which was at that time one of the questions in dispute between America and Great Britain, was adjusted between Lord Ashburton and Webster by the treaty known as the Ashburton treaty, in 1842. During the years 1843 and 1844 the annexation of Texas became an important party question. The South, apprehensive of the development of popula- tion in the northwestern territory and the rapid formation of free States, which threatened to en- danger the system of domestic servitude, deter- mined with the aid of the President to extend its territory in the southwest and to annex Texas ■ — out of which many States could be carved— to the United States. Texas had been in part settled by adventurers from the States. Its original Spanish population was largely merged by intermarriage with Americans, and many of the Mexicans were driven back toward the Bio Grande. On the 2d of March, 1845, the bill to annex Texas was finally passed. Florida was THE POST-CONSTITITTIOIN'AL HISTOEY. 179 also admitted as a State, tlius adding to the slave power. In November, 1844, James K. Polk was elected President of tlie United States, lie being a Demo- cratic candidate, and George M. Dallas Yice-Presi- dent. The newly-elected President, on taking his seat, committed himself fally to the policy of Tyler with reference to Texas, and immediately ordered possession to be taken of the territory by the troops of the United States. General Taylor took command, and pushed its occupation almost to the E-io Grande. Without any formal declaration of war, a conflict was precipitated between the Mexican troops and the American troops, and in the midst of the ex- citement arising from the news of this clash of arms between the Mexican troops and the United States army, in which the army of the United States proved successful, Congress was called upon to declare that a state of war existed betv/een the United States and Mexico, and to make the necessary appropria- tion for carrying it on with effect. The army of occupation was then superseded by an army under General Scott, to take possession of the City of Mexico itself, and in a series of uninterrupted vic- tories, Mexico was captured and peace dictated. A treaty was formed between the Mexican Congress and the American Commissioners, by which the 180 CONSTITUTIOlSrAL HISTOEY. independence of Texas was recognized and its an- nexation to tlie United States confirmed. This extended the territory of the United States on the southwest to the Kio Grande Eiver from El Paso to its mouth. In addition to this, the territory of New Mexico and Upper California was ceded. For this cession of additional territory the United States paid Mexico llSjOOOjOOO, and assumed the payment of some $3,500,000 due to Mexico from certain citi- zens of the United States. By a subsequent pur- chase, for $10,000,000 more, known as the Gadsden purchase, an additional territory was acquired. During the period of the carrying on of the war with Mexico for the acquisition of Texas, the Anti- Slavery party, in consequence of the aggressive spirit shown by the South, and the determination to extend the slavery territory, became more and more formidable, and on the debate on the Wilmot proviso — a provision to prohibit slavery from all territory to be acquired from Mexico — it was ap- parent that a considerable accession of strength to the anti-slavery element had already been made among the United States representatives. The tariff struggles, the war with Mexico, and the question of the limitation of slavery in the newly acquired territory, in all of which the South pre- vailed, were the main political questions which THE POST-CONSTITUTIOI^AL HISTOEY. 181 divided parties during the Polk administration. In 1846, the Oregon question was settled by a treaty with England, by which the boundary line was fixed at 49° north latitude, instead of 54'' 40', as originally claimed by the United States. In 1848, the Demo- cratic party nominated Mr. Cass for President, and Mr. Butler for Vice-President. The Whig national convention nominated as the candidate for President Gen. Zachary Taylor, who divided the honors of the brilliant success of the Mexican war with Gen. Scott, and Millard Fillmore for Yice-President. The parties, as declared in their platforms at that time, divided on the free trade and protection question, the Democratic party insisting that no more revenue should be raised than is required to defray the ne- cessary expenses of the Government ; that justice and sound policy forbade the federal Government to foster one branch of industry to the detriment of another, and that Congress had no power under the Constitution to interfere with or control the ques- tion of slavery ; on the other hand, the Whig party claimed as its fundamental principles, no extension of slave territory by conquest ; protection to Amer- ican industry, and the loan of the credit of the United States for the purpose of internal improve- ments. An offshoot of the Democratic party, known as the Free Soil party, at the same time nominated 182 CONSTITUTIOI^AL HISTOEY. Martin Yan Buren, and Gen. Dodge of "Wisconsin. Its division from tlie Democratic party arose mainly on the question of extension of slavery to the ter- ritories ; they agreed with the "Whigs upon the question of river and harbor improvements, that they were objects of national concern, and that it was the duty of Congress, in the exercise of its consti- tutional power, to provide therefor. In this tri- angular fight, the Whigs succeeded in electing their President, and consequently Gen. Taylor, of Louisiana, and Millard Fillmore, of New York, were respectively inaugurated on the 4th of March 1849, President and Yice-President of the United States. Mainly in consequence of the Mexican war, the public debt of the United States had again increased to $48,000,000. The total population of the United States at that time was a little upwards of 23,000,000. The acqui- sition of new territory by the United States Govern- ment reopened the old Missouri Compromise ques- tion, and it was resolved, mainly through the instrumentality of the Southern leaders that the territories should themselves determine whether or not they should recognize slavery or prohibit it within their own borders, in the event of their becoming States. This right was known as " squat- ter sovereignty." The newly- arrived emigrant of THE POST-COIN^STITUTIOIS^AL HISTORY. 183 any territory, usually occupying lands of tlie United States which in time by improvements be- came his own under the laws of the United States, was known as a " squatter." The South calculated upon the superior activity of its own number, and somewhat upon their aggressiveness, to hold in awe and check the more peaceably inclined set- tlers from the Eastern States and from Europe, and that by the terrorism that they could exercise they could thus secure a large proportion not only of new States closely contiguous to the territory of the old slave States, but also invade some of the Northwestern territory, and thus prevent the power of free States from spreading in that direction. The first rude shock of disappointment to this calculation came through the finding of gold in California. This caused so great a migration from the Eastern States to the Pacific coast of strong and fearless men that within the very territory that they supposed to be exclusively their own, and which would have been their own by law under the old Missouri Compromise had it not been repealed by them, the Southern States found their pet insti- tution utterly outvoted and routed, and California made application as a free State, by a majority so overvfhelming that its admission in 1850 could not be rejected by the then pro-slavery Congress of 184 COITSTITUTIOI^^AL HISTOEY. the United States. However, the feelings of dis- appointment arising from the result of this mis- taken calculation were so great, together with the suspicion that it had been largely due to the rapid accession of strength of the Anti-slayery party both in numbers and in influence, that another compromise bill came up for discussion, by which it was agreed to form the Territories of Utah and New Mexico without any reference to slavery, to admit California as a free State, to pay Texas $10,000,000 for the surrender of its claims to the Territory of New Mexico ; together with the pas- sage of a most stringent bill to return fugitives from justice and persons escaping from the service of their masters. The slavery question entered upon a new phase on the introduction of a bill to organize the Territory of Nebraska in February, 1853. During the few years intervening from 1850 to 1853 great bitterness arose in some of the Northern States on the subject of the Fugitive Slave bill. The provisions of the bill gave to United States commissioners the power, without judge or jury, to return fugitives from justice, and prohibited State couri^ from issuing writs of habeas corpus for the purpose of testing the question of the right of the return of the claimed fugitive, denying to the States the right to try the title of the master to the THE POST-COT^STITITTIOI^^AL HISTOEY. 185 slave. Some of the States refused to enforce tlie law, notably Massachusetts, and even passed laws to prohibit its enforcement. When the political parties met in 1852 the question of slavery was the main one before them. Both the Whig and Democratic parties vied with each other in assurances to protect slavery within the States, the Democratic party declaring that Congress had no power under the Constitution to control this " domestic institution " of the Southern States, and that all the efforts of the Abolitionists made to induce Congress to inter- fere with questions of slavery had a tendency to diminish the happiness of the people and endanger the stability and permanency of the Union, and they pledged themselves to abide by and faithfully execute the acts known as the Compromise measure settled by Congress, and more especially the Fugi- tive Slave act. The Whig convention declared that the series of acts of the Thirty-second Congress, known as the Fugitive Slave law, are received and acquiesced in by the Whig party in the United States as a settlement in principle and substance of the dangerous and exciting questions which they embrace, and they promised that so far as they were concerned they would maintain them and insist upon the strict enforcement thereof. There- fore, upon the main question of slavery, the Demo- 186 CONSTITUTIOT^AL HISTOEY. cratic and Whig parties, tlie two leading parties, alike expressed almost in tlie same terms their determination to carry out faithfully the Com- promise measure of 1850, and to enforce the Fugitive Slave law. The only protest of any national party against this subserviency to the slave power came from the Free Soil Democracy, which nominated Mr. Hale, of New Hampshire, and Mr. Julian, of Indiana, respectively for President and Vice-President, and in their platform declared that the Fugitive Slave laws were repugnant to the Constitution, to the spirit of Christianity, and to the sentiment of the civilized world. They insisted that no permanent settlement of the slavery question could be looked for except in the practical recogni- tion of the truth that slavery is sectional and freedom national. The Democratic party succeeded in elect- ing its President by an overwhelming majority, and Franklin Pierce and William E. King, the nominees of that party, were elected in 1852, and inaugu- rated on March 4th, 1853, respectively as President and Vice-President of the United States. During the early part of President Pierce's administration, the organization of Kansas and Nebraska as Territories was the all-absorbing sub- ject of discussion. The proximity of Missouri to both of those territories, Missouri being a slave THE POST-CONSTITUTION^AL HISTOEY. 187 State, made tlie Soutliern people feel themselves secure that they could control the organization of the Territories if to the Territories were left the determination of the question of slavery or not within their limits, and a large number of pretended settlers, known as border ruffians, immediately migrated from Missouri into Kansas and Nebraska, and or- ganized a territorial government in favor of slavery. The bill abrogating the Missouri Compromise of 1820, known as the Kansas-Nebraska bill, was passed in May, 1854, and for several years the so- called " Kansas war " was carried on between the partisans of slavery and anti-slavery — a war not merely in name, but which involved considerable bloodshed. Congress recognized the pro-slavery constitution, known as the Leavenworth Constitu- tion, and the Governors who were appointed by President Pierce were appointed with the view to influence these Territories to carry out the pro- slavery programme by the organization of pro- slavery Constitutions for their admission as States. During 1854 the claim was made that the Com- promise bill of 1850 had abolished the compromise of 1820, and that therefore the new States to be admitted north of the Missouri line could be invaded by the slave power as well as those south of the Missouri line. The debates during Pierce's admin- 188 COI^STITUTIOT^AL HISTOEY. istration in Congress resulted in a division between Northern and Southern Wliigs, the Northern Whigs calling themselves anti-Nebraska men. The North- ern Democrats were evenly divided on the Kansas- Nebraska measure, and the Southern Democrats acted as a unit. During the same period a new party came into existence, known as the Know- Nothings, which was subsequently called the American party. As its name indicates, it was opposed to elevating to office any but natural born American citizens, or those who had lived long in the country. It was strongly anti- Catholic in feeling. For a short time it became a national party, and in 1855 carried nine of the State elections, and in 1856 nominated Presidential candidates. In 1856, the anti-Nebraska party adopted the name of the Republican party. It was largely composed of the elements of the Whig party. The whole of the Northern Whig element entered into it, and it obtained considerable accession of strength from the Democratic party, as it was the only formidable organization which resisted at that time the de- mands of the slave power as to the spread of slavery into the new Territories. The conflict in Kansas created a very considerable amount of bitter feeling throughout the United States, more especially in the Eastern States, where- THE POST-COIS'STITUTIONAL HISTOKY. 189 in the cry of " bleeding Kansas " cansed a large amount of money to be collected, which was ex- pended in arms, and sent to the settlers of Kansas and Nebraska. The Territory of Kansas was divided into a pro-slavery division and a free State one, and on the 5th of September, 1855, a convention at To- peka repudiated all that had been done in favor of slavery, claimed that it was the act and deed of Mis- sourians alone, and determined to form a State gov- ernment in the interest of freedom. In 1856 the free State settlers elected State officers under the Topeka Constitution. President Pierce, however, recognized the pro-slavery Legislature, and placed United States troops under the orders of the Governor to enforce the pro-slavery laws of the territory. During the discussions on the Kansas question in Congress Senator Sumner, the leading Senator from Massachusetts, made a speech which was deemed personally offensive to Senator Butler, of South Carolina, and a representative by the name of Brooks, also from South Carolina, struck Senator Sumner with a cane, whilst he was seated in his chair in the Senate, with such violence that the Senator suffered several years from the effects of the blow. This incident naturally increased the bitterness between the two sections. Pending the struggle in Kansas a new election 190 COIS-STITUTIOI^AL HISTOEY. for President of the United States was held, under whicb. again the Democratic party was successful. James Buchanan, of Pennsylvania, and John C. Breckenridge, of Kentucky, were respectively elected President and Vice-President of the United States, and took their oaths of office on the dth of March, 1857. Y>^ithin a few days after the election of President Buchanan, the Supreme Court of the United States, in the Dred Scott case, decided that negroes had no rights or privileges but such as those that the political power of the government might choose to grant to them, and that Congress had no more right to prohibit the carrying of slaves into any State or Territory than it had to prohibit the carrying of horses or other property, whose secured possession was guaranteed by the Constitu- tion. The dissenting justices, on the other hand, claimed that it was only by State laws that the negro was made property, but by the law of na- ture and of nations, and even by the Constitution of the United States, there was no recognition of the slave as property, and that it was only by vir- tue of municipal law, the authority of which was confined to the territorial boundary of the State, that any human being could be regarded as property, and the rights of the owner were limited to the territory where this special kind of property THE POST-CO]^STITUTIO]^AL HISTORY. 191 was recognized. Tliis decision startled the North- ern people of the United States, and a renewed effort was made to wrest Kansas and Nebraska from the slave power. The South knew that if in this struggle Kansas and Nebraska were taken from them, their hopes successfully to compete against the Northern States, and to maintain the slave power rested either in the acquisition of Cuba by the Union as a territory out of which to form new States, the annexation of part of Mexico, or the whole of it, so as to carve out new slave States, or, on secession from the Union, and the organization of an independent government in which slavery could be secured from every possible attack. The Kansas struggle lasted until after the elec- tion of Mr. Lincoln as President of the United States. Two constitutions had been passed in Kansas, one known as the Lecompton Constitution, with slavery, which claimed to have 6,000 majority ; but the free State settlers refused to vote on the ground that they were not permitted to vote against the Constitution, the only form of ballot being one either for the Constitution with slavery or for the Constitution without slavery. The President of the Senate insisted upon the admission of Kansas as a slave State. The House was willing to admit Kan- sas with the proviso that the Constitution should 192 CONSTITUTION^ AL HISTOEY. again be submitted to tlie popular vote. No agree- ment was arrived at, and some time in 1859 a new Constitution was submitted to the people in Kansas known as the Wyandotte Constitution, which pro- hibited slavery, and received a majority of 4,000 in its favor. The Kansas struggle, lasting as it did through the whole of Buchanan's administration, caused party lines to divide sharply in i860 upon the ques- tion of slavery. All other questions were merged in that all-important one. The Southern States, although they had control of the Government and control of the Supreme Court of the United States, felt themselves beaten at every point by the growth of a popular sentiment against slavery which proved superior to their astuteness as politicians, the more contentious character of their population, aided by threats of secession and war in the event of the failure on the part of the North completely to sub- mit to their dictates. Although they succeeded in forcing measures through Congress, they were visibly gradually losing strength. The Democratic party met in Charleston, South Carolina, on the 23d of April, 1860, and divided there into two wings. At this distance of time the difference between the two wings of the Democratic party on the slavery question does not seem to have been a very serious THE POST-CONSTITUTIONAL HISTOEY. 193 one. The Southern wing affirmed its confidence in the correctness of the Dred Scott decision, and in terms said that neither Congress nor the Territorial Legislatures had a right to prohibit slavery in [the Territories. The Douglas Democrats simply re- fused to admit the conclusion, although they as- serted the premises of the Dred Scott decision, said that it was just and final, and that they would abide by it. The Doiiglas platform was adopted, and many of the Southern delegations then withdrew. The Democratic convention, after the withdrawal of the delegations, nominated Stephen A. Douglas for President and H. Y. Johnson for Yice-President. The seceding delegates nominated J. 0. Brecken- ridge, of Kentticky, and Joseph Lane, of Oregon. A Constitutional Union party — a new name for the former American party — nominated John Bell and Edward Everett. At the election in November every Northern State, with the exception of New Jersey, elected Republican electors, and thus se- cured the election of Lincoln as President of the United States upon a platform declaring that free- dom was the normal condition of the Territories, which Congress was bound to preserve and defend. Immediately after the election of Lincoln was placed beyond doubt, the South Carolina Legislature, in 1860, called a State Convention, which passed almost 194 COITSTITUTIOIS^AL HISTOEY. unanimously an ordinance of secession, and ap- pointed commissioners to treat with the other slave States for a withdrawal from the Union, and to treat with the United States Government for a di- vision of the national property and of the public debt. By the end of February, 1861, Florida, Mis- sissippi, Louisiana and Texas, as well as Georgia and Alabama, had likewise passed ordinances of secession. Tennessee, North Carolina, Arkansas, Kentucky and Missouri were still wavering and awaiting the current of events. President Buchanan, when Congress met, detailed the condition of affairs in the South, denied the right of secession, but ex- pressed himself as powerless to prevent the pas- sage of the resolutions, and intimated doubts as to the power of Congress to make war upon the States. The session was mainly occupied with attempts at compromise. The Crittenden Compromise was one which was most before Congress, and had the greatest chance of success. The main provisions of the bill were that slavery should be prohibited north of parallel 36° 30', recognized and never in- terfered with by Congress south of that line, and that the Federal Government should pay for all slaves rescued from officers after arrest. These provisions were intended to be made part of the Constitution of the United States, and were never THE POST-COIS'STITUTIOIS'AL HISTOEY. 195 to be altered or amended by the Union as it exist- ed. The Republicans in Congress refused to vote for this measure, and the Southern members there- fore refused to entertain it. In February, 1861, a Peace Congress was convened at the request of the Yirginia Legislature, and met at Washington. It adopted and reported a number of resolutions for congressional action, all of which were refused to be entertained by Congress. An amendment to the Constitution, however, was recommended by Con- gress, which forbade Congress ever to interfere with slavery in the States. Meanwhile a convention of delegates from the seceding States was called, which met at Montgomery, and organized the Government which w^as known during the war as the Confeder- ate States of America. It in many respects copied the Constitution of the United States ; it in words recognized slavery; it extended the term of the President's office ; it prohibited tariffs for any pur- poses other than revenue. Jefferson Davis and Alexander H. Stephens were chosen President and Yice-President. A Cabinet was appointed. Depart- ments were organized, and immediate preparation was made to carry on war. As a sufficient number of Southern delegates had now withdrawn to give to the Eepublicans an un- doubted majority in both " Houses of Congress, 196 CONSTITUTIONAL HISTOEY. Kansas was admitted immediately with a free Con- stitution ; Nevada, Colorado, and Dakotah were organized as Territories, a new tariff law was passed, mainly in the interest of the Eastern States and Pennsylvania, as the opposition of the free- trade Southern members being withdrawn, all organized opposition to a protective tariff was for the time being at an end. This brinscs us to the era of the administration of Mr. Lincoln and the breaking out of the war. President Lincoln was inaugurated on the 4th of March, 1861. His inaugural message expressed a determination to relieve Fort Sumter, and as- serted in unambiguous terms the right of the Union to prevent its own destruction. The attempt to resupply Fort Sumter in Charleston harbor pre- cipitated an attack on April 13th, 1861, by South Carolina, which inaugurated the Civil "War. Fort Sumter surrendered on the 14th of April, and on the 15th the President issued his first call for troops, which was immediately responded to by the Northern States. An insignificant remnant of the Democratic party remained true after hos- tilities actually began to the idea that secession was a constitutional right, and that there was no power in the United States Government to coerce a State. Within a fortnight after the breaking out THE POST-CONSTITUTIOT^AL HISTOET. 197 of the war, Yirginia, North Carolina, Tennessee and Arkansas threw in their fortunes with the South ; Delaware, Maryland, Kentucky and Missouri, re- mained, with small majorities, loyal to the Union. Early during the war the question of the status of the slave became a very important one. Gen. Fremont, having control of the Missouri depart- ment, proposed to free the slaves of Missouri ; but his order to that effect was overruled by the Presi- dent. Gen. Butler was more successful by a happy euphemism in declaring the slaves to be contraband of war, wherein he had the support of the Secre- tary of War. In September, 1862, President Lincoln issued a proclamation that in the event of the rebels re- fusing to return to their allegiance by the 1st of January, 1863, he would then issue an emancipa- tion proclamation. Accordingly, on the 1st of Jan- uary, 1863, during a period of extreme depression and doubt as to the ultimate success of the Union arms in suppressing the rebellion, the Federal armies having met in 1862 with many serious re- verses, the proclamation was issued by which the slaves in the States then in rebellion were declared to be free. The slaves held in States not in re- bellion were not affected by this proclamation, an amendment to the Constitution being necessary to 198 CONSTITUTIOlSrAL HISTOEY. accomplish that result as to the " property " of loyal citizens in those States. The emancipation proc- lamation, after declaring the districts within which it was to be operative, was couched in a spirit of humanity to prevent an insurrection of slaves by enjoining them " to abstain from all violence, un- less in necessary self-defence," and promised them that " such as were fitted would be taken into the armed service of the United States, to garrison forts, stations, and other places, and to man vessels of all sorts in said service." The difficulty in creating the necessary loans, in the early period of the war, and a fear to dampen the ardor of the North by burdensome taxation, caused the passage of a Legal Tender bill, by which the currency of the United States had an enforced circulation — a measure of doubtful constitution- ality, but which, as the Supreme Court of the United States subsequently declared, was a justifi- able exercise of the war power. A national banking system was created, by which the banks were re- quired to invest their capital representing circula- tion in United States loans, so that a large amount of the United States Government bonds was com- pulsorily absorbed in that manner. During the four years that the war lasted, two States were admitted into the Union : "West Virginia, THE POST-COj^STITUTIOIS'AL HISTORY. 199 carved out of Yirginia proper, and Nevada. In 1864 the Fugitive Slave law was repealed. At- tempts were made in February, 1865, by the Presi- dent to make peace with the Southern States on the condition of their return to the Union. A1-' though no authorized version of the negotiations has ever been given -to the public, it was conceded that with the single exception of consent to the abolition of slavery, and submission to the author- ity of the Union on the part of the South, every condition that the Southern States could ask would be submitted to by the North, including the adoption of the Southern debt and the reimburse- ment to the Southern slaveholder for slaves lost. But the Southern leaders madly rejected this proposition. The war at that time, in consequence of Sherman's march through the Southern States, and the pres- sure upon Gen. Lee's army exercised by Gen. Grant's forces, was rapidly drawing to a close in favor of the Union. Lincoln was in 1864 reelected President of the United States, and inaugurated on the 4th of March, 1865. In April, 1865, the surrender of General Lee, followed quickly by the surrender of General John- son, practically ended the war. On April 14 Pre si- 200 COIS^STITUTIONAL HISTOEY. dent Lincoln was assassinated at a theatre in Washington, and Andrew Johnson, who had been elected as Yice-President, became, on the 15th of April, the President of the United States. This unfortunate assassination of a President in whose wisdom and moderation the people of the United States had very great confidence, added materially to the difficulty of dealing with the Southern States then lately in rebellion. To admit them as States in the full possession of their sovereignty, with the negroes disfranchised, although liberated, was to place the negro once more in the power of his former owner, and therefore to some degree a violation of the implied pledge given by the United States to the negro race, both by the emancipation proclamation and by the use of thousands of able- bodied negroes in the army and navy, that the promise of freedom should be followed by protect- ing them from oppression thereafter. In any event, the Government was called upon to exercise a guardianship to prevent their reenslavement or such deprivation of social rights as would amount to a perpetual condition of servitude of the race. On the other hand, the United States Con- stitution had made no provision for the condition of affairs which the war had brought about. To extend the right of suffrage at once, without a THE POST-CONSTITUTIONAL HISTORY, 201 period of education intervening, to the lowest type of a laboring population, made by the system of slavery an entirely irresponsible class of human beings, was full of danger to all vested property interests and to civilization itself in the States where they preponderated. The right of suffrage was always regulated by the States themselves ; the States, as sovereigns, had a right to the organization of their own governmental functions without inter- ference by the federal power except that general provision which made it the duty of the national Government to see to it that the form of government adopted by the States was republican in character. For the purpose of exercising a guardianship over the negroes, and to prevent their being unjustly or harshly dealt with by the Southerners who were formerly slaveholders, the Freedmen's Bureau was organized immediately after the close of the war, with agents in every Southern State, for the pur- pose, of adjudicating upon the rights of the negroes and to prevent their being wronged. President Johnson, who had expended his adult life in a slave State, and who was a strict construc- tionist of the Constitution, refused to recognize the methods of reconstruction which Congress saw fit to adopt; he appointed provisional Governors for the States lately in rebellion, and declared his pur- 9* 202 COnS-STITUTIONAL HISTOET. pose that their terms of office should endure only until a permanent government could be organized. The passage of the Freedmen's Bureau bill, which was vetoed by the President, and of the Civil Kights bill, which was also vetoed, but both of which, nevertheless, being enacted by a congressional overriding of the vetoes, created an antagonism be- tween the Republican majority in the legislative body and the President, which soon ripened into an open rupture. The fourteenth amendment was adopted by both houses in June, 1865. The Civil Rights bill de- clared freedmen citizens of the United States. The reasons against this declaration were sound in themselves, because it admitted to the rights of citizenship a large number of persons whose prior condition of servitude and enforced labor made them extremely dangerous citizens. As the right to vote implies not only the right of the voter to protect himself against the aggression of others, but also involves the power, through the instru- mentality of taxation, which is placed in the official hands created by the voters, to confiscate the prop- erty of others, it was apprehended by many that •demagogues and adventurers would win the free- men by illusory promises of personal benefits to give them their votes, and that, by the creation of THE POST-CONSTITUTIO]S^AL HISTOEY. 203 public debts and the exercise of the power of tax- ation, they would mercilessly confiscate the prop- erty of citizens subjected to their sway. Another Freedmen's Bureau bill passed both h-ouses in the summer of 1866. This was also yetoed by the President, but finally passed over the veto and became a law. When Congress met in December, 1866, the conflict between the Legislative department of the Government and the Executive became so acrimonious, measures passed by Con- gress were so constantly vetoed by the President, that a determination was formed on the ]3art of Congress to remove the President by impeachment. In January, 1867, a bill was passed which took from the President the power to proclaim a general amnesty. The Army appropriation bill contained a provision by which the President was virtually divested of his command of the army, by making it imperative that all his orders should be given to the General of the army who could not be removed without the previous approval of the Senate. The General of the army at that time vf as General Grant, who was relied upon as antagonistic to President Johnson and loyal to Congress. Nebraska was admitted that year as a State. A new bill was passed to provide governments for the States which lately had been in insurrection. The 204 CONSTITUTIOI^AL HISTOEY. States were divided into military districts, each under the government of a General. This military government was to continue until a State Conven- tion chosen by all those who had previously been declared by Congress to be citizens, and therefore negroes included, should form a State government, and ratify the fourteenth amendment. The ratifi- cation, therefore, of the fourteenth amendment was a compulsory process, and can scarcely be deemed the voluntary act of the States which had previously been in rebellion. The Tenure of Office bill was passed over the President's veto, taking from the President the power of removal without the consent of the Senate. This bill declared it to be a high misdemeanor to make any such removal except with the consent of the Senate. During the summer following this Congress, Edwin H. Stanton, who had been Secretary of War, was asked by the President to resign. Stanton refused to resign. He was thereupon suspended under the provisions of the Tenure of Office bill, and Gen. Grant was appointed Secretary of War ad interim. On the 14th of January, 1863, the Senate refused to agree to Stanton's removal. Gen. Grant vacated the office, and Stanton was reinstated. The President thereupon again removed Stanton and THE POST-CONSTITUTIOXAL HISTORY. 205 appointed Gen. Thomas in his place. Thomas accepted, but Stanton refused to quit. Both the Senate and House being in session, and the Pres- ident having clearly violated the provisions of the Tenure of Office bill, the House resolved to impeach him before the Senate, and on the 5th of March the trial of the impeachment was begun. This was the first and only impeachment of a President of the United States under the power granted by the Con- stitution. In the Senate the vote stood 35 for con- viction and 19 for acquittal. The requisite two- thirds majority, therefore, not having been obtained, a verdict for acquittal was entered, and the im- peachment trial fell through. The political contest for the Presidency turned mainly upon the reconstruction legislation. Grant and Colfax were nominated by the Republicans in 1868 ; Seymour and Blair by the Democrats. The election resulted overwhelmingly in favor of the Republican party. On the 20th of February fol- lowing the fifteenth amendment to the Constitution, guaranteeing the right of suffrage without regard to race, color, or previous condition of servitude, was adopted by Congress. On the following 4th of March Grant and Colfax were sworn into office. During President Grant's first term of office the reconstruction of the Southern States proceeded 206 CONSTITUTIOIS^AL HISTOEY. rapidly under tlie plan laid down by Congress. The greatest part of the time of Congress was taken up in legislation to secure to the negroes their rights, armed conflicts having taken place at various parts of the Southern States between negroes and whites, arising from the enforced equality of the former and the inveterate prejudices of the latter against their recognition as citizens, and to the un- fortunate selections of Governors and legis- lators in the reconstructed States, by which men known as " carpet-baggers," adventurers from the Northern States, who went to the South for the pur- pose of securing office, and in the troubled condition of affairs foisted themselves into positions of import- ance and trust, which they vilely and outrageously abused. As under the amendments to the Constitu- tion the debts of the States in rebellion incurred for the purposes of the war, and the whole of the Con- federate national debt were irrevocably repudiated and extinguished, the States were at the time of the reorganization free from all debts, except such as had been created anterior to the rebellion. This offered for the creation of new public debts a great quarry for plunder to the legislative and executive officers who had, during this period, become possessed of political power ; and debts were created in a most reckless manner; bonds were issued amounting to THE POST-COlvrSTITUTIOlSrAL HISTOET. 207 many millions of dollars, for which the States never received any return, and the proceeds of which were in the main embezzled and wasted. This condition of affairs created, to a very considerable degree, a righteous indignation on the part of the Southern propertied classes, as these Governors and legislators not only rested their tenure to offices upon the votes of the most ignorant and depraved part of the population of the Southern States, but also had at their beck and call the army of the United States to enforce obedience as against citi- zens who had a stake in the community, and who were compelled quietly to submit to seeing part of their property confiscated by the taxing power, and the remainder mortgaged, by the debt creating power. The Alabama settlement with England was the most important step of the Grant administration as to foreign policy. The incidents connected with Gen. Grant's first administration, of corruption on the part of the office-holders in the Southern States, and the class of people to whom he gave his confidence in the Northern States, created considerable reaction against the plan of Congressional reconstruction as practically carried out, and divided the Be- publican party into two divisions. Horace Gree- 208 COlSrSTITUTIOiq-AL HISTOEY. ley, tlie editor of the Tribune, was at the head of the wing against the administration party, and Gen. Grant remained the representative of the bulk of the Eepnblican party. In 1872 the Republican party renominated Grant for President, and Wilson for "Vice-President; and the Liberal Eepublicans nominated Horace Greeley, of New York, for President, and B. Gratz Brown, of Missouri, for Yice-President. The Democratic party, at a subsequent convention, adopted the Liberal Republican candidates ; but the election resulted overwhelmingly in favor of the Republic- ans, and President Grant's second term of office began. One of the instruments of oppression that had been devised with much ingenuity for the pur- pose of perpetuating the power of the adven- turers who succeeded in obtaining control of the Government in the Southern States was what was called a Returning Board, a commission which was originally appointed by the Governors of the States with or without the consent of the Lesjisla- tive department, which had the power to perpetuate its own existence by filling by cooptation vacancies in its own board, and which had the power to re- ject the votes of whole districts where, according to the finding of the commission, intimidation had THE POST-COI^STITUTIOlSrAL HISTORY. 209 been exercised. This power substantially gave to these Returning Boards the determination of an election ; however large the majority adverse to their party might prove to be in certain districts, it could be wholly rejected on the mere ground of intimidation, of which they themselves were to be the judges, and so change the result. During Gen. Grant's second term of office, the question of the resumption of specie payments and the payment of the national debt in gold became the source of most of the conflicts in Congress. The veto by Gen. Grant of a currency bill by which an attempt was made on the part of a majority in Congress to increase the irredeemable currency of the United States, was the first favorable sign of re- turning financial reason, and gave a strong impetus to a regression to a sound basis for the national currency by its eventual redemption in coin, and of a full and complete recognition, not in words only, of the rights of the public creditor to payment in specie. During the war the currency of the United States fell, as calculated in specie, to about thirty-six cents on the dollar — gold stood at one time at 270. At the time of the suppression of the rebellion the premium on gold had fallen to below 30. As the rise in values of land counted in currency created a fictitious prosperity which was interfered with by the fall in 210 COI^STITUTIONAL HISTOEY. prices consequent upon a return of the currency to its specie value, vast numbers of people through- out the United States, and more especially in the Western States, were led to the conviction that the source of their prosperity was the issue of irredeem- able currency, and that no greater mischief could be done to the permanent prosperity of the nation than a return to specie payments, or the payment of the Government creditor in coin. This financial and politico-economical error so pervaded the com- munity that it was for a considerable period of time questionable whether within any reasonable period the United States Government could return to a sound financial basis ; and it was only through the persistent and, in many respects, the self-sacri- ficing efforts of men scientifically educated in po- litical economy that State after State wherein party lines were drawn on this question were brought back to take a more rational view of governmental finance, and to acquiesce in the slight individual inconveniences which a return to specie payments would entail. The crisis of 1873, followed by a period of extreme depression of values in 1874, 1875, 1876, added very considerably to the so-called Greenback or Non-re- demptionist force, and was an additional cause in delaying a return to specie payments. Congress had THE POST-COKSTITUTIO]^AL HISTOEY. 211 declared in 1875 that on the 1st of January, 1879, the resumption of specie payments should take place. Notwithstanding the opposition to this plan of resumption, it went successfully into operation on the 1st of January, 1879. This happy result was aided by fortune more than by the wisdom of the politicians, the country having in 1877 experienced, by reason of an extraordinarily good, crop and a fail- ure of the European crop, a revival of industry, followed in 1878 by a further increase of national wealth by another extraordinarily good crop and an- other failure of crops in Europe. These two events turned the tide of goldin'the direction of the United States, producing the double effect of both increas- ing the facilities of the United States Government to resume, and greatly reducing the ranks of the adversaries to resumption which had been largely strengthened by the depression resulting from the crisis of 1873. In 1876 the Democrats nominated Samuel J. Tilden, of New York, and the Eepublicans Euther- ford B. Hayes, of Ohio, for the office of President of the United States.. The election of 1876— Colo- rado and Nebraska having in the interim become States in the Union — required for a choice 185 electoral votes. Mr. Tilden had 184 unquestioned electoral votes. Mr. Hayes had 165 unquestioned 212 COTTSTITUTIOT^AL HISTOEY. electoral votes. Thus Mr. Tilden required but one vote to constitute liim President, and Mr. Hayes twenty. The votes that were questioned were one from Oregon, the Governor of which certified to one Democratic and two Republican electors arising from a disqualification on the part of one of the electors, although unquestionably the disquali- fied elector had been elected; seven from South Carolina, as to the vote of which there was at first a very considerable amount of doubt, and was made the subject matter of litigation within the State, the vote, however, was certified for the Republican electors ; four from Florida, and eight from Louis- iana. The popular majority in Louisiana and Florida was undoubtedly in favor of the Demo- cratic electors. It was only through the instru- mentality of the machinery known as the Return- ing Board that the vote could be changed into a Republican legal majority. The Returning Board of Louisiana was composed of men whose former action had already been discredited by a Republi- can Congress under an investigation carried on by a Republican committee. The electoral vote of Florida was declared by the State authorities them- selves to have been illegally cast for the Repub- licans, and the State, by the only means in its power, deliberately recalled the vote of the State THE post-co:n'stitutioi^al histoey. 213 before the vote was counted, and also duly com- missioned Democratic electors, whose votes were cast in favor of Mr. Tilden. In Louisiana the manipulations of the Returning Board forms one of the most humiliating chapters of fraud in American politics ; the certification in favor of the Louisiana Republican electors, though regular in form, was created by an instrumentality which, if generally adopted throughout the United States, would make a farce of popular elections. Although these manipulations of results gave a colorable right, before the vote was declared, to Mr. Hayes as the elected President of the United States, yet Mr. Tilden, who had unquestionably received by far the greater popular vote, would, in the absence of any Returning Board machinery, have undoubtedly been declared the President of the United States. In this situation, both parties claiming the Presidency, it was apprehended that another civil war might re- sult if no means were found by which this condition of affairs, unprovided for by the Constitution, could be temporarily dealt with. The Constitution gives to the President of the Senate the right to receive the electoral votes and to open them, and that then they shall be counted in the presence of the Senate and House. Prior legislation had formulated the manner in which this proceeding should be conducted. The 214 COITSTITUTIOI^AL HISTOEY. House was Democratic, the Senate was Republi- can. The House, therefore, would inevitably refuse to count the Presidential yotes in the manner in which the Senate would count them, would reject the Republican yotes of Louisiana and Florida, and the one vote from Oregon, and would either declare Mr. Tilden elected President of the United States by counting the rival certificates from such States, or declare that no election had taken place and proceed to elect under its constitutional right, which would have resulted in Mr. Tilden's election. At this juncture of affairs a compromise was made between the parties by the passage of what is known as the Electoral Commission act, by which five Senators, five Representatives, and five Justices of the Su- preme Court of the United States were constituted a court to whom all the votes upon which the two houses could not agree were to be referred, the de- cision of which was to be final, unless overruled by both hous3S. This commission stood in all its deter- minations eight to seven, there being eight Repub- licans and seven Democrats, and thus counted in Hayes and Wheeler as President and Yice-Presi- dent of the United States by determining all the disputed questions in favor of the Republican party. The attitude of both political parties during this contest must have appeared to the cynical observer THE POST-COJiTSTITUTIOjN'AL HISTORY. 215 as a strange exliibition of the slight hold that prin- ciples have upon political parties under the pressure of personal ambition and party dictation. The Ee- publican party was compelled, from the necessity of the situation during the war, to construe the Consti- tution in the most liberal spirit and in the loosest possible way to meet the stretches of power neces- sary to bring the States in rebellion, by means of an armed force, back to the Union ; to deny the rights of States against the rights of the United States, and to limit the State power to the narrow- est compass. The Democratic party, on the other hand, was, from its position on the^ slavery question before the war, from its position of quiet antagonism during the war, its position in opposition to the re- construction legislation of the United States Gov- ernment during Republican administration subse- quent to the war, driven to take a position as al- vocate of extreme State rights doctrines. In the contest, however, before the Electoral Commission the parties suddenly changed positions on what was supposed to be an ingrained difference of party policy between them. The Republicans became the most strict constructionists of the Constitution as to State rights. They claimed that the official return of a sovereignty of the magnitude of a State, however brought about, could not be inquired into 216 CONSTITUTIONAL HISTOEY. bj the limited and circumscribed sovereignty of the United States Government; and even when the State of Florida solemnly protested that its return had been fraudulently obtained, the members of that party declined to review the decision of the State when it once had been solemnly asserted. The Democrats, on the other hand, claimed the right, on the part of the Government of the United States, upon so vital a question as the election of a President of the United States, to inquire how the State's return was made up, and to take cognizance of frauds which were practiced in the election, which substantially nullified and vitiated the State's action, and to reform such if it be in conformity with justice. The decision of the Electoral Commission was generally acquiesced in for the sake of peace. The compromise was deemed final, and President Hayes and Vice-President Wheeler were duly inaugurated President and Yice-President of the United States. The Hayes administration fell within a period of political tranquillity, and it was also distinguished by the high personal character of the Cabinet ap- pointments. It received very general support, and that administration very largely reaped the advan- tage arising from an era of unexampled and unparalleled prosperity on which the United States then entered by reason of the extraor- THE POST-CONSTITUTIONAL HISTOKY. 217 dinary deyelopments of the Northwest and of the mining regions of Colorado, Arizona, Nevada, Utah and Wyoming. During this administration there was an immense increase of exports, in part caused by the failure of the crops in Europe and by the developments which had been made in the railways of the country in increasing the facilities and cheap- ening the cost of transportation. Resumption was accomplished, and although Congress framed some injudicious legislation in favor of the remon- etization of silver at a rate below its market value, as a sop to the heresies of Greenbackers, yet on the whole the administration of Mr. Hayes and the congressional legislation of that period produced an advancement of the public credit, a decrease of public burdens, and set a term to, and ended the wasteful, wicked, and corrupt ad- ministration of the Southern States by the carpet- bag governments. The election of 1880, wherein the standard-bearer of the Democratic party was Gen. Hancock, and of the Republican party Gen. Garfield, resulted in the elevation of Gen. Garfield to the Presidential chair, by the determining vote of the State of New York. The platform of the Republican party in 1880 com- mitted that party to the protective tariff which from 1860 on, was the continuous fiscal policy of the 10 218 coitstitutiojS-al history. United States Goyernment. The Democratic party, on the other hand, had adopted a plank in favor of a tariff for revenue only. The chances of the cam- paign were decidedly in favor of the Democratic party. The suspicion that a wrong had been done in the elevation of President Hayes, still lingered in the minds of the people sufficiently to lead many republicans to desire a rectification of that wrong, by the election of a Democratic President in 1880. Late in the campaign, the Republicans issued a series of violently aggressive attacks on the free-trade plank of the Democratic party, by which it was attempted to be shown that the prosperity of the United States v^as largely due to the protective policy ; that the manufacturing industries would be utterly crushed in the event of the Democrats prevailing, and that the laborer would be deprived of his hire and his family of bread, if the free-trade policy were to be inaugu- rated as against the protective policy which it was claimed had produced within the twenty years then last past such wonderful results in developing the prosperity of the nation. The Democratic party, instead of boldly combatting these utterly unfounded assertions, had become demoralized by the twenty years' exclusion from power, and was so false to principles, and so anxious to succeed that the THE POST-CONSTITUTION^AL HISTORY. 219 sacrifice of all the ballast in the way of principle it still had in the hold of its ship, was determined upon bj its then leaders. This caused its standard- bearer to issue a letter at a moment of panic saying that he was personally in favor of protection, what- ever the platform might say, and caused the Demo- cratic speakers to hasten to explain away what they supposed to be a damaging element of their platform, though the real element of their strength^ — the rev- enue reform plank — and to outbid the Republicans for support as a protectionist party. This ruse lost them votes from Republican fi^ee-traders, who were willing to vote for the Democratic ticket, and gained them no adherence from the Republican ranks. A vulgar forgery of a letter was issued by the party against Garfield, attempting to commit him to a policy favoring Chinese emigration. To add to the Democratic calamity, the Democratic party had allowed its organization in the city of ISTew York, where its strength was greatest, to fall into the hands of " bosses " and juntas of politicians who were at all times willing to sacrifice for the sure gains of the local offices the larger and more prob- lematical results of a national victory, and as the State and Municipal elections are held simultane- ously with the national election in the State of New York, a small change of votes caused by these 220 COITSTITUTIONAL HISTOKY. sinister and personal interests, was sufficient to give bj a small majority tlie thirty-five electoral votes of the State of New York to tlie Republic- ans instead of to the Democrats, for whom in the computations theretofore made it had generally been counted. The result was the election of Mr. Garfield as President of the United States, whose term of office, beginning on the 4th of March, 1881, came to a sudden termination at the hands of a malignant assassin, on the 19th day of September, 1881. Thereupon Chester A. Arthur, who had been elected Yice-President upon the same ticket with Mr. Garfield, became the President of the United States. "With the settlement of the slavery question, re- construction, and return to specie payments, the Republican party finished its work. It lives now on the record of its past history. The Democratic party, except as to the free-trade principle, to which it can scarcely be said to be faithful, has now no distinctive principle from the Republican party. It still insists in its platforms upon State rights, but as such rights are not really assailed, it can scarcely be deemed a vital question in American politics. Indeed the caucus system, thirst for office and popularity, have so demoralized both great politi- cal parties, that their dissolution is a mere ques- THE POST-COl^STITUTIO^AL HISTORY. 221 tion of time. Upon causes deeper tlian any which the present leaders of these parties are likely to forecast or anticipate, will depend the reorganiza- tion of American political parties, upon political issues of the future involving principles asserted on the one side, and denied by the other. CHAPTEE YI. CURRENT QUESTIONS PRODUCTIVE OF CHANGES IN THE CONSTITUTION. It is, of course, impossible to foretell witli accuracy the clianges the womb of time may bring forth, which will modify and affect the organic law of the United States. Whatever development the United States, in the near future, will experience will necessarily come from within and not from outward pressure. Unlike the nations of Europe, the United States has no neighbor sufficiently powerful to affect its policy or to modify its constitution. It requires no standing army ; and so long as England performs the police duties of the seas, it requires but little of a navy. It has no occasion to fear any serious foreign intervention, and it is therefore left freer than any other nation within the period of modern civilization to pursue its own development. In that respect its position is sui generis ; nothing resemb- ling it as a national power has ever j^ppeared on the face of the earth, except the condition of savage CUEEEIs^T QUESTIONS. 223 tribes and insular nations, not brought within the influence of civilization, as to the severance of po- litical interests from that of all other peoples. The good that is within it can, therefore, come to its ripest development : the evil that it contains will bring its direst sinister consequences. The influence of foreign nations upon it are entirely of an indus- trial, intellectual, and commercial character. A combination of circumstances beginning with the war of 1861, intensified by the extension of the means of intercommunication between the States by the railway and the telegraph, in con- junction with the natural and artificial v/aterways of the country, have made of the United States a solidified nation, within the generation last past, to an extent that was not anticipated by its found- ers, a consolidation much more complete than the theory of American institutions would seem to justify. State lines exist and will continue to exist for all purposes of penal and municipal law, except in so far as they may, as already shown in these pages, be overridden by the para- mount law of the Union. Yet the traveler who starts in a railway train at Boston and remains in the same palace car until he arrives at San Fran- cisco, travels through twelves States and Territo- ries without noticing any State line, and rapidly 224 COI^STITUTIOIN^AL HISTOEY. comes to regard the whole domain as his one country. The tendency of the times is necessarily to weaken the power of the State on the alle- giance of the individual, and lead to a greater and greater consolidation and unity of interest of the whole United States. This tendency is still further accelerated by the inability on the part of the individual States to deal with the economic and social questions which necessarily arise from the ex- tension of the means of intercommunication between the States, and the necessity for the existence of a general power to deal with them. Already the States have felt and have, to a considerable degree, ac- knowledged their inability to deal with the rail- way and the telegraph question. The decisions of the Supreme Court in recent years, recognizing the inability on the part of the States to deal with these questions, have considerably extended the jurisdic- tion of their court over transportation routes lying partly within one State and partly within another, or upon a river running into two or more States. In the so-called Granger cases the Supreme Court has asserted jurisdiction in cases of all inter-State com- merce in which goods or passengers are taken from one State beyond its own borders within the domain of another. This tendency will continue to consoli- date the power of the United States upon all indus- CUEEENT QUESTIONS. 225 trial and commercial matters as to wliicli the States have a common interest, and for the purpose of put- ting that question at rest so that the United States may deal with that subject precisely as it deals with the subject of bankruptcy, a constitutional amend- ment will, in all probability, be proposed and acted upon, granting to the United States Government in express terms that which it already claims to have by implication, so that it may deal fearlessly and effectively with the important problems that arise from the organization of great monopoly interests which are incident to modern methods of the trans- portation of goods and passengers. With the exception of the Pacific railways, all the railway corporations of the United States were chartered by the States, and though many of them have thousands of miles of line traversing many States, they claim their powers under the separate charters of the different States through which the lines run, and are in theory only amenable to the States covered by their lines of rails. Inequalities of rates, however, creating unjust discriminations between individuals of different States, and exer- cising a function analogous to that of taxing arbi- trarily and without control, has and does create a power within the nation so great that it threatens sooner or later to dispute the fact with the 10* 226 COI^STITUTIOITAL HISTOEY. authorities of the United States as to whether the railway or the governmental power is the greater. The State political machinery has to a very con- siderable degree already succumbed to the exercise of this power, and therefore to make head against it it will be found necessary to clothe the general Government with sufficient attributes of sovereignty to deal with the subject adequately. That this necessity runs counter to a very cor- rect theory of decentralization, and that the liberty of the individual is endangered by all centraliza- tion of power, is a truth to which thoughtful students of political history cannot shut their eyes. But precisely as in Germany a false decentraliza- tion of power had to be succeeded by a nation hav- ing centralized national power, with the view to in- telligent and proper decentralization ; so in time it may be necessary in many particulars to disregard State lines and the localizing of power resulting from such Stats lines, for the purpose of more in- telligent and more effectual decentralization in those particulars wherein it is beneficial, and also to se- cure centralization in those matters wherein decen- tralization involves danger to the commonwealth. The development of the taxing power arising from the war quadrupling the number of office- holders in the United States within the period from CLTRFwE^^T QUESTIONS. 227 1860 to 1870, and increasing as it did the ordinary expenditures of tlie United States Government, in- dependently of interest on the public debt from $60,000,000 in 1860 to $220,000,000 in 1867, has in itself aggravated certain evils which only were easy to be borne at a period of time when the United States had a debt of $64,000,000, representing per capita $1.91 in 1860, instead of a debt of $3,000,- 000,000 in 1865, with a per capita charge of $78.25. From the time of Jackson's administration ap- pointments went by favor, not by merit, and that which was favor originally, degenerated into a claim of right dependent upon political activity in favor of the successful candidate. Appointments were made to high offices not because A. B. was specially qualified for the office, but because A. B. was a skillful or efficient worker in the campaign which preceded the successful election of the incumbent* This system not only fills the public offices of the United States with inefficient and corrupt officials in high station, and keeps out of political life the capable men, who are disinclined to perform party work as a condition precedent to accession to office, but it also created the same system under those officials as to all their subordinates ; and as from the Presidential office down to the lowest political official tenure of office depended upon the con- 328 COl^STITUTIO^AL HISTOEY. tinuation of tlie administration, at every recur- ring election tliese officials strove by personal activity at the polls, and in the organization of the machinery of elections and nominations, to con- tinue in power the political party to which they belong, so as to preserve their personal incumbency of the office, and they were to a very large degree, and still are, regularly assessed to pay the political expenses of a campaign. Millions of dollars are thus raised from office-holders in the United States at every recurring Presidential election, or even local elections, in the interim, which may have a re- mote effect upon the Presidential elections, to pay the expenses of campaigns and to create a " corrup- tion fund " for the purposes of the party to which these office-holders respectively belong. So in- tolerable has this abuse become that for some years tentative efforts have been made, even by administrations, to correct some of the more fla- grant evils of this system, and during the adminis- tration of General Grant a Civil Service Commis- sion was organized to deal with the subject. The influence of party, however, was too powerful for any permanent success during General Grant's presidency, and the Civil Service Commission came to an end. As President Hayes was elected upon a platform CUERE^^T QUESTIOIS'S. 229 wliicli pledged his administration, in the event of the success at the polls, to the inauguration of a system of civil service, steps were inaugurated shortly after the 4th of March, 1877, to create a system of promotions by merit and permanence in the tenure of office. The contest, however, of the politicians against it, and the somewhat half- hearted manner in which the system was pressed by the administration itself, prevented any great progress being made in that reform during the ad- ministration of President Hayes. The Eepublican party again pledged itself to civil service reform in the platform of the conven- tion which nominated Mr. Garfield, and although during the early period after his inauguration much of the time of the administration was taken up by personal wrangles between senators and the President on the question of the exercise of the Presidential prerogative of appointments to office without dictation from senators, which operated to prevent any considerable progress being made in the introduction of a harmonious system of civil service, yet from the character of President Gar- field it was a reasonable assumption that during his administration some decided step in advance would be taken looking toward the practical intro- duction of this reform. 330 COITSTITUTIONAL HISTOEY. The Democratic party discovered tliat during the contest for the Presidency they were confronted by a vast army of office-holders, contributing, through assessments on their salaries, to the extent of millions of dollars to the fund of their adversaries to prevent the accession of Democrats to power, such assessments were paid because they knew that their official existence would be terminated in the event of a change of administration under the domination of an adverse party. This fact brought about a conversion of the Democrats in favor of some civil service reform which would take that important element of opposition out of future contests to prevent their accession to power, so that in the United States both political parties are now pledged to the introduction of civil service reform, and a bill introduced by Senator Pendleton, a life-long Democrat, which secures fixity of tenure in all the lower grade of offices, is in a fair way to become a law; and there is but little doubt that within a few years the public service of the United States v/ill be brought more in harmony with the condition of public service in other civilized countries. The evil of the abominable "spoils" system in the United States is not so much the incompetency of the officers — as the American's adaptiveness en- CUEEENT QUESTIOTTS. 231 ables him quickly to learn tlie routine duties of an office — nor in the waste of public moneys (because in a community so rich in productive power as that of the United States the amount which peculation can take from it is a burden easy to be borne) ; but the main evil is that the "spoils" system de- moralizes both parties, and makes contests, which should be for principle, mainly for plunder, and induces parties, in the hope of an accession of strength sufficient to obtain political power, not only to lower but absolutely to abandon their principles, and to make their platform conform to what they suppose will more rapidly win popu- lar success, and thus makes of the quadrennial presidential contests, mere scrambles for office. Important as it is to secure a reform in the civil service of the United States, that alone, however, even if successful, would not result in any improve- ment of a very permanent character in the condi- tions of the party systems of the United States. The causes which make parties permanent institu- tions in the machinery of government of constitu- tional monarchies, having like England large bodies of persons who are either placed in positions of ex- ceptional advantage, like that of the hereditary legislators of England, or permanent disadvantage like the classes not admitted to the suffrage, are 232 CONSTITUTIONAL HISTOET. sucli that there will necessarily, so long as this condition of affairs exists, be a party seeking to diminish the power of those exceptionally well placed and to increase the political powers of those who are not admitted to the suffrage. This permanent cause for party existence does not pre- vail in the United States. And yet party lines are drawn as sharply in the United States as they are anywhere, and the tyranny of party is in many respects greater than anywhere else, because the caucus system has permeated it to the uttermost degree and created an autocracy of party managers, the hold of which will not be entirely shaken off — indeed, but slightly loosened — by the introduction of the civil service reform. That party management in the United States becomes more unscrupulous than it does elsewhere arises from the fact that in the United States there is no large leisure class of cultured men who, from a sense of duty or because of their large financial or property stake in the community, de- vote themselves to its political government. The absence of such a class and the intensity of occu- pation in industrial employments of the commu- nity at large, place the management of party in the hands of briefless lawyers and unsuccessful people in other avocations of life, who, having CUERE]S"T questio:n"s. 233 been, as a general rule, eliminated downward from other occupations, devote themselves wholly to poli- tical intrigue and the perfecting of the political ma- chinery. As office, and speculation upon the money expenditures arising from the pursuit of office by others, through party machinery are their main ob- jects, it results in time in a domination of a class of politicians, to whom the principles of the party are mere cries to catch votes, and who doff and don those principles as it suits their convenience or their expectations of gain. That both political parties contain among their leaders men of a higher order of intellect, and that even the politi- cal machinery cannot get on without men of that stamp, to whom they are compelled to give honors and office, is unquestionably true. The character- ization of the average politician applies more especially to the people who have control of the machinery of politics in the large centres of popu- lation. This evil condition is promoted and is enabled to work its worst results by the system of representation now prevalent, with few exceptions, wherever representative institutions prevail, viz. : that of giving to majorities only in circumscribed election districts the right to representation, instead of, as far as possible, by some system of minority or totality representation, to aim at a representa- 234 CONSTITUTIOI^AL HISTOEY. tion of tlie whole community. The hold that the party managers have upon the voters, who would otherwise rebel against their tyranny, is that if the voter fails to vote for the candidate they submit, he either is compelled to throw away his vote on one who has no chance of success, or directly or indirectly to aid the promotion to office of some one nominated by a party machinery equally odious and representing the other side in politics. If, on the other hand, in the election of represent- atives, small bodies of voters could detach them- selves from the main body, and by affiliation with other similarly detached bodies of voters within the State, succeed in representing one or more electoral quotas, as, for instance, in the State of New York, with its twelve hundred thousand voters, having thirty-three Members of Congress to elect, could thus secure one-thirty- third of the voting power of the State, these combined detachments could elect a representative independent of party, and in this way very important phase of popular opinion could seek and find its ov/n representation. Parties then would represent principles, and the principles not be the mere banner or shibboleth of party, hauled down and replaced as it suits its convenience, and the individual voter would become compara- tively independent of party dictation. This would CUEEENT QUESTIONS. 235 act as a solvent of political parties as at present constituted ; would retain wliat in them is useful and good, and would utterly prevent the evil effects of the caucus system. This reform once in- troduced, would fructify into inestimable political blessings to the country, as it would make a politi- cal career independent of an accidental majority in a district, and secure for that career an entirely different class of statesmen and politicians than party machinery now brings to the front. The civil service reform confessedly will act only upon the minor offices within the United States. This reform of minority representation would be opera- tive for good in a change in the character of the nominees for every important elective office where there are more than two persons to be elected, and would totally alter the character of political parties as at present mischievously constituted. Another subject which will presently engage the attention of the American people is one which, since 1860, has been driven to the background, that of liberalizing its navigation laws and its sys- tem of tariff duties. The rate of taxation in the United States both as to internal revenue and the admission of foreign goods is as yet, it may be said, upon a war footing. "When the Southern delegates to Congress withdrew in 1861, the opportunity was 236 COITSTITUTIOl^AL HISTORY. immediately seized upon by tlie protectionists to in- augurate a protective system on the pretence that the Government required an enormous amount of revenue to carry on the war, and that to increase the tariff would increase the revenue, as well as in- directly afford protection to a larger number of home industries. The long-continued adhesion of the Southern States to a system of free trade put for the time being every advocate of free trade in the North during the progress of the war in a false position, because it appeared as though he were in favor of the South in advocating free-trade theories. The fictitious prosperity created by the paper currency issued during the war, disguised for the time being the evil influence of a ^protective tariff. After the close of the war the paramount questions which ensrrossed the attention of the nation were necessarily those relating to the reconstruction of the Government of the Southern States, and the return to specie payments ; subsequently the depression caused by a return to specie payments enabled the advocates of a high tariff to attribute the evils which came synchronously with contraction, to contrac- tion alone. After specie payment was resumed an immediate impetus was given to the prosperity of the country by a combination of causes of which the return to a sound financial basis was but a part, CUEREIN-T QUESTIOI^S. 237 successive good crops, the great tide of emigration, and the development of the mining industries of the Western territory as well as the opening up of vast tracts of virgin agricultural lands in the Northwest, together contributed since 1876 to enhance the pros- perity of the United States beyond all precedent. This again concealed from the people the evil effects of the tariff legislation, and enabled the tariff advo- cates to claim for their vicious system the prosper- ity which came despite their system. In one respect alone is the evil effect of restric- tion so visible that it cannot be attributed to any other cause, unaccompanied as it is by any mis- leading element of prosperity on the other hand, which counteracts it ; and that is, in the complete prostration of the shipping interests of the United States, and the almost total extinction of its com- mercial steam marine engaged in foreign trade. The beginning of a change in the restrictive legislation of the United States will probably first be made herein. The navigation laws will be made more liberal ; an American register will be able to be obtained on ships built in foreign jurisdictions, as an effort must soon be made to bring back to the United States part of the carrying trade which its navigation laws have utterly destroyed. An overflowing treasury will be another reason for 238 CONSTITUTIOIS^AL HISTORY. reyising tlie tariff. Tlie plea of necessity for higher rates of duty, false as it is because the experience of England and France under the Cobden-Cheyal- ier treaty showed conclusively that the lowering of rates of duty increased the revenue, has also fallen away. A dangerous move, however, in opposition to free trade is already making itself apparent in an agitation for the removal of the internal revenues of the country, which yield a very considerable proportion of the annual income, in the expectation that the removal of these internal revenue duties will compel the maintenance of a high tariff. One of the first steps in that direction had already been made under the plea of a free breakfast table, by which the duty on tea and coffee was lowered, and by putting on the free list a large number of ar- ticles which the United States do not at all produce. Could the Democratic party, which is the tradi- tional party of free trade, be relied upon to be true to its principles upon that subject, it would be reasonable to believe that the very next Congress would succeed in producing considerable reform in that particular ; but the result of the recent Presi- dential election in which the Democratic party as the campaign was drawing to a close, became panic stricken by reason of the attack upon its revenue reform plank in its platform, has so demoralized CURRENT QUESTIOT^S. 239 many of the so-called leaders of the party, that already indications are abundant that some of the Western leaders of that party will in the future Congress be out-and-out protectionists, and at- tempt to outbid the Republican party in the claim for popular confidence on the ground of willingness to afford protection to home industry as against foreign competition. A reorganization of parties will in all probability result from that question, after both great party organizations will have been shattered by it; and that reorganization would best be brought about by a previous introduction of the system of minority representation, which would assist in the detachment of great bodies of voters from party affiliations. One of the problems which, though locally con- fined to the Pacific coast, is one with which the Union as a whole is called upon to deal, is what is known as the Chinese question. Yast bodies of Celestials have been attracted to California and the Pacific States generally, and have there proved themselves to be very formidable competitors to American labor, as the wants of the Chinaman are simpler than those of the European and American, and his industry is more continuous and machine- like than that of his rivals. This has created a prejudice against his labor to that degree, that the 340 COIirSTITUTIONAL HISTOEY. Constitution of the State of California has been amended to prevent corporations from employing Chinese labor, and the politics of the Pacific States is largely influenced by that question. As a mere branch of the protective system, the political economist must of course deny to the agi- tation against the Chinaman all validity ; but there is one argument which is advanced in favor of the exclusion of the Chinaman which has force, and to which the free-trade argument is no answer. The Chinaman refuses to become part of the body politic ; no matter how long his residence, he does not become a citizen : he expects to be interred in his country ; he lives in separate quarters ; and a considerable addition to that population creates a class of people who are not citizens, and who have no permanent interest in the welfare of the com- munity in which they reside. That such a class, if sufficiently numerous, may become a dangerous one to the civilization of a community, is unques- tionably true. That to a large degree, however, his seggregation from the rest of the community is due to prejudice against him, and that in time he may become by intermarriage, when that prejudice subsides, a citizen of the United States, is likewise true ; but this process is necessarily so slow that the unchecked emigration from that vast and teem- CURRENT QUESTIONS. 241 ing hive of humanity, the Celestial empire, will pro- duce a considerable disturbance in the social well be- ing, and endanger the political condition of some of our far Western States, is possible. This question has already received partial attention by legislation by the Congress of the United States which must rely for justification upon a basis quite other than the false and delusive one of protection to American labor which such legislation is supposed to afford, A rapid decrease of the public debt takes the question of the payment of the bondholder in any but the best of faith out of the domain of political questions. But there still remains a monetary question which has been unfortunately muddled in the United States by demagoguery. The ratio of silver to gold having been fixed too low by the currency laws anterior to the war, silver was prac- tically driven out of circulation, gold upon that ratio being the cheaper metal. In 1873 Congress demonetized silver for all large payments. Subse- quently the rapid decline of silver in the markets of the world, due, in great part, to the demonetiza- tion of silver by Germany and the discovery of enormous silver-bearing lodes in the Rocky Moun- tains, caused a fear amongst silver producers that unless America remonetized silver, silver would fall to such an extent as to seriously impair the value 11 242 co:n'stitutiojS'AL history. of silver mines. The original dollar was 416 grains standard. Its weight was changed in 1837 to 4121^, and its fineness changed to 900 from 892. This coinage of 412^- grains was revived in 1S78 in what was known as the Bland Silver Bill, and it was made a legal tender for all debts, public and private, notwithstanding the fact that in recent years the value of silver had sunk so low that the value of the coin in the dollar of 412 J grains was less than eighty-eight cents. The amount re- quired to be coined under the bill is $2,000,000 per month. Thus far no inconvenience has resulted from this coinage, because a considerable part of it has been absorbed by the necessities for small change. A trade dollar also was issued for pur- poses of Eastern trade of 420 grains, but this is not a legal tender dollar. A large accumulation of the standard silver dollars is now in the vaults of the treasury, and if no amendment is made to the law as to the rate of coinage, the question will soon be upon the United States whether they desire to have an exclusive silver coinage of a depreciated character, as under the inevitable effects of the Gresham law the cheaper currency will drive out the dearer. That this effect would be counter- acted by a simultaneous remonetization of silver by the European governments which have hereto- CUEEE^'T QUESTIONS. 243 fore demonetized it, tlius creating, for the time being, a strong demand for silver, is doubtless true ; but as the result of recent conferences on that subject gives us no hope in that direction, the Uni- ted States Government will either have to demone- tize silver or raise the number of grains in the silver dollar to a par with gold values, or in the future demonetize gold, and have its currency in a depreciated condition as compared with the actual values of the metal. The question in the United States is more complicated and taken out of the domain of pure theoretical and philosophical dis- cussion on its merits, as to whether a bi-metallic or a mono-metallic currency is better for a community, by the fact that the persons who were afflicted with the greenback mania have become imbued with the idea that, as greenbacks have now become equivalent to gold, their hope of prosperity lies in a depreciated silver currency. It is a curious illustration of how fast a hold the ijost Jioc ergo propter hoc error takes upon a community. As the in- habitants of the Northwestern States during a period of rapid issues of irredeemable paper money were en- abled to pay off their debts, and were prosperous in so doing, in a currency which incidently depreciated rapidly, many of them concluded that the deprecia- tion was the source of their prosperity, and that 244 CONSTITUTIOl^AL HISTORY. therefore any currency tliat depreciates is useful to them. In the early period of the war — when the Confed- erate forces prevailed oyer the Union armies — the organization of the national banks was devised as a means compulsorily to float the public debt and to create a large home market for United States bonds. The State bank systems, which theretofore existed for furnishing a currency for the people of the United States, were, for good or ill, dependent entirely upon the legislation and the en- forcement of the laws in the various States of the Union. The facilities for counterfeiting these is- sues, as they were by no means uniform in device, were abundant, and the danger of being imposed upon by counterfeit and badly secured bills was very great. These causes produced a constant fluctuation in the value of such currency, and at any moment of finan- cial depression or crisis the currencies of the differ- ent States became of different values,and great losses were entailed upon the holders by reason of such fluctuations. The Government issues of paper money, together with the issues of the national banks, based upon deposit of United States bonds, gave a uniform character and value to the currency of the United States. This convenience is so great that the national banking system, although CUREETTT QUESTIOITS. 245 opposed with considerable vigor at first, lias been accepted in the United States as a remedy for an evil much greater than that which it in its turn has brought about. There is, therefore, no probability of any concerted action against the national banks, and the system, with some slight modifications, is likely to be as permanent as the national debt. This system has also set at rest the question of the recharter of a United States bank. There is occa- sional and fitful opposition to the issues of the national banks, on the ground that the Government, by a direct issue of the notes represented by the national bank currency, would save the interest represented by such issue. The objection, however, on the other hand, to give the Government absolute control of the issue of the currency, and the sinister influence that it may thereby exercise upon the money market, is of so much more serious moment than the one of mere loss of interest, that thoughtful people have, on the whole, acquiesced in and deemed it preferable to maintain the system of national banks, rather than to place the monopoly of currency issue entirely in the hands of the Government ; and as hitherto no loss has been entailed upon the holders of national bank notes, as actual issues of notes are always secured, whatever fate may betide the bank in its discount and deposit department, the well- 246 COISrSTITUTIONAL HISTORY. grounded objection that existed against the State issues, which caused monstrous losses to holders by failures of banks to redeem, does not prevail against the United States banks. However, if the present rate of extinction of the national debt con- tinues, in less than ten years some other basis than United States bonds must be provided for a uni- form currency. During the war large portions of the public domain were granted to private corporations to assist them in buildino; the Pacific railroads. This was followed by great grants to railway corpora- tions to assist in building railways but remotely connected with the Pacific system. However justi- fiable the motive originally was to grant the aid of public lands as an encouragement to the building of these great arteries of commerce, yet the aggre- gate public property thus given away became so great and the monopoly in public lands threatened to become so formidable, that a public opinion has been evoked in the United States that the public domain left under the control of the Govern- ment shall be used entirely for the purposes of the settlers, and not be thus given away. It is estimated that the domain given to the North Pacific Bailv/ay and branches is equal in territory to that of the whole of France. The increased value of the pub- cuere:s^t questions. 247 lie domain of the United States will in itself be a check against extravagant concessions of land in that manner, and an intelligent public opinion has been created to prevent wastefulness hereafter. The advancing wealth of the nation resulting in a growing importance of governmental functions in different departments of the United States Gov- ernment, which are respectively under the direc- tion of one of the Cabinet officers, and the desirability that these departments should be sub- jected to the constant criticism of the Legislative branch of the Government, has caused an earnest agitation in favor of giving to Cabinet officers seats in the House of Kepresentatives, with a power to debate without voting on the result ; so that in the United States, as in England, interpellations may be made respecting the conduct of any one of the important departments of Government, and an answer elicited on the spot. At the beginning of the American Government these Cabinet officers were personal advisers of the President, were ap- pointed by him, and were responsible to him alone. The fact is now, however, recognized (more especially with reference to the Treasury) that the annual reports or budgets give insufficient in- formation, and that during the course of the year too much opportunity is afforded for sinister influ- 248 CONSTITUTIONAL HISTOEY. ences to accomplisli ends having relation to stock- jobbing and the obtaining of private information of intentions on the part of the Treasury as to pol- icy, sale of bonds, etc., a remedy for which would be found if the Secretary of the Treasury were personally responsible to Congress. The further advantage expected to be derived from having the Cabinet or Ministry connected with the popular branch of the legislative body is that in that way some more direct responsibility will attach for the legislation of the Congressional session to the Government in power. One of the serious defects of all American legislation is the almost entire ab- sence of responsibility connected with legislation. The party having a majority has no organized Ministry charged with the duty of forwarding and formulating the public legislation of the session, and however faulty and slipshod, and even mis- chievous, the Congressional or State legislative law-making may prove during the course of the year, the party having a numerical majority in the legislative body is not responsible because there is no Ministry as part of the law-making power which proposes and promotes legislation. Laws are proposed by individual members upon their own responsibility, and are passed in a hap-hazard and slipshod sort of way. A further argument CUEEENT QUESTIOITS. 249 in favor of this reform is that tlie necessity to explain the conduct of a department whenever an adverse investigator chooses to push an inquiry does certainly apply the corrective of publicity to all jobbery and peculation. On the other hand, the objection that is raised to a constitutional amendment which is necessary to produce this result is, that these departments being Executive departments, the men selected for them are persons who are supposed to possess ex- ecutive ability, which may or may not be accom- panied by oratorical powers such as are necessary for the purpose of holding their own in a popular arena of debate, and that in consequence of such a change, incumbents of Cabinet offices could no longer be selected from among the men who work instead of the men who talk^ about it, but must be selected from the latter class alone. This objec- tion, though it has some validity, is not so serious as at first blush would appear, because a very short experience teaches the average American to talk clearly and glibly on the subject that he has in hand. 11* CHAPTEE YII. THE STATE CONSTITUTIONS; THE CHANGES THEEEIN, AND THEIE DEVELOPMENT. The Federal power being one of delegated powers, the States are in all matters not so dele- gated, the sole sovereignties. The State Constitu- tions map out the organization of the Government, limit its powers, and are in many respects more important conservators of the liberty of the citizen than the Federal Constitution itself ; for the reason that the powers not surrendered to the Govern- ment of the United States are much more extensive and much more immediately related to the rights of the individual, and therefore affect him more closely than the delegated powers of the Federal Government. In all his functions as citizen — in his amenability to the deprivation of life or liberty by the criminal law, in the assertion or denial of his rights through the civil administration of justice — the State, with but few exceptions, has absolute control over the life, liberty, and happi- ness of its citizens. This book, therefore, would 250 THE STATE COiN'STITUTIO^S'S. 251 be incomplete if it did not give some account of the changes which have taken place in recent years in most of the State Constitutions, showing by means of these organic laws the course of governmental development. During the Revolutionary War most of the origi- nal thirteen States adopted State Constitutions ; many of which were redrafted shortly after the war, and before the formation of the Constitution of the United states, all the original States had written Constitutions. Every State, on its admis- sion to the Union, submits its Constitution to Con- gress, so as to give assurance thereby that it has, as required by the United States Constitution, adopted a republican form of government. These Constitutions all contain elaborate declarations of the rights of citizens which are not to be subjected to legislative or judicial interference, and which are reserved from the domain of Government. These declarations of rights also contain carefully worded provisions securing the right to the writ of habeas corpus, of jury trial, of exemption of private prop- erty from seizure for public purposes except on due compensation being made ; they set forth how such compensation shall be ascertained ; they insist upon guarantees of freedom of speech and of the press ; secure the right of petition and the right 252 COITSTITUTIOITAL HISTOEY. of citizens to vote at all elections, and require tliat all officers shall either be directly elected by the people or appointed by some authority elected by the people. Since the War of the Rebellion the Southern States, in which slavery had theretofore existed, amended their Constitutions, by forever abolish- ing slavery and every form of human servi- tude. State Constitutions all divide the functions of government into Legislative, Judicial and Executive, specify the manner in which the Legislature shall be elected, and set forth the powers of the Execu- tive ; organize the Judicial system ; the manner of the appointment of the Judges, and confer upon them their respective jurisdictions. There is much uni- formity in that particular in the State Constitutions. The legislative power is generally vested in a legis- lative body composed of a Senate and an Assembly. The Senate is a small elective body of one member each from large senatorial districts, elected for a longer period of years than the more numerous and popular legislative body which is elected in smaller districts and for shorter terms. Each State has its Governor, elected from one to four years ; some have Lieutenant-Governors, and other elective executive officers. In such States THE STATE CONSTITUTIOTs^S. 253 where public works exist, canal commissioners or superintendents of public works are either elected or appointed under constitutional provisions ; state engineers and surveyors exist ; state prison inspectors and other public boards to take charge of public works ; municipal organizations are created ; county organizations are established, and a system of decentralization of power is, as a gen- eral rule, adopted for the purpose of securing local self-government within the domain of the State. Provisions are contained in these Constitutions upon the subject of taxation to secure uniformity and equality therein ; to prevent the growth of public debts by throwing safeguards around the creation thereof. There are provisions in relation to the militia Most of the Constitutions now contain special arti- cles on the subject of bribery and official corrup- tion, and all contain provisions as to methods of amendment. In some of the States the Constitu- tion is limited as to duration to a number of years only, and State conventions are required to be called from time to time for the purpose of suggesting amendments. Some of the original Constitutions of the States required voting to be viva voce, and it was only in imitation of the Constitution of the State of New 254 CO^STITUTIOlSrAL HISTORY. York of 1777, that voting by ballot became gener- ally introduced. In some of the earlier Constitutions of the States a property qualification was still required for the enjoyment of full citizenship, but this qualification has almost wholly been swept away. In the Coi\- stitution of the State of Massachusetts there is a provision that the voter shall be able to read the Constitution in the English language, and write his name, and by an amendment to its Constitution in 1863, two years in addition to the time necessary to qualify a resident to become a citizen of the United States, is necessary before he can be a citizen of Massachusetts. Under the Constitutions anterior to 1848 many of the officers now elected were appointed by the Governors. Notably so was this the case as" to judi- cial positions. The Constitution of 1846 of the State of New York, which, as to this change was the pioneer State of the Union, was drafted by men who were imbued with a spirit of radical democracy and who looked with suspicion upon all executive power. The Constitution thus framed therefore stripped the Executive office of many of the functions that it theretofore had and added enor- mously to the number of persons to be elected by the people, even Judges of courts of record THE STATE COTTSTITUTIOjS-S. • 2oo among tlie rest. This change, for reform it can scarcely be called, was adopted in other States, and it is only in recent years that the wis- dom of the change has been questioned and some modifications made in the original provision of the New York Constitution of 1846, and those of other.. States. It was found that electing Judges for so short a period of years as that provided for in the Constitution of 1846 of the State of New York re- sulted in obtaining in many instances, as Judges, mere politicians of a low order. It therefore be- came necessary either to return to the appointing power, or to make the tenure longer and the salary larger, so as to make the Judge, at least for a con- siderable period of time, independent of the favor of political parties. By amendments of 1869 the Judi- cial system in New York was recast ; the Judges of the higher courts were elected for a period of four- teen years instead of six, as theretofore, and public opinion was brought to bear upon the question of their remuneration, so that the salary of the Judges of the higher courts were made to approximate a little more closely to what could be earned by a lawyer in active practice. The opinion of the Bar, as expressed by organized bodies of lawyers, has been, however, almost uniformly in favor of a return to the system of appointment by the Execu- 266 COI^STITUTIOlSrAL HISTOEY. tive : as the people as a whole, under existing American political conditions, are scarcely the proper custodians of the power wisely to select from among the Bar, the men who are best qualified for judicial functions, and the methods resorted to in order to secure nomination for judicial offices are oftentimes in themselves so demoralizing that it degrades the office in popular esteem, even if the selection of the people on the whole were as wise as that which could be made by the chief executive officer of the State, acting under a sense of his responsibility to the people for making a proper selection. The appointment to vacancies in judicial offices of course must still remain with the Execu- tive, but such appointments are generally limited until either the next succeeding general election or the election following the next succeeding gen- eral election. A firm conviction that decentralization of power was necessary to insure honesty in the administra- tion of j)ublic affairs injected into almost all of these Constitutions the requirement that munici- pal bodies shall elect their own officers, and that no one was to hold office within the municipality unless elected directly by the people in the locali- ty or appointed by an elected authority therein. This so multiplied elective officers within the State THE STATE COlS^STITUTIOiSrS. 257 tliat at a general election the voter is bewildered with the number of people he is called upon to vote for, and he finds it, therefore, more and more diffi- cult to determine upon the fitness of candidates, and is thus put at the mercy of political wire pul- lers and leaders who make the selection for him and call upon him to vote aye or nay between two or at most three candidates for the same office. This difficulty has not yet met with an intelligent solution at the hands of the American statesman. Anterior to the adoption of the Constitution of 1846 in the State of New York, and which is here taken as an example of the leading State Constitu- tions, because, as before stated, the amendments made by that Constitution were extensively followed in other States, a great source of evil was that the railway, banking, and insurance corporations cre- ated so formidable a lobby to secure special legis- lation and privileges for the benefit of such corpora- tions, thai; it was deemed expedient to cause general laws to be passed for their government, and restrain the Legislature thereafter from passing special laws upon the same subjects. As, however, the Legisla- ture was permitted to pass special laws in all cases wherein in its own opinion such legislation was necessary, the restriction, except as to banks and insurance companies, was not a very efficient one. 258 CONSTITUTIONAL HISTORY. This question of special legislation is one wliich lias not been wisely dealt with by the people of the United States, who in their attempt to reform the evil arising from the lobby interested in pressing for and securing such special legislation have fallen into a worse evil. By a constitutional amendment adopted in the State of New York in 1874, the Legislature of the State is prohibited from passing special laws in a large number of enumerated cases which had there- tofore been the lobbyist's most lucrative field of practice, and produced the greatest amount of cor- ruption. This amendment has been followed in other States. Albeit in Missouri and Pennsylvania, constitutional amendments of the same character had been adopted even prior to the one of New York. It was supposed that thereby a blow would be struck at corrupt legislation, and that the Legis- lature would be free to pass general laws upon these matters and be thereafter absolved from all further concern in relation to the subject. It was not then seen that the most dangerous form of sjiecial legis- lation is that which comes under the guise of a general law, or as an amendment to the general law, and that after special legislation is forbidden, all persons desiring special privileges or legislation to meet a particular case, could just as well influence THE STATE CONSTITUTIOKS. 259 the Legislature to amend the general law to meet his case so as to give him a special privilege, as to cause a special law to be passed. In that manner one law after another has been placed, since 1875, upon the statute book of the State of New York and other States which followed the lead of New York, having their origin in personal interests only, and to meet special cases, thus destroying whatever there was of harmonious legislation in the general body of the law. This evil is more insidious and in its effects much more dangerous than the one which it was intended to remedy, and is one especially mischievous in the United States, be- cause, as already shown, there is no body of perma- nent legislators standing guard over the laws of the State, and no responsible ministry having charge of public legislation and responsible for it. There is not even party responsibility in relation to such laws, which are passed or neglected under tlie pressure of private interests or in the absence of any such pressure fail. It would have been very much wiser to have methodized legislation; to have separated, as the English Parliament has done, public or general legislation from all leg- islation which is private or local in character ; to require notice of application for private or local acts before the convening of the legislative body ; 260 CO]N"STITUTIONAL HISTOEY. to treat them not as laws, but ratlier in the nature of judicial determinations on the part of the Legis- lature after a trial upon their merits at which wit- nesses are examined and a trained Bar may exert its talents for or against the bill, and secure its proper amendment. This would convert the lobby into a parliamentary bar ; would bring into the sunlight of publicity all schemes, be they of a sinister or beneficial character, affecting private individuals, corporations or localities, by requiring application for such special legislation to be filed before the opening of the session, and due notice of trial being given by advertisement, etc., thus giving to the community security that such legislation cannot be smuggled through at the latter end of the session, and enabling all opponents to be heard upon the merits as to the impropriety of such mea- sures. This division of private from local laws would tend also to elevate the character of public legisla- tion ; would prevent public or general laws from being used as mere instruments of private gain, and effectually extirpate the evil which was intended to be removed — a corrupt lobby seeking to gain an ad- vantage from the community by the secret or corrupt passage of improper private and local bills. The almost unlimited power of municipalities THE STATE COI^STITUTIONS. 261 and counties to create debts for their own purpose or in aid of public works, led to a very formidable evil between 1850 and 1870 by the rolling up of enormous local public debts in aid of railway cor- porations. While in many instances this aid was perhaps necessary and judicious, yet it led to so much corruption and abuse throughout the States, and became so burdensome upon the localities, which frequently after the aid was voted failed to get the public improvement for the purposes for which they created the debt, and imposed taxes upon themselves, that in almost every State in the Union limitations were put upon the lending of the public credit or voting aid to railway corpora- tions by counties and cities. And in many States such aid is now entirely prohibited. The abuses incident to the distribution of public funds in aid of charities connected with religious establishments, where any particular religious de- nomination prevailed, as particularly in the city of New York, became of so grave a character that a constitutional amendment was adopted, and in many other States followed, by which cities were prohibited from granting any such aid to religious institutions. Exemptions from taxation have been a fruitful source of mischief in many States ; insti- tutions of a charitable and religious nature have en- 262 COI^STITUTIOlSrAL HISTOEY. jojed such exemption on the ground that impos- ing taxation upon the values of their property would be onerous in the extreme, it being dedicated in a certain sense to public use, but it was soon found that many of these institutions had excep- tional advantages for property not actually used for charitable or religious purposes, and which property while held by them was free from the burdens im- posed upon the taxpayers of the State. This led to amendments of some of the State Consti- tutions limiting such exemptions to the building and land only upon which is erected such charitable or religious institution, and to no other lands whatever. The evils of corporate management have caused several of the States to provide as a remedy a sys- tem of minority representation in the election of their Boards of Direction as to all corporations thereafter to be organized ; both Pennsylvania and Missouri have engrafted such provisions upon their Constitutions. Illinois in the selection of the Leois- lature, and Pennsylvania in the election of Judges of the Supreme Court, are the only States which adopted minority representation for political offices. In Illinois minority representation is secured in all legislative districts by the provision that, in all elections of representatives, each qualified THE STATE CONSTITUTIOIS^S. 263 voter may cast as many votes for one candidate as there are representatives to be elected, or may dis- tribute the same or equal parts thereof among the candidates as he may see fit. This secures, in a very limited way, cumulative voting and therefore minority representation. In some of the States the agitation for women's rights has resulted in securing for married women by constitutional provisions or legislation an un- disturbed enjoyment of property rights. In none of the States, however, as yet have women become full citizens. A fruitful source of recent constitutional amend- ments throughout the States has been the growing power of the railroad corporations. In almost all the Western States elaborate provisions are con- tained in the State Constitutions by recent amend- ments by which railways are declared to be public highways. The Legislature is required to pass laws limiting the amount of charges ; the railway is constitutionally inhibited from discriminating in charges or facilities in transportation, or making any discrimination between transportation compa- nies or individuals, either by way of abatement, drawback or otherwise, and also from making any preference in furnishing cars or motive power between different individuals, and a new set of 264 CONSTITUTIOT^AL HISTOEY. officers, known as Railway Commissioners, have been called into existence. The great State of New York has as yet not acted in the same direction, but this defect in the State Constitu- tion is now in process of being remedied by legis- lation having the same end in view. In some of the States the evil of constant altera- tions in the law and the uncertainties created thereby have been sought to be prevented by constitu- tional changes making the ses sions of the Legisla- ture biennial instead of annual. This change appears to be a very short-sighted remedial mea- sure for an undoubted evil. In the States having biennial Legislatures, great inconvenience at times results from the impossibility of promptly conven- ing the Legislature for the purpose of passing a law of pressing necessity. If less attention is given to the quality of laws to be passed, as many bad laws can be passed in a short session of one Legislature as in two sessions of consecutive Legislatures. The true corrective of this evil is the one already re- ferred to of properly methodizing legislation, and dividing public from private acts, creating also some degree of responsibility for public acts by having a council of revision or some public body to whom the public acts are to be referred, and which shall report upon the same as an Advisory Board to the THE STATE CONSTITUTIONS. 265 legislative bodies. Of course, the main evil of bad legislation arises from the fact that the legislators are not qualified for their work. Annual elections of large legislative bodies from the body of the people or the members of political caucuses, small pay for the time given to the public during that period, and the unfortunate American political con- ditions arising from the domination of the " boss " and caucus systems, bring as a general rule together in the legislative halls of the various States of the Union a body of men but little qualified for the most important work that can be entrusted into hu- man hands — that of legislating wisely and well for their fellow-men. This evil will find its remedy in the United States only after a considerable period of time. One of the conditions of its correction is, as already observed, to dissolve political parties as at present constituted, by minority representation, and to introduce a thorough system of civil service reform. The development of individual wealth will also in time come to the aid of the people of the United States ; as through it they will possess a body of men so emancipated from all necessity of looking after their personal interests, that they can devote their whole time to the public service. The change from annual to biennial sessions of 12 266 CONSTITUTIONAL HISTORY. the Legislature seems to be as inadequate for the purpose of curing the evils of bad legislation as would be the conduct of a man at the head of a large industrial establishment, who, finding that in consequence of its mismanagement by his super- intendents he runs behindhand year after year, determines to work but half time as a corrective, instead of changing his managers and changing his methods. He may not (if he is doomed to run be- hindhand) get himself into the bankruptcy courts by working half time quite as fast as by working full time ; but it clearly would be better for him either to shut up shop entirely, or to reform his methods of doing business. If biennial Legislatures is a remedy, not to have the Legislatures meet at all would be still a better one ; but this mistaken measure will continue to be adopted precisely as the limitation upon the special legislation has run its course until the evils occasioned by the supposed change or reform will bring the people of the United States to a realizing sense of the fact that they have gone for relief in the wrong direction. The great evil in connection with State institu- tions is that which arises from the difficulty in dealing with municipalities so as to leave them on the one hand the power to govern themselves, and yet on the other to restrict a tendency which in all THE STATE COITSTITUTIONS. 267 American cities has developed itself to an alarming degree, its unlimited debt-creating power and methods of unwise taxation. Within the twenty years from 1860 to 1880, the debts of the cities of the Union rose from about $100,000,000 to $682,000,000. From 1860 to 1875, the increase of debt in eleven cities was 270.9 per cent. ; increase of taxation, 362.2 per cent. ; whereas the increase in taxable valuation was but 156.9 per cent. ; and increase in population but 70 per cent. A large part of this increase of city indebtedness is doubtless due to the fact that in a concentrated community wherein the vast expenditures involved in city administration are to be made, such expen- ditures in themselves exercise a corrupting influ- ence upon political elections, and create a numerous body of voters who, by reason of such interest in city expenditures, vote for and maintain in office persons pledged to increase them, or in any event not to reduce them. Political parties find in the salaries of city officials and the numerous indirect advantages arising from the contracts to be awarded by the city for all the purposes of city administra- tion, such as water supply, street cleaning, sewer- age, lighting, etc., opening of streets and highways, an enormous fund to perpetuate their power and to 268 COTTSTITUTIONAL HISTORY. supply tliem with the necessary means to manipnlate the results of the ballot box ; but the evil is not due wholly to city administrators alone. The members of the Legislatures of the various States have found in the offices of a great city, subject to their sway, abundant opportunities for placing friends in office and also to secure personal advantages of a more lucrative character. Before the charter amendments of 1871 for the city of New York, the annual tax levy of that city, ■ — appropriations for the various purposes and ob- jects of the city government — was prepared by the Legislature in the same manner as the supply bill for the State ; and the corruptions incident to the items which found place in such tax levy were greater at that period than have prevailed since the city government had power from that period on to determine upon the amount of tax to be raised and the purposes for which it was to be expended, without having recourse to State legislation. Num- erous commissions for special municipal purposes were appointed by the Legislature, having indepen- dent powers to create debt without any vote of the city or any part of its inhabitants, and thus not only was the amount annually to be levied by tax heavily increased by legislative interference, but also the permanent debt was largely increased, frequently THE STATE CONSTITUTIONS. 269 without tlie consent and at all times without the power of the city to prevent such imposition. Therefore, while it is true that the city adminis- tration, when left to itself under the peculiar cir- cumstances of a large proletarian class in every city in the Union having voting power, is likely to run into excesses of debt and extravagant administra- tion, recourse to the Legislature and leaving the city powerless to administer its own affairs, has been shown by past experience to result in even worse effects than decentralization of power leads to. This condition of affairs has led to an investio-a- tion of the subject to what extent city administration is part of the government of the nation, and whether or not it is not largely the mere administration of private property upon a cooperative plan. Certainly many of the functions of the city gov- ernment, such as lighting, paving, and laying out of streets, and the supply of water, are not truly governmental functions, but private ser- vices, which are performed under governmental forms for the owners of real estate who would themselves provide such service in the absence of any government taking it in charge. Various efforts have been made, therefore, to create somewhere in the city administration a veto power, lodged in the hands of tax and rent payers, upon such expendi- 270 COIS-STITUTIOIirAL HISTORY. tures without tliereby limiting the suffrage as to any general governmental city functions. Thus far these efforts have not onlj proved unavailing, but have cast some degree of odium upon their advocates as being supposed to be adverse to the fundamental principles upon which the institution of American governments are based. That this charge against them is not true does not seem much to affect the question, because large bodies of people do not closely analyze, and it requires some intellectual effort to appreciate the difference between a city ad- ministration and the general Government. That the tax-eaters should not have absolute control over the taxes to be expended by the tax-payers would appear to be an entirely axiomatic truth in political philos- ophy. That the population of cities will increase, and that the pressure of competition will necessarily add largely to the proletariat class when any check comes to the prosperity of the people, would also appear to be almost as self-evident. Sooner or later, therefore, the people of the United States will either have to adopt some method of city administration not copied from the administrative forms of the United States or the States, by which such a regulation of the suffrage shall take place that those who have a permanent stake in the community shall,, upon all expenditures involving large amounts in cities, THE STATE CONSTITUTIONS. 271 have some voice in determining the amount and purposes of such expenditures ; or fairly and freely recourse must be had to a system of minority repre- sentation to secure this result. Indeed the adoption of the latter reform would, without resort to any limitation of suffrage, in itself, check the ex- travagant, corrupt and useless expenditures in cities; but in the absence of the introduc- tion of any such system, the problem is becoming a very serious one as to how, with the growth of a pauper element, property rights in cities can be protected from confiscation at the hands of the non-producing classes. That the suffrage is a spear as well as a shield is a fact which many writers on suffrage leave out of sight; that it not only protects the holder of the vote from ag- gression, from which point of view it is unobjec- tionable, but also enables him to aggress upon the rights of others by means of the taxing power, is a fact to which more and more weight must be given as population increases and the suffrage is extended. Some of the evils incident to city government in the United States are remediable by other means. One of the fruitful sources of evil influences exercised upon municipal administrations arises from a false distribution of power in the city governments. Departments which should be under some central 273 COlS^STITUTIOlSrAL HISTOEY. authority and responsible to it, the members of which should be removable by the Mayor at will, who in turn is responsible for the good government of the city to its inhabitants, have become inde- pendent bodies having debt-creating power without central control. The city council chamber, even when not strip- ped of all responsible legislative functions, as has been notably the case in the city of New York, is called into being under a faulty system. Small districts are created for the election of members of the Board of Aldermen, and frequently a provision is made by which minorities and majorities in the districts have equal representation, so that either small politicans come to the surface in consequence of the small district, or caucus nominations are equivalent to an election, and the election becomes a mere form. This has at times been called minor- ity representation, but it is not so in any proper sense, as it is mere party representation, and not representation of the people. Attempts have been made in some of the Consti- tutions of the States by limiting the ratio of assess- ment to check extravagance, but this has proved quite futile as a remedy, because the law is evaded by increasing the assessment so as to keep within the ratio, so that in some of the cities where such a THE STATE CONSTITUTIOISIS. 273 limitation has prevailed the assessed value of prop- erty is largely in excess of its actual value, and the ratio of taxation takes a considerable proportion of the actual rental value of real property. The laws in relation to cities are so constantly changed by the political parties in power within the State, so as to increase patronage in favor of the party in power, and to decrease it as against the adverse party, by either change of officials in office or a transfer of large powers from one de- partment to another, that the Chief Justice of the State of New York in 1875, in a judicial opinion stated that "it is clearly unsafe for any one to speak confidently of the exact condition of the law in respect to public improvements in the cities of New York and Brooklyn. The enactments with reference thereto have been modified, superseded and repealed so often and to such an extent that it is difficult to ascertain just what statutes are in force at any particular time." This grave condi- tion of affairs has led many of the States to appoint bodies of men especially commissioned to inquire into the causes of these evils, and to suggest reme- dies. New York, Pennsylvania and New Jersey have received reports from the commissions thus ap- pointed, but the remedies proposed threatened so seriously to impair both the power and the 12* 274 CONSTITUTIONAL HISTORY. patronage of tlie politicians tliat they failed of ac- ceptance. It will be found that the main remedy for almost all the evils of administrative machinery of Ameri- can cities will be in the adoption of a constitutional limitation upon the power to create indebtedness, and constitutional inhibition upon the Legislature to interfere with the city's administration unless such legislation is demanded by the inhabitants of the city in some form or manner, and the remodel- ing of city charters so as to centre responsibility in the Mayor and the Board of Aldermen, and to subordinate all executive heads of departments to the Mayor and to the legislative departments of the city. APPENDIX. ARTICLES OF CONFEDERiLTION AND PERPETUAL UNION" BETWEEN THE STATES. TO ALL TO WHOM THESE PRESENTS SHALL COME, AVE THE UNDERSIGNED DELEGATES OF THE STATES AFFIXED TO OUR NAMES, SEND GREETING.— Wliereas the Delegates of the United States of America in Congress assembled did on the 15th day of November in the Year of our Lord 1777, and in the Second Year of the Independence of America agree to certain articles of Confederation and per- petual Union between the States of New Hampshire, Massa- chusetts-bay, Rhode-island and Providence Plantations, Con- necticut, New- York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, in the words following, viz. "ARTICLES OF CONFEDERATION AND PERPETUAL UNION BETWEEN THE STATES OF NEW-HAMP- SHIRE, MASSACHUSETTS-BAY, RHODE-ISLAND AND PROVIDENCE PLANTATIONS, CONNECTICUT, NEW- YORK, NEW-JERSEY, PENNSYLVANIA, DELAWARE, MARYLAND, VIRGINIA, NORTH-CAROLINA, SOUTH- CAROLINA, AND GEORGIA. ARTICLE I. The Stile of this confederacy shall be "The United States of America." 275 276 APPENDIX. ARTICLE 11. Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the united states, in congress assembled. ARTICLE III. The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pre- tence whatever. ARTICLE IV. The better to secure and perpetuate mutual friendship and intercourse among the j^eople of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states ; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabit- ants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of projDerty im- ported into any state, to any other state of which the Owner is an inhabitant ; provided also that no imposition, duties or restriction shall be laid by any state, on the property of the united states, or either of them. If any person guilty of, or charged with treason, felony, or other high misdemeanor in any state, shall flee from Justice, and be found in any of the united states, he shall upon de- mand of the Governor or, executive power, of the state from which he fled, be delivered up and removed to the state hav- ing jurisdiction of his offence. Full faith and credit shall be given in each of these states to the records, acts and judicial proceedings of the courts and magistrates of every other state. APPENDIX. 277 ARTICLE Y. For the more couA'enient management of the general interest of the united states, delegates shall be annu- alh^ appointed in such manner as the legislature of each state shall direct, to meet in congress on the first Monday in No- bember, in every year, with a power reserved to each state, to recal its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year. ISTo state shall be represented in congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years ; nor shall any person, being a delegate, be capable of holding any office under the united states, for which he or another for his benefit, receives any salary, fees or emol- ument of any kind. Each state shall maintain its own delegates in any meeting of the states, and while they act as members of the committee of the states. ^ In determining questions in the united states, in congress assembled, each state shall have one vote. Freedom of speech and debate in congress shall not be im- peached or questioned in any Court, or place out of congress, and the members of congress shall be protected in their per- sons from arrests and imprisonments, during the time of their going to and from, and attendance on congress, excej^t for treason, felony, or breach of the peace. ARTICLE YI. No state M-ithout the Consent of the united states in congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agree- ment, alliance or treaty w^ith any King prince or state ; nor shall any person holding any office of profit or trust under the united states, or any of them, accept of any present, emolu- ment, office or title of any kind whatever from any king, prince or foreign state ; nor shall the united states in congress assembled, or any of them, grant any title of nobility. 278 APPElSiDIX. No two or more states shall enter into any treaty, confedera- tion or alliance whatever between them, without the consent of the united states in congress assembled,, specifying accu- rately the purposes for which tlie same is to be entered into, and how long it shall continue. No state shall lay any imposts or duties, which may inter- fere with any stipulations in treaties, entered into by the united states in congress assembled, with any king, prince or state, in pursuance of any treaties already proposed by con- gress, to the courts of France and Spain. No vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed necessary by the united states in congress assembled, for the defence of such state, or its trade ; nor shall any body of forces be kept up by any state, in time of peace, except such number only, as in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state ; but every state shall always keep up a well regulated and disciplined militia, sufiiciently armed and accoutred, and shall provide and have constantly ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equi- page. No state shall engage in any war without the consent of the united states in congress assembled, unless such state be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such state, and the danger is so imminent as not to admit of a delay, till the united states in congress assembled caln be consulted : nor shall any state grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the united states in congress assembled, and then only against the kingdom or state and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the united states in congress assembled, unless such state APPENDIX. 279 be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the united states in congress assem- bled shall determine otherwise. ARTICLE VII. When land-forces are raised by any state for the common defence, all officers of or under the rank of colonel, sh:ll be appointed by the legislature of each state respectively by whom such forces shall be raised, or in such manner as such state shall direct, and all vacancies shall be filled up b}^ the state which first made the appointment. ARTICLE YIII. All charges of war, and all other expenses that shall be incurred for the common defence or general wel- fare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasur}^, which shall be supplied by the several states, in proportion to the value of all land within each state, granted to or surveyed for any Person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the united states in congress assembled, shall from time to time, direct and appoint. The taxes for paying that proportion shall be laid and levied by the atithority and direction of the legislatures of the several states within the time agreed upon by the united states in congress assembled. ARTICLE IX. The united states in congress assembled, shall have the sole and exclusive right and power of deter- mining on peace and war, except in the cases mentioned in the 6th article — of sending and receiving ambassadors — entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners, as their own people are sub- jected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever — of estab- 280 APPENDIX. lishing rules for deciding in all cases, what captures on land or Avater shall be legal, and in what manner prizes taken by land or naval forces in the service of the united states shall be divided or appropriated — of granting letters of marque and reprisal in times of peace — appointing courts for the trial of piracies and felonies committed on the high seas and estab- lishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of congress shall be appointed a judge of any of the said courts. The united states in congress assembled shall also be the last resort on appeal in all disputes and differences now sub- sisting or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause what- ever ; which authority sliall always be exercised in the man- ner following. Whenever the legislative or executive authority or lawful agent of any state in controversy with another shall present a petition to congress, stating the mat- ter in question and praying for a -hearing, notice thereof shall be given by order of congress to the legislative or executive authority of the other state in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commis- sioners or judges to constitute a court for hearing and deter- mining the matter in question : but if they cannot agree, congress shall name three persons out of each of the united states, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen ; and from that number not less than seven, nor more than nine names as congress shall direct, shall in the presence of congress be drawn out by lot, and the persons whose names shall be so draM^n or any •five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determi- nation : and if either party shall neglect to attend at the day ap- pointed, without showing reasons, which congi-ess shall judge APPENDIX. 581 sufficient, or being present shall refuse to strike, the congress shall proceed to nominate three persons out of each state, and the secretary of congress shall strike in behalf of such party ab- sent or refusing ; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sen- tence, or judgment, which shall in like manner be final and de- cisive, the judgment, or sentence and other proceedings being in either case transmitted to congress, and lodged among the acts of congress for the security of the parties concerned : provided that every commissioner, before he sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior court of the state, where the cause shall be tried, " well and truly to hear and determine the mat- ter in question, according to the best of his judgment, without favour, affection or hojic of reward : " provided also that no state shall be deprived of territory for the benefit of the united states. All controversies concerning the private right of soil claimed under different grants of two or more states, whose jurisdictions as they may respect such lands, and the states which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have orig- inated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the congress of the united states, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respect- ing territorial jurisdiction between different states. The united states in congress assembled shall also have the sole and exclusive right and jDower of regulating the alloy and value of coin struck by their own authority, or by that of the respective states — fixing the standard of weights and measures throughout the United States — regulating the trade and managing all affairs with the Indians, not members of 282 APPENDIX. any of the states, provided that the legislative right of any- state within its own limits be not infringed or violated — establishing or regulating post-offices from one state to an- other, throughout all the united states, and exacting such postage on the papers passing thro' the same as may be requisite to defray the expenses of the said office — appointing all officers of the land forces, in the service of the united states, excepting regimental officers — appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the united states — making rules for the government and regulation of the said land and naval forces, and directing their operations. The united states in congress assembled shall have authority to appoint a committee, to sit in the recess of congress, to be denominated "A Committee of the States," and to consist of one delegate from eacli state ; and to appoint sucli other committees and civil officers as may be necessary for man- aging the general affairs of the united states under their direction — to appoint one of their number to preside, pro- vided that no person be allowed to serve in the office of president more than one year in any term of three years ; to ascertain tlie necessary sums of Money to be raised for the service of the united states, and to appropriate and apply the same for defraying the jDublic exjoenses — to borrow money, or emit bills on the credit of the united states, trans- mitting every half year to the respective states an account of the sums of money so borrowed or emitted, — to build and equip a navy — to agree upon the number of land forces, and to make requisitions from each state for its quota, in pro- portion to the number of white inhabitants in such state; which requisition shall be binding, and thereupon the legis- lature of each state shall appoint the regimental officers, raise the men and cloath, arm and equip them in a soldier like manner, at the expense of the united states; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on APPENDIX. 283 by the united states in congress assembled : But if the united states in congress assembled shall, on consideration of cir- cumstances judge proper that any state should not raise men, or sliould raise a smaller number than its quota, and that any other state should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, cloathed, armed and equipped in the "same manner as tlie quota of such state, unless the legislature of such state shall judge that such extra number cannot be safely sjDared out of the same, in which case tliey shall raise, officer, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and men so cloathed, armed and equipjied, shall march to the place apj^ointed, and within the time agreed on by the united states in con- gress assembled. The united states in congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the united states, or any of them, nor emit bills, nor borrow money on the credit of the united states, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine states assent to the same: nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the united states in congress assembled. The Congress of the united states shall have power to adjourn to any time within the year, and to any place within the united states, so that no period of adjournment be for a longer duration than the space of six months, and shall pub- lish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military opera- tions, as in their judgment require secrecy ; and the yeas and 284 APPENDIX. nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Jour- nal, except such parts as are above excepted, to lay before the leofislatures of the several states. ARTICLE X. The committee of the states, or any nine of them, shall be authorized to execute, in the recess of con- gress, such of the powers of congress as the united states in congress assembled, by the consent of nine states, shall from time to time think expedient to vest them with ; provided that no power be delegated to the said committee, for the ex- ercise of whicli, by the articles of confederation, the voice of nine states in the congress of the united states assembled is requisite. ARTICLE XL Canada acceding to this confederation, and joining in the measures of the united states, shall be admitted into, and entitled to all the advantages of this union : but no other colony shall be admitted into the same, unless such ad- mission be agreed to by nine states. ARTICLE XII. All bills of credit emitted, monies bor- rowed and debts contracted, by or under the authority of congress, before the assembling of the united states, in pur- suance of the present confederation, shall be deemed and considered as a charge against the United States, for pay- ment and satisfaction whereof the said united states, and the public faith are hereby solemnly pledged. ARTICLE XIIL Every state shall abide by the determina- tions of the united states in congress assembled, on all ques- tions which by this confederation is submitted to them. And the Articles of this confederation shall be inviolably ob- served by every state, and the union shall be perpetual ; nor shall any alteration at any time hereafter be made in any of APPENDIX. 285 them ; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legis- latures of ever}' state. And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union. Know Ye, that we the undersigned delegates, by virtue of the power and authority to us gievn for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and. confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the united states in congress assem- bled, on all questions, w^hicli by the said confederation are submitted to them. And that the articles thereof shall be in- violably observed by the states we respectively represent, and that the union shall be perpetual. In witness whereof we have hereunto set our hands in Congress. Done at Philadel- phia in the state of Pennsylvania the 9th Day of July in the Year of our Lord, 1778, and in the 3d year of the Independ- ence of America. On the part and behalf of the state of New Hampshire, Josiah Bartlett, John Wentworth, jun., August 8th, 1778. On the part and behalf of the state of Massachusetts-Bay, John Hancock, Samuel Adams, Elbridge Gerry, Francis Dana, James Lovell, Samuel Holten. 286 APPENDIX. On the part and behalf of the state of Rhode-Island and Providence Plantations, William Ellery, Henry Marchant, John Collins. On the part and behalf of the state of Connecticut, Roger Sherman, Samuel Huntington, Oliver Wolcott, Titus Hosmer, Andrew Adam. On the part and behalf of the state of New York, Jas Duane, Fras Lewis, William Duer, GouV Morris. On the part and behalf of the state of New Jersej, Novem- ber 26th, 1778, Jn° Witherspoon, Nath' Scudder. On the part and behalf of the state of Pennsylvania, Rob* Morris, Daniel Roberdeau, Jon^ Bayard Smith, William Clingan, Joseph Reed, 22d July, 1778. On the part and behalf of the state of Delaware, Tho. M'Kean, Feb. 12, 1779, John Dickinson, May 5, 1779, Nicholas Van Dyke. APPE:^rDix. 287 On the part and behalf of the state of Maryland, John Hanson, March 1st, 1781, Daniel Carroll, March 1st, 1781. On the part and behalf of the state of Virginia, Richard Henry Lee, John Banister, Thomas Adams, Jn° Harrie, Francis Lightfoot Lee. On the part and behalf of the state of North-Carolina, John Penn, July 21st, 1778. Corns Harnett, Jn" 'Williams. On the part and behalf of the state of South-Carolina, Henry Laurens, William Henry Drayton, Jn° Matthews, Richd Hutson. Thos. Heyward, jun. On the part and behalf of the state of Georgia, Jn° Walton, 24th July, 1778, . Edwd Telfair, Edw*^ Langworthy. CONSTITUTION OF THE UNITED STATES OF AMERICA. We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tran- quillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall con- sist of a Senate and House of Representatives. Section 2. The House of Representatives shall be com- posed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty-five years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. [Representative^ and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall 288 APPENDIX. 289 be determined by adding to the whole Number of free Per- sons, inchiding those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.]* The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of EejDresentatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Planta- tions one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five. South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers ; and shall have the sole Power of Impeachment. SectiooS" 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one-third may be chosen every second Year ; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof * The clause included in brackets was superseded by the 14th amendment, 2nd section. 13 290 APPET^DIX. may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. ]Sr o Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhab- itant of that State for which he shall be chosen. The Vice-President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice-President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeach- ments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall j)reside : And no Per- son shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend fur- tlier than to removal from Office, and Disqualification to hold and enjoy any office of honour. Trust or Profit under the United States ; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Pun- ishment, according to Law. Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be pre- scribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regu- lations, except as to the places of chusing Senators. The Congress shall assemble at least once in every Year, and such meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section 5. Each House shall be the Judge of the Elec- tions, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business ; APPENDIX. 291 but a smaller Kiimber may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two-thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy, and the Yeas and Nays of the Members of either House on any question shall, at the desire of one-fifth of those Present, be entered on the Journal. Neither House, during the session of Congress, shall, with- out the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same ; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he w^as elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ; and no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office. Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have i)assed the House of Repre- 292 APPENDIX. sentatives and the Senate, shall, before it become a Law, be presented to the President of the United States ; If he approve he shall sign it, but if not he shall return it, with his Objec- tions, to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and pro- ceed to reconsider it. If after such Reconsideration two- thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Kays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the Presi- dent within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Man- ner as if he had signed it, unless the Congress by their Ad- journment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Yote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limita- tions prescribed in the Case of a Bill. Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, Jto^ pay the Debts and provide for the common Defence and gen- .eraLWelfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States ; To borrow Money on the credit of the United States ; To regulate Commerce with foreign Nations and among the several States, and with the Indian tribes ; To establish an uniform Rule of Naturalization, and uniform APPEIS-DIX. 293 Laws on the subject of Bankruptcies throughout the United States ; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of "Weights and Measures ; To provide for the Punishment of counterfeiting the Securi- ties and current Coin of the United States ; To establish Post Offices and post Roads ; To j)roii^ote the jDrogress of Science and useful Arts, by securing for limited Times to Authors and Inventors the ex- clusive Right to their respective "Writings and Discoveries ; To constitute Tribunals inferior to the supreme Court ; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations ; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Caj)tures on Land and "Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ; To provide and maintain a Navy ; To make Rules for the Government and Regulation of the land and naval Forces ; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be em- ployed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the Discipline prescribed by Congress ; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Con- gress, become the Seat of the Government of the United States, and to exercise like Authority over all Places pur- chased by the consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arse- nals, Dock- Yards, and other needful Buildings ; — And 294 APPENDIX. To make all Laws whicli shall be necessary and proper for carrying into Execution tlie foregoing Powers, and all other PoM'Crs vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or Duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the "Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it. No bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct. Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Com- merce or Revenue to the Ports of one State over those of any another : nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Conse- quence of Appropriations made by Law ; and a regular State- ment and Account of the Receipts and Expenditures of all pub- lic Money shall be published from time to time. No Title of Nobility shall be granted by the United States : And no Person holding any Office of Profit or Trust under them, shall, Avithout the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind what- ever, from any King, Prince, or foreign State. Section. 10. No State shall enter into any Treaty, Alliance, or Confederation ; grant Letters of Marque and Reprisal ; coin Money ; emit Bills of Credit ; make any Thing but gold and silver Coin a Tender in Payment of Debts ; pass any Bill APPEJS^DIX. 29o of Attainder, ex post facto Law, or Law impairing tlie Obli- gatiou of Contracts, or grant any Title of Nobility. E"o State shall, without the consent of the Congress, lay any Imposts or Duties on Imports or Exports, exce^Dt what may be absolutely necessary for executing it's inspection Laws : and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States ; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of Delay. ARTICLE II. Sectiok 1. The executive Power shall be vested in a Presi- dent of the United States of America. " He shall hold his office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as fol- lows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress : but no Senator or Represen- tative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. [* The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each ; which list they shall sign and cer- tify, and transmit sealed to the Seat of the Government of the United States directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certifi- * This clause within brackets has been superseded and annulled by the 12tli amendment. 296 APPENDIX. cates, and the Votes shall then be counted. The Person having the greatest number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed ; and if there be more than one who have such Majority and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President ; and if no Person have a Majority, then from the five highest on the List the said House shall in like manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote ; A Quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the Presi- dent, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.] The Congress may determine the Time of chusing the Elec- tors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitu- tion, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Kesident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his ser- vices, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation : — APPENDIX. 297 " I do solemnly swear (or affirm) that I will faithfully exe- *' cute the Office of President of the United States, and will " to the best of my Ability, preserve, protect and defend the *' Constitution of the United States." Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Ser- vice of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive De- partments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Ke- prieves and Pardons for Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise pro- vided for, and which shall be established by Law : but the Congress may by Law vest the Appointment of such inferior Officers, as they think j)roper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by grant- ing Commissions which shall expire at the End of their next Session. Section 3. He shall from time to time give to the Con- gress Information of the State of 4he Union, and recommend to their Consideration such Measures as he shall judge neces- sary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Dis- agreement between them, with respect to the Time of Ad- journment, he may adjourn them to such Time as he shall think proper ; he shall receive Ambassadors and other public 13* 298 APPENDIX. Ministers ; he shall take Care that the Laws be faithfully ex- ecuted, and shall Commission all the Officers of the United States. Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE III. Section 1. The judicial Povt^er of the United States, shall "^ be vested in one supreme Court, and in such inferior Courts ■.as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ; — to all Cases affecting Ambassadors, other public Ministers, and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Contro- versies to which the United States shall be a Party; — to Con- troversies between two or more States ; — between a State and Citizens of another State; — between Citizens of different States ; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Con- gress shall make. APPE]^DIX. 299 The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed ; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3. Treason against the United States shall con- sist only in levying War against tliem, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shaU work Corrup- tion of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE ly. Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe tlie Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in an- other State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. 300 APPENDIX. Section 3. New States may be admitted by the Congress into this Union ; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Kules and Regulations respecting the Territory or other Property belonging to the United States ; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion, and on Applica- tion of the Legislature, or of the Executive (when the Legis- lature cannot be convened) against domestic Violence. ARTICLE V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Consti- tution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proj)osing Amendments, which, in either Case, shall be valid to all In- tents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Mnth Section of the first Article, and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against APPENDIX. 301 the United States under this Constitution, as under the Con- federation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Consti- tution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all execu- tive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to sup- port this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. ARTICLE yn. The Ratification of the Conventions of nine States, shall be^ sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our names, GEO WASHmaTOE"— Presidt and dejputy from Virginia, 302 APPENDIX. NEW HAMPSHIRE. John Langdon, Nicholas Gilman, MASSACHUSETTS. Nathaniel Gorham, Rufus King. CONNECTICUT. Wm. Saml. Johnson, Roger Sherman. Alexander Hamilton. Wil: Livingston, Wm. Paterson, B. Franklin, RoBT. Morris, Tho: Fitzsimons, James Wilson, Geo: Read, John Dickinson, Jaco: Broom. James M' Henry, Danl Carroll. John Blair, Wm. Blount, Hu. Williamson, NEW YORK. NEW JERSEY. David Brearley, JoNA. Dayton. PENNSYLVANIA. Thomas Mifflin, Geo: Clymer, Jared Ingersoll, Gouv: Morris. DELAWARE. Gunning Bedford, Jun'r, Richard Bassett, MARYLAND. Dan: of St. Thos. Jenifer, VIRGINIA. James Madison, Jr., NORTH CAROLINA. Rich'd Dobbs Spaight, SOUTH CAROLINA. Charles Cotesworth Pinckney Pierce Butler. GEORGIA. William Few, Abr. Baldwin. J. Rutledge, Charles Pinckney, Attest : WILLIAM JACKSON, Secretary. ARTICLES m ADDITION TO AND AMENDMENT OF THE CONSTITUTION OP THE UNITED STATES OF AMEKICA. Proposed iy Congress^ and ratified ty the Legislatures of the several States, pursuant to the fifth article of the original Constitution, (ARTICLE I.) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ; or abridg- ing the freedom of sjDeech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (ARTICLE n.) A well regulated Militia, being necessary to the senritcy of a free State, the right of the people to keep and bear Arms, shall not be infringed. (ARTICLE III.) No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. (ARTICLE IV.) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, 303 304 APPENDIX. but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (ARTICLE V.) Ko person shall be held to answer for a capital, or other- wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any 'Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation. (ARTICLE VI.) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been com- mitted, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with tlie witnesses against him ; to have Compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his de- fence. (ARTICLE VII.) In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than accord" ing to the rules of the common law. (ARTICLE VIIL) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. APPENDIX. 305 (ARTICLE IX.) The enumeration in the Constitution, of certain rights," ehall not be construed to deny or disparage others retained by the people. (ARTICLE X.) The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ARTICLE XI. The Judicial power of the United States shall not be con- strue.d to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. * ARTICLE Xd. The Electors shall nieet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with them- selves ; they shall name in their ballots the j)erson voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all per- sons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate ; — The President of the Senate shall, in |)resence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed ; and if no person have * In substitution of part of § 1, Article 2, of Constitution, as originally adopted. 306 APPEI^DIX. such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose imme- diately, by ballot, the President. But in choosing the Presi- dent, the votes shall be taken by states, the representation from each state having one vote ; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall de- volve upon them, before the fourth day of March next follow- ing, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such num- ber be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-Presi- dent ; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to. a choice. But no person con- stitutionally ineligible to the office of President shall ,be eligible to that of Vice-President of the United States. ARTICLE Xm. Section 1. Neither slavery nor involuntary servitude, ex- cept as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall "have power to enforce this arti- cle by appro]3riate legislation. ARTICLE XIV. Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No APPENDIX. 307 state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, count- ing the whole number of persons in each State, excluding Indians not taxed ; but when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State or the members of the Legisla- ture thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for jDarticipa- tion in rebellion or other crimes, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representa- tive in Congress or elector of President and Vice-President, or hold any office civil or military, under the United States or under any State who, having previously taken an oath as a Member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to sujDport the Constitution of the United States, shall ha.ve engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such disability. Section 4. The validity of the public debt of the United States authorized by law, including debts incurred for pay- ment of pensions and bounties for services in suppressing in- surrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in the aid of insurrection or rebellion 308 • ^ APPENDIX. against the United States, or any loss or emancipation of any- slave, but such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. ARTICLE XV. Section 1. The right of citizens of the United States to vote, shall not be denied or abridged by the United States, or by any State, on account of race, color or previous con- dition of servitude. Section 2. Congress shall have power to enforce this arti- cle by appropriate legislation. INDEX. Compiled by L. E. Jones. Abolitionist party, origin, 176; acces- sion of strength, 180. Adams, J., his casting vote gives Prest. power of removal, 151; adm. of, 157- 159; his breach with Hamilton, 160. Adams, J. Q., adm. of, 166-168. Adioiunment of Congress, 36 ; by the Prest., 74. Administration, of Washington, 147- 157; Adams, 157-159; Jefferson, 159- 161; Madison, 161-163; Monroe, 163- 166; J. Q. Adams, 166-168; Jackson, 168-175; Van Buren, 175-176; Harri- son, and Tyler, 177-179; Polk, 179- 181; Tavlor and Fillmore, 182-186; Pierce, 186-190; Bnchanan, 190-196; Lincoln, 196-200; Johnson, 200-205; Grant, 205-216; Hayes, 216-220. Admiralty powers under Arts, of Con- fed., 10; power of Congress. 45 : jnris- diction of Sup. Ct., 102-103, 106; of r. S. courts, 107-108, 126. See also Prizes. Admission of States, 17, 19; submis- sion of their constitutions to Con- gress, 251. Adoption of Const., opposition to. 14, 148, 149. Advisory Boards for legislatures, 264- 265. Age of Congressmen, 28 ; of Senators, 33; of Prest., 68. Agricultural statistics, 88. See also Granger. Agriculture, Dept. of, 84; its duties, 94-95. Alabama secedes, 194. Alabama settlement with England, 207. Alaska, purchase of, 115. Aldermen, defects of system, 272; should be made responsible. 274. Alien laws, 48-49, 141, 158-159. Aliens, power of Prest. to protect, 83; suits in which they are parties, 103, 109-110. Alliance. See Treaty. Ambassadors, Continental Congress to send and to receive, 10; under Const, appoiiited by Prest., 73; suits affect- ing, 102, 103, 126. Amendments to Const., 64, 66, 103, 110, 117-124, 160, 202, 205; how made, 17- 18; their provisions, 18-23; Sec. of State to give notice, 85; they form a bill of rights, 135-144; those pro- posed by Madison, 151-152; defeated, 167; text of the 15 adopted, 303-308. Amendments to State constitutions, provisions for, 253. American party. /See Know-Nothings. American register of ships, 237. Amnesty power taken from the Prest., 203. Anti-Federalists, 148-149. Anti-Masonic party, 172. Anti-slavery. 6'ee Abolitionist; Slavery. Appellate iurisdiction ofSup. Ct., 103, 126-132; of U. S. courts, 121-122; of Circuit courts, 1-33. Appendix, 275-308. Appointing power of Prest., 7-3-74, 76- 78, 82-84; 89, 90, 92, 93, 94, 126, 151; share of Senate in, 34; how used since adm. of Jackson, 227; its evils, 227-228; efforts at reform, 228- 231. See rt/^fo Civil service; Removal; Spoils; Tenure-of-office. Appointment of State officers, 251-2-52, 254-257; of judges, 254-256. Apportionment of Congressmen, 28-31, 123. Appraisal of imports, Treas. Dept. to report to Congress rules for, 87. Appropriations, bills for, to originate in House of Rep., 36-37; money to be paid only by, 51; Treas. Dept. to keep account of, 85. Arkansas, hesitates about secession, 194; secedes, 197. Armies, power of Congress to raise, 45 ; appropriations for, limited to two j'ears, 45, 46; power of States to maintain, limited, 56. See also Mili- tia. Arms, right of people to bear, 19, 140- 141; does not apply to concealed weapons, 117-118. Army, power of Continental Congress over, 11; of Congress over, 46; of Pi-est. over, 203; U. S. does not need 309 310 Il^DEX. a standing, 222. See also Militia; Volunteer; War Dept. Arsenals, jurisdiction of Congress over, 47. Arthur, C. A., accession to presidency, 80-81, 220. Articles of Confederation, adoption, 9; powers, 10; defects, ll-i;i, 27, 96; differences from Const., 143-144; their weakness, 146; their text, 27.5-287. Ashburton treat}"-, 178. Assassination of Lincoln, 200 ; of Gar- field, 2i0. Assembling, people's right of, 19, 117, 140. Assessments, attempts to limit ratio, 272-273. See also Political assess- ments. Attainder, bill of, forbidden, 47, 50-51, 52, 111. Attorney-General, 84; his duties, 90- 92. Bail, excessive, prohibited by Const, amend., 21, 122, 142. Ballot, Prest. and Vice-Prest. to be chosen by, 66; its introduction in voting, 254. Bank of U. S., disagreement as to its incorporation, 155; reorganization in 1811, 103; the failure to re- charter it, 170-171 ; Jackson removes TJ. S. deposits from, 172. See also Fiscal. Bank notes. See Paper money. Banking corporations, influence upon State legislation, 257. Bankruptcy, power of Natl. Govt, over, 16; of Congress, over, 42; writs of injunction in, 132. Banks, statistics of, 88. /See a^so Na- tional banks; State banks. Battle of New Orleans, 162-163. Bell, J., nominated as Prest. by Const. Union party, 193. Biennial sessions of State legislatures, 264-266. Bill of attainder. See Attainder. Bill of rights in amends, to Const., 135-144. Bills of credit. States prohibited from issuing, 52. Bimetallism, 242-244. Blair, F. P., Jr., nominated as Vice- Prest. 205. Bland silver bill, 242. Blockades, power of Prest. to insti- tute, 83. Bonds of TJ. S. not subject to taxation b}' States, 39; nail, banks required to invest ciipital in, 198. See also Debt. Bosses, political, 219, 265. Bounaaries between the States, 10. Bounty lands, 94, 115. Breckenridge, J. C, elected Vice- Prest., 19b; nominated as Prest., 193. Bribery, impeachment for, 75; provis- ions m State constitutions against, 253. British orders in council, 161. Brookljai, frequent change of public improvement laws, 273. Brooks, P. S., assault upon Sumner, 189. Brown, B. G., nominated as Vice- Prest., 208. Buchanan, J., adm. of, 190-196. Bureau. ,5^6 Census; Education; Freed- men's; Mint; Statistics. Burr, A., contest ^^'Ith Jefferson for presidency, 159-160; duel with Ham- ilton, 160. Butler nominated as Vice-Prest., 181. Butler, B. F., declares slaves to be contrabands of war, 197. Cabinet, 83-84; that of Tyler resigns, 177-178; propriety of giving mem- bers seats in Congress, 247-249. Calhoun, J. C, elected Vice-Prest., 167, 168; advocacy of nullification, 170. California, cession to TJ. S., 180; ad- mission as a State, 183-184; its ac- tion on Chinese question, 240. Canal commissioners of States, 253. Capital of TJ. S., its location, 152, 153, 155. Capitation tax proportional to popula- tion, 51. Captures. See Prizes. Carpet-baggers, 206. Carrying trade, cfibrts to restore, 237- 238. Cass, L., nominated for presidency, 181. Caucus, origin, 159 ; its evils, 232, 265 ; how to remedj^ them, 235. Censorship of the press, 1.37. Census, provision for taking, 28-31, Census Bureau, 93-94. Centralization of power, 156, 153, 226. Charter governments of the colonies, 3. Charters, colonial, 2, 3. Chase, S. P., 43. Chief Justice presides in impeachment of Prest., 82. Chinese question, 239-241. Circuit courts established by Congress, 44; appeals to Sup. Ct. from, 126, 127; writs of ne exeat by judges of, 132. Citizens of the different States to be on an equality. 18; to be entitled to privileges of other States, 57-58, 60, 113-114; suits in which they are par- ties, 103, 104, 105, 106, 109, 110; juris- n^DEX. 311 diction of Sup. Ct. in cases between, 103, 105; entitled to equal piotection of States, 122-123; their rights i^ro- tected more by States than bynatl. govt., 2o0; their rights of voting at all elections, 251-252. Citizenship of Congressmen, 28; of Sen- ators, .3:3; defined, 113-114; freedmen admitted to, 202; qualifications for, 254. ■See' also Naturalization. City, ^e-e Municipal. Civil judgments in one State binding in others, 59. Civil law, Its administration chiefly in control of States, 250. Civil rights, 22, 122-123, 124; passage of bill, 202. Civil service, evils of, iv-v, viii; re- forms in, 77-78, 228-231, 235. 265. See also Appointing; Office-holders; Removals; Spoils. Civil suits, right of jury in, secured by Const, amend., 21. Civil War, 196-200; settlement of is- sues raised by it, iv-vi; Const, amends, caused by, 22; settled ques- tion of State riglrts, 26; a pretext for protective duties, 235-236. Claims of and against U. S. tobe ad- justed by Treasury Dept., 85; inva- lidity of Southern, 22, 123-124. See also Examiner; Court of Claims. Clay, H., 165. Clearance of vessels, 51. Clerk of House of Representatives makes up mil of members, 32. Clinton, G., elected Vice-Prest., 161. Coast Survey, 88, 151. Cobden-Clievallier treaty, 238. Coercion of Judicial and Exec, Depts. by Congress, 35; of States, 194, 196. Coercive authority lacking in Conti- nental Congress, 11-12. • Coffee, duty on, lowered, 238. Coin of U. S. under charge of Treas. Dept., 87. Coinage, power of, under Arts, of Confed., 11; under Const,, 42-43; States prohibited from, 52; of silver, 242. Colfax, S., elected Vice-Prest., 205. Colonial Congress, declaration of 1765, 4-5. Stt also Continental Congress. Coionies, their forms of government, 1-5. See also State legislatures. Color, discriminations against, prohib- ired by Const, amend., 22. Colorado, organization into a territory, 196; admission as a State, 211; min- ing regions of, 217. Commander-in-chief, 45-46, 73. Commerce, inter-state, 13, 51, 224; power of Congress to regulate, 40- 42; statistics of, 88; embargo act for protection of, 161. See also Ex- ports; Free trade; Protective. Commercial crisis of 1837, 172, 1T6; of 1873, 210. Commissions granted by Prest., 74. Common law, recognition of, in colo- nies, 2-3. Compensation of, presidential electors, 71; for private property seized, 119. Competitive examinations, 229. Compiomises in Const., 23-24. Concealed weapons, 118. Confederate govt., organization, 195. See also Southern States. Confederates, disabilities, 22, 123; in- validity of claims for losses, 22, 123- 124; iron-clad oath, 63-64. See also Soulhern StMtes. Contirmation by the Senate, 34-35, 73- 74, 80, 89, 90, 92, 93, 94. Congress, 27-64 ; its appointment power, 74; depts. to report to, 85, 87-88; Attorney-Gen. and Postmas- ter-Gen. to report to, 92; limitations on, 96-98, 101-102; power over juris- diction of U. S. courts, 104, 106-107, 108; its riglit of eminent domain, 119-120; claims before, 133-135; the first Congress, 149-153. See also Co- lonial; Continental; House of Rep.; Legislation; Senate. Congressional districts, 30-31. Congressmen, their qualifications, 28; nuinber, 29-31; disqualitication for other offices during term, 36; oath to support Const., 63-64; cannot be prest. electors, 65; number in Madi- son's adm., 163. Conklin, R., his resignation, 77. Connecticut, form oi" colonial govt., 3. Conspiracy not treason, 112. See also Sedition. Constitution of U. S., 1-26; the su- preme law, 61-62; opposition to its adoption, 14, 148-149; its text, 288- 308. See also Amendments; Con- structions ; Limited. Constitutional Convention, 14. Constitutional law, its scope, 15. See also Laws. Constitutional Union party. /See Know- Nothings. Constitutionality of Acts of Congress, why determined by judges, 97-102. Constitutions of the States, 1-8; their changes and developments, 250-274. Constructions put upon Const., cause of parties, 173-175. See also Loose ; Strict. Consuls, appointed by Prest., 74; jmis- diction of Sup. Ct. in cases affecting, 102. 103 : parties to actions, 126. Continental Congi-ess, 5-7 ; its pow- ers, 10-11; its inability to enforce 312 INDEX. laws, 12, 27; a tribunal of last re- sort, 96. Continental paper money, amount and redemption of, 154. Contraband of war, slaves declared to be, 197. Contracts, States prohibited from im- pairing, 52-56 ; those of Treas. Dept. to be reported to Congress, 87 ; for postal service, 92, 93. Convening Congress by Prest.,74. Conventions for nominating Prest., their beginning, 69-70 ; for amend. State consts., 253. Copyright, power of Congress over, 43-44. Corporations, modiiication of State grants to, 58-56 ; have not the privi- leges of citizens, 58 ; empowered to exercise right of eminent domain, 119 ; grants of la'nd to, 246-247 ; in- fluence upon State legislation, 257 ; minority representation in, 262. See also Municipal. Corruption, , of carpet-baggers, 207 ; provisions in State consts, against, 253; in city govts., 267. Cotton, illegality of export duty on, 51; claims for seizure of, 133-134. Counsel in criminal prosecutions, 120. Counterfeiting, power of Congress to punish, 43. Counting electoral votes, 66, 71, 213- 214. ■ County organizations, established by State constitutions, 253 ; debts in aid of railways, 260, 261. Court of Claims, appeals to Sup. Ct. from, 127; its jurisdiction, 133-135. Courtesy of the Senate, 76-78. Courts of last resort, their judgments final, 121. See also Circuit; District; Judicial; State; Supreme. Courts martial, 120-121, 140. Credit, bills of. States prohibited from issuing, 52. Credit of U. S. under Continental Congress, 12-13. See also Debt. Crime, no increase caused by Civil War, V. Crimes committed in U. S. bldgs. cognizable in U. S. courts, 47. Criminal law, how guarded by Const, amend., 20-21; judgments in one State not binding in others, 59-60 ; jury trials * obligatory, 110-112; in- dictments essential, 118 ; limitations on prosecutions, 120-121; its adm. chiefly in control of States, 250. See also Attainder; Ex post facto. Criminals to be delivered up by the States, 18, 50, 58. See also Requi- sition. Crittenden Compromise, 194. Crown lands, ownership after forma- tion of Union, 9-10. Cuba, pro-slavery desire for its ac- quisition, 191. Cumulative voting, 263. Currency, statistics of, 88 ; Controller of, 89. See also Legal tender; Paper money. Current questions, 222-249. Custom duties. Treasury Dept. in charge of collection, 86. See also Imports ; Protective. Custom-Houses, number of employes and expenses to be reported to Congress, 88. Customs, Commissioners of, 89. Dakotah, organization into a territory, 196. Dallas, G. M., elected Vice-Prest., 179. Dartmouth College m. Woodward, 53. Davis, J., elected Prest, of Confeder- ate govt., 195. Death of Prest. and Vice-Prest., 79-81. Debt of U. S., payment and refunding of, v; Continental Congress with- out power to pay, 11 ; practical re- pudiation under Continental Con- gress, 13 ; its validity secured by Const, amend., 22, 123; power of Congress to contract, 40; in charge of Treas. Dept., 86; its considera- tion in first Congress, 152, 153-155 ; its amount at close of War of 1812, 162; its decrease during adm. of Monroe, 166; extinguished during adm. of Jackson, 173; increased by Mexican War, 182; its payment in coin, 209-210; increased by Civil War, 227; its rapid decrease, 241, 246. See also Bonds. Debts, States cannot obstruct collec- tion of, 54; States prohibited from making them payable in anything but gold and silver, 52; contracted in aid of railways, 260-261. Debts of cities, 260-261,267-271; neces- sity for their limitation, 273-274. Debts of States, validity of those contracted before adopting Const., 61; their amount and their assump- tion by natl. govt., 154-155; con- trolled by their consts., 253. Debts of Southern States, their invalid- ity, 23, 123 ; those created since Civil War, 206-207. Decentralization of power in States, 253. Decisions. See Judgments; Supreme Court. Declaration of Independence, 6. Delaware, form of colonial govt., 3; withholds ratification to Articles of Confed., 9; secedes, 197. INDEX. 313 Democratic-Repiiblican party, 155. Democratic party, 155, 17:^; platform in 1848, 181; in 1852, 185-186; its di\i!-ioninl860, 192-193; adopts Lib- eral Kepub. candidates, 208; nomi- nates Tilden as Prest.,211; change of attitude in 1S76, 214-216; nomi- nates Hancock as Prest., 217; plat- form in 1880, 218; its change of front loses it the election, 219 ; its principles, 220 ; its advocacy of civil service reform, 230 ; free tra- ders' relation to, 238-239. See also Eepublican (Old); Republican- Democratic . Demonetization of silver, 241-242. Departments. See Agriculture; In- terior; Justice: Navy; Post-office; State; Treasury; War. Deposits of IT. S., withdrawn from U. S. Bank, 172; placed in U. S. treas- ury, 176. Dipromatic affairs in charge of State Dept., 84-85. Disabilities of rebels, 22, 123. Disbursements. See Expenditures. Discriminating legislation, 113-114. Discrimination in railway rates, 225. Disputes between the States, settle- ment of, under Arts, of Confed., 10. Disqualification of Congressmen and Senators for other offices during term, 36. District attorneys, 90. District courts, 44, 126, 127, 132. District of Columbia, jurisdiction of Congress over, 47; appeals from its Sup. Ct. to U. S. Sup. Ct., 127. Districts in which trials shall be held, 120, 132. Dock-yards, jurisdiction of Congress over, 47. Documents, public, 94. Dodge, Free Soil parts'- nominate, as Vice-Prest. in 1848, 182. Domestic violence, U. S. to protect States from, 59. See also Insurrec- tions. Door-keeper of House of Rep., 32. Douglass, S. A. nominated as Prest. by Northern Democrats, 193. Dred Scott decision, 190-191. Duties. See Customs; Free trade; Imports; Internal revenue; Pro- tective; Revenue. Edtication, grants of lands to States for, 115; of colored children, 124. Education, Bureau of, 94. Election of Congressmen, time and mode, 31-32; House of Rep. sole judge of, 36. Election of judges, 254-256. Election of Prest., 65-72; change in 14 mode, 160; defeat of further attempt to change mode, 167: Jackson recom- mends change in mode, 169-170. Election of Senators, 33; Senate sole judge of, 36. Elections. See Ballot ; Suffrage. Electoral College, 65-72. Electoral Commission of 1876, 72, 214r- 216. Electors of Congressmen, their quali- fications, 28 ; penalty for abridging their rights, 29. Electors of Prest., 65, 72. Emancipation proclamation, 197. Embargo act, 161. Emigration, tax of N. Y. illegal, 56-57; a cause of prosperity, 237. Eminent domain, 55, 119-120. Employes. See Office-holders; State. Engineers. See State. England, critical relations with, during Washington's adm., 157; France de- shes U. S. to assist in war a»:ainst, 158; relations with, 161, 163; orders in council, 161 ; War of 1812, 162-163; settlement of Oregon question, 181; how its system of parties differs from XT. S., 231-232; benefits of her free trade policy, 238. Errors. See Appeals. Europe, U. S. opposition to its inter- ference with affairs of N. Am. con- tinent, 165-166. Everett, E., nominated as Vice-Prest. by Const. Union party, 193. Examiner of Claims, 90. Executive Dept., 65-95; its weakness under Articles of Confed., 12, 27; coercion of Congress over, 35. See «. also National government. Executive officers, oath to support Const., 63-64. See also Cabinet; President; State. Exemplification acts, 57. Expenditures, Treasury Dept. to keep account of, 85-86; to be published quarterly, 88-89. Exports, taxes on, prohibited, 51 : Treas. Dept. to prepare statistics of, 86 ; at close of Jackson's adm., 173; increase during Hayes' adm., 217. Ex'postfajCto laws prohibited, 50-51, 52, 111. Expulsion of Congressmen and Sena- tors, 36. Extradition. See Requisition. Federal party, 148-149; its advocacy of central power, 156; its success, 157; causes of unpopularity, 158, 159; weakened, 160; further weakened, 161, 162; its disappearance, 174. Felonies on the high seas, 45. Fillmore, M., adm. of, 182-186. 314 IISTDEX. Finances under Continental Congress, 12-13. See also Debt. Fines, excessive, prohibited by Const, amend., 21, 122, 142. Fiiecal Bank of U. S., bill to incorpo- rate, vetoed by Tyler, 177-178. See also Bank. Fitzsimmons, T., aiitbor of first tariff list, 149. Florida, purchase of, 115, 116, 164; admission as a Stare, 178-179; se- cedes, 194; its electoral vote in 1876, 212, 214, 216. Food, the U. S. the largest contribu- tor of, iv. Foreign affairs in charge of State Dept., 84-85. Foreign gifts, etc., to office-holders prohibited, 52. Foreign intervention not feared by U. S., 222. Foreign postal service, 92, 93. Foreigners. See Aliens. Forfeitures, power of Prest. to remit, 83. Fort Sumter, surrender of, 196. Forts, jurisdiction of Congress over, 47. France, influence in State constitu- tions, 8; purchase of land from, 115, 116; relations with during Washing- ton's adm., 157; desires United States to assist in war against Eng- land, 158; embargo act, 164; free trade policy, 288. Franchises created by States cannot be taxed by Congress, 40; power of States to modify, 53-56. Free Soil party, origin, 181-182; its protest against fugitive slave law, 186. Free trade, foreign and inter-State, vii; advocated m Democratic plat- form of 1880, 218; position aban- doned, 219; advocated by the South, 236; loss of confidence in Democratic party, 238-239. See also Commerce; Protective. Freedmen, their electoral rights guarded by Const, amend., 29; edu- cation of their children, 124; exten- sion of suffrage to, 200-203, 205; legislation to secure their rights. 206. Preedmen's Bureau, 201, 202, 203. Freedom of the press secured by Const, amend., 19, 117, 136-140; se- cured by State consts., 251. Freedom of religion, 19, 117, 135-136. Freedom of speech secured by Const, amend., 19, 117, 136-137; secured by State consts., 251. Fremont, J. C, proposal to free slaves, 197. Fugitive slave bill, 58-59, 184-186 ; re- pealed, 199. Fugitives from justice to be delivered up by the States, 18, 50, 58. Gadsden purchase, 180. Garfield, J. A., assassination, 80-81, 220; elected Prest, 217; desire for civil service reform, 229. General government. See National. General laws, as opposed to special, 258-260, 264. Georgia, form of colonial govt., 3 ; op- position to protective duties, 168 ; secedes, 194. Germanj% effects of its decentraliza- tion of power, 226 ; demonetization of silver, 241. Ghent, Treaty of, 162. Gifts to office-holders from foreign states prohibited, 52; to religious institutions, 261-262. Gold, anti-slavery effect of its dis- covery in California, 183; its value •in Civil War, 209. Government of the Continental Con- gress, 6-7. See also National. Govern m exits of the colonies, 1-5; of the Southern States, 201, 203-204, 206-207. Governors, colonial, powers of, 2, 3 ; of Stares, 252, 254-256. Grand jury, indictments by, 118. Granger laws, 53-54, 224. Grant, U. S., 199, 203 ; appointed Sec. of War, 204 ; adm. of, 205-216 ; efforts at civil service reform, 228. Grants to religious institutions, 261- 262. Greeley, H.. heads Eepub. opposition to Grant, 207 ; nominated as Prest., 208. Greenback party, 210, 217, 243, 244. Greenbacks. See Currency ; Paper money. Gresham law, 242. Grievances, redress by petitioning, 19. Guadalupe Hidalgo treatj'', 115. Habeas corpus, 133 ; restrictions on its suspension, 50 ; power of Prest. to suspend, 83 ; not to be used in favor of fugitive slaves, 184-185 ; secured by State consts., 251. Hale, J. P., nominated as Prest. by Free Soil party, 186. Hamilton, A., 135, 156-157; on Elector- al College, 68-69; on U. S. judiciary, 96-100; on authority of Sup. Ct. over State laws, 104-106; his plan of treat- ing debt, 153-155; on incorporation of Bank of U. S., 155; breach with Adams, 160; death, 160. Hancock, W. S., nominated as Prest., IIN'DEX. 315 217; loses election by free-trade let- ter, 219. Harrison. W. IT., dies shortly after Ms election to tlie presidency, 177. Hartford Codvention, 162, 174. Hayes. R. B., contest- for presidency, 71-72, 211-216; adm. of, 216-220; ef- forts at civil service reform, 229. Head-money. See Emigration. Holj'- Alliance, Monroe doctrine op- posed to design of, 166. Homestead law, 11.5-116. House of Eepresentatives, 28-33; elec- toral votes to be counted in presence of, 66 ; 'vvheu it elects Prest., 66-67 ; power of impeaching, 82, 101; elects Prest., 159, 166-167; conflict with Senate in counting votes in 1876, 213-214 ; question of giving Cabinet seats in, 247-249. Illinois, minority representation in, 262-263. Immoral publications in the mails, 138-139. Impairment. See Contracts. Impeachment, 73, 74^75, 81-82, 100-101, 205. Implied powers of Congress, 48; of Prest., 83-84. Importation of slaves, 49-50. Imports, Treas. Dept. to prepare statis- tics of, 86; at close of Jackson's adm., 173. Impost duties of States limited, 56. See also Protective. Impressment of Am. seamen by the English, 161. Improvements. See Internal. Inability of Prest. and Vice-Prest., 79- 81. Indians, 94; neither citizens nor aliens, 109; reservations for, 115; treaties with, 1.53. Indictments in criminal cases, 118. Inilation of ciirrency, 209-210. Injunction, U. S. courts can issue writs of, 132. Insolvency. See Bankruptcy. Insurance corporations, influence upon State legislation, 257. Insurrections, power of Congress to suppress, 45; natl. govt, to protect States from. 59. Interior Dept', 84, 93-94. Internal improvements, power of Con- gi'ess to make, 48; Whig partj" on, 174-175, 176; division of panics on, in 1848, 181. 182. Internal revenue, collected in each State, 88; Commissioners of. 89; bonds of collectors, 91; its abolition in favor of protection, 238, See also Solicitor. International law, power of Congress to punish oftenses against, 45. Interpretation of the Const., right of States to, 24-25; of U. S. Sup. Ct. to, 26,61-62; why ^ivf n to judges, 97- 102; influence ot parties on, 145-14J6. Inter-state commerce,. vii, 40-42, 224. Inter-state communication, 223. Invasions, power of Congress to repel, 45; natl. govt, to protect States from, 59. Ironclad oath, 63-64. Irredeemable currency, 209-210. Jackson. A., battle of New Orleans, 162-163; adm. of, 168-173; mode of appointments, 227. Jealousy of the States, 23-24, 69, 147. Jeflierson, T., opposition to Const, met by amends., 152; on incorporation of Bank of U. S., 155; advocates State rights, 156; retires from Washing- ton's cabinet, 156-157; elected Vice- Prest., 157; adm. of, 159-161. Johnson, A., coercion and impeach- ment by Congress, 35, 82; adm. of, 200-205. Johnson, H. Y., nominated as Vice- Prest. by northern Democrats, 193. Johnston, J. E., surrender of, 199. Judges of U. S. courts appointed by Prest., 74. See also State judges. Judgments of one State binding in* others, 59; of courts of last resort final, 121-122. See also Supreme Court. Judicial power of TJ. s., 21, 35, 44, 96- 144, 149. See also Courts; State judges. Judicial proceedings. States to give credit to those of one another, 18, 57-59. Judicial officers, oath to support Const., 63-64. Judiciary act, 106, 126-133. Julian, G. W., nominated as Yice- Prest. by Free Soil party, 186. Jurisdiction of Congress over land purchased by govt., 46-47; of IT. S. courts, 102-109. /S'e^ G^so Appellate; Original. Jury trials, in colonies, 5; secured by Const, amend., 20-21; obligatory only in criminal cases, 110-112; de- fined, 122; secured by State consts., 251. See also Grand jury. Justice, Dept. of, 84, 89-92. Kansas, its formation into a territory, 186-187; its admission as a State, 187- 189, 191-192, 196. Kentucky, nullification of Alien and Sedition laws, 49; hesitates about 316 INDEX. secession, 194; remains in the Union, 197. King, W. E., elected Yice-Prest., 186, Know-Nothings, 188, 193. Knox, H. , favors incorporation of Bank of U. S., 155. Land Office, 94. Lands, speculation in, causes panic of 1837, 175-176. /See afoo Bounty lands ; Public lands. Lane, J., nominated as Yice-Prest. by Southern Democrats, 193. Law Dept. /Ste Attorney-General; Jus- tice, Dept. of. Law of nations. See International law. Laws, Continental Congress without powers to enforce, 11-12; for carry- ing Const, into effect, 48; under the Const, the supreme law, 61-62; Prest. entrusted with execution of, 74; to be promulgated by Sec. of State, 85; Sup. Ct. to determine their con- stitutionality, 125. See also Constitu- tional; Legislation; Muncipal. Leavenworth Constitution, 187. Lecompton Constitution, 191. Lee, R. E., surrender of, 199. Legal tender, States prohibited from making anything but gold and silver a legal tender, 52. See also Paper money ; Silver. Legal tender act, 35; its constitution- ality, 143; its passage a war measure, 198. Legislation in U. S., its defective methods, viii. See also Congress; General laws; Laws; Local bills; Special legislation. Legislative Dept. of U. S., 27-64. See also Congress. Legislatures. See State legislatures. Letters of marque and reprisal, power of Congress to erant, 45; States pro- hibited from granting, 52. Libel, 111-112, 136-137, 138. Liberal Republican party, 208. LibertJ^ See Personal liberty. Liberty party. See Abolitionist. License laws, 57-58. Lieutenant- Governors of States, 252. Lighting streets, 269. Limited constitution defined, 96-97. See also Strict. Lincoln, A., forged proclamation, 139- 140; elected Prest., 193; adm. of, 196-200; assassination of, 200. Loan Assoc, vs. Topeka, 38. Lobby, its influence upon State legis- lation, 257. Local bills prohibited in many States, 258-960. See also Special legisla- tion Local govt, in States, 253. Loose constructionists of Const., 174, 215-216. Louisiana, purchase of, 115, 116, 161 ; secedes, 194 ; electoral vote in 1876, 212, 213, 214. Madison, J., quoted, 149-150; proposes Con«t. amends.. 151-152; on incor- poration of Bank of TJ. S., 155; lead- er of Republican party, 157; adm, of, 161-163. Mail. See Post. Maine, admission of, 164. Mandamus, power of Sup. Ct. to issue writ of, 126. Manufactures, statistics of, 88; their influence in forming Whig party, 175. Maritime. See Admiralty. Maryland, form of colonial govt., 3; withholds ratification to Arts, of Confed., 9; secedes, 197. Masonic. See Anti-Masonic. Massachusetts, form of colonial govt., 3; prohibited enforcement of fugi- tive Slave law, 185; qualifications for citizenship, 254. Mayors of cities, should have power of removal, 272; should have greater power, 274. Measures. See Weights, Meeting of Congress, 36. Members of Congress. See Congress- men. Messages of the Prest., 74; Jefferson's change in method, 160-161. Mexican War, 179-180. Mexico, purchases from, 115, 116; set- tling eastern boundary of, 164. Migration of slaves, 49-50. Milan-Berlin decrees, 161. Military districts. Southern States formed into, 203-204, See also Army, Militia, recognition in Const, amend., 19; power of Congress over, 45; mode of requisition for, 46; Prest, commander-in-chief when in ser- vice, 73; right of States to, 140-141; provisions m State consts., 253. Milligan case, 140. Mines, in charge of Interior Dept., 94; claims in, 115. Mining, development of, 217, 237. Ministers. See Ambassadors. Minority representation, 233-235, 262- 263, 271. Mint, Bureau of, 89. Misdemeanors, indictments not essen- tial, 118. Mississippi secedes, 194. Missouri, pro-slavery migration from, to Kansas, 186-187; hesitates about secession, 194 ; remains in the Un- IITDEX. 317 ion, 197; proposal to free slaves in, 197; special legislation limited, 258; minority repi-esentation in, 2Q2. Missouri Compromise, 164, l(i5; reop- ened, 182-183; repealed, 187. Mis-t rials, 118. Money, power of Congress to regulate value of, 42-43; to be paid only on appropriations, 51. See also Bi-met- alism; Coinage; Currency; Legal tender; Paper monej^; Silver; Specie payments. Monopolies, power of Congress over, 41-42, 225.' Monroe, J., adm. of, 163-166. Monroe doctrine, 165-166. Morey letter, 219. Mormons, their organization at Kirt- land and in Mo., 170. Municipal government, 256-257, 266- 274; evils, v-vi, viii; cannot be taxed hj Congress, 39-40; power of Stares over, 54-55; created by State consts., 253. See also Debts of cities. Municipal law, use of States for, 223. National banks, power of Congress to charter, 48; act, 198; the system, 244- 246. /Se« a^so Bank of U. S.; Fiscal Bank. National debt. See Debt of U. S. National government, its supreme power, 16, 61-62 ; cannot be limited by States, 120; a party to actions, 133-135; claims against, 133-135; pro- posed that it should pay for rescued slaves, 194; tendency to strengthen, 223-226; powers surrendered to It less than those reserved to States, 250. See also Executive Dept. National Eepublican party, 172; adopts name of Whig, 173. Natural resources of the IT. S., "vi-vii. Naturalization, mode of, 42. Naval Solicitor, 90. ' Navigation, laws, 150, 151, 235, 237-238; statistics, 88. Navy, power of Continental Congress over, 11 ; of Congi'ess over, 45; limi- tation of power of States to main- tain, 56; its gallantry in War of 1812, 162; a large navy nut required by U S 222 Navy Dept.", 84, 88, 90, 93. Ne exeat, U. S. courts can issue writs of, 132. Nebraska, its formation into a terri- tory, 184, 186-1S9, 191; admission as a State, 203, 211. Negroes. See Freedmen ; Slaves. Nevada, organization into a territory, 196; admission as a State, 199; min- ing regions, 217. New England, form of colonial govt., 2; opposition to War of, 812, 162. New Hampshire, form of colonial govt., 3; adopts State const., 8. New Jersey, form of colonial govt., 3; municipal govt, in, 273. New Mexico, cessi(m lo U. S., 180; its formation into a territory, 184. New Orleans, battle of, 16i. New York State, form of colonial govt., 3: adopts State const., 8; emi- gration tax, 56-57; determines elec- tion of 1880, 217; introduces voting by ballot, 253-254; election of judges, 254-56; special legislation limited, 258-259 ; railway questions, 264. New York city, ruled by bosses, 219; public aid to religious institutions, 261 ; tax levy in, 268; defects of govt., 272; public improvement laws, 273. Newspapers. See Freedom of the press. Nobility. See Titles. Nolle 2n-osequi, power of Prest. to en- ter, 83. Nominations for Prest., their begin- ning, 69-70. See also caucus. North Carolina, fonn of colonial govt., 3; withholds ratification to Const., 14; hesitates about secession, 194; secedes, 197. Northeastern boundary settled, 178. Northern Pacific Railway, amount of land given lo, 246. Northwest, development of, 216-217. Northwest bomidary settled, 181. Northwest Territory, passage of act for its govt., 152. Nullification, attempt by S. C, 25, 170, 171-172; advocated by Hartford Convention, 174. Number of Congressmen, 28-31; of Senators, 33; of presl. electors, 65, 71; of electoral votes for Prest. in 1876, 211. Oaths of office, 63-64; of Congress- men, 32; of Senators, 34. Office-holders prohibited from receiv- ing foreign gifts, titles, etc.. 52 : can- not be presl. electors, 65; increase in number caused by Civil War, 227. See also Appointing; Civil serA'ice; State officers. Official household. See Cabinet. Orders in council, British, 161. Oregon, its disputed electoral vote in 1876, 212, 214. Oregon question settled, 181. Orgiinizatiou of House of Rep., 32; of Senate, 34; of Congress, 35-36. Original jurisdiction of Sup. Ct., 103- 104, 108, 125-126. Overriding vetoes of Johnson, 202,203 . 318 II^DEX. Pacific coast and CMnese question, 239-241. Pacific railways, only ones chartered by natl. govt., 225 ; grants of land to, 246. Panama Congress proposed, 167. Panic of 1837, 172, 176 ; of 1873, 210. Paper money, amount and redemption of Continental, 154 ; its excessive issue causes panic of 1837, 175-176 ; attempt to increase amount of irre- deemable, 209-210 ; causes fictitious prosperity, 236; uniform character and value under natl. banking sys- tem, 244-245; basis, 246. See also Currency ; Greenback party ; Legal tender. Pardoning power of Prest., 73. Parker, I., proposed duty on importa- tion of slaves, 151. Parliament, denial of its power over colonies, 5. Parties, their lack of principle, viii ; nominations for Prest. by, 69-70; their influence in interpreting Const., 145-146; need of, 156; be- come more clearly defined, 157-158; in Jackson's adm., 172; originated in construing Const., 173-175 ; division in 1860 on slavery question, 192 ; their present demoralization, 220-221; demoralized by spoils sys- tem, 231 ; how to improve them, 231- 235 ; their responsibility in special legislation, 259. See also Abolition- ist ; Anti-Federalists; Anti-Masonic; Democratic ; Democratie-Republi- can ; Federalist ; Free Soil ; Green- back ; Know-Nothings ; Liberal Re- publican ; National Democratic ; National Republican ; Republican ; Whig. Patent Office, 94. Patents, power of Congress over, 43- 44 ; for land grants, 115, 116. Pauper element, its influence in cities, 271. Paving streets, 269. Peace Congress of 1861, 195, Penal law, use of States for, 223. Pendleton, G. H., his civil service re- form bill, 230. Pennsylvania, form of colonial govt., 3 ; special legislation limited in, 258; minority representation in, 262 ; mu- nicipal govt, in, 273. Pension Office, 94. People, their ability to remedy evils, viii ; rights reserved to, 15, 135-144 ; rights secured by Const, amends., 19-21 ; rights protected more by States than by natl. govt.. 250. Personal liberty, right of colonists to, 3; secured by Const, amend., 20; how protected, 119, 121; protected more by States than by natl. govt., 250. Personal rights guarded by amend- ments, 117. Petitioning, right of, 19, 140, 251. Philadelphia as site of capital, 153, 155. Pierce, F., adm. of, 186-190. Piracy, trials for, under Arts, of Confed., 10. Place of meeting of Congress, 32-33; of trial, 120, 132. Piatt, T. C, resignation of, 77. Police powers of States cannot be con- tracted away, 55-56. Political assessments, 78, 228, 230. Political hist. ofU. S., 145-221. Political institutions of U. S., interest in, iv ; strain upon, caused by Civil War, iv-vi; their influence upon its prosperity, vi-vii. Politicians, character of, 232-233. Polk, J. K., adm. of, 179-181. Population of U. S., increase up to Monroe's adm., 163; size in 1848, 182 ; its increase in cities. 270. Post-const, hist, of U. S., 145-221. Post-Office Dept., 84, 92-93; refusal to carry immoral publications, 138-139. Postal powers under Arts, of Confed., 11 ; of Congress, 43. Postmaster-General, 84; his duties, 92-93. Potomac, as a site for the capital, 152, 155. Preamble to the Const., 135 ; text, 288. Presents. See Gifts. President of the Senate, 34 ; to open electoral certificates, 66, 213-214 ; as acting Prest., 79-80. President of U. S., commander-in-chief of army and navy, 45-46; his mode of requisition for militia, 46 ; mode of election, 65-72; term, 65, 72-73, 78-79: duties, 73-78, 81, 83-S4; re- election, 79 , vacancy, etc., 79-81 ; not subject to judicial interference, 79 ; impeachment, 81-82; power of creat- ing vacancies, 82; his implied powers, 83-84 ; power of appointment, 83, 89, 90, 92, 93, 94, 126, 151 ; can require opinion of Attorney-General, 90; his order not a process of law, 119 ; in- fluence of Washington in limiting term, 147-148; reeligibility, 152; change in mode of election, 160, 167, 169-170 ; amnesty power taken from, 203 ; power over army curtailed, 203. President's official household, 73. Presidents : Washington, 147-157 ; Adams, 157-159 ; Jefferson, 159-161 ; Madison, 161-163 ; Monroe, 163-166; INDEX. 319 J. Q. AdamP, 166-168 ; Jackson, IBS- ITS; Van Buren, 175-176; Harrison, 177 ; Tyler, 177-179 ; Polk, 179-181 Taylor, 182 ; Fillmore, 183-186 Pierce, 186-190 : Buchanan, 190-19a Lincoln, 196-200 ; Johnson, 200-205 Grant, 205-216; Haves, 216-220 Garfield, 217 ; Arthur, 220. Press. Bee Freedom of the press. Prisoners' rights to witnesses and counsel secured by Const, amend., 21. Private bills. See Local bills ; Special legislation. Private property, protected by Const, amend., 20, 119-120; power of State to appropriate, 55 ; exemption from seizure without compensation, 251. Prizes, rules of, under Arts, of Confed., 10 ; power of Congress to regulate, 45 ; jurisdiction of Sup, Ct. over, 127. Procedure, forms of, 132. Proclamation, forged, of Lincoln, 139- 140. See also Emancipation. Prohibition, power of Sup. Ct. to issue WTit of, 126. Property qualification for citizenship, 254; rights of women, 263. See also Private. Proprietary government in the colo- nies, 3. Protective duties, their constitution- ality, 37-39, 120; their consideration in 1st Congress, 149-150; first sec- tional dispute on, 166; advocated by Whigs, 175: division of parties on, in 1848, 181; their adoption, 196; advo- cated in Eepub. platform of 1880, 217-218: Civil War a pretext for their adoption, 235-236; falsity of plea for their necessity, 238. See also Com- merce; Free trade; Tariff. Provincial government in colonies, 3. Provisional govts, of Southern States, 201-202. Public aid to religious institutions, 261-262. Public documents, 94, Public improvements, frequent change oflawsinN. Y.,273. Public lands, 114-116, 152 ; ownership after formation of Union, 9-10; power of Congress over, 46-47, 60-61 ; pur- chasing, 90; grants to corporations, 11 5, 246-247. See also Land Oflice. Public works, Superintendents of, 253. Publications, immoral, in the mails, 138-139. Punishments, cruel, prohibited by Const, amend., 21, 122, 142. Qualifications for Congressmen and their electors, 28: for Senators, 33- 34; Congress to judge, 36: for presl. electors, 65 ; for Prest., 67-68 ; for citizenship in States, 254. Quartering soldiers in private houses, 19-20, 141. Quorum of Confess, 36; necessary to elect Prest. or v ice-Prest., 67. Race discriminations prohibited by Const, amend., 22. Railways, power of Congress over, 40- 4:i: power of States over, 53-54; grants of land to, 115, 246: inability of States to deal with, 224, 225-226 ; influence upon State legislation, 257- 260; municipal and county debts in aid of, 260-261 ; checks upon their increasingpower, 263-264. Randolpli, E., opposes incorporation of Bank of U. S., 155. Ratification of Articles of Confed., 19; of Const., 114. Ratio assessments, attempts to limit, 272-273. Rebels. See Confederates; Southern States. Receipts of U. S. to be published quar- terly, 88-89. Reconstruction of Southern States, 200-202; 205-207. Reelection of Prest., 79. Register of American ships, 287. Religion, Const, amend, regarding, 19; Congress cannot establish, 117; free- dom of, 135-136. Religious institutions, public aid to, 261-262. Religious test for offices prohibited, 63, Eemonetization of silver, 217, 242-249. Removal of Prest. and Vice-Prest., 79-81. Removals from office, powers of Prest. in, 151 : by Jackson, 168-169. See also Tenure-of-office. Representation in U. S., faults of sj'S- tem, viii, 233-235; colonial struggle for, 4-6; by majorities secured by Const, amend., 22-23. See also Mi- nority. Representatives. See Congressmen. Reprieve. See Pardoning. Reprisal, power of Congress to ^rant letters of, 45; States prohibited from, 52. Republican form of govt, guaranteed to each State, 19, 59, 60. Republican-Democratic party, 162. Republican party (Old), 155-156, 157- 158, 159, 160, 172. See also National Republican. Republican party (New), its formation, 188; platform in 1860, 193; John- son's conflict with, 202, 203 ; its sue- 320 INDEX. cess ill 1868, 205; division in Grant's adm., 207-208 ; nominates Hayes as Prest., 211 : contest of 1876,214-216 ; elects Garfield Prest., 217 ; platform in 1 880, 217-218 ; attacks free trade plank of Democrats, 218-219; its worK, 220 ; its advocacy of civil service reform, 229. iSee ateo Lib- eral Eepublican. Requisition, of criminals, 18, 58 ; for militia, 46. Eesignation of Prest. and Vice-Prest., 71, 79-81. Eesources. See TSTatural. Resumption of specie payments, 209- 211, 217. Retroactive laM'S in civil matters per- missible, 51. Returning boards, 208-209, 212, 213. Revenue of U. S., its excess over the needs of the country, v-vi ; laws to originate in Ho. of Rep., . 36-;3'7 ; Treas. Dept. in charge of its collec- tion, 86-87 ; that from sale of lands, 115 ; right of search in enforcing laws, 142 ; consideration in first Con- fjress, 149 ; nullification in So. Caro- ina, 171-172. See also Custom ; Free trade ; Import ; Internal; Protective; Tariff ; Taxation. Revolution, govt, during, 6-7. Rhode Island, form of "colonial govt., 3 ; withholds ratification to Const., 14. Rights reserved to the people, 15, 135- 144 ; protected in State consts., 251. Rights reserved to States, 15, 21, 116- 117, 143-144, 250. Rocky Mts., discovery of silver in, 241. Roll of Congressmen, made up by Clerk, 32. Rotation in office, 76-78. Rules for govt, of Congress,. 36. Salaries of Congressmen and Senators, 32 ; of judges, 44, 102 ; of Prest. and Vice-President, 73. Salaries of State officers cannot be taxed by Congress, 40 ; power of States over, 55. Bee alao Compensa- tion. Sale of public lands, 60-61. Scott, W., sent to So. Carolina to en- force revenue collection, 171 ; com- mands troops in Mexican War, 179. Seal of State Dept., 85. Seal of U. S., in custody of State Dept., 85. Seamen, Treas. Dept. to report to Conoress amounts received from and expended for, 87-88 ; their impress- ment iuto English navy, 161. Search warrants, 20, 118, 141-142. Secession of Southern States, 193-195. Secretaries. See Interior; Navy; State; Treasury; War. Sedition laws, 48-49, 141, 158-159. Seizure. See Search. Senate of U. S., 83-35 ; electoral votes to be counted in presence of, 66 ; when it elects Vice-Prest., 67 ; power of confirmation, 73-74, 76-78, 83, 89 ; power of trying impeachments, 82, 101 ; officers confirmed by, 83, 89, 90, 92, 93, 94 ; concm'rence in removals from office, 204 ; conflict with Ho. of Rep. in electoral contest of 1876, 213-214. See also State senate. Senators, their salaries, 82 ; their qualifications, 34-35 ; disqualified for other offices during term, 36 ; oath to support Const., 63-64 : can- not be presl. electors, 65. Seroeant-at-arms of House of Rep., 32. Seymour, H., nominated as Prest., 205. Sherman, W. T., 199. Shipping. See Navigation. Signers of Articles of Confederation, 285-287 ; of Const., 301-302. Silver question, 217, 241-244. Slander. See Libei. Slave trade, permitted until 1808, 49- 50 ; its consideration in 1st Congress, 150-151. Slavery, abolished by Const, amend., 22, 122-123 ; petitions for its aboli- tion, 158; beginning of struggle over, 164 ; excited feeling regarding, 167- 168, 178-179 ; in platfornis of 1848, 181-182 ; its extension to new terri- tories, 183-189 ; division of parties as to extension, 188 ; Dred Scott de- cision, 190-191 ; proposed settlement by Crittenden compromise, 194; its abolition in State consts., 252. See a^so Abolitionist; Fugitive. Slaves, escaped, to be delivered up by the States, 18-19; invalidity of claims for loss of, 123-124 ; emanci- pation, 197-198. iSee also Freedmen, Fugitive. Soldiers not to be quartered in private houses, 19-20, 141. Solicitor-General, 89 ; duties, 90. Solicitor, Naval, 90 : of Internal Reve- nue, 90 ; of the Treas., 90, 91. South America, proposed conference with republics of, 167. South Carolina, form of colonial govt., 3; adopts State const., 8 ; nullifica- tion, 25, 170, 171-172 ; opposition to protective duties, 168 ; secedes, 193-. 194 ; attacks Fort Sumter, 196 ; elec- toral vote in 1876, 212. Southern States, secession, 194 ; pro- IJS^DEX. 321 posed peace, 199 ; reconstruction, 800-202, 205-207. See also Confede- rate. Sovereignty. See State. Spain, purchase of land from, 115, 116. Speaker of House of Kepresentatives, 32 : as acting Prest., 79. Special legislation, 257-260, 264. See also Local bills. Specie, payments, resumption of, v, 5^09-211,217. Speech. See Freedom. Spirits, duty on, 150. Spoils system, 76-78, 169, 227-228, 230- 231. See also Appointing ; Civil ser- vice. Squatter sovereignty, 182-183. Stamp act, cause of Continental Con- gress, 5. Standard silver dollars, 242. Standing army, how controlled by Congress, 46 ; not required by U. S., 222. Stanton, E. H., attempt of Johnson to remove, 204-205. State banks, evils of system, 244. State conventions for amend, consti- tutions, 253. State courts, cases of concurrent juris- diction with U..S. courts, 109-110; in- dictments in, 118 ; appeals to Sup. Ct. from, 127-132 ; writs of injunc- tion from U. S. courts to, 132. State Dept., 80, 84-85. State engineers, 253. Stare executives, 252. State judges, 252 ; bound by U. S. laws, 61-62 ; their election, 254-256 ; minority representation in their election in Penna., 262. State legislatures, 252 ; power of colo- nial, 3 5 ; oaths of members, 63-64 ; minority representation in their elec- tion in 111., 262 ; biennial sessions, 264-266. State officers, power of States over salaries, 55 ; subject to mandatory proceedings of Sup. Ct., 110 ; pro- visions lor appointment in State consts., 251-252. State prison inspectors, 253. State rights doctrine, 158, 173-175, 215. State senates. 252. State sovereignty, 7, 15, 24-26. State surveyors, 253. States, powers of, under Arts, of Con- fed., 10; their reserved rights, 15,21, 118-117, 143-144, 250; their inde- structibility, 15-16: equal suffrage in the Senate, 17-18, 24, 33; admission of, 17, 19; to give credit to acts of one another, 18, 57-59; cannot be divided without their own consent, 14* 19 ; suits against, by citizens, 21, 103, 110 ; apportionment of Congress- men, 81 ; cannot levy same taxes as natl. govt., 39; cannot be taxed by Congress, 39^0 ; power of Congi-esg to organize govts, after Civil War, 48; privileges prohibited, 52-57, 62- 63; their right of eminent domain, 55; cannot limit power of natl. govt, over public lands, CO-61; their laws subordinate to those of U. S., 61-63; prevention of jealousy in choosing Prest., 69; power of Prest. to recog- nize their govts., 83; parties to ac- tions, 103, 105, 109, 126, 131-132; con- stitutionality of their actions judged by Sup. Ct., 104-106; cannot modify jurisdiction of U. S. courts, 108-109; suffrage in, 113, 124; their control over citizens, 114; lands given to, for educ. purposes, 115; can pass seizure laws, 118 ; cannot modify power of natl. govt., 120; their penal code cannot be modified by U. S., 122: Sup. Ct. to determine constitu- tionality of their acts, 127-132; their laws and procedure binding on U. S. courts, 132; rights to militia, 140-141; their jealousy, 147; debts on adoption of Const., 154; their as- sumption by natl. go-\i;., 155; need of a party to assert their rights, 156; their increase in number. 163; weak- ening of their power, 223-225, 226. See also Constitutions. Statistics, Bureau of, 88. Stephens, A. H., elected Vice-Prest. of Confederate govt., 185. Story, J., quoted, 12, 136, 137. Streets, laying out and paving, 269. Strict construction of Const., 174, 215- 216. See also Limited. Suffrage, 124; right of States to limit, 113; its extension to freedmen, 200- 203, 205; secured by State rousts., 251 ; need for its limitation in cities, 270. See also Ballot. Sumner, C, assault upon him by Brooks, 189. Sumter, Fort, surrender of, 196. Supreme Court, 102-106: decisions, 16, 38, 39-40, 41^2, 43, 48, 50, 51, 52-55, 56-57, 60, 63, 109, 111-112, 140, 190, 198, 224; influence of parties on, 145 -146; interpreter of the Const., 26, 62; coerced by Congress, 35: judges appointed by Prest., 74: no authority over Prest., 81; how it has inter- preted Const, 125; its jurisdiction, 125-133; in control of Southern States. 192. Surveyors. See State. Susquehanna, as a site for the capital, 153. 322 IlS'DEX. Tallmadge, J., proviso on admission of Missouri, 164. Tariff, its evils not caused by Civil War, v-vi; under Articles of Con- fed.. 10; ittJ consideration in Con- gress, 149-150, 166, 168: modified to avoid trouble with So. Carolina, 171- 172; the question in Polk's adm., 180; its future treatment, 235-239. Bee also Free trade; Protective; Revenue. Taxation, without representation in colonies, 4-5; Continental Congress without power of, 11; power of Congress over, 37-40; proportion- al to population if direct, 51; State can waive power of, 53 ; power of States over, 117; cannot be exercised to aid private enter- prises, 120; at present on a war footing, 235; made uniform by State constitutions, 253; exemptions from, 261-262. See a^so Assessments; Cus- tom duties; Import; Internal; Rev- enue. Taxes, colonial levy and appropria- tion of in Virginia, 2. Taxing power of U. S., development of, 226-227. Taylor, Z., commands troops sent into Texas, 179; adm. of, 182. Tea, duty on, 150, 238. Telegraphs, power of Congress over, 40-42; inability of States to deal with, 224. Tennessee, hesitates about secession, 194; secedes, 197. Tenure-of -office act, 82, 204. Terms of Congressmen, 28; of Sena- tors, 33: of Judges, 44, 102; of Prest. and Vice-Prest., 65, 72-73, 78-79; in- fluence of Washington in limiting, 147-148; of State legislators, 252; of State governors, 252. Territorfes, have no reserved rights, 16-17: power of Congress over, 60; slavery question in, 182-183, 193. Texas, acquisition of, 115: transferred to Spain, 164-165: its annexation, 178, 180: amount paid for surrender of its claims to New Mexico, 184; se- cedes, 194. Texas vs. White cited, 16. Text of Articles of Confederation, 275-287: of Const., 288-308. Third terms, 79. Thomas, G. H,, appointed Sec. of War, 205. Tilden, S. J., dispute as to presidency, 71-72, 211-216. Times of Congressional elections, 31 ; of electing Senators, 33 ; of meeting of Congress, 36; of electing Prest. and Vice-Prest. , 65, 70-71. Titles of nobility cannot be granted by the U. S. or by States, 52; office- holders cannot receive them from foreign govts., 52. Tonnage ciuty, 56, 150. Topeka Constitution, 189. Trade-dollar, 242. Trade-marks, power of Congress over, 43-44. Transportation questions, inability of States to deal with, 224-225. Treason, punishable by Congress, 47; impeachment for, 75; defined, 112. See also Attainder. Treasury Dept., 51, 84; its duties, 85- 89, 93: deposit system adopted, 176. See also Solicitor. Treasury, Sec. of, desirability of his having a seat in Congress, 248. Treaties, the supreme law of the land, 61-62: postal, 92; jurisdiction of Sup. Ct. in cases under, 102, 106, 127-128. Treaty-power, of Continental Con- gress, 10; Cont. Congress could not enforce, 13; share of Senate in, 34- 35; of Congress, 40; prohibited to States, 52; of Prest., 73. Trials. See Jury ; Mis-trials. Tyler, J., adm. of, 177-179. Union between the States indissoluble, 17, 24-26, 63. United States, adoption of name, 10. See also National government. United States Bank. See Bank; Fiscal. Upper California, cession to U. S., 180. Utah, its formation as a territory, 184; mining regions of, 217. Vacancies in office of Congressmen, 31 ; in office of Senators, 33, 34: in office of Prest. and Vice-Prest., 71; to be filled by Prest., 74; power of Prest. to create, 82. Van Buren, M., elected Vice-Prest., 168; nominated as Prest. by Dem- ocrats, 172; adm. of, 175-176; nomi- nated as Prest. by Free Soil party, 181-182. Vessels, clearance of, 51. Veto power of Prest., 75. Vetoes of Johnson, overriding, 202, 203. Vice-President, as President of the Senate, 34: term, 65, 72-73; mode of election, 65-72; as acting Prest., 7'9- 81; change in mode of election, 160. Vice-Presidents: Adams, 151; Jeifer- son, 157; Burr, 159; Clinton, 161; Calhoun, 167, 168; Van Buren, 168; IIS'DEX. 323 Tyler. 177: Dalla?, irP: Fillmore, 182; King, 186: Breckenridsje, 190; Johnsou, 205; Colfax, 205; WOson, 208; Wheeler, 216: Arthur. 220. Virginia, colonial lexj and appropria- tion of taxes', 2: form of colonial govt., 3: adopts State const., 8: res- olutions of 1829, 25; nullification in. 49; calls Peace Congress in 1861, 195; secedes, 196-197. Volunteer army, its peaceable dis- bandment, v. Voting. See Ballot; Stiffrage. WarDept.,84. 88, 90.93. War of 1812, 162-163; War-powers, 139-140: of Continental Congress, 10: of natl. govt., 43; share of Senate in, 35, 45: of States, 56; over private property, 119. Warrants on U. S. Treasury to be signed by Sec. of Treas., 86. See also Search. Washington, G., on Continental Con- gress, 12; opposed to third term, 79; adm. of, 147-157. Water supplvin cities, 269. Webster, D.,'l63, 178. Weights and measures, poAver of Con' gress to fix standard of, 43. West Virginia, admission as a State, 198-199. Wheeler, W. A., elected Vice-Prest., 214, 216. Whig part}^, its first appearance, 173; cause of its formation, 174-175; gains strength, 176; succeeds in 1640, 176; ail's in 1844, 177: platfoim in 1848, 181; in 1852, 185-186. Wilmot pro\iso, 180. Wilson, H., elected Vice-Prest., 208. Witnesses in criminal trials, 21, 120. Woman's suffrage, 60, 114, 263. Written constitutions vs. imwritten, 1-2. Writs. See Habeas corpfjs; Injunction; Mandamus: Ne e^eat; Prohibition. Wyoming, mining regions of, 217.